IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-31193

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RANDY L. RANDALL

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

Before DAVIS, DeMOSS, and ELROD, Circuit Judges.

PER CURIAM:

Randy L. Randall pleaded guilty pursuant to a plea agreement to one 

count of conspiracy to possess with intent to distribute five kilograms or more 

of cocaine (Count 1), in violation of 21 U.S.C. §§ 841(a)(1)1 and 846, and one 

count of possession of a firearm in furtherance of a drug trafficking crime 

(Count 24). As part of a signed “Factual Basis,” he admitted that the facts 

therein were sufficient to support the conspiracy charge and that the “overall 

1 21 U.S.C. § 841(a)(1) provides: “(a) Except as authorized by this subchapter, it shall be 

unlawful for any person knowingly or intentionally-- (1) to manufacture, distribute, or 

dispense, or possess with intent to manufacture, distribute, or dispense, a controlled 

substance; . . .”

United States Court of Appeals

Fifth Circuit

FILED

October 29, 2014

Lyle W. Cayce

Clerk

 

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scope” of the conspiracy involved five kilograms or more of cocaine. However, 

the Factual Basis stated that only 148.8 grams of cocaine and 35.2 grams of 

cocaine base had been seized from the apartment where Randall was arrested. 

At rearraignment, Randall admitted that he did “knowingly and intentionally 

conspire and agree together [with other persons] to possess with intent to 

distribute 5 kilograms or more of a mixture and substance containing a 

detect[a]ble amount of cocaine.” He also was advised that he faced a sentence 

of 10 years to life.2

The PSR found that, although the overall drug amount involved in the 

conspiracy was five kilograms or more of cocaine, Randall’s own “responsibility 

and knowledge in this case was limited to 148.8 net grams of powder cocaine, 

and 35.2 net grams of crack cocaine.”3 Based on that drug amount, the PSR 

calculated a Guidelines range of 70 to 87 months of imprisonment. However, 

the PSR concluded that the statutory mandatory minimum sentence of 120 

months under 21 U.S.C. § 841(b)(1)(A)(ii) was required.

At sentencing, the district court “accept[ed] the findings of the probation 

office.” Although the district court noted the applicable Guidelines range of 70 

to 87 months, it concluded that it was required to impose the statutory 

minimum sentence of 120 months for Count 1. Thus, Randall was sentenced 

above the calculated Guidelines range to the statutory mandatory minimum of 

120 months of imprisonment on Count 1 and a consecutive mandatory sentence 

2 See 21 U.S.C. § 841(b)(1)(A)(ii) (providing 10-year mandatory minimum sentence for 

offenses involving five kilograms or more of cocaine).

3 The PSR converted these drug amounts to a single marijuana equivalency of 155.46 

kilograms.

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of 60 months of imprisonment on Count 24. He filed a timely notice of appeal. 

He now argues for the first time on appeal that the district court erred by 

imposing the statutory mandatory minimum sentence for Count 1.

For the reasons set out below, we VACATE the sentence and REMAND

for resentencing consistent with this opinion.

DISCUSSION

In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court

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,”4 or, under Blakely 

v. Washington, 542 U.S. 296, 303 (2004), admitted by the defendant. In Alleyne 

v. United States, 133 S. Ct. 2151, 2158 (2013), the Supreme Court extended 

this holding to facts that increase the mandatory minimum sentence, as in this 

case. The issue in this appeal is whether or not Randall should be sentenced 

based on the amount of drugs attributable to the conspiracy as a whole or only 

on the amount attributable to him individually.

Because Randall failed to preserve this objection, review of this issue is 

for plain error only. To show plain error, he must show a forfeited error that is 

clear or obvious and that affects his substantial rights.5 If he makes such a 

showing, this court has the discretion to correct the error but only if it 

“‘seriously affect[s] the fairness, integrity, or public reputation of judicial 

proceedings.’”6

4 530 U.S. at 490. 5 See Puckett v. United States, 556 U.S. 129, 135 (2009).

6 Id. (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).

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In the wake of Alleyne, we recently addressed a drug conspiracy case 

whose reasoning is helpful here. In United States v. Daniels, 723 F.3d 562 (5th 

Cir. 2013), modified in part on rehearing, 729 F.3d 496, the defendants were 

charged with conspiracy to distribute and to possess with intent to distribute 

five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 

841(b)(1)(A)(ii), and 846. Section 841(a)(1) makes it “unlawful for any person 

knowingly or intentionally . . . to manufacture, distribute, or dispense, or 

possess with intent to manufacture, distribute, or dispense, a controlled 

substance.” Section 841(b)(1)(A)(ii) provides a statutory mandatory minimum 

of at least 10 years of imprisonment for offenses involving five kilograms of 

cocaine or other enumerated substances. Section 846 provides: “Any person 

who attempts or conspires to commit any offense defined in this subchapter 

shall be subject to the same penalties as those prescribed for the offense, the 

commission of which was the object of the attempt or conspiracy.”

