Lead Opinion
COLE, J., delivered the opinion of the court, in which MOORE, J., joined. ROSEN, D.J. (pp. 454-475), delivered a separate opinion concurring in part and dissenting in part.
OPINION
I. INTRODUCTION
Montel L. Humphrey appeals his conviction and sentence for conspiring to possess with intent to distribute cocaine, possession of a firearm after a prior felony conviction, and conspiring to commit money laundering. Humphrey assigns six points of error: (1) the Government relied on incompetent evidence and argument at trial and improperly used its peremptory challenges to exclude African Americans from the jury; (2) the district court failed to examine a conflict of interest raised by trial counsel prior to sentencing and failed to conduct a proper inquiry into Humphrey’s Batson challenge raised during the course of voir' dire; (3) the jury instructions failed to properly guide the jury in its consideration of the multiple conspiracies alleged in this case, failed to ensure jury unanimity on elements of the offense, and failed to direct the jury to determine the type of drugs sold by Humphrey; (4) the district court violated Apprendi v. New Jersey,
For the reasons that follow, we AFFIRM the judgment of the district court with the exception of the sentence. Because the district court’s drug quantity finding resulted in an enhanced statutory penalty, we conclude that Humphrey’s sentence violated the Supreme Court’s rule established in Apprendi v. New Jersey. We accordingly VACATE Humphrey’s sentence and REMAND this case to the district court for resentencing.
II. BACKGROUND
The Caribbean Gang Task Force (“Task Force”) of the Shaker Heights, Ohio, Police Department conducted an eighteen
Testimony at trial revealed that Eaton first met Humphrey in Alabama in September 1996. Thereafter, Eaton allegedly met Humphrey in Cleveland, Ohio, where Humphrey discussed supplying Eaton with cocaine. Eaton received approximately one-eighth of a kilogram of cocaine from Humphrey as a result of that conversation and continued to receive periodic shipments of cocaine from Humphrey until March 1997. From September 1996 through March 1997, Humphrey distributed cocaine to Eaton “approximately ten to twelve times.” Eaton also testified that he and Humphrey communicated with each other by telephone and pager using predetermined codes.
Task Force member and Shaker Heights, Ohio, Detective Marvin LaMielle testified that from January 25, 1997, through June 4, 1997, the Task Force undertook court-authorized interceptions of electronic and wire communications between Humphrey and other individuals under investigation. LaMielle also testified that he obtained Humphrey’s cellular telephone records, which, in conjunction with the intercepted communications, revealed that shortly after Eaton would arrange the sale of cocaine to third parties, Eaton would page Humphrey with the appropriate codes, ostensibly to purchase some quantity of cocaine.
Cromity testified that he met Humphrey sometime in 1992 or 1993 and that their first drug transaction occurred in November 1996. Cromity stated that on this occasion he paged Humphrey and entered his home telephone number, the appropriate code to identify himself as the caller, and the amount of money he had to purchase cocaine. The two subsequently met, whereupon Humphrey allegedly sold Cromity one-half kilogram of cocaine for $8,000. Cromity also testified that Humphrey continued to supply him with drugs through February 1997, during which time he received “probably between seven and nine” kilograms of cocaine. Humphrey’s phone records, coupled with information intercepted from Humphrey’s pager, indicated that on more than one occasion Cromity paged Humphrey seeking to purchase cocaine from him, after which Humphrey called Cromity to make payment arrangements.
On June 22, 1998, a jury acquitted Morrow of all counts. Humphrey, however, was convicted of conspiring to distribute cocaine (Counts One and Two), unlawful possession of a firearm by a previously convicted felon (Count Twelve), and conspiring to commit money laundering (Count Seventeen); he was acquitted of two substantive money laundering counts
David Dudley, Humphrey’s counsel, raised a possible conflict of interest shortly before Humphrey’s scheduled sentencing. The government filed a motion requesting that the district court consult with Humphrey and Dudley regarding Dudley’s continued representation of Humphrey. The district court reviewed a transcript of an earlier hearing held before Judge Bell on this issue and concluded that no additional inquiry was warranted. On March 10, 1999, the district court sentenced Humphrey to a mandatory 240-month term of imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A), a ten-year period of supervised release, a $25,000 fíne, and a $400 special assessment. This timely appeal followed.
III. DISCUSSION
A. Government Misconduct
1. Standard of Review
Where a defendant fails to raise an objection before the district court, “a court of appeals [has] a limited power to correct errors that were forfeited because [they were] not timely raised in district court.” United States v. Olano,
We have developed a four-part analysis to review forfeited claims. We consider first whether there was error. United States v. Vincent,
Preserved objections to a district court’s evidentiary decisions are reviewed for abuse of discretion. We will only reverse if the decision caused more than a harmless error. Cooley v. Carmike Cinemas, Inc.,
2. Analysis
Humphrey argues that the Government’s misconduct at trial deprived him of his right against self-incrimination, as well as his rights to a fair trial, an unbiased jury, and due process of law. Specifically, Humphrey alleges: (1) that the Government improperly shifted the burden of proof to him by suggesting to the jury that Humphrey’s unexplained wealth demonstrated his participation in narcotics and money laundering activities; (2) that the Government improperly used Humphrey’s income tax returns and the testimony of an
a. Unexplained Wealth
Humphrey submits that the Government’s case against him was predicated on the self-serving testimony of Eaton and Cromity, both admitted drug dealers, and on testimony that insinuated a young African-American male is incapable of operating a successful business unless he is engaged in illegal narcotics activity. To drive home this point, Humphrey contends that the Government relied improperly on evidence of Humphrey’s unexplained wealth, in contravention of his Fifth Amendment right against self-incrimination, to suggest that because Humphrey had failed to identify the source of his wealth, then he necessarily must have been guilty of drug trafficking.
Humphrey maintains that in making such an argument, the Government improperly shifted its burden of proof to him, which was especially prejudicial in light of the fact that the only evidence linking him to illegal drug activity was the testimony of Eaton and Cromity. In fact, Humphrey notes, the Government never observed drugs in his possession or his residences, never discovered large sums of cash in his possession, never witnessed him engage in drug activity, and never attempted to coordinate a controlled drug buy from him. Humphrey objected to the admission of tax evidence, J.A. at 299; therefore, we review the district court’s decision for an abuse of discretion.
In United States v. Carter, we rejected as irrelevant the Government’s use of financial information in its prosecution of a defendant for violation of federal narcotics laws.
Before us is such a case. There was unrebutted testimony at trial that Humphrey’s total expenditures for 1996 and 1997 amounted to $454,880.27, despite the fact that he had been “unemployed the past eight months” due to a disability. It was well within the prerogative of the Gov
b. Tax Evidence
Humphrey also contends that the Government improperly used his income tax returns and the testimony of IRS Agent Gary Rasoletti to outline Humphrey’s spending habits over the eighteen months that he was under investigation. Because it was undisputed that Humphrey had legitimate sources of income from rental property and tee-shirt sales, Humphrey argues that the Government’s introduction of tax records and Rasoletti’s testimony prejudiced the jury against him and was in clear disregard of our decision in Carter, which generally prohibits the use of tax records and spending habits in narcotics cases. The Carter rule is subject to certain exceptions, among them evidence of extravagant spending habits by the defendant or evidence that he possesses large amounts of unreported wealth. Nevertheless, Humphrey argues that the jury’s refusal to order the forfeiture of the vast majority of his real property and possessions is evidence that the jury believed them to be the proceeds of lawful activity. Humphrey further submits that although Rasoletti testified about receipts for his purchases allegedly made with drug proceeds, the Government sought only the forfeiture of one of those purchases, a television, which the jury ultimately concluded was a legitimate purchase. Thus, Humphrey maintains, the Government’s use of his tax returns and Rasoletti’s testimony served no purpose but to put evidence of an uncharged crime, tax evasion or fraud, before the jury, which is the exact situation prohibited by Carter. The Government’s failure to link Humphrey’s unexplained wealth to drug activity, coupled with the introduction of unindicted tax charges, was unduly prejudicial and, Humphrey concludes, warrants reversal.
Humphrey’s argument is foreclosed by our decision in United States v. Copeland,
The facts of the instant case are analogous to those of Copeland. Humphrey purchased in excess of $450,000 worth of goods over a two-year period when he was unemployed, far more than the $5,000 at issue in Copeland. Furthermore, the receipts relied upon by the Government in this case referenced fruits of the alleged conspiracy. Even were we inclined to find Humphrey’s case factually similar to Carter, the disputed receipts are evidence of tangible possessions demonstrating “extravagant spending” for which financial information generally may be introduced. Carter,
c. Vouching
Humphrey argues that the Government improperly stated its personal belief in Eaton’s credibility. Specifically, Humphrey points to the Government’s closing argument when it observed:
Now, just real quickly. You know, and I don’t have time, you can consider the government believes that after all that corroboration, the testimony of Henry Eaton, that is credible relative to his relationship with Darryl Morrow, at least that which is on tape.
J.A. at 324.
Although Humphrey concedes that the Government’s statement was directed more at the credibility of Eaton’s testimony with respect to Darryl Morrow, he nevertheless contends that because Eaton’s credibility as to both Morrow and himself was at issue, any vouching by the Government as to one part of Eaton’s testimony necessarily applied to all of his testimony.
Humphrey also argues that the Government improperly stated its personal belief in his guilt:
I think during the course of Mr. Dudley’s final argument it became pretty apparent I started getting agitated.
Well, let me tell you my perspective on this case, based on the evidence.
Now folks, I think the evidence is overwhelming that Montel Humphrey is guilty of the crimes that he is charged with. He has not provided you with any explanation.
J.A. at 407, 418-19.
It is well established that a prosecutor may not argue his personal belief in a witness’s credibility or in a defendant’s guilt, see United States v. Krebs,
Humphrey failed to object below to these allegedly improper comments, and therefore, we review this claim for plain error. With respect to the first comment, concerning the prosecutor’s statement that Eaton’s testimony was credible, Humphrey cannot demonstrate that the comment was one of a series of inappropriate comments. To the contrary, the comment appears to have been the only such comment made by the Government. Neither does the comment appear to have been a deliberate effort to mislead or prejudice the jury. Finally, the comment was made in the context of a discussion of other corroborating evidence of guilt; were we to set aside Eaton’s testimony, other inculpatory evidence would remain.
