* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

1 Apprendi v. New Jersey, 530 U.S. 466 (2000). 

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30913

CASSANDRA P. NEWTON

Petitioner-Appellant

v.

AVOYELLES WOMEN’S CORRECTIONAL CENTER, Warden

Respondent-Appellee

Appeal from the United States District Court 

for the Western District of Louisiana

U.S.D.C. No. 3:09-CV-193

Before KING, DAVIS and SOUTHWICK, Circuit Judges.

PER CURIAM:*

In this habeas petition under § 2254, Cassandra Newton argues that the

state court erred in its application of Apprendi1to her conviction and sentence.

We agree. 

United States Court of Appeals

Fifth Circuit

F I L E D

April 26, 2011

Lyle W. Cayce

Clerk
No. 09-30913

2

I. 

Cassandra P. Newton, Louisiana prisoner # 368326, was charged by

indictment with (1) second degree murder of her husband, Ivory Newton (count

one), (2) arson with intent to defraud (count two), and (3) obstruction of justice

by attempting to remove and conceal evidence of (a) arson with intentto defraud

and (b) aggravated arson (count three). State v. Newton, 973 So. 2d 916, 919,

921 (La. Ct. App. 2007). To establish aggravated arson, the state was required

to prove that it was foreseeable that human life might be endangered as a result

of the arson. La. R.S. 14:51. 

During Newton’s jury trial, the state produced evidence that the Newtons

lived in a rental house in Monroe, Louisiana, which they planned to burn down

in exchange for the insurance proceeds on a policy covering the house’s contents.

Newton, 973 So. 2d at 918. About five months before the fire, Cassandra

obtained insurance policies covering the house’s contents. Id. She also bought

a life insurance policy on Ivory’s life, with a rider allowing for the recovery of

additional benefits in the event Ivory died in a fire in the house. Id. Cassandra

was the sole beneficiary of the policies. Id.

A few hours before the fire, Cassandra and Ivory rented a truck to move

some of their furniture from the house to a storage facility. Id. They also moved

some of their newer furniture to Cassandra’s sister’s house, in exchange for old

furniture, which they moved to the house that burned later that day. Id. The

owner of the truck thought it strange that the Newtons were so insistent that

the furniture be moved that very evening. Id. At the time of the fire, the house

did not contain much at all. Id.

With respect to the fire itself, investigators found that the fire had been

intentionally set, as evidenced by the strong odor of gasoline in the house and a

water can containing gasoline found in the house. Id. The water can was the

only one of its kind sold by the local Wal-Mart within the month before the fire.
No. 09-30913

3

Id. The store’s security tape showed Ivory arriving at the Wal-mart in

Cassandra’s car with another person sitting in the front seat. Id. Inside the

store, Ivory purchased the water can and a pair of black gloves identical to

gloves found at the scene of the fire. Id. Cassandra was observed later that

evening with an unidentified male at a Texaco gas station, where she purchased

gas and other items. Id. An autopsy revealed that Ivory died from smoke and

soot inhalation, meaning that he was alive when the fire began. Id.

Following the close of the evidence,the jury returned verdicts of not guilty

on counts one and two and guilty on count three. Id. at 919. The trial court

sentenced Newton to 10 years in prison. Newton, 973 So. 2d at 919. The trial

court later adjudicated Newton a third felony offender, however, and sentenced

her to 15 years in prison without the benefit of parole. Newton, 973 So. 2d at

919. 

Newton appealed her conviction and sentence, raising two assignments of

error: (1) the trial court failed to list attempted obstruction of justice as a

responsive verdict, and (2) the trial court violated her Sixth Amendment rights

and the Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466 (2000),

when it enhanced her sentence on the obstruction of justice offense based on its

own factual findings rather than findings made by the jury beyond a reasonable

doubt (Sixth Amendment claim). Newton, 973 So. 2d at 919-22.

With respect to her Sixth Amendment claim, Newton specifically argued

that the jury’s guilty verdict on the obstruction offense (count three) was

ambiguous in that it did not specify whether Newton obstructed the

investigation of (a)the arson with intentto defraud offense or (b) the aggravated

arson offense. Newton, 973 So. 2d at 920. Newton argued, therefore, that the

trial court violated her Sixth Amendment rights when it determined that the

jury had convicted her of obstructing the investigation of both underlying

offenses and sentenced her on the basis of the more serious underlying offense,
No. 09-30913

4

aggravated arson. Newton, 973 So. 2d at 920. The appellate court rejected

Newton’s arguments and affirmed her conviction and sentence. Newton, 973 So.

