1 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-60356

UNITED STATES OF AMERICA, Plaintiff - Appellee,

versus

DERWIN RENWICK MCWAINE, also known as Skibow,

Defendant

- Appellant.

Appeal from the United States District Court

for the Northern District of Mississippi

April 24, 2002

Before EMILIO M. GARZA, BENAVIDES, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Derwin Renwick McWaine (“McWaine”) challe nges t he sentence imposed upon him for

various drug trafficking, firearms, and money laundering offenses. We hereby AFFIRM McWaine’s

sentence with a MODIFIED term of supervised release.

FACTUAL AND PROCEDURAL HISTORY2

McWaine was convicted after a jury trial of Counts 1 -4, 7-12, and 14-15 of a 15-count

indictment fo r violating federal drug, gun, and money laundering statutes. The district court

sentenced McWaine to life imprisonment on Count 1, which charged conspiracy to distribute cocaine

base; 60 months on Count 2, which charged possession with intent to dis tribute marijuana; 120

months on Count 3, which charged possession of a gun as a felon; 60 months on Count 4, which

charged possession of a gun with an obliterated serial number; and 240 months each on Counts 7-12

and 14-15, which charged money laundering. All sentences were ordered to run concurrently.

This Court affirmed McWaine’s conviction based upon “overwhelming evidence” but vacated

his sentence and remanded his case to the district court for re-sentencing in light of Apprendi v. New

Jersey

, 530 U.S. 466 (2000). U nited States v. McWaine

, 243 F.3d 871, 874, 875-86 (5th Cir. 2001).

Specifically, this Court concluded that McWaine’s life imprisonment term violated Apprendi because

the quantity of drugs with respect to Count 1 had not been alleged in the indictment or proven to the

jury beyond a reasonable doubt, and thus, McWaine could not be sentenced on Count 1 to more than

the twenty year statutory maximum provided by 21 U.S.C. § 841(b)(1)(C) (2001). Id. at 875.

The Presentence Investigation Report (“PSR”), unchanged on remand, made the following

recommendations. With respect to Counts 1 and 2 (the drug- related counts), the PSR found that

based upon all of the evidence and the testimony at trial, McWaine was responsible for distributing

approximately 100 kilograms of crack cocaine and fo r possessing approximately seven pounds of

marijuana. The PSR recommended grouping Counts 1 and 2 pursuant to § 3D1.2(d). S ee U.S.

S ENTENCING G UIDELINES M ANUAL § 3D1.2(d) (1997) (“Sentencing Guidelines” or “U.S.S.G.”).

Based upon the aforementioned drug quantities, the PSR calculated the base offense level for these

counts under U.S.S.G. §§ 2D1.1(a)(3) and (c)(1) as 38. Added to this offense level were two points3

for posses sio n of a dangerous weapon under U.S.S.G. § 2D1.1(b)(1), four points for having a

leadership role in criminal activity that involved five or more participants under U.S.S.G. § 3B1.1(a),

and two points for obstruction of justice under U.S.S.G. § 3C1.1. The adjusted offense level was

therefore 46.

Counts 3 and 4 (the gun-related counts) were grouped together under U.S.S.G. § 3D1.2(d),

and the base offense level was calculated at 20 under U.S.S.G. § 2K2.1(a)(4) because McWaine had

one prior felony conviction of a crime of violence. Added to the offense level was one point under

U.S.S.G. § 2K2.1(b)(1)(A) because the offense involved three or more firearms, two points under

§ 2K2.1(b)(4) because the serial number on one of the firearms had been obliterated, and four points

under § 2K2.1(b)(5) because a firearm had been possessed in connection with another felony offense.

The adjusted base offense level for Counts 3 an d 4 was therefore 27. However, U.S.S.G. §

2K2.1(c)(1)(A) directs the application of § 2 X1.1 (At t empt, Solicitation, or Conspiracy), which

defines its base offense level as the base offense level from the guideline for the substantive offense,

plus adjustments for any intended offense conduct that can be established with reasonable certainty.

The PSR thus looked to the base offense level plus adjustments for Counts 1 and 2, which was 40

(38 plus two points for a specific offense characteristic). B ecause the offense level plus adjustments

of Counts 1 and 2 equaled 40, which was more than the adjusted base offense level of 27 for Counts

3 and 4, the PSR applied 40 as the adjusted base offense leve l for Counts 3 and 4. T he PSR then

added four points for having a leadership role under U.S.S.G. § 3B1.1(a) and two points for

obstruction of justice under § 3C1.1. The adjusted offense level was therefore 46.