Likewise, on the question of whether the Government improperly commented on its view of Humphrey’s guilt, one we review for plain error, Humphrey has again failed to establish that the comment was flagrant. While the Government arguably skirted the limits of permissible argument by effectively suggesting that it believed Humphrey was guilty&emdash;we are unpersuaded by the Government’s argument that it was merely commenting on the quality and the quantity of the evidence&emdash;the district court’s instruction to the jury that counsels’ arguments were not evidence served to counterbalance any potential jury confusion. That the comment was made in isolation, moreover, confirms this point. Accordingly, Humphrey’s argument must fail.
d. Arguing Facts Not in Evidence
Humphrey asserts that the Government committed further misconduct by arguing to the jury facts not in evidence:
Now, if you take that same eighth of a kilogram and you want to look at it in terms of shelf life for personal use, again, you use point 2 or point 3 grams of cocaine a day, so that means a gram will last you approximately three days, and you multiply three days times 125 and you have 375 days.
J.A. at 324.
Specifically, he argues that there was no testimony presented at trial either that an eighth of a kilogram of cocaine constitutes a personal supply lasting for 375 days or that consumption of .2 or .3 grams of cocaine constitutes personal use.
Humphrey’s argument, which we review for plain error, is without merit. First, the facts relied upon by the Government were adduced by Morrow’s counsel in his cross-examination of Eaton. See J.A. at 184 (Eaton’s testimony was that the smallest amounts he ever sold were “two or three tenths of a gram” and that people buy tenths of a gram of drugs for their own personal use). Second, the Government’s argument was a direct response to Morrow’s suggestion that the drug quantities distributed by Eaton to him were for personal use. Finally, as Humphrey himself concedes, the Government’s argument was directed at Morrow only.
e. “Buyer-Seller” Relationship
During its closing argument, the Government suggested that an extension of credit by a drug seller to a drug buyer for the purchase of drugs was, without more, sufficient to eliminate a buyer-seller relationship. The jury, in the absence of such a suggestion, would have been permitted to consider that the cocaine attributable to Humphrey was for his personal consumption, and not for the purpose of sale or distribution in a drug conspiracy. In making this point, the prosecutor relied upon an analogy, arguing that if he had a department store credit card, then at such time as he used that credit card, he and the department store would have proceeded beyond a buyer-seller relationship and entered into a conspiracy.
Humphrey submits that the Government’s analogy misstated the law, see Uniform Commercial Code § 1-201(9) (“ ‘Buying’ may be cash ... or on secured or unsecured credit.”), and reduced the jury’s responsibility to one strictly of determining whether Humphrey engaged in a drug transaction for which a purchase was made on credit. In support of this argument, he relies on United States v. Ward, in which we declared that “fronting cocaine, without additional elements of control, is nothing more than a variation on the traditional buyer-seller relationship.”
In rejecting Humphrey’s arguments, we note first that his reliance on the Uniform Commercial Code is misplaced, as it has no application in this criminal narcotics case. Humphrey’s argument that purchasing on credit constitutes buying within the meaning of a buyer-seller relationship is likewise without merit. Cf. United States v. Nesbitt,
f. Irrelevant Evidence
The Government argued at trial that when law enforcement officials searched Humphrey’s home, they discovered a wiretap affidavit unrelated to the conduct charged in this case. Thereafter, it suggested that Humphrey’s possession of this affidavit was evidence that he was a drug dealer. When Humphrey’s counsel began to discuss the affidavit during his closing argument, the Government objected and requested a sidebar, after which the district court instructed the jury: “You are instructed any affidavit that was mentioned by counsel has nothing to do with this case. The affidavit which has been mentioned has absolutely nothing to do with the investigation here or this case. Please disregard it.” J.A. at 368. This instruction notwithstanding, the Government’s rebuttal closing argument again made reference to the affidavit and suggested that it was evidence that Humphrey was engaged in illegal narcotics activity. In making such an argument, Humphrey maintains that the Government successfully placed before the jury only its interpretation of evidence that the district court had already determined was irrelevant.
Because Humphrey failed to raise an objection at trial, we review this claim for plain error. The Government responds, and we agree, that the wiretap affidavit — like the gun, money, telephone scrambler, and wiretap detector seized from Humphrey’s residence — was circumstantial evidence of the defendant’s knowledge regarding the manner and means in which law enforcement engages in drug trafficking investigations and his knowing participation in a conspiracy to distribute cocaine. While the wiretap affidavit standing alone would likely not be relevant evidence, particularly since it refers in no way to Humphrey, we believe that it, coupled with the other “tools of the trade,” is probative of Humphrey’s knowledge of drug trafficking investigations.
With respect to Humphrey’s argument that the Government violated a court order not to discuss the affidavit, his argument is not well taken. First, the district court merely instructed the jury that the affidavit had nothing to do with Humphrey or the charged conduct in the case. Our review of the record suggests that it did not prohibit counsel from referring to it. The Government made reference in its closing argument to the affidavit, but only to demonstrate Humphrey’s knowledge of criminal investigations. By contrast, when Humphrey’s counsel mentioned the affidavit, he suggested that the affidavit was evidence that; Humphrey was being inves
g. Improper Closing Argument
In its rebuttal closing argument, the Government argued that even Humphrey’s counsel, David Dudley, knew that Humphrey’s conversations with his accountant amounted to a confession: “David Dudley knows that conversation [between Humphrey and his accountant] is as close to a confession as anything in this whole courtroom, and he has to deal with it because he knows you are going to see that.” J.A. at 408-09. Humphrey suggests that this argument improperly relied upon Humphrey’s counsel to vouch for the Government’s view of Humphrey’s guilt.
The Government responds that “that conversation” referred to an intercepted telephone conversation between Humphrey and his accountant in which Humphrey allegedly expressed some concern over paperwork related to his purchase of a business, because the business owner had had prior dealings with the Drug Enforcement Administration (“DEA”). Further, the Government maintains that its reference to the conversation as a “confession” was merely an attempt to discredit Dudley’s “spin on the conversation” by suggesting that a legitimate business owner with legitimate sources of income would have no concern about any DEA involvement in one of his business ventures.
On this record, we do not find that the prosecutor’s comments can be reasonably construed as implying that defense counsel believed his client was guilty. We find no error in the closing argument.
h. Cumulative Impact
When the aforementioned errors alleged by Humphrey are viewed in the context of the entire trial, Humphrey argues that their cumulative impact mandates reversal, even if any one error in isolation does not. These errors, Humphrey maintains, were particularly prejudicial given that his trial was built on weak, circumstantial evidence of guilt in which he was convicted only of conspiracy (and not of any of the underlying substantive counts) based on the testimony of alleged co-conspirators. We disagree. Examining the record as a whole, we fail to find any error in the foregoing that, singularly or cumulatively, mandates reversal.
B. District Court Misconduct
1. Standard of Review
We review de novo whether a district court’s alleged failure to conduct a hearing to inquire into a conflict of interest between a defendant and his trial counsel violated a defendant’s Sixth Amendment right to effective counsel. United States v. Hall,
2. Analysis
Humphrey argues that the district court erred in two respects. First, it failed to conduct an inquiry into the actual conflict of interest between Humphrey and his counsel. Second, the district court improperly reviewed his Batson challenge. Neither argument has merit.
On February 22, 1999, eight months after Humphrey’s trial, David Dudley discovered a conflict of interest between himself and Humphrey, prompting Dudley to file with the district court a motion to withdraw as counsel. See J.A. at 757-58 (discussing the “apparent” conflict created by Humphrey’s pro se motions alleging, inter alia, that Dudley was incompetent and not “registered” to practice law in the Northern District of Ohio, and that Dudley was actively conspiring to “defraud and entrap” Humphrey); J.A. at 758 (discussing the “actual” conflict created by Humphrey’s filing of complaints with the State Bar of Georgia alleging that Dudley was not licensed to practice law in a number of federal criminal matters involving previously represented defendants). In Dudley’s estimation, the discovery of this conflict made it impossible for him to argue on Defendant’s behalf in furtherance of new trial and sentencing issues.
Judge Gaughan reviewed the transcript of a prior hearing on this issue conducted by Judge Bell on September 3, 1998. Finding that the issue was fully discussed and resolved by Judge Bell, the district court denied Dudley’s motion, concluding that it would be patently unfair to leave the defendant unrepresented at the sentencing, particularly in light of the fact that post-trial motions had been fully briefed and presentence investigation report (“PSR”) objections already filed. It did note, however, that Humphrey remained free to fire Dudley and secure another attorney or proceed to sentencing pro se. Humphrey did neither. He now assigns error to the district court’s denial of additional time for him to retain new counsel and its failure to inquire into the facts of the alleged conflict, notwithstanding the Government’s motion seeking to conduct just such an inquiry.
