Revised January 12, 2001
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-11142
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMES SLAUGHTER, also known as James Bernard Salone,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
December 8, 2000
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:
This Court initially addressed the issues raised on this
appeal with a per curiam unpublished opinion filed under date of
August 10, 2000, which affirmed the decision of the district court
on all issues raised by appellant. A copy of this original
unpublished opinion is attached to this opinion as Attachment A.
Appellant timely filed a suggestion for reconsideration en banc
which was denied. Appellant also filed a petition for panel
rehearing on the grounds that the recent decision of the United
States Supreme Court in Apprendi v. New Jersey, ___ U.S. ___, 120
S. Ct. 2348 (2000), overruled the two Fifth Circuit decisions on
which this Court relied in rejecting Slaughter’s issue no. VI. As
set forth in appellant’s original brief, issue no. VI read as
follows:
VI. Whether Slaughter’s convictions must be
reversed because the jury was not required to
find the quantity of drugs as an element of
each of the charged offenses; or,
alternatively, if quantity is only an element
of the aggravated offenses described in 21
U.S.C. § 841(b)(1)(A)&(B), whether Slaughter’s
sentence must be vacated, and this case
remanded for resentencing?
By Order entered October 13, 2000, we granted appellant’s motion
for rehearing and withdrew the original per curiam opinion. Having
now considered the supplemental briefs filed by the parties, we
take the following action:
1. We reinstate the entirety of the original opinion as set
forth in Attachment A except for the final paragraph, which is
deleted.
2. In the balance of this opinion, we address the issues
presented by appellant in his supplemental brief as to impact of
the Supreme Court decision in Apprendi on the convictions and
sentences rendered against appellant for violations of 21 U.S.C.
§§ 841(a) and (b), 846, and 860(a).
2
Appellant’s first contention is that Apprendi has "worked a
sea change in the law" which renders the statutes under which
Slaughter was convicted "unconstitutional on their face." We
disagree. The statutory provisions at issue in Apprendi were
statutes of the State of New Jersey and nothing in the majority
opinion nor even in the concurring and dissenting opinions in
Apprendi makes reference in any way to the statutory provisions of
the United States Code under which appellant has been convicted and
sentenced. We see nothing in the Supreme Court decision in
Apprendi which would permit us to conclude that 21 U.S.C. §§ 841(a)
and (b), 846, and 860(a) are unconstitutional on their face.
Appellant’s second contention on panel rehearing is that his
convictions and sentences under counts 1, 4, and 13 in the
indictment in this case are unconstitutional under the rule of
Apprendi as applied to this case. We disagree. Since the Supreme
Court’s decision in Apprendi, our Court has issued three opinions
addressing the applicability of Apprendi on direct appeal to
convictions and sentences under the Controlled Substances Act. In
United States v. Meshack, 225 F.3d 556 (5th Cir. 2000), we
acknowledged that "Apprendi does not clearly resolve whether an
enhancement which increases a sentence within the statutory range
but which does not increase the sentence beyond that range must be
proved to the jury." Given the potentially "profound effect" which
such a broad rule would have on existing precedent, however, we
3
determined that a more "limited reading" of Apprendi should be
employed in that case. That more limited construction of Apprendi
provided that only those facts which would increase the penalty for
a crime beyond the prescribed statutory maximum sentence for the
crime charged and proven to the jury must be treated as essential
elements of the offense, and therefore, submitted to the jury and
proven beyond a reasonable doubt. Id. at 576 & nn.17,18. The
Court then reviewed the defendants' claims for plain error. Id. at
577-78. Given the government's concession that the Apprendi
principles applied to defendant Meshack's convictions and current
life sentences under the controlled Substances Act, we vacated
Meshack's two life sentences and remanded to the district court for
appropriate proceedings consistent with that opinion. Id. at 578.
In United States v. Doggett, 230 F.3d 160 (5th Cir. 2000), we
addressed the question left unanswered in Meshack as to "whether
drug quantities under § 841(b) are sentencing factors or elements
of the offense." Id. at 164. We held that § 841(b) "defines the
applicable penalties for violations of § 841(a) based on the type
and quantity of drug, previous convictions, and whether death or
serious bodily injury resulted from the use of the drug." Id.
Accordingly, we held that "if the government seeks enhanced
penalties based on the amount of drugs under 21 U.S.C.
§§ 841(b)(1)(A) or (B), the quantity must be stated in the
indictment and submitted to a jury for finding of proof beyond a
4
reasonable doubt." Id. at 164-65. The indictment in Doggett did
not charge a specified amount of drugs and the trial judge
determined by a preponderance of the evidence the quantity of
drugs attributable to each defendant. We nonetheless construed the
jury’s guilty verdict as authorizing a sentence pursuant to the
statutory range contained in § 841(b)(1)(C), which provides a
maximum penalty of 20 years. Since Doggett’s sentence of 235
months fell short of this statutory maximum, we held that it did
not violate the Apprendi rules determined by the Supreme Court.
