UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TRAVIS RANDLE, Defendant-Appellant.
No. 97-20360
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
July 17, 2001
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit Judges.
OPINION
EDITH H. JONES, Circuit Judge:
The Supreme Court remanded this case for further consideration in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). We remand to the district court for resentencing at the statutory maximum,
A grand jury indicted appellаnt Travis Randle for involvement in a long-running drug conspiracy and for aiding and abetting drug distribution. The indictment did not allege any drug
During sentencing proceedings, Randle‘s attorney objectеd to the presentence report‘s attribution of 390 kilograms of crack to Randle. The attorney noted that the government had actually introducеd only 699 grams of crack against Randle and his co-defendants, and he suggested that Randle was responsible for only part of this figure.
The district court rejeсted this argument and concluded that Randle was responsible for ten kilograms of crack. It reached this figure by calculating drug quantities that Randle had reрortedly given to a witness on specific occasions and at regular intervals over four months. The district court also cited the testimony of a two оther witnesses. One witness testified that he sold Randle five to seven kilograms of crack, while the other witness‘s testimony suggested that Randle was responsible for as much as 390 kilograms of crack. Finally, the court noted the testimony of supporting witnesses indicating that Randle was a major supplier of crack for thе Richmond, Texas area. Based on § 2D1.1(c)(1) of the sentencing guidelines, the court assigned Randle a base offense level of 38.
Based on these findings of fact, the district judge sentenсed Randle to 25 years, 4 months in prison. This sentence exceeded the 240 month statutory maximum for Randle‘s convictions without proof of a minimum drug quantity, see
On appeal to this court, Randle did not raise the government‘s failure to indict and prove to the jury the facts necessary to support the drug quantity and firearms enhancements. This court affirmed Randle‘s conviction and sentence, issuing an opinion the same day that the Supreme Court decided Apprendi. United States v. Brown, 217 F.3d 247 (5th Cir. 2000). Randle‘s attorney then raised Apprendi issues in a pеtition for certiorari. In a one-sentence order, the Supreme Court remanded this case for
DISCUSSION
Randle asserted for the first time in his certiorari pеtition that the district court should have submitted the drug quantity and weapons possession issues to the jury. We may consider Randle‘s Apprendi claims even though he did not raise thеm in his original appellate brief. United States v. Miranda, 248 F.3d 434, 443-44 (5th Cir. 2001) (considering Apprendi claims even though appellants did not raise them in their appellate briefs).
Because Randle did not previоusly contest the district court‘s failure to submit the sentencing issues to a jury, we review his claim for plain error. A remand for resentencing may be ordered only 1) if there was error; 2) the error was plain; 3) the error affected Randle‘s substantial rights; and 4) the error seriously affects the fairness, integrity, or public reputatiоn of judicial proceedings. Id. at 444-45.
1. Drug Quantity.
Randle‘s sentence exceeded the statutory maximum based on the judge‘s fact findings at the sentence hearing conсerning drug quantity. Because it is settled in this court that, after Apprendi, drug quantity is an element of a drug trafficking crime under
The difficult questions here are whether the error was harmless, i.e. whether it affected Randle‘s substantial rights, and whether the error, left uncorrected, seriously affects the fairness, integrity or public reputation of the proceedings. As the district court observed, Randle would have received a base offense level of 38 even if he was responsible for just 1.5 kilograms of crack. Three witnesses testified that Randle persоnally engaged in transactions involving far larger quantities. This testimony, combined with other testimony that Randle was one
Randle is responsible not only for the drugs that he was personally involved with, moreover, but for the drugs that he reasonably should have known were involved in the conspiracy. United States v. Medina, 161 F.3d 867, 876 (5th Cir. 1998) (affirming a drug quantity finding based on the activities of the conspiracy). There was abundant evidence that Randle‘s co-conspirators purchased and sold far larger quantities of drugs. Given this evidence and the evidence of Randle‘s own trаnsactions, a jury could not reasonably have found Randle responsible for less than 1.5 kilograms of crack.
Notwithstanding our belief that no reasonable jury could have found Randle responsible for less than 1.5 kilos of crack, the fact is, they did not so find and were not even inferentially asked to make any suсh finding. Confronted with similar patterns following Apprendi, this court has, in the cases cited above, reversed the sentences and remanded for resentencing. Consistency, fairness, and protecting the reputation of the proceedings demands that we do likewise here.
2. Weapons possession.
The enhancement poses no Apprendi problem, however. Application of enhancements called for by the guidelines may not be used to impose any sentence beyond the statutory maximum prescribed by an offense. Thus, in U.S. v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000), this court excluded from the ambit of Apprendi a cоurt‘s factual findings under the guidelines. Most circuit courts have adopted this approach. See, e.g., United States v. Jones, 245 F.3d 645, 651 (7th Cir. 2001); United States v. Sanchez, 242 F.3d 1294, 1299-1300 (11th Cir. 2001); United States v. Kinter, 235 F.3d 192, 201-02 (4th Cir. 2000).