A defendant is denied his Sixth Amendment right to effective counsel when his attorney operates under a conflict of interest. Glasser v. United States,
We reject Humphrey’s argument. First, Humphrey’s case is distinguishable from the Glasser line of cases, as those cases involved an attorney’s joint representation of multiple defendants, a situation not present in the instant cáse. Second, it was only after trial that a conflict presented itself, and that, only as a result of Humphrey’s filing of numerous pro se pleadings alleging misconduct by Dudley. Third, at a September 3, 1998, hearing on the matter (at which Humphrey was scheduled to be sentenced), Judge Bell asked Humphrey whether he wished Dudley to continue as his counsel, and Humphrey responded, ‘Tes.” Finally, Judge Gaughan properly reviewed the transcript of Judge Bell’s hearing and concluded that no additional hearing was necessary and no additional time was required to permit Dudley to retain new counsel. The record reveals that Dudley vigorously defended Humphrey’s interests, filed numerous pretrial and post-trial motions on his behalf, and argued successfully for the lowest sentence provided by law.
b. Batson Challenge
Humphrey argues that the Government improperly used its peremptory challenges
In evaluating such a claim, we are guided by a three-step inquiry, first articulated in Batson v. Kentucky,
Humphrey assigns error to the district court’s analysis under Batson’s third prong, contending that the district court failed to evaluate the Government’s explanation and the circumstances of the case to determine whether purposeful racial discrimination in fact had occurred. He concedes that a district court’s resolution of a Batson challenge is entitled to great deference, see Batson,
In an unpublished decision, we suggested that a defendant who fails to insist upon and receive a definitive ruling from a trial court on a Batson challenge may be said to have waived any objection for purposes of appeal. See United States v. Compton,
C. Jury Instructions
1. Standard of Review
When reviewing a jury instruction to which a defendant failed to object at trial, we review for plain error, which requires us to determine “whether the instructions, when taken as a whole, were so clearly wrong as to produce a grave miscarriage of justice.” United States v. Sanderson,
2. Analysis
Humphrey argues that the district court’s instruction of the jury was flawed in three respects. First, the district court failed to inform the jury that it was required to reach unanimity on every element of the charged offenses. Second, the district court faded to instruct the jury to determine whether there was one conspiracy or multiple conspiracies. Third, the district court failed to instruct the jury to determine the type of drugs that Humphrey conspired to possess or distribute.
We reject Humphrey’s arguments.
a. Unanimity
At the close of the evidence, the district court provided the following instruction to the jury concerning the requisite legal elements of a criminal conspiracy:
With regard to the first element, the criminal agreement, the government must prove that two or more persons conspired, or agreed, to cooperate with each other to commit the crime of distribution of narcotics or possession with intent to distribute narcotics or to commit the crime of money laundering. What the government must prove is that there.was a mutual understanding, either spoken or unspoken, between two or more people, to cooperate with each other to commit the crime of distribution of narcotics or possession with intent to distribute narcotics as to Counts 1 and 2, or to engage in money laundering as to Count 17.
J.A. at 436-37.
Because the district court failed to instruct the jury that it was required to decide unanimously that the Government proved each element beyond a reasonable doubt, Humphrey argues that his conviction cannot stand. Specifically, he submits that the district court should have instructed the jury that it was to identify the “two or more people” as a precondition to conviction, particularly given that Count One of the indictment identified seven people by name and “others known and unknown to the Grand Jury,” Count Two identified six people by name and “others known and unknown to the Grand Jury,” and Count Seventeen identified four people by name and “others known and unknown to the Grand Jury.” He reasons that since a conspiracy necessarily involves at least two people, then the specific identity of a defendant’s co-conspirator must be an element of the offense.
Humphrey’s argument is not well taken. First, the district court provided a thorough instruction on what constitutes a conspiracy, listing and defining each of the elements that the Government was required to prove beyond a reasonable doubt. Second, the specific unanimity instruction sought by Humphrey is generally required only in one of three circumstances: when the nature of the evidence is particularly complex; when there is a variance between the indictment and the proof adduced at trial; or when there is some tangible evidence of jury confusion,
b. Number of Conspiracies
Humphrey contends that even if the identity of his alleged co-conspirator is not an element of the offense, the district court nevertheless should have instructed the jury to determine whether there were multiple conspiracies or only one. He reasons that because Eaton was named as a co-conspirator in both conspiracy counts (Counts One and Two) and the jury was not instructed to identify specifically Humphrey’s alleged co-conspirator, the jury could have concluded that Humphrey conspired only with Eaton, which would have compelled it to convict Humphrey of both counts, despite the fact that Counts One and Two required proof of the same elements and relied on the same facts. Such a result, Humphrey suggests, would offend due process.
The Government maintains that Humphrey was properly indicted in a case involving multiple conspiracies and that he was not entitled to an instruction of the jury requiring it to determine the number of conspiracies. Although the indictment does not so allege, the Government argues that Count One charged a “hub” or “wheel” conspiracy with Humphrey, as drug supplier, positioned at the center, and Eaton and other middlemen as spokes of the wheel. Count Two, according to the Government, charged a chain conspiracy with narcotics flowing from Humphrey through Eaton to Morrow and others working directly with Eaton. Humphrey, in response, argues with some force that if he was involved in a hub conspiracy with Eaton, then that conspiracy necessarily included any chain conspiracy with Eaton and his buyers (e.g., Morrow), and thus there existed only one conspiracy.
We note that because Humphrey neither requested a multiple conspiracy instruction nor objected to the district court’s use of a general instruction on the law of conspiracy, we review this claim for plain error. See United States v. Mack,
Although the parties do not raise this issue, any error appears to he not in the jury’s instruction, but in the indictment’s seemingly duplicative counts, as Count One charges the same conduct for the same time period as that charged in
c. Drug Type Determination
Humphrey argues that the district court erred by failing to instruct the jury to return a special verdict on the drug type for which he was criminally responsible. He maintains that where, as here, a defendant is charged with a multiple-drug conspiracy for which the maximum statutory penalty for each drug is different, and a jury returns only a general verdict of guilty, that defendant is entitled to be sentenced under the lesser statutory penalty. This is particularly so in his case, Humphrey contends, because there was evidence that he distributed on separate occasions both powder cocaine and crack cocaine.
We reject Humphrey’s argument that he was entitled to a special verdict. See Olden v. United States,
D. Drug Quantity Determination / Apprendi
With respect to jury instructions, Humphrey makes a fourth argument — that the district court violated the Supreme Court’s decision in Apprendi v. New Jersey by failing to instruct the jury to find drug quantities beyond a reasonable doubt. Be
1. Standard of Review
Our first task in evaluating Humphrey’s Apprendi challenge is to determine the appropriate standard of review. Humphrey was sentenced in 1999, prior to Apprendi, and only made a formal Apprendi objection in his appellate brief in 2001. Because his appeal was pending at the time Apprendi was decided, Humphrey is entitled to retroactive application of a new rule of criminal prosecution. Griffith v. Kentucky,
To find Humphrey guilty of conspiracy, all the jury needed to find was that there was an agreement as to at least one sale of cocaine. Although the jury found that a conspiracy existed, there is no basis to gather from the jury’s verdict that it believed Eaton’s 3-5 kilogram estimate to be accurate, or that it even believed that multiple sales between Eaton and Humphrey actually took place. Therefore, as a result of the lack of sufficient credibility regarding Eaton’s testimony as to the amount of cocaine transacted, Defendant Humphrey suggests the Court reject the recommendation stated in the PSR as to the relevant conduct in Count II and instead adopt the minimum amount which the jury must have necessarily found to support its verdict of guilty, specifically, 1/4 kilogram of cocaine, which constitutes the lowest amount of cocaine purchased by Eaton during a given sale.
J.A. at 686-87.
He continues in the written objections, stating:
As with Eaton, the only thing we can be sure of with regards to Cromity’s testimony is that the jury found that an agreement did exist to purchase cocaine. As there is insufficient evidence to support an amount of cocaine higher than that which the jury must necessarily have found to support Humphrey’s conviction, Defendant requests that the Court reject the PSR’s recommendation regarding relevant conduct and that the Court instead hold Humphrey accountable in Count 1 for the sale of1 / kilogram of powder cocaine — a quantity which represents the minimum amount which Cromity indicated he had purchased from Humphrey.
J.A. at 689-90.
At the sentencing colloquy, Humphrey’s attorney reiterated his objections and made the following request:
If the Court finds, as we would ask the Court to do, that the total relevant conduct is less than five kilos, it would be a ten-year mandatory sentence, and I would ask the Court to consider that this is a — this is ten years of a man’s life, perhaps more under the guideline calculations, maybe as much as 20 years of a man’s life that’s going to be decided*443 by the testimony of these individuals [Eaton and Cromity]. And the testimony simply, while it may have been enough, it may have been enough to a jury to say clearly there was an agreement, perhaps an ongoing agreement for a certain period of time between Mr. Humphrey and Mr. Cromity in one count and Mr. Humphrey and Mr. Eaton in another count to distribute cocaine, that’s all the jury had to believe beyond a reasonable doubt, was that there was such an agreement[.][T]hey didn’t even have to believe a transaction took place.
The only cooperation [sic] that existed for their testimony were certain tapes and certain phone calls, but they don’t corroborate this whole amount of drugs the Government’s trying to put into play here at sentencing.
And I would ask the Court that — to apply perhaps a higher standard to the type of ... relevant conduct, whatever you want to call it, in this case.... And if it does that, it will find the Government’s not met its burden, and it will impose a mandatory minimum sentence based on a quantity of less than five kilos and a guideline sentence based upon that same quantity.
J.A. at 466-67.
Humphrey could not have known at the time of his sentencing that Apprendi would be decided a year later. Nevertheless, Humphrey objected at the sentencing hearing to both the amount of drugs attributed to him and the standard of proof required to support that amount. He reiterated this objection as a formal Apprendi objection on appeal.
The dissent dismisses these passages from the record as mere “factual challenges” to the drug quantity recommendations in the presentence report. The dissent charges that, absent some specific challenge to the district court’s authority to find drug amounts by a preponderance of the evidence, we may review Humphrey’s Apprendi challenge for plain error only.
We disagree. The preservation of a constitutional right is not a parlor game. Defendants should not be required, on penalty of forfeiture, to guess not only which substantial right will be impacted by a pending Supreme Court decision, but also which precise sequence of words will be necessary to preserve that right on appeal.
Rule 51 of the Federal Rules of Criminal Procedure states:
Exceptions to rulings or orders of the court are unnecessary and for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which that party desires the court to take or that party’s objection to the action of the court and the grounds therefor; but if a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice that party.