The jury returned a guilty verdict finding that the conspiracy involved 

five kilograms or more of cocaine, and each of the defendants was sentenced in 

accordance with § 841(b)(1)(A)(ii).

Prior to sentencing, the district court conducted a 

hearing on drug quantity in which all defendants 

participated. At the hearing, the district court noted 

that the jury had found all of the defendants guilty of 

conspiring to distribute five kilograms or more of 

cocaine. Believing that not making a drug quantity 

finding as to each defendant could lead to problems on 

appeal, or could cause future complications depending 

on potential revisions to the sentencing guidelines, the 

defendants, led by Thomas, urged the court to make 

such findings. The defendants also acknowledged that 

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the five kilogram amount was found by the jury 

beyond a reasonable doubt, and was a floor for 

sentencing purposes. In response to the defendants’ 

concern regarding drug quantity, the Government 

agreed to stipulate that the offenses involved five 

kilograms of cocaine. All defendants agreed to 

stipulate to this amount for the limited purpose of 

sentencing. Each defendant also reserved his or her 

right to argue sufficiency of the evidence on appeal 

with respect to the quantity of cocaine proved at trial.

All defendants except Thomas had prior felony drug 

convictions, which mandated enhanced mandatory 

minimum sentences.7

Most of the defendants were sentenced to statutory minimum sentences under 

§ 841(b)(1)(A)(ii) which were above the otherwise applicable Guidelines range.8

On appeal, all defendants argued “that the evidence was insufficient to 

establish that they entered into a conspiracy to possess with intent to 

distribute five or more kilograms of powder cocaine (Count 1).”9 We set out the 

applicable standards, which apply equally to the instant case:

To prove conspiracy under 21 U.S.C. § 846, the 

government must establish that: “(1) an agreement 

existed between two or more persons to violate federal 

narcotics law, (2) the defendant knew of the existence 

of the agreement, and (3) the defendant voluntarily 

participated in the conspiracy.” United States v. 

Ochoa, 667 F.3d 643, 648 (5th Cir. 2012).

7 723 F.3d at 567-58.

8 Id. at 568.

9 Id. at 570.

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However, “if the government seeks enhanced penalties 

based on the amount of drugs under 21 U.S.C. § 

841(b)(1)(A) or (B), the [drug] quantity must be stated 

in the indictment and submitted to the [fact finder] for 

a finding of proof beyond a reasonable doubt.” United 

States v. Doggett, 230 F.3d 160, 164–65 (5th Cir. 2000). 

In the instant case, the Government sought enhanced 

penalties on the conspiracy charge under § 

841(b)(1)(A)(ii). In accordance with Doggett, the 

indictment alleged that the conspiracy involved at 

least five kilograms of cocaine. If an indictment alleges 

involvement in a conspiracy to distribute an amount of 

a controlled substance that triggers enhanced 

penalties under §§ 841(b)(1)(A) or (B), then Apprendi 

v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.

Ed. 2d 435 (2000), requires the Government to prove 

beyond a reasonable doubt the quantity of the alleged 

drug as a fourth element of the offense. See United 

States v. Turner, 319 F.3d 716, 721 (5th Cir. 2003).10

In Daniels, although the jury found in its verdict that the conspiracy 

involved five or more kilograms of cocaine, we concluded, after reviewing the 

evidence presented at trial, that “we are not persuaded that the Government 

proved a conspiracy involving at least five kilograms of cocaine beyond a 

reasonable doubt.”11 However, we explained that failure to prove the amount 

charged “does not undermine the conviction. Rather, it only affects the 

sentence.”12 Specifically, we cited cases from other circuits which distinguished 

the formal “elements” of offenses under §§ 841(a)(1) and 846 from “drug 

10 Id. at 570.

11 Id. at 572.

12 Id. (citing United States v. Rolon–Ramos, 502 F.3d 750, 754–55 (8th Cir. 2007), and United 

States v. Gomez–Rosario, 418 F.3d 90, 104 (1st Cir. 2005)).