2d at 922. The appellate court reasoned that because count three of the

indictment—the obstruction of justice count—was worded in the conjunctive, the

trial court did not err in concluding that the jury had convicted Newton of

obstructing the investigation of both underlying offenses. Id. The appellate

courtfurther reasoned that“[t]he conjunctive listing ofthe crimes . . . subject[ed]

Newton to the penalty provisions for either crime.” Id. Finally, the appellate

court noted that Newton never attempted to quash count three of the indictment.

Id.

The Supreme Court of Louisiana permitted Newton to file an out-of-time

petition for writ of certiorari. In her petition, Newton raised the same claims she

raised on direct appeal. The court subsequently denied Newton’s petition. State

v. Newton, 998 So. 2d 90 (La. 2009).

Newton filed a § 2254 petition, raising only her Sixth Amendment claim.

The magistrate judge (MJ) recommended that Newton’s claim be rejected on the

merits and that Newton’s § 2254 petition be dismissed with prejudice. The MJ

concluded that it was the jury, not the trial judge, who determined that Newton

was guilty of having obstructed justice by attempting to remove and conceal

evidence of both arson with intent to defraud and aggravated arson as charged

in the indictment. The district court thereafter independently reviewed the

record, including Newton’s objections to the MJ’s report, and dismissed Newton’s

§ 2254 petition with prejudice.

Newton timely filed a notice of appeal, a motion for leave to proceed in

forma pauperis (IFP) on appeal, and a motion for a COA. The district court

granted Newton IFP status but denied her a COA. This court granted Newton

COA on the Apprendi issue. 
No. 09-30913

5

II. 

A. Standard of Review

This court reviews issues of law de novo and findings of factfor clear error,

applying the same deference to the appellate court’s decision as the district court

must under the Anti-Terrorism and Effective Death Penalty Act of 1996

(AEDPA). Ortiz v. Quarterman, 504 F.3d 492, 496 (5th Cir. 2007). Under the

AEDPA, habeas relief may not be granted with respect to a claim that was

adjudicated on the merits in state court, unless the state court’s decision “was

contrary to, or involved an unreasonable application of, clearly established

Federal law as determined by the Supreme Court of the United States,”

§ 2254(d)(1), or “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” § 2254(d)(2); see

Powell v. Quarterman, 536 F.3d 325, 333 (5th Cir. 2008).

B. Analysis

Newton, proceeding pro se, argues that the trial court violated Apprendi

when the trial court—rather than the jury—found that she had obstructed

justice with respect to both the aggravated arson offense and the arson with

intent to defraud offense and sentenced her to a term of imprisonment based on

the aggravated arson offense, the more serious crime. 

The “clearly established federal law” applicable to Newton’s claim is that

developed by the Supreme Court in Apprendi and its progeny. In Apprendi, the

Supreme Court determined that sentence enhancements based on judicial fact

findings, which increased the range of punishment beyond the offense for which

the jury found the defendant guilty, violated the Due Process Clause. 530 U.S.

at 469, 490. Two years later, in Ring v. Arizona, 536 U.S. 584, 602 (2002), the

Supreme Court applied the holding and its reasoning in Apprendi, noting that

the dispositive question “is not one of form, but of effect.” “If a State makes an

increase in a defendant’s authorized punishment contingent on the finding of a
No. 09-30913

6

fact, that fact—no matter how the State labels it—must be found by a jury

beyond a reasonable doubt.” Ring, 536 U.S. at 602. 

The indictment in the instant case reflects that the State charged Newton

with second degree murder in count one, arson with intent to defraud in count

two, and obstruction of justice in count three. More specifically, count three of

the indictment reads as follows:

Count 3--Obstruction of justice--On or about 23 of Aug 2003

intentionally, willfully and unlawfully commit the crime of

obstruction of justice by the following, to-wit: attempting to remove

and conceal evidence of arson with intentto defraud and aggravated

arson, contrary to the provisions of R.S. 14:130.1.

The trial transcript reflects that the court read the indictment to the jury. 

The obstruction of justice charge in Newton’s indictment is worded in the

conjunctive: Newton is charged with obstructing justice in relation to arson with

intent to defraud and aggravated arson. Louisiana law permits charging in the

conjunctive if the “offense may be committed by doing one or more of several

acts, or by one or more of several means, or with one or more of several intents,

or with one or more of several results.” LA. CODE CRIM. PROC. ANN. art. 480.

