UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-60241
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RODNEY THOMAS; HINES WEEKLY, III also known as BOREY; BERTHA T
WEEKLY
CLASTINE PITTMAN, also known as COOTER,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Mississippi
March 26, 2001
Before KING, Chief Judge, HIGGINBOTHAM and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
This is an appeal by four participants in a crack cocaine
distribution conspiracy concerning errors putatively made in their
federal jury trial and in the sentencings that followed it. For the
following reasons, we affirm the convictions and sentences with
respect to all defendants except Bertha Weekly. We vacate her
sentence and remand for resentencing.
BACKGROUND
One evening in 1997, some Clarksdale, Mississippi, police
officers executed a search warrant at the home of defendant Bertha
Weekly (“Bertha”). The officers uncovered there evidence
implicating Bertha, defendant Clastine Pittman (“Clastine”),
defendant Hines Weekly III (“Borey”), and Defendant Rodney Thomas
(“Rodney”) in a conspiracy to distribute crack cocaine. Based in
part on that evidence, a federal jury convicted the four of
conspiring to distribute and possess with intent to distribute
crack cocaine, and also convicted Bertha of aiding and abetting
Borey in possessing with intent to distribute more than five grams
of crack cocaine and convicted Clastine of possessing with intent
to distribute more than 50 grams of crack cocaine.
Bertha argues here that prosecutorial misconduct,1 the
district court’s improper admission of evidence, and an Apprendi
error require reversal of her conviction or mitigation of her
sentence. Borey argues that an impermissibly suggestive in-court
identification produced his conviction, which, he contends, we
should reverse accordingly. Clastine and Rodney argue that
insufficient evidence supports their convictions and Clastine’s
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While the misconduct of which Bertha complains does not merit
extended treatment here – since, considered in the context of the
trial in which it occurred, the misconduct does not require
reversal of her convictions – it was real and inexcusable
nonetheless. Although we commend the offending prosecutor for
appearing before us personally and acknowledging and apologizing
for two particular instances of his misconduct (his declaring
before the jury that a particular defense witness was not telling
the truth and his forcing Bertha to call a number of prosecution
witnesses liars), we expect that similar apologies need not issue
in the future.
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sentence.
DISCUSSION
Of the arguments described above, Bertha’s Apprendi argument
is the only one with merit. We have carefully considered the
defendants’ other arguments. After reviewing the record, we are
convinced that sufficient evidence supported the defendants’
convictions and sentences. The evidence producing those
convictions and sentences, moreover, was properly admitted.
As the government admits on appeal, the district court made an
Apprendi error with respect to Bertha. After the trial and
Bertha’s sentencing, the Supreme Court decided Apprendi v. New
Jersey, 530 U.S. 466 (2000). Apprendi held that the Constitution
requires that any fact that increases the penalty for a crime
beyond the prescribed statutory maximum be submitted to the jury
and proved beyond a reasonable doubt. Id. The statutory maximum
sentence for Bertha in this case was twenty years. See 21 U.S.C.
§ 841 (b)(1)(C). The District Court sentenced Bertha to life in
prison based on the amount of crack cocaine the judge found, by a
preponderance of the evidence, she possessed with intent to
distribute. Because the amount of crack Bertha possessed with
intent to distribute was a fact that increased the penalty for her
crime beyond the prescribed statutory maximum, her sentence is
unconstitutional under Apprendi. See United States v. Aguayo-
Delgado, No. 99-4098, 2000 WL 988128, at *7 (8th Cir. July 18,
2000) (under Apprendi, drug quantity is an element of the offense
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that must be proved beyond a reasonable doubt).
We, therefore, vacate her sentence and remand for
resentencing, with any prison term not to exceed twenty years.
CONCLUSION
We affirm the district court in all respects save one: we
vacate Bertha’s sentence and remand for resentencing in accordance
with Apprendi.
AFFIRMED in part, VACATED and REMANDED in part.
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