Counts 7-12 and 14-15 (the money laundering counts) were grouped together pursuant to

U.S.S.G. § 3D1.2(d), and the base offense level was calculated at 23 under § 2S1.1(a)(1) (the4

guideline for an 18 U.S.C. § 1956(a)(1)(A)(i) (2000) offense (laundering of monetary instruments)).

The PSR added three points under U.S.S.G. § 2S1.1(b)(1) because McWaine knew the funds were

the proceeds from an unlawful activity, four points under § 3B1.1(a) for having a leadership role in

the criminal activity, and two points under § 3C1.1 for obstruction of justice. The adjusted offense

level was therefore 32.

The PSR recommended grouping Counts 1 and 2 with Counts 3 and 4 because pursuant to

the cross-reference provi s ion of U.S.S.G. § 2K2.1(c)(1)(A), the adjusted base offense level for

Counts 3 and 4 was determined under § 2D1.1. The PSR therefore concl uded that Counts 1-4

involved the same victim and the same act or transaction as required in U.S.S.G. § 3D1.2(a). The

PSR then recommended grouping Counts 1-4 with Counts 7-12 and 14-15 because the soci etal

interests underlying t he drug distribution and the money laundering involved the same victim as

required in U.S.S.G. § 3D1.2(b). As all counts were grouped under U.S.S.G. § 3D1.2(a)-(c), §

3D1.3(a) provided that the combined adjusted offense level be determined by the most serious of the

counts comprising t he gro up, i.e., the highest level of the counts in the group. The PSR thus

recommended using the ad just ed offense level of 46 for Counts 1-2 and/or Counts 3-4 for the

combined adjusted offense level. The total offense level was also determined to be 46. M cWaine

received thirteen criminal history points, which placed him in a criminal history category of VI. The

range suggested by the guidelines was life imprisonment. S ee U.S.S.G. Ch. 5, Pt. A (sen tencing

table).

The district court, after considering the sentencing memoranda filed by the parties, sentenced

McWaine to twenty years on Count 1, the statutory maximum provided by § 841(b)(1)(C), and five

years on Count 2, the statutory maximum provided by § 841(b)(1)(D). Counts 1 and 2 were ordered5

to run concurrent ly. McWaine was sentenced to ten years on Count 3, the statutory maximum

provi ded by 18 U.S.C. § 924(a)(2) (2000), and a concurrent five y ears on Count 4, the statutory

maximum provided by § 924(a)(1)(B). McWaine was sentenced to twenty years on each of Counts

7-12 and 14-15, the statutory maximum provided by 18 U.S.C. § 1956(a)(1)(A)(I), with all counts

to run concurrently. The sentences of twenty, ten, and twenty years’ imprisonment were ordered to

run consecutively for a total of fift y years of imprisonment. Consecutive sentencing was ordered

because pursuant to U.S.S.G.§ 5G1.2 (sentencing on mult iple counts of conviction), if the sentence

carrying the highest statutory maximum (here, twenty years) is less than the total punishment (here,

life imprisonment as suggested by the guidelines), then the sentence imposed on one or more of the

other counts shall run consecutively, but only to the extent necessary to produce a combined sentence

equal to the total punishment. McWaine was also sent enced to a concurrent term of five years’

supervised release and ordered to pay a $900 assessment.

The district court concluded that Apprendi did not apply to the guideline computation and

overruled McWaine’s objections to the PSR’s finding of the quantity o f drugs for purposes of the

guidelines computation and his objections t o the PSR’s calculations related to the gun counts

.

McWaine appealed.

DISCUSSION

McWaine argues on appeal that the district court erred in applying U.S.S.G. § 2D1.1(c)(1)

and U.S.S.G. § 5G1.2(d) to determine his sentence. He also argues that the PSR erred in enhancing

his offense level for the gun counts based upon a finding that he possessed three, as opposed to two,

guns in connection with his criminal activities, that he had a leadership role with respect to the gun-1 McWaine also argues that the principles announced in McMillan v. Pennsylvania

, 477 U.S. 79 (1986), do not

survive Apprendi . This argument is foreclosed by Apprendi , which expressly limits its holding so as to not overrule

McMillan

. Apprendi , 530 U.S. at 487 n.13.