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quantity and type,” which the Ninth Circuit “described as a ‘functional 

equivalent of an element’ for Apprendi purposes.”13 Although, prior to Daniels, 

we had not “expressly stated the principle that failure to prove drug quantity 

or type does not undermine a conviction under § 841(a)(1) and § 846,” at least 

one prior Fifth Circuit case implicitly endorsed the “functional equivalents” 

view.14 We reiterated:

Thus, where a defendant may be subject to enhanced 

statutory penalties because of drug quantity or type, 

the requisite fourth “element” under Apprendi is not a 

formal element of the conspiracy offense. Hence, 

defendants’ challenges to the quantity of cocaine 

charged in Count 1 of the indictment does not go to the 

validity of their convictions, but rather to the sentence 

that the district court may impose.15

We therefore concluded that district court had wrongfully imposed the 

statutory mandatory minimum sentences based on five kilograms or more of 

cocaine in violation of Apprendi and Alleyne:

In sum, although the Government did not prove the 

five kilogram quantity alleged, this failure does not 

invalidate defendants’ conspiracy convictions; rather, 

it only affects the sentence. We are mindful of the 

Supreme Court’s recent clarification in Alleyne v. 

United States that “[w]hen a finding of fact alters the 

legally prescribed punishment so as to aggravate it, 

the fact necessarily forms a constituent part of a new 

offense and must be submitted to the jury.” ––– U.S. –

13 Id. at 572-73 (quoting United States v. Toliver, 351 F.3d 423, 430-31 (9th Cir. 2003), 

abrogated on other grounds by Blakely v. Washington, 542 U.S. 296 (2004)); see also United 

States v. Collins, 415 F.3d 304 (4th Cir. 2005) (discussed in Daniels).

14 723 F.3d at 573 (citing United States v. Hayes, 342 F.3d 385 (5th Cir. 2003)).

15 Id.

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–––, 133 S. Ct. 2151, 2162, 186 L. Ed. 2d 314 (2013). 

Here the five kilogram quantity of cocaine, which 

would have aggravated the punishment, was 

submitted to and found by the jury. As discussed 

above, we found the evidence insufficient to support 

the five kilogram finding. In remanding for 

resentencing under § 841(b)(1)(B)(ii), we acknowledge 

that the way the verdict form was structured, the jury 

did not have an opportunity to make an explicit 

finding that 500 grams or more of cocaine were 

involved in the conspiracy. Even so, we are confident 

that the jury’s finding that 5 kilograms of cocaine were 

involved also encompassed a jury finding that the 

lesser quantity of 500 grams or more was involved.

Thus resentencing under § 841(b)(1)(B)(ii) is 

appropriate.16

Thus, in both Daniels and the instant case, the defendants were charged 

under the same statutes for a conspiracy involving five or more kilograms of 

cocaine in violation of 21 U.S.C. § 841(a)(1) and 846. The main difference is 

that the issue in Daniels was whether the jury had sufficient evidence to find 

that the aggregate amount involved in the conspiracy as to all defendants was 

five kilograms or more, while the issue here is whether Randall actually 

pleaded guilty to facts requiring the statutory minimum sentence for five 

kilograms or more of cocaine under § 841(b)(1)(A)(ii).

The Government concedes that the drug quantity in a conspiracy case 

must be proved beyond a reasonable doubt or admitted by the defendant under 

Alleyne, but it argues that under United States v. Turner, 319 F.3d 716, 721 

(5th Cir. 2003), Randall must be sentenced based on the quantity attributable 

16 Id. at 574.

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to the entire conspiracy, not just to him. Turner does not stand for that 

proposition. Rather, Turner stated that once the Government made a showing 

that the entire conspiracy involved a certain drug quantity for the conviction, 

“at sentencing, it need only prove the drug quantity attributable to Turner by a 

preponderance of the evidence (provided that his sentence falls within the 

statutory maximum made applicable by the fact finder’s conspiracy-wide drug 

quantity determination).”17 Thus, even in Turner the Government had to 

demonstrate the amount attributable to a particular defendant for sentencing 

purposes.18 Moreover, under Alleyne, the imposition of a statutory mandatory 

minimum sentence requires that the drug quantity be proved beyond a 

reasonable doubt or admitted by the defendant.

Indeed, we have expressly reached that conclusion in two unreported 

cases, United States v. Guajardo, 391 F. App’x 384, 386 (5th Cir. 2010), and 

United States v. Gurrusquieta, 54 F. App’x 592 (5th Cir. 2002). Both of these 

cases ultimately were decided on other grounds, but the reasoning is sound. In 

Guajardo, the district court sentenced the defendant to both the 10-year 

statutory mandatory minimum under § 841(b)(1)(a) and, in the alternative, the 

same 10-year sentence in an upward departure from the otherwise applicable 

17 319 F.3d at 723 (footnote omitted, emphasis added).

18 The Government also cites United States v. Alvarez-Salinas, 292 F. App’x 368 (5th Cir. 

2008) for the proposition that a defendant “seal[s] his fate” by pleading guilty to a charge, but 

we specifically noted that “the drugs attributed to Alvarez were not based on relevant conduct, 

but on the offense to which Alvarez pleaded guilty: namely a violation of § 841(a) whereby he 

possessed or aided and abetted possession of greater than 100 kilograms of marijuana. The 

factual basis to which he stipulated showed that 132.5 kilograms were involved in his 

offense . . . .” Id. at 371 (emphasis added). The sentence necessarily depends on the facts 

actually admitted by the defendant or found by a jury beyond a reasonable doubt.