Humphrey’s attorney may have conceded that, under then-current law, it was within the district court’s authority to find drug quantities using the preponderance of the evidence standard; nevertheless, it is apparent from the record that Humphrey’s attorney challenged the propriety of that standard. Although Humphrey’s attorney articulated his objection on the basis of sufficiency of the evidence, he urged the district court to consider only those facts that were proved to a jury beyond a reasonable doubt. The district court implicitly acknowledged the objection during the sentencing colloquy, stating:
This Court finds by a preponderance of the evidence that the quantity of drugs that is reasonably foreseeable in furtherance of the jointly undertaken criminal activity is at least 50 but less than 150 kilograms of cocaine.
The Defendant’s argument goes directly to the credibility of Eaton and Cromity. Basically, the argument is they are not reliable and cannot be believed. Although, the jury in this case was not called upon to determine quantity of cocaine or crack, the jury was called upon to pass on the credibility of the witnesses.
J.A. at 482-83 (emphasis added).
The dissent emphatically cites United States v. Page,
The preservation of a constitutional objection should not rest on magic words; it suffices that the district court be apprised of the objection and offered an opportunity to correct it. Humphrey’s attorney never formed the words “Appren-di,” but we find the substance of his objection to the drug quantity determination, combined with his objection to the standard of evidence to be used, sufficient to notify the district court of the basis for the objection, and sufficient to preserve the issue for de novo review on appeal. See Strayhorn,
Furthermore, Page can be distinguished. In Page, we found that defendants who raised their Apprendi challenge for the first time on appeal were entitled only to plain error review of their claims. Id. at 543,
Indeed, the first such case in our Circuit to address whether an objection to the
In any event, notwithstanding the binding effect of Stmyhom, even under a more rigorous requirement for an objection, it is plain that Humphrey preserved the Apprendi error in the district court. See Candelario,
Having determined that de novo review governs this appeal, we proceed to the merits of the challenge.
2. Analysis
Humphrey argues that the quantity of drugs attributable to him as relevant conduct is an element of the offense that should properly have been submitted to the jury for determination beyond a reasonable doubt. The failure of the jury to make such a finding, he submits, violated the Supreme Court’s decision in Apprendi and requires resentencing. The consequence of this alleged violation, Humphrey maintains, is that he was subjected to an increased penalty for conduct not charged in the indictment based on the district court’s finding by a preponderance of the evidence that he was responsible for 50-150 kilograms of cocaine. At oral argument, the Government conceded that the district court’s sentencing of Humphrey offended Apprendi, as construed by our decision in United States v. Ramirez,
The Supreme Court in Apprendi held 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.”
Our Apprendi analysis, however, does not end with a finding that Humphrey’s sentence did not exceed the prescribed statutory maximum penalty, as a defendant may nevertheless state an Ap-prendi violation where he can demonstrate that the district court’s factual determination resulted in an increase of the range of statutory penalties applicable to the defendant for purposes of sentencing. Cf. Apprendi,
In United States v. Flowal, we vacated the defendant’s mandatory sentence of life imprisonment without the possibility of parole and remanded for resentencing where the district court’s drug quantity finding alone rendered the defendant ineligible for a nonmandatory minimum sentence, observing that:
This difference [between possible penalties] is significant in this case because the trial judge’s determination of the weight of the drugs took away any discretion in terms of imposing a shorter sentence. It is not a foregone conclusion that the trial judge would have sentenced Flowal to life without the possibility of release if a jury had determined the drugs weighed 4.997 kilograms. In fact, if the jury had determined that the drugs weighed less than 500 grams, a life sentence would not have even been an option under 21 U.S.C. § 841(b)(1)(C). The judge’s determination effectively limited the range of applicable penalties and deprived Flo-wal of the opportunity to receive less than life imprisonment without the possibility of release.
Likewise, in Ramirez, we vacated the defendant’s twenty-year mandatory sentence under § 841(b)(1)(A) and remanded his case for resentencing where the applicable statutory penalty was determined exclusively by the district court’s drug quantity finding. There, we observed that “[aggravating factors, other than a prior conviction, that increase the penalty from a nonmandatory minimum sentence to a mandatory minimum sentence, or from a lesser to a greater minimum sentence, are now elements of the crime to be charged and proved.” Ramirez,
In United States v. Strayhom, we again vacated a defendant’s sentence and remanded his case for resentencing after a district court’s attribution of 414 pounds of marijuana to the defendant resulted in a ten-year mandatory minimum sentence under § 841(b)(1)(B). Significant to this case, the indictment in Strayhom, like those at issue in Flowal and Ramirez, failed to specify the quantity of drugs for which the Government sought to hold the defendant criminally responsible. In set
Under Ramirez, if the government seeks to convict and sentence Strayhorn under § 841(b)(1)(B) for conspiracy to possess more than 100 kilograms of marijuana, it must indict him appropriately and then prove the elements of that offense beyond a reasonable doubt. Otherwise, the government may indict a defendant under the provision with the lowest statutory maximum sentence and then, as in this case, rely on relevant conduct findings to achieve what it otherwise might not if held to a higher burden of proof, namely a sentence under a separate offense’s enhanced penalty provision.
Consistent with our holdings in Flowal, Ramirez, and Strayhorn, we find that the district court violated Apprendi when it sentenced Humphrey to a mandatory sentence of 240 months. Although the district court properly found that Humphrey was subject to a Guidelines sentencing range of 235 to 293 months, it nevertheless erroneously believed that it was required to sentence Humphrey to a mandatory minimum sentence of 240 months, as provided for in § 841(b)(1)(A).
A close inspection of Flowal, Ramirez, and Strayhorn reveals that such a distinction is of no consequence. The rationale underlying each of these panel’s decisions was not that the mandatory minimum sentence of one provision was less than or equal to the statutory maximum of another, but a concern that the district court was compelled to issue a sentence that, but for its drug quantity determination, it would not have been obligated (or even permitted) to impose. See Strayhorn,
Indeed, the district court in the instant case, even if it had been so inclined, would not have sentenced Humphrey to 235 months, the low end of the Guidelines sentencing range, because it believed that the twenty-year statutory mandatory minimum sentence set forth in § 841(b)(1)(A) removed its authority to do so. It is precisely this situation that we confronted in Flowal, Ramirez, and Strayhorn and that we concluded offended the rule of Appren-di. The jury in this case should have
This Court’s recent decisions in United States v. King and United States v. Garcia,
However, in the very same case, this Court found no Apprendi violation where the other defendant’s sentence under the Guidelines exceeded but did not equal the mandatory minimum of § 841(b)(1)(A), yet still remained within the statutory maximum of § 841(b)(1)(C). Like the first defendant, the second defendant was found by a preponderance of the evidence to have trafficked in between 300 grams and one kilogram of methamphetamine. Because he had no prior convictions, he was exposed to a mandatory minimum of ten years and a maximum of life under § 841(b)(1)(A). With no amount specification, he would have faced no minimum and a maximum of twenty years under § 841(b)(1)(C). This second defendant was sentenced to 151 months (twelve years and seven months). Relying upon this Court’s decision in United States v. Garcia, we found that the district court had not erred because the twelve years and seven months of imprisonment, while it exceeded the ten-year mandatory minimum of § 841(b)(1)(A), did not equal the ten-year minimum of the same provision. See King,
While this result seems anomalous, it is dictated by a prior ruling. In United States v. Garcia, which King cited, the indictment did not specify a quantity of drugs. At allocution, the defendant explicitly admitted to only an amount of marijua
After Garcia and King we are left with an inordinately complicated Apprendi doctrine. Although it is obvious that the limitations placed upon Ramirez lead to peculiar results, we are constrained by the principle of stare decisis to abide by those decisions. See Salmi v. Sec’y of Health & Human Servs.,
We anticipate that this Apprendi cacophony soon will be harmonized by the Supreme Court. See Harris v. United States,
The dissent’s argument relies on two interdependent assumptions: first, that our precedent in this area is not just complex, but fundamentally irreconcilable; second, that because it is irreconcilable, we are free to ignore some cases in favor of others. Neither of these assumptions can withstand scrutiny. As the dissent acknowledges, the Supreme Court’s Ap-prendi decision offers more than one formulation of the test — one that appears to support a “statutory maximum” rule, and another that appears to support an “increased range” rule. Nevertheless, the dissent faults this Court for failing to adhere to what it describes as a “statutory maximum” interpretation of Apprendi. The dissent extracts from our decisions in United States v. Page and United States v. Munoz,
Nevertheless, the dissent insists that Flowal and its progeny have spawned a “line of cases parallel to, but at odds with, another distinct line of cases following the ‘statutory maximum’ rule of Munoz, Page, and Rebmann.” This concept of a “parallel precedent” is nothing more than a bugbear. Nearly every case the dissent marshals to prove the existence of this “parallel precedent” is an unpublished decision with no binding effect. See 6th Cir. R. 28; United States v. Ennenga,
It is axiomatic that a court of appeals must follow the precedent of prior panels within its own circuit. See, e.g., FDIC v. Abraham,
Ultimately, we are unsure of how the dissent would decide the substantive Ap-prendi claim in this case. The dissent urges this Court to consider en banc review. Request for en banc review is certainly the prerogative of any member of this Court, 6th Cir. R. 35, but en banc review is useless in helping us decide this case. The dissent proposes a “tie breaker” doctrine that would allow us to reach through Flowal, Strayhom, and Ramirez, as if they were some type of judicial phantasm, and rely on Page. But this suggestion violates the very principle of stare decisis the dissent wishes to champion. Moreover, as King and Garcia demonstrate, this Court has already rejected such a strategy, opting to distinguish prior cases rather than to disregard them. While we sympathize with the dissent’s frustration with the doctrine, Page, Munoz, Flowal, Strayhom, and Ramirez all constitute the corpus of Apprendi jurisprudence in our Circuit. It is clear from all of the precedent in our Circuit that Humphrey’s sentence implicates the current “mandatory minimum” protections of our jurisprudence. Indeed, as noted before, the Government admitted as much in oral argument. It is equally clear that Humphrey’s sentence was in error and that he is entitled to have his sentence vacated and remanded. The dissent may despair, but this is the law of the Circuit, and our duty is to decide this case according to the law.
