UNITED STATES of America, Plaintiff-Appellee, v. Neashon WASHINGTON and Adrein Bennett, Defendants-Appellants.
Nos. 07-4067, 07-4085.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 3, 2008. Decided March 13, 2009.
558 F.3d 716
William C. Loeffel (submitted), Williams & Williams, East Peoria, IL, Susan Kister (submitted), St. Louis, MO, for Defendants-Appellants.
Before EASTERBROOK, Chief Judge, and MANION and WOOD, Circuit Judges.
WOOD, Circuit Judge.
Neashon Washington and Adrein Bennett were two mеmbers of a drug distribution gang that called itself the “Bigelow boys.” The Boys operated in the general area of Peoria, Illinois, using a house at 1811 Bigelow Street. The police began focusing on Washington and Bennett in mid-2005, with the help of a confidential informant. Undercover work and controlled sales followed. Eventually, Washington, Bennett, and three other men were charged with conspiracy to distribute
Both have appealed. Bennett argues that the district court made two errors in sentencing him: first, he asserts that it was inconsistent with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), for the judge to use
I
Because Bennett‘s arguments focus exclusively on his sentence, we can dispense with a detailed account of the operation of the drug cоnspiracy. The jury was presented with evidence from a cooperating member of the conspiracy, who told them about what was sold (usually crack), how much was sold, what prices were charged, and how the drugs were weighed, packaged, and delivered. When the time came to instruct the jury, one instruction went аs follows:
If you find the defendant, Adrein Bennett, guilty of conspiracy as charged in Count 1 of the Indictment, next you must find beyond a reasonable doubt the quantity of drugs involved. Indicate your findings as to the quantity of drugs below and have each juror sign this form.
We, the jury, find that the amount of controlled substances involved in the conspiracy and reasоnably foreseeable to Adrein Bennett was:
_ less than 5 grams
_ 5 grams or more, but less than 50 grams
_ 50 grams or more
With respect to Count 2 (which charged Bennett and Washington with distribution of crack), the jury was asked to decide only whether Bennett was guilty of distributing “cocaine.” For Counts 3 through 17, the jury was asked to make a finding of guilty or not guilty, and then to indicate whether the drug distributed was “cocaine base, but not сocaine base (crack)” or “cocaine base (crack).” It was not asked to find quantity for Counts 2 through 17.
At one point during its deliberations, the jury sent a note indicating that it was having trouble agreeing on the quantity of cocaine involved in any of the counts. After a discussion, the prosecutor and defense counsel agreed that the court should just await the jury‘s verdict and decide then what to do if anything was missing. The jury eventually returned its verdict and found Bennett guilty of the conspiracy charged in Count 1, but it left the form addressing drug quantity blank. It also
The cоurt accepted the verdict and ordered a presentence report (“PSR“). The probation officer concluded that Bennett‘s relevant conduct involved at least 150 grams but less than 500 grams of crack cocaine, based on the evidence received at trial. The PSR also recommended a four-level enhancement for Bennett‘s leadership role in the offense and a two-level enhancement for having a firearm present at the Bigelow house. This led to a base offense level of 38 under the Sentencing Guidelines and an advisory sentencing range of 262 to 327 months. The PSR took the position that, under
In its sentencing memorandum, the government acknowledged that the jury had not made a finding of drug quantity. It argued, however, that the court had the authority to find quantity as long as the court refrained from imposing a sentence longer than the 30-year maximum authorized by
Disagreeing with the probation оfficer, the court found that Bennett was responsible only for 50 to 150 grams of crack. It also found that both the leadership and the gun enhancements were proper, leading to a final total offense level of 36 (rather than the 38 that the PSR had recommended). It also concluded that the mandatory minimum applicаble to Bennett was the 20-year term specified in
II
A
Bennett‘s primary argument for setting aside his sentencе is that the district court acted inconsistently with Apprendi when it found the facts that supported his mandatory minimum sentence. Apprendi held that a jury must find beyond a reasonable doubt “any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum.” Apprendi, 530 U.S. at 490. Although Apprendi arose in the context of New Jersey‘s sentencing regime, it is by now well established that the rule it announced applies to federal sentencing as well. See United States v. Booker, 543 U.S. 220, 233, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (Apprendi rule applies to federal sentencing, but it does not apply to an advisory sentencing guideline system, as opposed to statutory maxima). This does not, however, transform drug type and quantity into “еlements” of the offense. Instead, as we have held repeatedly, drug type and quantity are sentencing factors that must be found by the jury, insofar as they establish the maximum possible sentence. See, e.g., United States v. Kelly, 519 F.3d 355, 363 (7th Cir.2008); United States v. Martinez, 301 F.3d 860, 865 (7th Cir.2002); United States v. Bjorkman, 270 F.3d 482, 491-92 (7th Cir.2001).