2 Application Note 10 to U.S.S.G. § 2D1.1 provides: “The Commission has used the sentences provided in, and

equivalencies derived from, the statute (21 U.S.C. § 841(b)(1)), as the primary basis for the guideline sentences.” The

Background to § 2D1.1 states that “[t]he base offense levels for § 2D1.1 are either provided directly by the Anti-Drug

Abuse Act of 1986 or are proportional to the levels established by statute, and apply to all unlawful trafficking.”

6 related counts, and that he obstructed justice with respect to the gun-related counts

. 1

I. Application of the Drug Quantity Table

McWaine argues that when Apprendi changes “the predicate statute under which the

defendant is convicted, the guidelines computation is likewise changed.” Specifically, he argues that

the district court erred in determining his base off ense level for Count 1 as 38 under U.S.S.G. §

2D1.1(c)(1). The base offense level was determined under this subsection because the PSR found

McWai ne responsible for 100 kilograms of cocaine base and approximately seven and one-half

pounds of marijuana. See U.S.S.G. § 2D1.1(c)(1). McWaine argues that Application Note 10 and

the backgr o und information to U.S.S.G. § 2D1.1 make clear that the different subsections of §

2D1.1(c) (providing base offense levels for differing drug quantities) correlate to the different drug

quantity levels provided for in § 841(b)(1)(A)-(C). 2 He thus maintains that the district court only had

the discretion to determine the base offense level for Count 1 within the range allowed by U.S.S.G.

§ 2D1.1(c)(8)-(14) (provid ing base offense levels from 12 to 24) and, therefore, the highest base

offense level he could have received for Count 1 was 24, which provides a sentencing range of 100-

125 months (with a criminal history category of VI), much less than the actual sentence imposed. He

further contends that it is unconstitutional to allow the district cour t to determine his base offense

level under § 2D1.1(c)(1) because that subsection is only applicable when the defendant is convicted

under § 841(b)(1)(A). He asserts that the only rational basis for applying U.S.S.G. § 2D1.1(c)(1) to3 S ection 841(b)(1)(C) sets the statutory maximum for an offense involving an unspecified amount of a cocaine,

a Schedule II substance, at twenty years in prison. 21 U.S.C. § 812, Schedule II(4) (1999).

7 convictions under § 841(b)(1)(C) is the evasion of Apprendi , which is not a legitimate purpose.

This Court reviews the legal meaning of the guidelines de novo and factual findings for clear

error. U nited States v. Dixon

, 132 F.3d 192, 201 (5th Cir. 1997). We have not explicitly addressed

McWaine’s argument that the drug quantities provided by subsections U.S.S.G. § 2D1.1(c)

correspond to the drug quantities provided by subsections § 841(b)(1)(A)-(C). However, we have

applied Apprendi to the sentencing scheme for drug convictions under 21 U.S.C. ' 841(b). U nited

States v. Doggett

, 230 F.3d 160, 164-65 (5th Cir. 2000). In D oggett

, we held "that if the

government seeks enhanced penalties based on the amount of drugs under 21 U.S.C. ' 841(b)(1)(A)

or (B), the quantity must be stated in the indictment and submitted to a jury for a finding of proof

beyond a reasonable doubt.” I d. Additionally , we held that A pprendi o nly applies when the

defendant is sentenced above the statutory maximum and that Apprendi has no effect on the district

court’s determination of drug quantity under U.S.S.G. § 2D1.1(c). Id. at 165-66. In Doggett , the

jury made no finding concerning drug quantity for the charged drug counts, and thus, Doggett could

only be sentenced to a maximum of twenty y ears under § 841(b)(1)(C). 3 I d. at 165. Doggett’s

sentence of 235 months was not beyond the statutory maximum. Id

. The district court determined

Doggett’s base offense level with reference to his “relevant conduct” by aggregating all of the drug

quantities manufactured, distributed, or possessed by Doggett or his co-conspirators. S ee U.S.S.G.

§ 1B1.3(a)(1). His base offense level was found to be 34 under U.S.S.G. § 2D1.1(c)(3).

We rejected Doggett’s argument that Apprendi prohibited the trial court from determining

the amount of drugs for relevant conduct purposes under the guideline s. This Court noted that4 A s part of his§ 2D1.1 discussion, McWaine also avers that “[t]he [d]istrict [c]ourt’s grouping analy sis runs

directly counter to the multi-count sentencing and punishment policies of the Sentencing Guidelines.” To support this

argument, he notes that all of his offenses involved substantially the same harm, that there is no increase in penalty

for offenses involving substantially the same harm, that even if his offenses did not involve substantially the same

harm, his offense level would not be increased by more than five offense levels under § 3D1.4, and that the Sentencing

Guidelines do not approve the “‘guns/money -laundering/drugs’ grouping for consecutive sentencing.”