(“Article 480"). In such cases, “proof of any one of the acts, means, intents, or

results so charged or set forth will support a conviction.” Id.; see, e.g., State v.

Kotwitz, 549 So. 2d 351, 362 (La. Ct. App. 1989) (crime of inciting a felony); State

v. Robins, 915 So. 2d 896, 900-01 (La. Ct. App. 2005) (crime of first degree

robbery). 

Thus, under Article 480, the jury could have based its verdict on a finding

that the defendant obstructed justice with respect to either or both of the

underlying offenses. Accordingly, a finding of guilt on the conjunctively charged

obstruction charge does not indicate whether the jury found Newton guilty of

obstructing justice in relation to one or both of the underlying crimes listed. In

addition, neither the jury instructions or the verdict form in this case provide
No. 09-30913

7

any information as to which choice the jury may have made. The trial court did

not explain in its instructions that Newton was charged with obstructing justice

by attempting to remove and conceal evidence of arson with intent to defraud

and evidence of aggravated arson. The court also did not instruct the jury as to

sentences applicable to obstruction of justice offenses. The jury verdict form

reflects that the jury returned a general verdict on the obstruction of justice

charge with no indication of which underlying crime Newton obstructed. 

This failure creates the issue in this case because Louisiana law sets

different sentences for a conviction of obstruction of justice depending on the

underlying crime. Under Louisiana law, a person obstructs justice when, inter

alia, he tampers with evidence, knowing that such acts have affected, reasonably

may affect, or will affect an actual or potential present, past, or future criminal

proceeding. LA. REV. STAT. ANN. art. 14:130.1(A); ; State v. Jones, 610 So. 2d

1014, 1016 (La. Ct. App. 2007); State v. Hookfin, 602 So. 2d 757, 758-59 (La. Ct.

App. 1992). The penalty for obstruction of justice is determined by the nature

of the underlying criminal proceeding obstructed. “When the obstruction of

justice involves a criminal proceeding in which a sentence of death or life

imprisonment may be imposed,”the maximum term of imprisonmentis 40 years

at hard labor. LA. REV. STAT. ANN. art. 14:130.1(B)(1). If “the obstruction of

justice involves a criminal proceeding in which a sentence of imprisonment

necessarily at hard labor for any period less than a life sentence may be

imposed,” the maximum term of imprisonment is 20 years at hard labor. LA.

REV. STAT. ANN. art. 14:130.1(B)(2). If “the obstruction of justice involves any

other criminal proceeding,” the maximum term of imprisonment is five years,

with or without hard labor. LA. REV. STAT. ANN. art. 14:130.1(B)(3). A person

who commits arson with intent to defraud shall be “imprisoned with or without

hard labor for not more than five years.” LA. REV. STAT. ANN. art. 14:53. A

person who commits aggravated arson – that is arson under circumstances
No. 09-30913

2 Article 14:54 was repealed in 2008 as a result of the Palermo decision. See LA. REV.

STAT. ANN. art. 14:54, repealed by Acts 2008, No. 220, § 13, eff. June 14, 2008.

8

where itis foreseeable the human life may be endangered – “shall be imprisoned

at hard labor for not less than six nor more than 20 years.” LA. REV. STAT. ANN.

art. 14:51.

The trial court concluded that the jury found Newton guilty of obstruction

of both underlying offenses charged in the indictment and sentenced Newton to

a term based on the more serious underlying crime of aggravated arson. Based

on the wording of the indictment, the jury instructions and LA. CODE CRIM.

PROC. ANN. art. 480, we find that the state court’s decision is an unreasonable

application of clearly established federal law, particularly Apprendi. 

Our conclusion is supported by the Louisiana Supreme Court’s decision in

State v. Palermo, 818 So. 2d 745, 747, 752-54 (La. 2002). Palermo held that

Louisiana’s sentencing scheme for the crime of placing combustible materials

with intent to set fire, which referred to three possible arson statutes for the

appropriate level of punishment, required the trial judge rather than the jury to

determine which arson provision the defendant’s actions fell under to determine

punishment and was therefore unconstitutional under Apprendi. In Palermo,

the defendants,Frank andPatrickPalermo,“place[d] gasoline on Curtis Briggs’s

1985 Oldsmobile and Frank Taylor’s 1995 Honda which was occupied by

three-year-old Kelly Cornell with the specific intent to set fire to said

automobiles.” Id. at 747. The defendants were charged with and convicted of

one count each of violating article 14:54 of the Louisiana Revised Statutes

Annotated2, placing combustible materials. 818 So.2d at 747-48. Article 14:54

provided as follows:

The placing of any combustible or explosive material in or near

any . . . movable, . . . with the specific intent eventually to set fire to

such . . . movable, . . . shall constitute an attempt to commit arson
No. 09-30913

9

within the meaning ofthe attempt article ofthis Code, and the court

shall look to Articles 51 through 53 of this Code in order to

determine which type of arson was attempted.

