[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
____________________________ ELEVENTH CIRCUIT
July 08, 2004
No. 03-14586 THOMAS K. KAHN
Non-Argument Calendar CLERK
____________________________
D.C. Docket Nos. 01-01367-CV-ORL-22-DAB
and 98-00151-CR-ORL
DONALD JEROME SPERO,
Petitioner-Appellee,
versus
UNITED STATES OF AMERICA,
Respondent-Appellant.
____________________________
No. 03-14587
Non-Argument Calendar
____________________________
D.C. Docket No. 01-01159-CV-ORL-22-DAB
98-00151-CR-ORL
MARY CATHERINE JONES,
Petitioner-Appellee,
versus
UNITED STATES OF AMERICA,
Respondent-Appellant.
____________________________
Appeals from the United States District Court for the
Middle District of Florida
____________________________
(July 8, 2004)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
The government appeals the grant of Donald Jerome Spero’s and Mary
Catherine Jones’s motions to vacate sentence, filed pursuant to 28 U.S.C. § 2255,
and the subsequent re-sentencing of the defendants to time served.
The defendants were convicted of possession with intent to distribute heroin
in violation of 21 U.S.C. § 841(b)(1)(C). The statutory maximum punishment for
this offense is twenty years. No minimum punishment is prescribed, unless
“death or serious bodily injury result[ed] from the use” of the illegal substance. If
that happened, the statutorily prescribed punishment range becomes twenty years
to life. Thus, what was the maximum becomes the minimum.
At the original sentencing, the district court found by a preponderance of the
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evidence that the defendants’ conduct in distributing heroin had caused the death
of a drug user. It imposed a 240-month sentence, which was the enhanced
minimum sentence. After an unsuccessful direct appeal, the defendants each filed
a 28 U.S.C. § 2255 motion to vacate, arguing that the sentence violated Apprendi
v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and that the district court’s
factual findings had been in error. The district court granted the defendants’
motions on the basis of Apprendi and re-sentenced them to time served
(approximately 60 months), an action which led to this consolidated appeal by the
government. Because the Apprendi rule does not apply in minimum mandatory
circumstances where the enhanced minimum mandatory sentence does not exceed
the non-enhanced maximum sentence, we reverse.
The Supreme Court held in Apprendi that “[o]ther than the fact of 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. We have previously explained
that Apprendi has “no effect on cases in which a defendant’s actual sentence falls
within the range prescribed by the statute for the crime of conviction.” United
States v. Sanchez, 269 F.3d 1250, 1268 (11th Cir. 2001) (en banc) (emphasis
omitted). Whatever other effect the Supreme Court’s recent decision in Blakely v.
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Washington, 542 U.S. __, __ S. Ct. __, No. 02-1632, slip. op. at 7 (June 24, 2004),
may have, it does not undermine the validity of minimum mandatory sentences, at
least not where the enhanced minimum does not exceed the non-enhanced
maximum. That much is clear from the fact that Blakely, like Apprendi, explicitly
distinguished minimum mandatory sentences from the circumstances involved in
those cases and indicated that McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct.
2411 (1986), is still good law.
In McMillan, the Supreme Court held that imposition of a minimum
mandatory sentence predicated upon a fact found by the judge by a preponderance
of the evidence violates neither Due Process nor the jury trial guarantee of the
Sixth Amendment, so long as the statutory maximum authorized by the jury’s
verdict is not exceeded. See 477 U.S. at 87-88, 93, 106 S. Ct. at 2416-17, 2420.
The Court said in Apprendi that: “[w]e do not overrule McMillan. We limit its
holding to cases that do not involve the imposition of a sentence more severe than
the statutory maximum for the offense established by the jury’s verdict – a
limitation identified in the McMillan opinion itself.” 530 U.S. at 487 n.13, 120 S.
Ct. at 2361 n.13. In Blakely, the Court distinguished McMillan from that case in
which a judge-found fact had increased the maximum sentence the defendant
could receive, because “McMillan involved a sentencing scheme that imposed a
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statutory minimum if a judge found a particular fact.” Blakely, slip. op. at 8
(emphasis in original).
This case is on all fours with McMillan. The statutory maximum for the
defendants’ crime of conviction, under the facts to which they pleaded guilty and
without reference to the “death enhancement” found by the judge, was twenty
years. Therefore, the twenty-year sentence imposed upon the defendants did not
exceed the statutory maximum and violate the Apprendi/Blakely doctrine.
The district court thought otherwise. It reasoned that Apprendi should
apply because the court might have sentenced the defendants to less than twenty
years had there not been the twenty-year minimum, which resulted from the
judicial finding that death had resulted from the drug offense to which the
defendants pleaded guilty. However, statutory sentencing factors that trigger a
statutory minimum and limit the judge’s discretion in imposing sentence are
permissible and need not be found by a jury, “provided that the mandatory
minimum term does not exceed the otherwise applicable statutory maximum.”
Sanchez, 269 F.3d at 1269; see also Harris v. United States, 536 U.S. 545, 567,
122 S. Ct. 2406, 2419 (2002) (“Within the range authorized by the jury’s verdict,
however, the political system may channel judicial discretion . . . by requiring
defendants to serve minimum terms after judges make certain factual findings.”)
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That is what McMillan is all about.
The district court thought that it mattered that the judicially found fact enhanced
the minimum sentence a great deal – 300 percent – but the amount of the
enhancement does not matter, so long as the enhanced minimum does not exceed
the pre-enhanced maximum.
To affirm the district court, we would have to effectively overrule the
McMillan decision, something the Supreme Court has twice declined to do, and
something we are powerless to do even if we thought that later decisions had
undermined its reasoning (a question we need not explore). See Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 1921-
22 (1989) (“If a precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions.”); see also State Oil Co. v. Khan, 522
U.S. 3, 20, 118 S. Ct. 275, 284 (1997) (“it is this Court’s prerogative alone to
overrule one of its precedents”).
The grant of the defendants’ motion to vacate their sentence on Apprendi
grounds is REVERSED, and we REMAND for the reimposition of the defendants’
twenty-year sentences.
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