E. Ineffective Assistance of Counsel 1. Standard of Review
We review de novo a defendant’s claim that he was denied the effective assistance of counsel. See Sims v. Livesay,
2. Analysis
Humphrey contends that in four respects the performance of his counsel, David Dudley, fell below that required by the Sixth Amendment. First, as discussed above, in Part III.B.2.b., Dudley failed to raise a timely challenge to the Government’s allegedly discriminatory use of its
Because ineffective assistance of counsel claims are customarily the subject of a 28 U.S.C. § 2255 post-conviction proceeding, we generally decline to review those claims that are raised for the first time on appeal unless “the record is adequate to assess the merits of the defendant’s allegations.” See United States v. Hill,
This rule stems from the fact that a finding of prejudice is a prerequisite to a claim for ineffective assistance of counsel, and appellate courts are not equipped to resolve factual issues. As a result, our court has routinely concluded that such claims are best brought by a defendant in a post-conviction proceeding under 28 U.S.C. § 2255 so that the parties can develop an adequate record on the issue.
United States v. Aguwa,
We believe such a practice is particularly appropriate in this case where the record before us is inadequately developed to permit us to resolve the difficult and fact-intensive questions concerning whether Humphrey can establish the requisite prejudice stemming from the alleged deficiencies of his counsel.
F. Plea Agreements 1. Standard of Review
We review a district court’s admission of testimony and other evidence at trial for an abuse of discretion. See United States v. Logan,
2. Analysis
Humphrey submits that he was convicted on the basis of the purchased testimony of Eaton and Cromity. Specifically, in exchange for testimony against Humphrey, the Government entered into a plea agreement with Eaton, a major drug dealer, which resulted in Eaton’s receipt of a sentence of fifty months imprisonment and which permitted him to maintain possession of two homes and three cars, despite his acknowledgment that they had been used to further his drug selling activities. Likewise, Cromity, a drug dealer with an even more extensive operation than Eaton’s, entered into a plea agreement with the Government in exchange for his testimony, which resulted in a sentence of 108 months imprisonment (with a twelve month reduction for completion of a drug treatment program) to be served at a low security facility where his brother is also housed and which is less than two hours from his family and friends in Cleveland.
Humphrey reasons that if he had offered Eaton and Cromity something of value in exchange for their favorable testimony, he would have been subject to indictment for bribing a witness pursuant to
Also without merit is Humphrey’s argument that the Government’s use of Eaton’s and Cromity’s testimony violated Disciplinary Rule 7-109(C) of the Ohio Code of Professional Responsibility, which provides that “[a] lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case.” He cites no authority, and we have found none, for the proposition that a plea agreement is barred by DR 7-109(C). We accordingly find no error.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court on all claims, but VACATE Humphrey’s sentence, and REMAND this case to the district court for resentencing.
Notes
. A defendant is entitled to a hearing to challenge the .validity of a search warrant if he "makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and ... the allegedly false statement is necessary to the finding of probable cause.” Franks v. Delaware,
. The Government’s alleged use of its peremptory challenges to exclude African Americans from the jury and the district court's failure to so find are addressed in Part III. B.2.b.
. This conclusion also renders moot Humphrey’s other allegation, that the district court did not find by a preponderance of the evidence that he sold crack and not some other type of cocaine. As discussed in Part III.D. below, because Humphrey’s sentence violates Apprendi, upon remand, Humphrey cannot be sentenced under any provision other than § 841(b)(1)(C), which does not require a factual finding of any particular schedule I or II controlled substance.
. Indeed, we believe too high a hurdle for de novo review will raise the specter of defendant’s counsel "making a long and virtually useless laundry list of objections to rulings that were plainly supported by existing precedent,” Johnson v. United States,
. The dissent abstracts one line from that opinion, "Defendants ... failed to object to the district judge making the determination of drug quantities,” Page,
The dissent’s reliance on Johnson v. United States is erroneous for a similar reason. Johnson did not indicate whether the defendant raised an objection in the district court; Johnson only notes that the defendant herself insisted that the district court commit the error.
. The record reads as follows:
THE COURT: This Court does in fact accept the findings and guideline applications contained in the presentence investigation report, with the exception that this Court will not afford a two-level enhancement for the gun. Therefore, we are looking at a criminal history category of 1, a total offense level of 38, which according to the guideline imprisonment range, we’re looking at 235 to 293 months. However, we are in fact looking at a mandatory minimum of 240 months.
J.A. at 487.
. Unlike the present case, the defendants in King had not preserved the error.
. As a matter of formal logic, language in Munoz could be construed to exclude any Apprendi violation unless the district court's finding resulted in a defendant receiving a sentence in excess of the maximum statutory penalty. Such formalism, however, would inevitably lead to absurd results. For example, if a district court issued a sentence below the mandatory maximum using the reasonable doubt standard, but did so after having peremptorily dismissed the jury, there would be little question that a constitutional violation had occurred. Yet, such a case would be excluded from Apprendi consideration by the strict logic of Munoz. We cannot believe the Page court would have intended such a result. As one jurist noted: "A formal logic which reasons from precedent alone sometimes insulates the mind against the overwhelming logic of reality.” Klingenberg v. City of Raleigh,
. The dissent attempts to fashion Ramirez as a usurper of Munoz, but its argument ignores the intervening decision in Flowal. Key to our decision in Flowal was the fact that “the trial judge’s determination of the weight of the drugs took away any discretion in terms of imposing a shorter sentence.”
. The subsequent case law in this and other Circuits confirms this forecast. By my count, in the Sixth Circuit alone, we have cited Ap-prendí in 33 published opinions, and 137 opinions overall, in the nineteen months since that case was decided.
Concurrence Opinion
concurring in part and dissenting in part.
I concur in all but Part III, section D of the Court’s decision. However, I respectfully dissent from the majority’s determination that this case be remanded for resentencing under the authority of Apprendi v. New Jersey,
The majority, in my view, then exacerbates the problem by following another set of Sixth Circuit decisions which confer special status on Apprendi claims, exempting them from the usual rule of waiver that is a bedrock principle of appellate law: namely, that an objection is forfeited, and hence subject only to plain error review, if not timely asserted before the trial court. Instead, the majority holds that we should review such claims de novo, even where, as here, a defendant has not remotely raised an Apprendi challenge before the District Court, but, to the contrary, has explicitly acknowledged at sentencing that the pre-Apprendi state of affairs still governed. Again, there is Sixth Circuit authority for the majority’s position — but again, there is prior, competing authority, never overruled and still followed, which dictates that we apply plain error review under the
Admittedly, this panel cannot single-handedly unravel the conundrum of this Circuit’s post -Apprendi law. The majority, to its credit, certainly tries to do so; indeed, I must confess a grudging admiration for its herculean effort to harmonize a body of law that it characterizes — charitably, in my view — as “inordinately complicated,” (Majority Op. at 450), and as defying “formal logic,” (id. at 451 n. 8). The majority’s effort, however, fails to assuage my fundamental concern that like cases are being decided differently — and that this case, in particular, is apparently governed by two distinct lines of published precedent that dictate two different outcomes. Under these circumstances, I believe that we are bound to follow this Circuit’s first, clear, and unmistakable statement of the rule of Apprendi in its initial efforts to construe that decision. Instead, the majority elects to follow a later (and contrary) line of cases, thereby breathing new life into decisions of questionable pedigree. As a District Judge who must apply Apprendi in the first instance, I am especially troubled by this Circuit’s failure to endorse a single “rule” of Apprendi in its decisions, by the hopeless jumble that instead presents itself as the “precedent” of this Court on this question, and by the havoc this state of affairs plays with any principled attempt to adhere to the cardinal rule of stare decisis.
By these decisions, our Circuit has realized the fears of the dissenters in Appren-di. Justice O’Connor, in particular, warned that the Court’s opinion would have an “unsettling effect on sentencing conducted under current federal and state determinate-sentencing schemes,” and that “the Court’s decision threatens to unleash a flood of petitions by convicted defendants seeking to invalidate their sentences in whole or in part.”
Other Circuits, to their credit, have recognized but downplayed the “alarms sounded by the dissenters” in Apprendi, finding certain guideposts in the majority opinion and in related Supreme Court precedents that point unmistakably toward a narrow reading of that decision. See, e.g., United States v. Garcia,
In resolving the Apprendi challenge in this case, the majority follows these latter panels, both in their strained reading of Apprendi and in their application of an improper standard of review. Accordingly, while I concur in the remainder of the majority’s decision, I dissent from its ruling that this case be remanded for resen-tencing.
I.
As indicated above, I have two principal concerns with elements of this Circuit’s post-Apprendi jurisprudence. First, while, as Justice O’Connor aptly observed, the Apprendi majority stated several formulations of its ruling which are somewhat in tension with each other, it is incumbent upon us, nevertheless, to adopt and adhere to one of these formulations as the law of this Circuit. Instead, we, like the majority in Apprendi have endorsed several different, and inconsistent, statements of “the rule” of Apprendi. To be sure, if Appren-di itself is ambiguous, there is little we can do to overcome this problem. Yet, I believe, and our sister Circuits concur, that any potential ambiguity is cured by reading Apprendi alongside the whole of Supreme Court precedent in the area of sentencing. I submit that the construction of Apprendi adopted in some of our cases, including by the majority here, cannot be squared with this body of law.
Second, given the questions that inevitably have arisen about the retroactive application of Apprendi to sentences imposed prior to that decision, we must be clear in establishing the standard of review that will govern Apprendi challenges at the various stages of criminal proceedings. Some of our decisions, however, do not even address the proper standard of review, and others, like the majority ruling here, are at odds with the governing Federal Rules of Criminal Procedure, Supreme Court precedent, and our many pri- or decisions in which we have applied newly-announced rules for the conduct of criminal prosecutions. I will discuss each of these points in turn.
