UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-20360
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRAVIS RANDLE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas, Houston Division
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August 26, 2002
ON PETITION FOR REHEARING AND REHEARING EN BANC
Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit
Judges.
EDITH H. JONES, Circuit Judge:
In July 2001, we vacated the appellant’s sentence in
light of Apprendi v. New Jersey, 530 U.S. 446, 120 S.Ct. 2348
(2000). See United States v. Randle, 259 F.3d 319 (5th Cir. 2001)
(on remand from the Supreme Court). The United States filed a
petition for rehearing and called into question this circuit’s
application of the plain-error standard of review in federal drug
cases where drug quantity had not been alleged in the indictment.
We held the mandate in this case while the United States Supreme
Court and the Fifth Circuit sitting en banc resolved similar
Apprendi issues in United States v. Cotton, 122 S.Ct. 803 (2002)
(granting petition for a writ of certiorari); United States v.
Longoria, 262 F.3d 455 (5th Cir. 2001)(granting petition for
rehearing en banc). Cotton and Longoria have been decided, and
both parties have submitted supplemental briefs.
The petition for panel rehearing is GRANTED.
IT IS ORDERED that the original panel opinion on the
sentencing issues, 259 F.3d 319, be WITHDRAWN and that the
following be substituted:
Appellant Travis Randle was convicted of two drug-related
offenses in connection with a crack cocaine trafficking ring. The
district court calculated the relevant drug quantity and sentenced
Randle to 304 months’ imprisonment. Then came Apprendi v. New
Jersey, 530 U.S. 446, 120 S.Ct. 2348 (2000). The sole issue before
the court is whether Randle must be resentenced given that (1) the
indictment failed to allege drug quantity, and (2) Randle’s
sentence exceeds the 240-month “core” maximum under 21 U.S.C. §
841(b)(1)(C). Having reconsidered this case in light of the
Supreme Court’s recent decision in United States v. Cotton, 122
S.Ct. 1781 (2002), we AFFIRM the sentence under the plain error
standard of review.
I. BACKGROUND
A grand jury indicted Travis Randle for involvement in a
long-running drug conspiracy and for aiding and abetting drug
distribution. The indictment did not allege any drug quantities
involved in the charged crimes. At a November 1996 trial, the
district judge did not instruct the jury to determine the quantity
of crack cocaine that Randle was responsible for, and Randle made
no request for submission of sentence-related issues to the jury.
The jury convicted Randle of both counts.
During sentencing proceedings, Randle’s attorney objected
to the presentence report’s attribution of 390 kilograms of crack
to Randle. The attorney noted that the government had actually
introduced only 699 grams of crack against Randle and his co-
defendants, and he suggested that Randle was responsible for only
part of this figure. Randle’s attorney did not, however, suggest
that the calculation of drug quantity should have been determined
by a jury and beyond a reasonable doubt.
The district court rejected the PSR’s recommendation as
well as Randle’s objections and concluded that Randle was
responsible for 10 kilograms of crack. It reached this figure by
calculating drug quantities that Randle had reportedly given to a
witness on specific occasions and at regular intervals over four
months. The district court also cited the testimony of two other
witnesses. One witness testified that he sold Randle five to seven
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kilograms of crack, while the other witness’s testimony suggested
that Randle was responsible for as much as 390 kilograms of crack.
Finally, the court noted the testimony of supporting witnesses
indicating that Randle was a major supplier of crack for the
Richmond, Texas area. Based on § 2D1.1(c)(1) of the sentencing
guidelines, the court assigned Randle a base offense level of 38.
The district court then considered a two-level
enhancement under § 2D1.1(b)(1) of the sentencing guidelines for
possession of a dangerous weapon. The proposed basis for this
enhancement was testimony that a co-conspirator had used Randle’s
car, which contained a loaded shotgun, to transport drugs on one
occasion. The court noted that little direct evidence linked the
shotgun to Randle’s drug crimes. The court found that the shotgun
was sufficiently tied to the crimes to justify the enhancement, but
acknowledged that its decision on this point was “difficult” and a
“close question.”
Based on these findings of fact, the district judge
sentenced Randle to 25 years, 4 months in prison. This sentence
exceeded the 240-month statutory maximum for Randle’s convictions
without proof of a minimum drug quantity. See 21 U.S.C. §
841(b)(1)(C).
On appeal to this court, Randle did not raise the
government’s failure to indict and prove to the jury the facts
necessary to support the drug quantity and firearms enhancements.
This court affirmed Randle’s conviction and sentence, issuing an
3
opinion the same day that the Supreme Court decided Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). See United States v.
Brown et al., 217 F.3d 247 (5th Cir. 2000). Randle’s attorney then
raised Apprendi issues in a petition for a writ of certiorari. In
a one-sentence order, the Supreme Court remanded this case for
further consideration in light of Apprendi’s holding that, “other
than a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to
a jury and proved beyond a reasonable doubt.” 530 U.S. at 490, 120
S.Ct. at 2362-63. See Randle v. United States, 531 U.S. 1136, 121
S.Ct. 1072 (2001).