Doggett's co-defendant Beman, however, received two concurrent life
sentences, a sentence in excess of the statutory maximum penalty
under § 841(b) (1)(C). Accordingly, we held that Beman, but not
Doggett, was entitled to relief under Apprendi, and remanded
Beman's case for resentencing in light of that case.
Finally, in United States v. Keith, No. 99-50692, ___ F.3d
___, 2000 WL 1532802 (5th Cir. Oct. 17, 2000), we read Apprendi in
the light of Meshack and Doggett and held that a fact used in
sentencing that does not increase the penalty beyond the statutory
maximum for the crime charged and proven need not be alleged in the
indictment and proved to a jury beyond a reasonable doubt. In this
case, no specific drug quantity was alleged in the indictment and
the district court determined the quantity of drugs involved.
Keith received a sentence of 20 years, which was affixed by the
district court as the mandatory minimum sentence under
5
§ 841(b)(1)(A) for the quantity of drugs involved together with a
prior felony drug conviction. Nevertheless, we held that the 20-
year sentence was less than the statutory maximum sentence of 30
years under 841(b)(1)(C) with a prior felony drug conviction and
therefore did not violate any of the Apprendi rules.
Applying these precedents to the facts here in Slaughter’s
case, we note first of all that each of counts 1, 4, 13, and 17 on
which Slaughter was convicted contain an express allegation of the
type and quantity of controlled substance involved. In addition,
each count of the indictment contains the particular schedule in
which that particular substance appears in 21 U.S.C. § 812, as well
as a reference to both § 841(a) and the particular subparagraph of
841 (b)(1) in which the punishment for the quantity involved is
stated. There is, therefore, no question whatsoever that the type
and quantity of drug substance involved has been sufficiently
stated in the particular counts of the indictment.
In submitting count 1 (the conspiracy count) to the jury, the
district court stated that the government had to prove beyond a
reasonable doubt that the defendants "reached an agreement to
conspire to distribute and possess with intent to distribute 50
grams or more of a mixture and substance containing a detectable
amount of cocaine base (crack cocaine), a schedule 2 controlled
substance." The jury’s finding of guilty on this count necessarily
includes a finding as to the quantity and type of controlled
6
substance involved in the conspiracy agreement. In submitting
counts 4, 13, and 17 to the jury, the district judge did not state
the specific quantity of cocaine base as stated in each count.
This was error. Under our holdings in Meshack, Doggett, and Keith,
it is clear that the drug quantity as alleged in each count of the
indictment in this case is an element of the offense and should be
expressly stated by the district court in its instructions to the
jury as an element which must be found beyond a reasonable doubt.
Slaughter did not make any objections to the trial court as to the
absence of drug quantity in the jury instructions; and therefore we
may not grant relief unless the error rises to the level of plain
error. See Neder v. United States, 119 S. Ct. 1827, 1833-34
(1999). Moreover, even assuming such error were otherwise plain,
the Supreme court has expressly held that a jury instruction that
omits an element of the offense is subject to harmless error
analysis. Id. at 1835-37. In such a case, the standard for
measuring harmlessness is "whether the record contains evidence
that could rationally lead to a contrary finding with respect to
the omitted element." Id. at 1839. A review of the record in this
case satisfies us that the jury had the counts of indictments in
the jury room during deliberations and that there was no evidence
that could rationally lead the jury to a conclusion that the
quantity of drugs stated in the indictment was incorrect.
For the foregoing reasons, we see no merit to Slaughter’s
7
contentions raised on panel rehearing; and as amended by this new
opinion, we reaffirm the convictions and sentences against
Slaughter as set by the district court.
8
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-11142
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES SLAUGHTER, also known as James Bernard Salone,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:99-CR-10-1-C
--------------------
9
No. 99-11142
-10-
August 10, 2000
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
James Slaughter appeals his jury convictions and the sentences
imposed for conspiracy to distribute and possess with intent to
distribute cocaine base in violation of 21 U.S.C. § 842;
distribution and possession of cocaine base within 1,000 feet of a
playground in violation of 21 U.S.C. §§ 841(a)(1) and 860(a) and 18
U.S.C. § 2; and two counts of distribution of cocaine base in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), (b)(1)(C), and 18
U.S.C. § 2. Slaughter argues that the court reporter’s failure to
transcribe the jury instructions violates the Court Reporter Act,
28 U.S.C. § 753(b), and requires reversal of Slaughter’s
convictions. The written jury instructions are included in the
appellate records. Circuit Judge Carl E. Stewart granted the
Government’s motion to supplement the record with affidavits of the
trial attorneys and the court reporter, stating that the trial
court read the jury instructions as written without any deviations.
Because the written instructions are part of the record and because
the above affidavits establish that the trial court read the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
10
No. 99-11142
-11-
instructions as written without any deviation, the court reporter’s
failure to transcribe the jury instructions does not require the
reversal of Slaughter’s convictions. See United States v. Pace, 10
F.3d 1106, 1125 (5th Cir. 1993).
Slaughter argues that the trial court erred in failing to
instruct the jury on the theory of multiple conspiracies. Because
Slaughter did not object to the district court’s failure to
instruction the jury on this theory, review is limited to plain
error. United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.