See Palermo, 818 So. 2d at 747. At sentencing, the trial judge “looked to Articles

51 to 53 of the Code, as instructed by La. R.S. 14:54, determined that the

defendants intended to commit aggravated arson in violation of La. R.S. 14:51,

and sentenced the defendants accordingly.” Id. (internal quotation omitted).

The Louisiana Supreme Court subsequently vacated the Palermo’s convictions

and sentences, finding article 14:54 to be unconstitutional in light of Apprendi.

Id. at 747, 753-54.

The Louisiana Supreme Court reasoned that to prove that the Palermos

violated article 14:54, the state had to prove that the defendants placed a

combustible or explosive material in or near the victims’ cars with the specific

intent to eventually set fire to them but did not have to prove whether it was

foreseeable that human life might be endangered (i.e., aggravated arson). Id. at

752. The court concluded, therefore, that the legislature, “in directing the court

to look at Articles 51 through 53 of this Code in order to determine which type

of arson was attempted,” unconstitutionally deprived a defendant of the right to

a jury determination on all of the elements of the offense. Id. at 753. 

The essential question in both Palermo and this case is whether the

relevant findings relative to sentencing were made by the trial judge or the jury.

In Palermo, it was clear that the court made the relevant determination and, in

so doing, violated Apprendi. Id. at 752-54. We conclude that the same violation

occurred in this case. Newton was charged with obstructing justice by

attempting to remove and conceal evidence of arson with intent to defraud and

of aggravated arson. Although the obstruction of justice offense was worded in

the conjunctive,the State was permitted to prove that Newton obstructed justice

in the disjunctive, i.e., that she attempted to remove and conceal evidence of
No. 09-30913

10

arson with intent to defraud or that she attempted to remove and conceal

evidence of aggravated arson. LA. CODE CRIM.PROC. ANN. art. 480. Thus, proof

of obstruction with respect to either underlying offense was sufficient to sustain

Newton’s conviction of obstruction of justice. See, e.g., Kotwitz, 549 So. 2d at 362

(holding that although the indictment was worded in the conjunctive, “[i]t was

proper for the trial court to instruct the jury that it could convict the defendant

if it found that defendant either incited or procured a felony.”). 

Even though proof as to one of the underlying offenses was sufficient

under Louisiana law to sustain Newton’s conviction for obstruction of justice,

it was not sufficient under Apprendi to trigger the increased penalty in article

14:130.1(B)(2) of the Louisiana Revised Statutes Annotated. The jury

instructions and the jury verdictform failed to reference either ofthe underlying

offenses in connection with the obstruction of justice charge. Thus, the verdict

does not reveal whether the jury found that Newton obstructed justice by

attempting to conceal one or both of the underlying offenses. In addition, the

jury found Newton not guilty of second degree murder, which included murder

while engaged in the commission or attempted commission of aggravated arson,

and not guilty of arson with intent to defraud. See, e.g., United States v. Conley,

349 F.3d 837, 840-41 (5th Cir. 2003) (finding that, in light of the general jury

verdict, it was “more plausible that the jury did not convict Conley for a money

laundering conspiracy because it actually acquitted Conley of the substantive

counts of money laundering”). The trial court by necessity had to make the fact

finding that Newton obstructed justice by attempting to conceal the underlying

crime of aggravated arson in order to impose the higher sentence allowed by that

charge. Because that finding resulted in a greater sentence in violation of

Apprendi, the sentence is unconstitutional. 
No. 09-30913

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III. 

Based on the foregoing, the state appellate court unreasonably applied

Apprendi when it reasoned that “[t]he conjunctive listing of the crimes . . .

subject[ed] Newton to the penalty provisions for either crime.” Newton, 973 So.

2d at 922. Accordingly, we reverse the judgment of the district court and

remand the case with instructions to grant the writ unless, within 120 days or

such additional time as the district court shall reasonably allow, the state

resentences Newton in conformity with this opinion. 

REVERSED and REMANDED.