McWaine’s argument appears to be that the district court’s consecutive sentence resulted in a sentence that

exceeded what was intended by the guidelines. He cites U.S.S.G. § 3D1.4 in support of his argument. The Application

Note 1 to § 3D1.4 states that when, as in this case, §§ 3D1.2 and 3D1.3 produce a s ingle group of closely rela ted

counts, the combined offense level is determined in accordance with § 3D1.3. McWaine’s counts were grouped into

one single group. We can find no error in this grouping nor does McWaine argue that it was error to group the counts.

Section 3D1.4, therefore, which determines the combined offense level for different groups of counts, has no

application to McWaine’s sentence.

5 Section 5G1.2(d) provides that:

If the sentence imposed on the count carry ing the highest statutory maximum is less than the total

8 Apprendi was limited to facts which increase the penalty beyond the statutory maximum and “does

not invalidate a court’s factual finding for the purposes of determining the ap plicable Sentencing

Guidelines.” D oggett

, 230 F.3d at 166. We further explained that A pprendi did not affect the

Supreme Court’s holdin g in Edwards v. Uni ted States , 523 U.S. 511 (1998), “that the judge

determines the kinds and amounts of the controlled substances when imposing sentences within the

statutory range.” I d

. Based upon D oggett

, we fi nd no error in the district court’s application of

U.S.S.G. § 2D1.1(c)(1) to determine the base offense level for Count 1 because McWaine was not

sentenced in excess of twenty years under § 841(b)(1)(C). I d. at 165-66 (stating that even if a drug

amount is not alleged in the indictment, Apprendi does not apply where the sentence is less than the

statutory maximum provided by 21 U.S.C. ' 841(b)(1)(C)); s ee also United States v. Keith

, 230 F.3d

784, 787 (5th Cir. 2000)

. 4

II. Consecutive Sentencing Under U.S.S.G. § 5G1.2(d)

McWaine raises several arguments challenging the district court’s use of U.S.S.G. § 5G1.2(d)

to order consecutive sentencing. 5 The thrust of these argum ents i s that the di strict court’s use ofpunishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only

to the extent necessary to produce a combined sentence equal to the total punishment. In all other respects,

sentences on all counts shall run concurrently, except to the extent otherwise required by law.

6 A pprendi “does not invalidate a court’s factual finding for the purposes of determining the applicable Sentencing

Guidelines.” D oggett , 230 F.3d at 166. Therefore, part of McWaine’s argument has already been rejected by this

Court.

9 U.S.S.G. § 5G1.2(d) violated Apprendi because running McWaine’s sentences consecutively, rather

than concurrently, effectively increased the penalty to which he was subject ba sed solely on facts

determined by the district court judge and not charged to the jury. 6

Under 18 U.S.C. § 3584(a) (2000), if mult iple terms of imprisonment are impos ed on a

defendant at the same time, the terms may run concurrently or consecutively. In determining whether

to run sentences consecutively or concurrently, the district court should consider the factors set forth

in § 3553(a), which inclu de t he nat ure and circumstances of the offense, the seriousness of the

offense, and the need to protect the public. § 3584(b) (directing the court to consider the factors set

forth in § 3553(a)). Pursuant to 28 U.S.C. § 994(a)(1)(D) (1993), the sentencing guidelines should

be used to make “ a det ermination whether multiple sentences to terms of imprisonment should be

ordered to run concurrently or consecutively.”

Under U.S .S.G. § 5G1.2(d) (sentencing on multiple counts of conviction), if the sentence

carrying the highest statutory maximum is less than the “total punishment,” then the sentence imposed

on one or more of the other counts shall run consecutively, but only to the extent necessary to

produce a combined sentence equal to the total punishment. The “total punishment” is determined

by the adjusted combined offense level. U.S.S.G. § 5G1.2, cmt. In this case, the district court

ordered consecutive sentencing because the highest statutory maximum of twenty years was less than

the total punishment of life imprisonment recommended by the guidelines. Thus, the district court’s10

order of consecutive sentencing did not violate the provisions of 18 U.S.C. §§ 3584, 3553; 28 U.S.C.