1994) (en banc). Under Fed. R. Crim. P. 52(b), this court may
correct forfeited errors only when the appellant shows the
following factors: (1) there is an error, (2) that is clear or
obvious, and (3) that affects his substantial rights. Calverley,
37 F.3d at 162-64 (citing United States v. Olano, 507 U.S. 725,
730-36 (1993)). If these factors are established, the decision to
correct the forfeited error is within the sound discretion of the
court, and the court will not exercise that discretion unless the
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Olano, 507 U.S. at 736.
Slaughter does not argue that the evidence at trial showed that he
was involved only in a separate uncharged conspiracy and not in the
overall conspiracy charged in count one of the indictment; he does
not dispute that the evidence presented at trial established his
participation in the overall conspiracy in count one. Under such
11
No. 99-11142
-12-
circumstances, the district court’s failure to five a jury
instruction concerning multiple conspiracies was not plain error.
See United States v. Castaneda-Cantu, 20 F.3d 1325, 1333 (5th Cir.
1994).
Slaughter argues that the district court erred in failing to
instruct the jury that it was legally impossible for a defendant to
conspire with a government agent or informant. Because Slaughter
did not raise this argument in the district court, review is
limited to plain error. See Calverley, 37 F.3d at 162-64.
Slaughter’s reliance on Sears v. United States, 343 F.2d 139, 142
(5th Cir. 1962) is misplaced. In Sears, the court held that there
could be no indictable conspiracy when the only other supposed
coconspirator was a government informant. Id. at 142. This case
is distinguishable because the Government indicted and presented
evidence at trial to establish a conspiracy existed which included
Slaughter and five others who were not government agents or
informants. Slaughter does not argue that the evidence was
insufficient to establish the existence of the conspiracy charged
in count one of the indictment.
Slaughter argues that the district court erred in enhancing
his offense level by four points for his role as a leader/organizer
pursuant to § 3B1.1(a) of the United States Sentencing Guidelines.
Although Slaughter testified at the sentencing hearing, he did not
present any evidence to rebut the facts set forth in the
12
No. 99-11142
-13-
Presentence Report which indicated that he was a leader/organizer
of the conspiracy. The evidence established that at least twelve
people sold cocaine case for Slaughter; that Slaughter recruited
people to transport drugs, sell drugs, “cook” and cut up cocaine
base, store cocaine base, count money, and carry out other tasks in
furtherance of the conspiracy; that Slaughter used force and
threats to keep the sellers in line; and that Slaughter derived
substantial income which exceeded the share of the street dealers
that he recruited. Slaughter has not shown that the district court
clearly erred in finding that he was a leader/organizer of the
conspiracy and in increasing his offense level under § 3B1.1(a).
See United States v. Boutte, 13 F.3d 855, 860 (5th Cir. 1994).
Slaughter argues that the district court erred in enhancing
his offense level by two points for obstruction of justice pursuant
to § 3C1.1 of the Guidelines. He argues that the district court
violated his due process rights and confrontation rights by
considering the testimony of Drug Enforcement Administration Agent
Brad Baker concerning hearsay statements at the sentencing hearing.
For sentencing purposes, the district court may consider any
relevant evidence, including uncorroborated hearsay statements, if
the information has a “sufficient indicia of reliability to support
its probable accuracy.” See United States v. Davis, 76 F.3d 82, 84
(5th Cir. 1996); United States v. Gaytan, 74 F.3d 545, 558 (5th
Cir. 1996). Slaughter did not present any evidence, other than his
13
No. 99-11142
-14-
denial at the sentencing hearing, to rebut Agent Baker’s testimony
that Slaughter obstructed justice by threatening a codefendant and
urging others to lie or leave town. Slaughter also did not show
that Agent Baker’s testimony concerning the hearsay statements was
materially untrue or unreliable. Therefore, he has not shown that
the district court clearly erred in finding that he obstructed
justice and in increasing his offense level under § 3C1.1.
Slaughter argues that the district court erred in enhancing
his offense level by two points under § 2D1.1(a)(1) of the
Guidelines because one offense occurred near a protected area.
Because Slaughter did not raise this argument in the district
court, review is limited to plain error. See Calverley, 37 F.3d at
162-64. Slaughter concedes that a two-level reduction in his
offense level would not affect the applicable sentencing guideline
range. If his offense level were reduced from 46 to 44, his
offense level would still be treated as the maximum offense level
of 43 pursuant to U.S.S.G. Ch.5, Pt. A, comment. (n.2). Because
Slaughter concedes that the correction of this alleged error would
not change the applicable guideline sentencing range, we decline to
address the merits of this claim. See United States v. Lopez, 923
F.3d 47, 51 (5th Cir. 1991).
Slaughter argues that his conviction should be reversed
because the jury was not required to find the quantity of drugs as
an element of each of the charged offenses. Slaughter’s argument
14
No. 99-11142
-15-
is foreclosed by this court’s precedent. See United States v.
Rios-Quintero, 204 F.3d 214, 215 (5th Cir. 2000); United States v.
Watch, 7 F.3d 422, 426 (5th Cir. 1993).
AFFIRMED.
15