First, it unfortunately is true that Ap-prendi’s central “holding” is stated in different ways. Indeed, the very paragraph in which the majority announces its conclusion includes two variants of “the rule” of Apprendi:
In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones [v. United States,526 U.S. 227 ,119 S.Ct. 1215 ,143 L.Ed.2d 311 (1999)]. Other 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. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: “[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.”526 U.S., at 252-253 ,119 S.Ct. 1215 ,143 L.Ed.2d 311 (opinion of Stevens, J.); see also id., at 253,526 U.S. 227 ,119 S.Ct. 1215 ,143 L.Ed.2d 311 (opinion of Scalia, J.).
Apprendi,
While all of these readings (and perhaps more) enjoy some degree of support in the brute text of the Apprendi decision, there is ample reason to reject the broadest of these interpretations — i.e., that facts which alter the range of penalties must be proved to a jury beyond a reasonable doubt. Most significantly, we know that the Supreme Court did not intend this result in Apprendi, because it expressly declined to overturn a prior decision, McMillan v. Pennsylvania, 477 U.S. 79,
Justice O’Connor insisted in her Ap-prendi dissent that “it is incumbent on the Court ... to admit that it is overruling McMillan.” Apprendi,
There are other indications within Ap-prendi itself that the majority did not adopt such a sweeping rule. For example, Justice Thomas’s concurrence does endorse something akin to the “alter the range” standard, in light of his “view that the Constitution requires a broader rule than the Court adopts.”
No doubt a defendant could, under such a scheme, find himself sentenced to the same term to which he could have been sentenced absent the mandatory minimum. The range for his underlying crime could be 0 to 10 years, with the mandatory minimum of 5 years, and he could be sentenced to 7. (Of course, a similar scenario is possible with an increased maximum.) But it is equally true that his expected punishment has increased as a result of the narrowed range and that the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish. The mandatory minimum entitles the government to more than it would otherwise be entitled (5 to 10 years, rather than 0 to 10 and the risk of a sentence below 5). Thus, the fact triggering the mandatory minimum is part of the punishment sought to be inflicted; it undoubtedly enters into the punishment so as to aggravate it, and is an act to which the law affixes punishment. Further, ... it is likely that the change in the range available to the judge affects his choice of sentence. Finally, in numerous cases ..., the aggravating fact raised the whole range — both the top and bottom. Those courts, in holding that such a fact was an element, did not bother with any distinction between changes in the maximum and the minimum. What mattered was simply the overall increase in the punishment provided by law.
Apprendi’s limitation to statutory máx-imums is further confirmed by the majority’s response to Justice O’Connor’s suggestion that its holding “rests on a meaningless formalism,” since a legislature seemingly could satisfy the majority’s standard by establishing an elevated statutory maximum for a collection of previously separate (and separately punishable) offenses, and then defining a variety of sentencing factors, found by the judge by a preponderance of the evi
All of this is compelling evidence that the rule of Apprendi implicates only sentencing máximums, and not sentencing ranges generally. Further, as noted, each and every one of our sister Circuits that has addressed the question — in all, ten of the eleven other Circuits — has arrived at this conclusion. See United States v. Harris,
More importantly, our own Circuit immediately adopted the “statutory maximum” interpretation of Apprendi. In our very first post-Apprendi decision, United States v. Corrado,
In this case, [the defendants] faced a maximum sentence of twenty years on the RICO conspiracy counts, disregarding the murder conspiracy. Because the district court did not sentence either defendant to a term of more than twenty years on the RICO counts, Apprendi is not triggered and the existence of a murder conspiracy did not have to be decided by a jury under the reasonable doubt standard.
Soon thereafter, we considered Appren-di at length, and again found that it addressed maximum penalties. In United States v. Rebmann,
More to the point of the present appeal, we reached the same conclusion in United States v. Page,
The Court finds the principles set forth in Apprendi applicable to defendants’ eases. In count one of the indictment, defendants were charged with conspiracy to distribute and possess with the intent to distribute crack cocaine. There is no mention of quantity in the indictment and the jury made no findings regarding quantity. Pursuant to the provisions of [21 U.S.C.] § 841, the quantity of drugs is a factual determination that significantly impacts the sentence imposed. Section 841(b)(1)(C) provides for a maximum penalty of 20 years unless the crime involves a quantity of drugs as set forth in subsections (A) or (B). These subsections provide for a maximum penalty of 40 years if the crime involved 5 grams or more of crack cocaine, see § 841(b)(1)(B), and a maximum penalty of life imprisonment if the crime involved 50 grams or more of crack cocaine, see § 841(b)(1)(A). The district judge found, by a preponderance of the evidence, the quantity of drugs for which each defendant was accountable. Based on this drug quantity determination, each defendant was sentenced to a term of imprisonment exceeding the 20-year maximum set forth in § 841(b)(1)(C). However, as instructed in Apprendi, a defendant may not be exposed to a greater punishment than that authorized by the jury’s guilty verdict. The jury merely found that defendants conspired to distribute and possess to distribute some undetermined amount of crack cocaine. As such, defendants cannot be subjected to the higher penalties under § 841(a)(1)(A) or (B). Rather, the maximum sentence that may be imposed on this count is 20 years pursuant to § 841(b)(1)(C).
We applied this same rule a fourth time in United States v. Munoz,
[I]n the present case, defendant’s sentence is invalid under Apprendi only if the district court’s finding that defendant conspired to distribute methamphetamine resulted in defendant receiving a sentence in excess of the maximum statutory penalty for conspiracy to distribute cocaine, the crime to which defendant pled guilty.
This case involves 126.7 grams of cocaine and 804.8 grams of either amphetamine o[r] methamphetamine. Title 21,*462 U.S.C. § 846 provides that the penalty for conspiracy to distribute any drug will be identical to the penalties for distribution. Under 21 U.S.C. § 841(b)(1)(C), the statutory penalty for distribution of 126.7 grams of cocaine ranges from zero to twenty years imprisonment. The statutory penalty for distribution of 804.8 grams of methamphetamine, under 21 U.S.C. § 841(b)(1)(B), is five to forty years imprisonment. The statutory penalty for distribution of 804.8 grams of amphetamine, a Schedule II drug, is zero to twenty years, under 21 U.S.C. § 841(b)(1)(C). Defendant pled guilty to conspiracy to deliver the specified amount of cocaine. For the cocaine alone, the statute authorizes a maximum sentence of twenty years. Defendant was. actually sentenced to serve 121 months, approximately ten years. Defendant’s sentence did not exceed the statutory maximum for the portion of the indictment to which he validly pled guilty. The sentencing judge’s determination by a preponderance of the evidence that defendant conspired to distribute methamphetamine, rather than amphetamine, did not increase his penalty beyond the prescribed statutory maximum for conspiracy to distribute 126.7 grams of cocaine. Thus, the Apprendi ruling is not applicable here and does not impact defendant’s sentence.
The above-quoted passages from Page and Munoz could be repeated verbatim in this case. The superseding indictment charged Defendant/Appellant Montel Humphrey and several co-Defendants with three counts of conspiring to distribute and to possess with intent to distribute a “detectable amount” of cocaine and/or cocaine base (crack), (see J.A. at 589, 594, 597), as well as other offenses. The jury returned a guilty verdict on two of the three conspiracy counts,
The majority recognizes as much, albeit without citing Page. Problematically, however, the majority goes on to hold that Defendant’s sentence violates a second “rule” of Apprendi, one which implicates sentencing ranges, even though our decisions in Page and Munoz — not to mention
The trouble began in United States v. Flowal,
Notwithstanding this readily discernible outcome under this Circuit’s own post-Ap-prendi precedents, the panel in Flowal deemed it necessary to interpret Apprendi anew. Its analysis, unfortunately, is anything but clear. First, upon reviewing Apprendi the panel concluded that it had adopted the principle set forth in the Supreme Court’s prior Jones decision: namely, that “any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Flowal,
At this point, however, Flowal takes an unexpected (and unwarranted) turn. After all this discussion of sentencing máxi-mums, the Court stated that Apprendi was violated in the case before it because “a finding as to the weight of the drugs deter
There are a number of other flaws, as well, in the analysis through which the panel in Flowal sought to support its broad reading of Apprendi. First, throughout its discussion of mandatory minimum sentences and the resulting diminution of a sentencing court’s discretion, Flowal never once mentions the Supreme Court’s controlling statement on mandatory mínimums in McMillan, nor the language in Apprendi expressly confirming that McMillan continues to govern in “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.” Apprendi,
Further, it is noteworthy that Flowal relies on, and quotes extensively from, Justice Thomas’s concurrence in Appren-di. Without in any way denying the force of Justice Thomas’s reasoning, his opinion is, in the end, only a concurrence, and not a ruling of the Court — and even Justice Thomas recognized that his proposed rule would require that McMillan be overturned, while the Apprendi majority expressly declined to go so far. As stated by the Fourth Circuit, it is “not our role” to overturn McMillan, where the Supreme Court has elected not to do so. Harris, supra,
Despite its many flaws and questionable legitimacy, Flowal has taken on a life of its own in this Circuit, spawning a line of cases parallel to, but wholly inconsistent with, another distinct line of cases following the “statutory maximum” rule of Munoz, Page, and Rebmann. The most prominent members of the Flowal line, and the ones relied upon by the majority here, are the decisions in United States v. Ramirez,
Most recently, in Strayhom, the panel addressed a 10-year mandatory minimum-sentence under § 841(b)(1)(B), for a marijuana distribution conspiracy involving 100 kilograms or more of marijuana, that precisely matched the 10-year statutory maximum sentence under § 841(b)(1)(D), for a prior drug felon convicted of an offense involving an indeterminate amount of marijuana. Again, the panel chose to follow Flowal and Ramirez, and did not discuss Page or Munoz. Interestingly, Strayhom states that “[i]n Flowal, we explained that each penalty provision of § 841(b) constitutes a different crime with different elements, including drug weight, which must be proved beyond a reasonable doubt when sentencing a defendant in excess of the default statutory maximum set out in § 841(b)(1)(C) for all drugs except marijuana, or in § 841(b)(1)(D) for marijuana,” and that “[o]ur sister circuits have uniformly agreed with” this rale. Strayhorn,
Of course, if this were the rale announced in Flowal, our sister circuits would be in agreement, and the sentence at issue in Strayhom would have been upheld as not in excess of the default statutory maximum found at § 841(b)(1)(D). The Strayhom panel quickly confirmed, however, that Flowal and Ramirez go a good deal farther, encompassing any case in which a sentencing court finds “aggravating factors” by a preponderance of the evidence that trigger a “higher penalty range,” even though the resulting sentence might still lie within the lower statutory bounds for the offense as
Read properly, and as applied in Ramirez and Strayhom, Flowal plainly cannot be said to be in accord with the view of Apprendi adopted by our sister Circuits. To the contrary, and as noted at the out
II.
