United States v. Slaughter

No. 99-11142

238 F.3d 580 (2000) | Cited 268 times | Fifth Circuit | December 8, 2000

Summary Calendar

Appeal from the United States District Court For the Northern District of Texas

This Court initially addressed the issues raised on this appeal with a per curiam unpublished opinion filed under date of August 10, 2000, which affirmed the decision of the district court on all issues raised by appellant. A copy of this original unpublished opinion is attached to this opinion as Attachment A. Appellant timely filed a suggestion for reconsideration en banc which was denied.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).

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 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 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 § 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 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 drug quantity 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. If Slaughter had objected to the omission of drug quantity from these instructions or had submitted requested instructions which expressly set forth the correct drug quantity, and the district court had refused to include a reference to drug quantity, we would be inclined to grant Slaughter relief from conviction on these counts. Absent these objections from Slaughter, 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 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.

Summary Calendar

Appeal from the United States District Court For the Northern District of Texas

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).

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 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 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 § 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 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 drug quantity 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. If Slaughter had objected to the omission of drug quantity from these instructions or had submitted requested instructions which expressly set forth the correct drug quantity, and the district court had refused to include a reference to drug quantity, we would be inclined to grant Slaughter relief from conviction on these counts. Absent these objections from Slaughter, 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 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.

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