This panel then ordered that Randle be resentenced. We
followed this circuit’s prior decisions holding that, even under
plain error review, resentencing was required where the government
had failed to allege drug quantity in the indictment or submit the
issue to the jury.1 See, e.g., United States v. McWaine, 243 F.3d
871, 874-75 (5th Cir. 2001); United States v. Meshack, 225 F.3d
556, 577-78 (5th Cir. 2000). The Government filed a petition for
rehearing and rehearing en banc to reconsider this court’s
application of plain error analysis in cases where the indictment
had not alleged drug quantity. We held the mandate in this case
1
“Notwithstanding our belief that no reasonable jury could have found
Randle responsible for less than 1.5 kilos of crack, the fact is, they did not
so find and were not even inferentially asked to make any such finding.
Confronted with similar patterns following Apprendi, this court has, in the cases
cited above, reversed the sentences and remanded for resentencing. Consistency,
fairness, and protecting the reputation of the proceedings demands that we do
likewise here.” Randle, 259 F.3d at 322.
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while the United States Supreme Court and the Fifth Circuit sitting
en banc resolved similar issues in pending cases. Our panel
opinion on remand from the Supreme Court now must be reconsidered
in light of United States v. Cotton, 122 S.Ct. 1781 (2002), and
United States v. Longoria, 2002 WL 1491784, (5th Cir. (Tex.), July
12, 2002).
II. DISCUSSION
A. Drug Quantity
Drug trafficking crimes defined in 21 U.S.C. § 841 are
governed by Apprendi analysis on the theory that the dramatically
tiered sentences for increasing quantities of illegal drugs enhance
the “core” statutory maximum of § 841(b)(1)(C). United States v.
Doggett, 230 F.3d 160, 163 (5th Cir. 2000). Consequently, drug
quantity is considered an Apprendi fact and must be alleged in the
indictment and proved to the jury beyond a reasonable doubt if, as
here, the government seeks enhanced penalties under § 841(b)(1)(A)
or (b)(1)(B). Id. at 164-65.
The Supreme Court held in Cotton that the Government’s
failure to allege an essential element (e.g., drug quantity) in a
federal indictment, if not objected to in the trial court, requires
reversal only if the defective indictment caused plain error:
[B]efore an appellate court can correct an error not
raised at trial, there must be (1) “error,” (2) that is
“plain,” and (3) that “affect[s] substantial rights.” If
all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but
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only if (4) the error seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.
United States v. Cotton, 122 S.Ct. 1781, 1785 (2002) (quotations
and citations omitted). Cotton makes clear that we must assess the
evidence of drug quantity presented at trial to determine whether
the indictment’s failure to include drug quantity seriously
affected the integrity, fairness, or public reputation of the
proceedings. See id. at 1786-87.2 The plain-error logic of Cotton
also extends to cases, like this, where the Apprendi errors reside
in both the absence of an allegation of drug quantity in the
indictment and absence of a specific jury finding of drug quantity.
See also United States v. Johnson, 520 U.S. 461, 466-67, 117 S.Ct.
1544 (1977) (failure to instruct jury on element of crime is
subject to plain-error analysis). If the evidence of drug quantity
is “overwhelming” and “essentially uncontroverted,” then the error
cannot be said to have met the fourth prong of the plain error
standard. Cotton, 122 S.Ct. at 1786.3
We turn now to the evidence presented at Randle’s trial.
Randle concedes that the error in the indictment is reviewed for
2
As we noted in our en banc decision in Longoria, Cotton essentially
overrules the approach outlined in McWaine and Meshack – the decisions we relied
upon in our prior opinion in this case. See United States v. Longoria, 2002 WL
1491784, *5 (5th Cir.(Tex.)).
3
“The real threat . . . to the ‘fairness, integrity, and public
reputation of judicial proceedings’ would be if respondents, despite the
overwhelming and uncontroverted evidence that they were involved in a vast drug
conspiracy, were to receive a sentence prescribed for those committing less
substantial drug offenses because of an error that was never objected to at
trial.” Id. at 1787.
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plain error. While he objected to the PSR’s calculation of drug
quantity, he did not raise an Apprendi-type issue at any time in
the trial court.
Our analysis of drug quantity under plain-error review is
guided by two considerations: the quantity of drugs necessary to
trigger an enhanced sentence under § 841(b) and the existence of a
large-scale drug-trafficking conspiracy.
As noted above, the statutory maximum sentence for
Randle’s drug convictions absent a finding of drug quantity would
be 20 years’ imprisonment. If the Government had alleged and
proved that Randle was responsible for more than 5 grams of crack
cocaine, however, then the statutory maximum sentence would have
been 40 years’ imprisonment. 21 U.S.C. § 841(b)(1)(B)(iii). The
district court sentenced Randle to a prison term of 25 years and 4
months based on the court’s finding (by only a preponderance of the
evidence) that Randle was responsible for 10 kilograms – more than
2000 times more crack cocaine than would have been necessary to
sentence him to 40 years’ imprisonment under § 841(b).