By now, my views regarding the correct construction of Apprendi should be evident. As conceded at the outset, however, the Court’s opinion in that case contains language that arguably supports a few competing interpretations. In any event, whether one subscribes to the “maximum penalty” or “sentencing range” view of Ap-prendi, the outcome of the present case should be no different, because Defendant/Appellant Humphrey cannot possibly satisfy the governing “plain error” standard. Yet, the majority concludes otherwise, upon first determining that Defendant’s Apprendi-based challenge should be reviewed de novo. According to the majority, Defendant sufficiently raised an Ap-prendi issue at sentencing to preserve the issue on appeal or, alternatively, his factual challenges to drug quantities at sentencing sufficed to preserve the issue. I take a different view, both as to the record and as to the governing law. I again must acknowledge, however, that our Circuit has provided mixed messages — and, all too often, no guidance at all — in determining the standard under which Apprendi challenges should be reviewed.
Although our initial post-Apprendi decisions in Corrado and Rebmann did not consider the proper standard of review for claims of Apprendi violations,
Defendants ... failed to object to the district judge making the determination of drug quantities. Where there has been no objection, review is for plain error.
Once again, Page’s ruling on this point is in accord with the decisions of all of our sister Circuits. See United States v. Titchell,
In electing to apply plain error review, Page cites the Supreme Court’s decision in Johnson v. United States,
The Court of Appeals reviewed this matter for plain error, and the Supreme Court, upon granting certiorari, likewise concluded that the plain error standard governed its inquiry, because the defendant “did not object to the trial court’s treatment of materiality.” Johnson,
Consequently, even if Page had not settled the issue, Johnson would dictate that we apply plain error review to an Appren-dNbased claim raised for the first time on appeal. As the majority recognizes, and as we have observed elsewhere, see, e.g., King,
In the present case, during the proceedings in the court below, Defendant undeniably raised factual challenges to the drug quantity recommendations set forth in the presentence investigation report, and then reasserted these challenges at the sentencing hearing. These challenges rested on the contention that the Government’s proofs as to drug quantities relied heavily on the uncorroborated testimony of two cooperating witnesses whose credibility was open to question. (See J.A. at 463-68, 683-92.) For example, in his written objections to the presentence report, Defendant characterized these witnesses as “highly motivated informants,” with one being “an admitted drug addict” and the other “an admitted liar with a personal vendetta against” Defendant. (Id. at 684.) In light of the significant sentencing consequences if the testimony of these witnesses were credited, Defendant and his counsel urged the District Court to “exercise some caution” in assessing'this testimony. {Id. at 465.)
But, Defendant and his counsel just as surely did not contest the District Court’s authority to make the determination of drug quantities, did not argue that this determination should be made beyond a reasonable doubt rather than by a preponderance of the evidence, and did not object at trial that this was an issue for the jury and not the judge to decide. To the contrary, in his written objections to the pre-sentence report, Defendant expressly stated: (i) his request that “the Court ... make the ... finding[ ] at sentencing ... that Defendant be sentenced to a mandatory minimum term of five years imprisonment for his sale of between 500 grams and five kilograms of powder cocaine,” {id. at 678 (emphasis added));
[T]his Court, as the Court knows, has its own independent discretion to decide, once again, lower. We agree with that preponderance of the evidence, but it’s still — preponderance of evidence means*471 the Government’s got to show more likely than not. It’s not a close call, but show more likely than not these quantities are credible quantities to hold Mr. Humphrey accountable for.
And I would say given it affects his liberty, perhaps his life, that the Government hasn’t met that burden with respect to these witness’ testimony.
(Id. at 467 (emphasis added).) I do not see how the record could be more clear in demonstrating Defendant’s acknowledgment of the role of the District Court to determine drug quantities under a preponderance-of-the-evidence standard.
Consequently, under Page and Johnson, Defendant’s Apprendi-based challenge, raised for the first time on appeal, should be reviewed only for plain error. Under this standard, Defendant is entitled to relief only if we identify (1) an error, (2) that is plain, (3) that affects substantive rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Johnson,
Nevertheless, even accepting the majority’s view, following Flowal and its progeny, that Apprendi implicates sentencing ranges and not merely statutory máxi-mums, this finding of an Apprendi error would satisfy, at most, only the first two prongs of the four-part plain error test. In that event, we still could not conclude that this purported error affects Defendant’s substantial rights. Rather, it is well established, in this Circuit and others, that substantial rights are not affected, and the plain error standard is not satisfied, by a sentence that could have been achieved solely through the jury’s verdict (or a defendant’s guilty plea), and absent the additional findings of the sentencing court under the too-lenient preponderance standard. See United States v. Stafford,
The majority is able to conclude otherwise only by altogether avoiding a “substantial rights” inquiry, and instead reviewing Defendant’s Apprendi claim de novo. As the basis for this, the majority first endeavors to show that Defendant raised something akin to an Apprendi challenge before the District Court. In all of the many passages of the record quoted by the majority, however, Defendant never once questioned the District Judge’s authority to determine drug quantities for purposes of sentencing, and made only a single reference to a “higher standard,” (J.A. at 468), as part of his argument that the informant testimony offered by the Government was inherently unreliable. It seems to me unnecessary to decide whether the portions of the record cited by the majority contain something that could possibly be construed as an Apprendi-like argument, when the passages I quoted earlier — and which the majority does not— feature express statements of Defendant’s positions: namely, that it was the duty of the District Court to determine the drug quantities for which he was to be held responsible, and that it was the Government’s burden to establish these quantities by a preponderance of the evidence.
Alternatively, the majority cites Strayhorn,
In contrast, Defendant here has not mounted a constitutional attack upon a federal statute, but instead challenges the District Court’s decision as to which ele
Arguably, Strayhom endeavors to distinguish Page and its application of plain error review by suggesting that the two cases involved different sorts of objections in the court below. In Strayhorn, the defendant “repeatedly objected] to the drug quantity determination at his plea hearing and at his sentencing hearing, as well as in a written objection to the calculation of his base offense level in his pre-sentence report,” and he “made it well known that he disputed the district court’s factual finding with respect to drug quantity.” Strayhorn,
This attempted distinction, however, fails on at least two scores. First, as a factual matter, and as both the majority and I have pointed out in our respective opinions, Page says almost nothing at all about what objections, if any, were presented to the District Court in that case. The lone break from this silence, as I noted earlier, is the Court’s pointed observation that the defendants “did not object to the district court making the determination of drug quantities.” Page,
Indeed, I read Page as our Circuit’s definitive statement on the subject, leaving no room for the distinction that Strayhom seeks to draw. Page does not say much on the subject — we seldom do when setting forth the applicable standard of review — but what it says is plain enough: namely, that a defendant who does not “object to the district judge making the determination of drug quantities” faces plain error review on appeal. Page,
III.
The majority’s decision to remand this case for resentencing rests upon two underlying determinations: (i) that the rule of Apprendi is violated whenever a District Court’s factual finding by a preponderance of the evidence alters the range of penalties to which a defendant is exposed; and (ii) that Apprendi claims are reviewed de novo whenever a defendant raises any sort of challenge at sentencing to the District Court’s factual findings as to drug quantity. Both of these underlying propositions, I believe, are demonstrably in error, whether one proceeds by first principles from the relevant Supreme Court precedents, or whether one simply reviews the initial (and presumably still binding) Sixth Circuit precedents on each of these points. Accordingly, while I concur in all other respects, I respectfully dissent from the majority’s disposition of Defendant’s Ap-prendi claim, and from its decision to remand this case for resentencing.
. The D.C. Circuit apparently has not squarely addressed the application of Apprendi to statutory sentencing ranges, but has held, with regard to sentencing enhancements under the U.S. Sentencing Guidelines, that "Ap-prendí does not apply to sentencing findings that elevate a defendant’s sentence within the applicable statutory limits.” United States v. Fields,
. Nevertheless, as discussed below, we upheld the sentences of three of the four defendants under the "plain error” standard of review, "since, absent the [Apprendi ] error, their sentences would have been the same as those which were imposed.”
. The third charge of conspiracy was dismissed before trial.
. This range becomes 20 years to life imprisonment if, as is the case here, a defendant previously has been convicted of a felony drug offense. See 21 U.S.C. § 841(b)(1)(A). The majority holds, and I agree, that Defendant’s challenge to his prior conviction is without merit.
.In fact, this statutory maximum increases to 30 years where, as here, the defendant has a prior conviction for a felony drug offense. See 21 U.S.C. § 841(b)(1)(C). Thus, Defendant's 20-year sentence actually is well below the statutory maximum, even when drug quantities are omitted from the determination.
. Despite this Apprendi violation, the Government argued that the defendant's sentence could be upheld as within the range set forth in § 841(b)(1)(B), ten years to life, in light of the defendant’s admission to a quantity of cocaine just under 5 kilograms. The panel in Flowal rejected this argument, without ever stating the standard of review that governed its consideration. This additional defect in Flowal is discussed below.
. Flowal misstates the facts in Rebmann, however, claiming that the defendant in that case was sentenced to life imprisonment. In fact, as noted earlier, the challenged sentence in Rebmann was 24 years and 4 months, still beyond the default statutory maximum of 20 years.
. In Aguayo-Delgado, as in the case before us, the defendant was sentenced to a 20-year term of imprisonment. The Eighth Circuit found that this sentence was "permissible under Apprendi and McMillan," because it fell "within the statutory range authorized by § 841(b)(1)(C) without reference to drug quantity.”
