UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 99-60241

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RODNEY THOMAS; HINES WEEKLY, III also known as BOREY; BERTHA T
WEEKLY CLASTINE PITTMAN, also known as COOTER,

Defendants-Appellants.

Appeal from the United States District Court for the Northern District of Mississippi

March 26, 2001

Before KING, Chief Judge, HIGGINBOTHAM and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

This is an appeal by four participants in a crack cocaine

distribution conspiracy concerning errors putatively made in their

federal jury trial and in the sentencings that followed it. For the

following reasons, we affirm the convictions and sen tences with

respect to all defendants except Bertha Weekly. We vacate her

sentence and remand for resentencing.

BACKGROUND

One evening in 1997, some Clarksdale, Mississippi, police1 While the misconduct of which Bertha complains does not merit

extended treatment here – since, considered in the context of the trial in which it occurred, the misconduct does not require reversal of her con victions – it was real and inexcusable nonetheless. Although we commend the offending prosecutor for appearing before us personally and ack nowledging and apologizing for two particular instances of his misconduct (his declaring before the jury that a particular defense witness was not telling the t ruth and his forcing Bertha to call a number of prosecution witnesses liars), we expect that similar apologies need not issue in the future.

2 officers executed a search warrant at the home of defendant Bertha

Week ly (“Bertha”). The officers uncovered there evidence

implicating Bertha, defendant Clastine Pittman (“Clastine”),

defendant Hines Weekly III (“Borey”), and Defendant Rodney Thomas

(“Rodney”) in a conspiracy to distribute crack cocaine. Based in

part on that evidence, a federal jury convicted the four of

conspiring to distribute and posses s with intent to distribute

crack cocaine, and also convicted Bertha of aiding and abetting

Borey in possessing with intent to distribute more than five grams

of crack cocaine and convicted Clastine of possessing with intent

to distribute more than 50 grams of crack cocaine.

Bertha argues here that prosecutorial misconduct, 1 the

district court’s improper admission of evidence, and an Apprendi

erro r require reversal of her conviction or mitigation of her

sentence. Borey argues that an impermissibly suggestive in-court

identification produced his conviction, which, he contends, we

should reverse accordingly. Clastine and Rodney argue that

insufficient evidence supports their convictions and Clastine’s3

sentence.

DISCUSSION

Of the arguments described above, Bertha’s Apprendi argument

is the only one with merit. We have carefully considered the

defendants’ other arguments. After reviewing the record, we are

convinced that sufficient evidence supported the defendants’

convictions and sentences. The evidence producing those

convictions and sentences, moreover, was properly admitted.

As the government admits on appeal, the district court made an

Apprendi error with respect to Bertha. After the trial and

Bertha’s sentencing, the Supreme Court decided A pprendi v. New

Jersey , 530 U.S. 466 (2000). Apprendi held that the Constitution

requires that any fact that increases the penalty for a crime

beyond the prescribed statutory m aximum be submitted to the jury

and proved beyond a reasonable doubt. Id. The statutory maximum

sentence for Bertha in this case was twenty years. See 21 U.S.C.

§ 841 (b)(1)(C)

. The District Court sentenced Bertha to life in

prison based on the amount of crack cocaine the judge found, by a

prepondera nce of the evidence, she possessed with intent to

distribute. Because the amount of crack Bertha possessed with

intent to distribute was a fact that increased the penalty for her

crime beyond the prescribed statutory maximum, her sentence is

unconstitutional under Apprendi

. S ee United States v. Ag uayoDelgado

, No. 99-4098, 2000 WL 988128, a t *7 (8th Cir. July 18,

2000) (under Apprendi , drug quantity is an element of the offense4

that must be proved beyond a reasonable doubt).

We, theref o re, vacate her sentence and remand for

resentencing, with any prison term not to exceed twenty years.

CONCLUSION

We affirm the district court in all respects save one: we

vacate Bertha’s sentence and remand for resentencing in accordance

with Apprendi

.
AFFIRMED in part, VACATED and REMANDED in part.