Although some thought that the Apprendi rule logically should apply to minimum sentences established by statute, the Supreme Court has not been persuaded to follow that path. Instead, in Harris v. United States, supra, the Court concluded that there is no requirement for the jury to find beyond a reasonable doubt the facts that trigger a statutory minimum sentence. 536 U.S. at 557.
Although that would seem to preclude Bennett‘s argument, insofar as it is based on the Apprendi line of cases, the Second Circuit did not see matters that way in its decision in United States v. Gonzalez, 420 F.3d 111 (2d Cir.2005). This court, however, expressly refused to follow Gonzalez and a similar decision from the Ninth Circuit, United States v. Velasco-Heredia, 319 F.3d 1080 (9th Cir.2003), in United States v. Clark, 538 F.3d 803, 812 (7th Cir.2008). Althоugh we could dismiss Bennett‘s argument summarily, in light of Clark, respect for the views of our sister circuits and Bennett‘s reliance on those cases persuade us to take another look at these issues.
In Gonzalez, the Second Circuit held that a criminal defendant cannot be sentenced unless “a jury found or Gonzalez himself admitted the specifiеd drug quantity element.” 420 F.3d at 125. The court reasoned that
As we noted earlier, this court expressed disagreement with the holding of Gonzalez in United States v. Clark. We did not specify whether our disagreement flowed from Gonzalez‘s characterization of the sentencing rules as “elements” of a crime rather than “sentencing factors,” or if we understood the Second Circuit‘s comments about the structure of the statute to be an alternativе basis for its ruling independent of its interpretation of Apprendi‘s requirements. No one that we can find, including Bennett‘s counsel in the district court, Bennett‘s counsel before this court, and the district court, has considered the question whether, as a straightforward matter of statutory interpretation, it is permissible to apply a statutory maximum sentеnce from one subsection of
We are not inclined to revisit our decision in Clark, which adhered to our position that
B
As we noted earlier, when the district court computed Bennett‘s offense level under the Sentencing Guidelinеs, it added two levels under
Bennett argues that there was insufficient evidence to support a сonclusion that the drugs were sold or prepared for sale at the Bigelow house. Without such evidence, he continues, there is no way to link the guns found in the house to his drug distribution activity. Although the government might have argued that the importance of this enhancement drops out of the case if we affirm the statutory mandatory minimum sentence (as we have done), it did not. Erring on the side of caution, therefore, we consider Bennett‘s argument on the merits. In opposing his position, the government points to the following evidence:
- Cooperating witness Douglas Sherman‘s testimony that a house on Bigelow Street was a “gathering place,” along with the fаct that there were six men in the Bigelow house when the police searched it
- Sherman‘s testimony that he purchased cocaine at a house on Bigelow Street
- Jennifer Delaney‘s testimony that she purchased cocaine at a house on Bigelow Street
- The discovery by the police of two semi-automatic handguns at 1811 Bigelow Street
- The discovery by the police of a plate with Bennett‘s fingerprint and .5 grams of cocaine on it, also at 1811 Bigelow Street
- Sherman‘s testimony that Bennett used a plate of that type to prepare cocaine for distribution and his opinion that the plate was not consistеnt with personal use
- Sherman‘s testimony that Bennett did not use cocaine
Bennett points to a number of cases in which the quantity of drugs discovered in proximity to the guns was substantially greater than the .5 grams the police found in his case. E.g., United States v. Turner, 93 F.3d 276, 289 (7th Cir.1996) (handgun found in same room as 29 grams of methamphetamine, 5 pounds of a methamphetamine precursor, and other paraphernalia); United States v. Ewing, 979 F.2d 1234, 1238 (7th Cir.1992) (unlоaded gun found in lockbox with 20 grams of cocaine, among other things). But the government did not have to prove the association solely by looking to the amount of drugs in close proximity to the gun. The question is whether it was clearly improbable that these guns were connected with Bennett‘s drug-dealing activities. The district court thought not, and we cannot say that it clearly erred in coming to that conclusion.
III
Finally, it appears that the same error was made with respect to Count 2 in Bennett‘s case as was made in Washington‘s — that is, the judgment read “distribution of cocaine base (crack)” instead of “distribution of cocaine.” Bennett has not raised this issue on appeal, but this error strikes us as plain and in need of correction. We therefore AFFIRM the sentence, but we REMAND for the limited purpose of correcting the judgment on Count 2 to read “distribution of cocaine.”