. Notably, the rule stated in Ramirez is remarkably similar to the standard advocated by Justice Thomas in his concurrence in Ap-prendi: namely, that "a ‘crime’ includes every fact that is by law a basis for imposing or increasing punishment (in contrast with a fact that mitigates punishment)."
. Strayhom at least attempts to account for the Supreme Court’s decision in McMillan, citing that case for the proposition that "the government may still rely upon a district court’s finding of relevant conduct by a preponderance of the evidence, but only insofar as it 'operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it’ and does not 'alter[ ] the maximum penalty for the crime committed nor create[ ] a separate offense calling for a separate penalty.’ ” Strayhorn,
Moreover, if it once was possible to define McMillan’s holding by reference to such notions as "separate offenses” or "separate penalties,” the decision and analysis in Apprendi now preclude such an effort. As we recognized in Rebmann, Apprendi marks a "radical departure” in the Supreme Court's method of determining the "elements” of an offense. Rebmann,
If Congress had specified that only judges may make the findings required by § 841(b), or that these findings must be made by a preponderance of the evidence, then § 841 would create a constitutional problem. But the statute does not say who malees the findings or which party bears what burden of persuasion. Instead the law attaches effects to facts, leaving it to the judiciary to sort out who determines the facts, under what burden. It makes no constitutional difference whether a single subsection covers both elements and penalties, whether these are divided across multiple subsections (as § 841 does), or even whether they are scattered across multiple statutes. Apprendi holds that the due process clause of the fifth and fourteenth amendments make the jury the right deci-sionmaker (unless the defendant elects a bench trial), and the reasonable-doubt standard the proper burden, when a fact raises the maximum lawful punishment. How statutes are drafted, or implemented, to ful-fil that requirement is a subject to which the Constitution does not speak.
United States v. Brough,
Thus, in the wake of Apprendi, there is no constitutional significance in the question whether a 20-year statutory maximum sentence under § 841(b)(1)(C) is "really” a sentence within the 10-years-to-life range governing the different "offense” set forth in § 841(b)(1)(A). Instead, the offense is defined solely by reference to the jury’s verdict, and the sentencing court then is free to determine, by a preponderance of the evidence, one or more factors that impact upon the sentence for this offense, so long as these factors do not take the sentence beyond the statutory maximum for the offense. This is the process used by federal judges for some time now to determine sentences under the Sentencing Guidelines, and it seems untenable to suggest that Congress has less authority to establish relevant sentencing considerations by statute, as in § 841(b), than the Sentencing Commission may accomplish through the Guidelines. Moreover, I cannot conceive that Apprendi s functional approach was meant to invite more mind-reading of sentencing judges to determine which of a set of overlapping statutory provisions defined the real "offense” for which a defendant was sentenced. Rather, a District Court "creates a separate offense,” in the parlance of McMillan, only by sentencing a defendant in excess of the statutory maximum for the offense established through the jury’s verdict.
. In criticizing Flowal, I mean no disrespect to the panel that decided it. I have already acknowledged that Apprendi itself is not a model of clarity. Moreover, regarding Flo-wal's failure to account for this Circuit’s existing post-Apprendi precedents, it must be noted that Page and Munoz were decided in November of 2000, with Flowal following soon thereafter, on December 11, 2000. This Circuit’s initial flurry of post-Apprendi decisions admittedly posed a challenge to panels seeking to ensure that their decisions were consistent with our existing law on the subject. Nevertheless, Flowal and its progeny do depart from the decisions that preceded them. Thus, I respectfully differ from the majority’s view that Flowal, Ramirez, and Strayhom merely reflect the further development of our post-Apprendi jurisprudence, resolving issues left open in our initial decisions on the subject. I find this explanation wanting, both factually and legally.
First, if our initial ‘‘statutory maximum” reading of Apprendi were now a dead letter, supplanted by the broader holdings of Flowal and its progeny, one would expect that panels would no longer cite our earlier statement of the rule of Apprendi, but instead would ask whether a District Judge's findings by a preponderance of the evidence affected the sentencing range faced by the defendant. Yet, in the time since Flowal was decided, several panels of this Court have continued to follow the narrower rule of Corrado, Page, and Munoz, holding that Apprendi does not apply where the defendant’s sentence lies within the statutory maximum for the offense established by the jury verdict (or guilty plea) alone. See, e.g., United States v. McLemore,
More importantly, as a legal matter, the majority’s "development of the law” theory cannot hope to account for cases with legally indistinguishable facts but different outcomes. Munoz and Ramirez, for example, both involved drug-related findings by a District Judge that triggered an enhanced statutory sentencing range, both minimum and maximum, but the defendant in each case was sentenced within the default 20-year maximum of § 841(b)(1)(C). Munoz held that "the Apprendi ruling is not applicable here," 233
The question becomes, what to do about this state of affairs? The majority suggests— albeit tacitly, given its assertion that our post-Apprendi decisions are not in conflict — that the later decisions should prevail over the earlier ones. I am uncomfortable with this, as it seems to sanction a “one free bite” exception to our rule of stare decisis. In contrast, adherence to the earlier cases reinforces the principle of stare decisis by demonstrating our resolve not to permit one panel to overturn the ruling of another. Under the present circumstances, moreover, there is the additional consideration that Flowal and its progeny have effectively overruled the Supreme Court’s McMillan decision, and not just existing Sixth Circuit precedent. This, in my view, is the ultimate "tiebreaker.”
. Or perhaps, as the majority suggests, the Supreme Court will resolve the matter for us, as it appears that the Court will revisit Ap-prendi in a forthcoming opinion.
. As it happens, the standard of review was not determinative in Corrado and Rebmann. In the former case, the Court found no Ap-prendi violation, and the defendant could not have prevailed even under de novo review. In the latter, the defendant’s sentence exceeded the statutory maximum for the offense to which she had pled guilty, and her claim therefore could have satisfied the more stringent plain error standard.
. On appeal, at least one of the four defendants in Page questioned the District Court's method of computing drug quantities. We rejected this challenge, and stated that "[o]ther issues ... regarding drug quantity are addressed in the unpublished appendix to this opinion.” Page,
. In addition, because the sentencing judge had not presided at trial, defense counsel went to some lengths at sentencing to point out that the jury’s guilty verdicts did not necessarily mean that the jury found the two cooperating witnesses fully credible, particularly as to specific drug transactions and quantities. (See id. at 465-66.)
. Given this admission in his written objections, and in light of his prior felony drug conviction (which he argued, unsuccessfully, should not be used in computing his sentence), Defendant clearly was subject to a sentence of 10 years to life imprisonment under § 841(b)(1)(B). Defendant acknowledged this in his written objections to the presentence report, and again at sentencing. (See id. at 466, 692.)
. The Government’s counsel plainly shared this view, observing at sentencing, following the above-quoted statement by defense counsel, that "Mr. Dudley has accurately related to the Court what our burden is, and that's the lesser burden, preponderance.” (Id. at 468.)
. As noted earlier, this 20-year statutory maximum is raised to 30 years where, as here, the defendant has a prior conviction for a felony drug offense. See 21 U.S.C. § 841(b)(1)(C).
.The concurrence in Stafford is instructive on this point. Judge Clay endorsed the broader, "sentencing range” reading of Ap-prendi, see Stafford,
. To the majority’s suggestion that it would be unfair to penalize a defendant for failing to anticipate a change in the law through a not-yet-issued Supreme Court ruling, I can only say that the requirement of contemporaneous objection, see Fed.R.Crim.P. 30, and the limited exception in cases of plain error, see Fed. R.Crim.P. 52(b), reflect "a careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed.” United States v. Frady,
. Though Strayhom looks to Flowal and Ramirez for guidance in construing Apprendi, it cannot rely upon these decisions as authority for de novo review of Apprendi claims, for the simple reason that Flowal and Ramirez are completely silent as to the standard of review for such claims.
. Strayhom commits the same error with respect to our decision in Neuhausser, viewing that case, like Page, as distinguishable on the ground that the defendant purportedly "failed to object when [the] district court made its determination of drug quantities.” Strayhom,
Parenthetically, as a member of the panel (and the writing Judge) in Neuhausser, I am able to go back to the record and confirm that, in fact, the defendant did present factual challenges to the District Judge’s determination of drug quantities, both in written objections to the presentence report and at his sentencing hearing. As indicated below, if this portion of the record was not mentioned in the panel’s opinion, it was because we
. As noted earlier, the distinction Strayhom seeks to draw between the circumstances presented in that case and the circumstances in Neuhausser does not, in fact, exist. Thus, we are in the same predicament in our post-Apprendi standard of review jurisprudence as I discussed earlier with regard to our decisions addressing the substantive scope of Apprendi: namely, that like cases are being decided differently, with Strayhom having effectively overruled Neuhausser, at least (and arguably also Page), on the standard of review issue. And, again, any effort to identify a coherent statement of our Circuit’s present rule on this issue runs afoul of the case law, where many of our recent decisions continue to cite Page as authority for applying a plain error standard, without ever considering whether a factual challenge at sentencing might instead trigger de novo review. See, e.g., United States v. Graham,
. I do not understand the majority’s confusion as to the outcome I am advocating in this case. Specifically, I believe that Defendant’s Apprendi challenge should be rejected, and his sentence affirmed in all respects. As authority for this, I would look to Page, Munoz, and our other initial post-Apprendi rulings that I have surveyed above. To the extent that this approach requires us to "ignore” certain of our published decisions, this is by no means unprecedented. Rather, as I observed at the outset, we have adopted a rule to govern this precise situation, requiring that we adhere to our first published ruling on a subject over a later but conflicting decision. See Darrah, supra,
In contrast, it is interesting to consider what might occur upon the remand ordered by the majority. At his initial sentencing, Defendant faced a Sentencing Guidelines range of 235 to 293 months, and the majority finds no error in this determination. On remand, then, Defendant stands to achieve at most a 5-month reduction in his sentence. Yet, his sentence also could be enhanced,