In our view, there is overwhelming and incontrovertible
evidence that Randle was responsible for much more than 5 grams of
crack. It bears repeating that Randle was part of a large drug-
trafficking conspiracy and that he is criminally responsible for
all the drugs that he reasonably should have known were involved in
the conspiracy. See United States v. Medina, 161 F.3d 867, 876
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(5th Cir. 1998)(affirming a drug quantity finding based on the
activities of the conspiracy).
Nine defendants, including Travis Randle, were convicted
on the conspiracy charge. Six others entered into plea agreements
and testified for the prosecution. The cooperating defendants and
several police officers testified that Randle was one of the main
suppliers of crack cocaine in Richmond, Texas, and that he provided
crack to the mid-level members who, in turn, supplied the crack for
individual street-level dealers. The conspiracy was alleged to
have spanned more than seven years, from early 1989 to mid-1996.
See Brown, et al., 217 F.3d at 253-54.
The Government put on abundant evidence at trial that
Randle and his co-conspirators bought and sold large quantities of
crack cocaine – far more than the 5 grams necessary to trigger a
40-year enhanced sentence under the drug statutes, and
(incidentally) more than the 1.5 kilograms necessary to maintain
Randle’s base offense level of 38 under the sentencing guidelines.
Considering the overwhelming evidence of drug quantity, we conclude
that the failure of the indictment and jury charge specifically to
include quantity does not seriously affect the integrity, fairness,
or public reputation of the criminal proceedings against Randle.
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B. Weapons Possession
Randle also argues that Apprendi applies to the district
court’s failure to submit the two-level sentencing enhancement for
weapons possession to the jury. Section 2D1.1(b)(1) of the
guidelines mandates a two-level enhancement for possession of a
firearm “unless it is clearly improbable that the weapon was
connected with the offense.” U.S.S.G. § 2D1.1, cmt. 3 (2000).
Here, little evidence connected Randle’s shotgun to drug activity.
While acknowledging that it was a close call, the district judge
found by a preponderance of the evidence that a connection between
Randle’s shotgun and his drug crimes was not clearly improbable.
The enhancement poses no Apprendi problem, however. As
the Eleventh Circuit explained,
Apprendi does not apply to judge-made determinations
pursuant to the Sentencing Guidelines. . . . A factual
finding under the Guidelines determines the sentence
within the statutory range rather than outside it.
Because Apprendi only addresses facts that increase the
penalty for a crime beyond the statutory maximum, it does
not apply to those findings that merely cause the
guideline range to shift within the statutory range.
United States v. Sanchez, 269 F.3d 1250, 1262 (11th Cir. 2001)(en
banc). Stated differently, the application of an enhancement
called for by the guidelines cannot be used to impose any sentence
beyond the statutory maximum prescribed by an offense. United
States v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000).
If the statutory maximum had been 20 years, the weapon-
possession enhancement could not have increased the term of
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imprisonment. But, as the discussion in the previous section
indicates, the evidence of drug quantity presented at trial was so
compelling that Randle undoubtedly would have been subject to an
enhanced sentence, and a finding of only 5 grams would have
subjected Randle to a statutory maximum of 40 years. Under these
circumstances, the weapon-possession enhancement places the
sentencing guidelines’ range well within the statutory maximum.
C. Other Issues
Despite the procedural posture of this appeal,4 Randle
urges this panel to reconsider its previous ruling that he waived
his right to testify at trial. See Brown, 217 F.3d at 258-59. We
see no reason to depart from our earlier analysis of the issue.
The Government also seeks reconsideration of this
circuit’s interpretation of U.S.S.G. § 5G1.2(d)(sentencing on
multiple counts) in United States v. Vasquez-Zamora, 253 F.3d 211,
214 (5th Cir. 2001). The Government acknowledges, however, that
overruling Vasquez-Zamora will require a rehearing en banc and also
that this panel’s affirmance of Randle’s sentence under Cotton
makes it unnecessary to resolve the issue.
III. CONCLUSION
Based on the above discussion, we conclude that Randle
need not be resentenced even though the element of drug quantity
4
Randle raised the right-to-testify issue in his petition for a writ
of certiorari. The Supreme Court granted the petition and remanded the case to
this court “for further consideration in light of Apprendi.” Randle v. United
States, 531 U.S. 1136, 121 S.Ct. 1072 (2001).
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was neither included in the indictment nor submitted to the jury.
The Government presented overwhelming evidence at trial linking
Randle and his co-conspirators to large quantities of crack
cocaine. Applying Cotton to the facts before us, we hold that the
Apprendi error does not seriously affect the integrity, fairness,
or public reputation of the criminal proceedings and that Randle’s
304-month prison sentence is AFFIRMED.
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