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Guidelines range. The defendant challenged both the statutory mandatory 

minimum sentence and the alternative upward departure from the Guidelines 

range. We concluded the defendant was correct in his challenge to the statutory 

minimum:

Guajardo first contends that the district court erred by 

finding the 10-year mandatory minimum penalty of § 

841(b)(1)(A) applicable. Guajardo is correct. For 

sentencing purposes, a defendant is accountable only 

for the drug quantity “with which he was directly 

involved, and all reasonably foreseeable quantities of 

marijuana” within the scope of the joint criminal 

activity. See U.S.S.G. § 1B1.3, comment. (n.2). The 

presentence report, which was adopted by the district 

court, determined that the drug quantity attributable 

to Guajardo was the equivalent of 300.51 kilograms of 

marijuana. That is less than the threshold quantity 

(1,000 kilograms of marijuana) necessary for 

triggering the 10-year statutory minimum penalty. 

Thus, the 10-year mandatory minimum penalty of § 

841(b)(1)(A) was not applicable. See id.19

We ultimately concluded that the district court did not err in the alternative 

above-Guidelines sentence.20

In Gurrusquieta, we concluded that the district court erred in imposing 

the statutory mandatory minimum sentence for similar reasons:

As our review of the record shows, it is not readily 

apparent why the district court believed the 

mandatory ten-year minimum was applicable. Part of 

the confusion may stem from the fact that, in Count 1, 

Juan was indicted for conspiring to distribute in excess 

19 391 F. App’x at 386.

20 Id. at 386-87.

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of 1,000 kilograms of marijuana, in violation of 21 

U.S.C. § 841(a)(1), which carries a mandatory 

minimum sentence of 10 years. Juan’s conviction 

under § 846, however, does not automatically trigger 

the mandatory minimum sentence found in § 

841(a)(1). For sentencing purposes, a defendant is only 

accountable for all quantities of the marijuana with 

which he was directly involved, and all reasonably 

foreseeable quantities of marijuana that were within 

the scope of the criminal activity that he jointly 

undertook. See U.S.S.G § 1B1.3, comment. (n.2). In 

other words, an individual convicted of conspiring to 

distribute at least 1,000 kilograms of marijuana under 

21 U.S.C. §§ 846 and 841(b)(1)(A)(vii) is not 

necessarily subject to the ten-year minimum. Only if 

the defendant is responsible for at least 1,000 

kilograms, as determined by the Sentencing 

Guidelines, does the mandatory statutory minimum 

apply. The district court was therefore incorrect,

insofar as it determined that 1,067 pounds (or 483 

kilograms) required a ten-year mandatory 

minimum.21

Nevertheless, we concluded that the defendant in Gurrusquieta could not 

establish plain error because the erroneous statutory mandatory minimum fell 

within the otherwise applicable Guidelines range and therefore did not entitle 

the defendant to resentencing.22 Two sister circuits have applied the same rule 

as Guajardo and Gurrusquieta.23

21 54 F. App’x 592, at *3. 22 Id. (citing United States v. Leonard, 157 F.3d 343, 346 (5th Cir. 1998)).

23 See United States v. Cox, 565 F.3d 1013, 1017 (6th Cir. 2009), and United States v. ColonSolis, 354 F.3d 101, 103 (1st Cir. 2004).

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With these cases in mind, this case is easily resolved. Randall’s case is 

similar to both Guajardo and Gurrusquieta. As in those cases, Randall was 

found guilty on a conspiracy charge in which the overall conspiracy involved a 

sufficient amount of drugs to trigger an increased mandatory minimum 

penalty under §§ 841 and 846. However, as in those cases, the Factual Basis 

and PSR only attributed a lesser quantity of drugs to Randall (148.8 grams of 

powder cocaine and 35.2 grams of cocaine base), which would not be sufficient 

to trigger the statutory mandatory minimum sentence. The district court 

expressly adopted the facts set out in the PSR. 

Accordingly, we conclude that the district court plainly erred in imposing 

the mandatory minimum sentence. Given the disparity between the otherwise 

applicable Guidelines range of 70 to 87 months and the erroneously applied 

120-month statutory mandatory minimum the district court applied, we 

conclude that the error affects Randall’s substantial rights, and failure to 

correct the error would “seriously affect the fairness, integrity, or public 

reputation of judicial proceedings.”24

CONCLUSION

For the reasons set out above, we VACATE and REMAND for 

resentencing consistent with this opinion.

24 United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392, 80 L. Ed. 555 (1936).

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