§ 994; or U.S.S.G. § 5G1.2.

In Apprendi

, the government argued that, even without the sentencing error, the judge could

have imposed consecutive sentences on two counts that would have produced the twelve year term

of imprisonment that Apprendi received. 530 U.S. at 474. The Suprem e Court rej ected thi s

ar gument , stating that the constitutional question was “whether the 12-year sentence imposed on

Count 18 was permissible, given that it was above the 10-year maximum for the offense charged in

that count.” Id

. The Supreme Court further stated that “[t]he sentences on counts 3 and 22 have no

more relevance to our disposition than the dismissal of the remaining 18 counts.” I d

. Accordingly,

although not explicit ly, the Supreme Court found the issue of consecutive sentencing irrelevant to its

determination of whether the sentencing court had impermissibly exceeded the statutory maximum

for the particular count in question. However, we have not specifically considered whether Apprendi

prohibits the district court from stacking mult iple counts pursuant to U.S.S.G. § 5G1.2(d). In U nited

States v. Vasquez-Zamora

, this Court sua sponte recognized that the defendant’s sentence violated

Apprendi because the government failed to state a drug quantity in t he indictment and to prove i t

beyond a reasonable doubt to a jury. 253 F.3d 211, 214 (5th Cir. 2001). The government argued

that any error was harmless because the district court could have imposed consecutive rather than

concurrent sentences under U.S.S.G. § 5G1.2(d). I d. We concluded that because “the district court

has discretion under the applicable statutes and sentencing guidelines to fashion a penalty that

combines terms of imprisonment with periods of supervised release,” it was appropriate to vacate the

defendant’s prison term and remand it for re-sentencing. Id. ; but see United States v. Sturgis

, 238

F.3d 956, 960-61 (8th Cir. 2001) (holding that the court did not commit plain error because, absent7 A lthough in another context, this Court has recognized that there is no constitutional right to concurrent

sentences. United States v. Dovalina , 711 F.2d 737, 739 (5th Cir. 1983).

11 sentencing error, U.S.S.G. § 5G1.2(d) would have been imposed and sentence would have been the

same). V asquez- Zamora is distinguishable from the instant case, however, because in this case, the

district court exercised its discretion to impose consecutive sentences.

The S eco nd Circuit has repeatedly held that A pprendi poses no obstacle to guideline

calculations that do not result in a sentence exceeding the statutory maximum on any single count.

E.g., United States v. McLeod

, 251 F.3d 78, 82 (2d Cir. 2001). This is true even when the total

punishment exceeds the highest statutory maximum on any particular count. I d. Further, the Second

Circuit has held that the preponderance of the evidence standard applies to determinations of relevant

conduct for purposes of ascertaining the total punishment. I d. The Second Circuit has also opined

that “the Supreme Court’s concern in Apprendi was whether the sentencing court had, on the basis

of facts found by the court and not the jury, exceeded the sentence for a particular count.” United

States v. White

, 240 F.3d 127, 135 (2d Cir. 2001). Additionally, the Second Circuit stated that it was

aware of no constitutionally cognizable right to concurrent, rather than consecutive, sentences. I d. 7

In another opinion, the Second Circuit explained the A pprendi Court’s rejection of the

government’s argument that the challenged sentenc e sho uld be upheld because the same total

punishment could have been imposed if the sentences were consecutive. U nited States v. Feola

, 275

F.3d 216, 220 n.1 (2d Cir. 2001). The Second Circuit made clear that “the vice in A pprendi was the

imposition of a sentence on a single count (Count 18) in excess of the statutory maximum for that

count. [However, in F eola

, ] the appellant’s sentences on each count is within the statutory maximum

for that count. The consecutive sentence analogy from W hite therefore encounters no obstacle under12

Apprendi .” Id.

We adopt the reasoning of the Second Circuit and conclude that A pprendi does not prohibit

consecutive sentences such as the one at issue in this case.

III. Gun-Related Counts

McWaine argues that the district court erred in calculating his offense level for the gun-related

counts because (1) there was no evidence that he possessed three guns, as opposed to two, in

co nnection with his criminal activities, (2) there was no evidence that he supervised others wit h

respect to the gun charges, and (3) there was no evidence that he obstructed justice with respect to

the gun charges. B ecause we approve of the PSR’s calculation of the combined adjusted offense

level, which was based upon the adjusted offense level of Counts 1 and 2 a nd/or Counts 3 and 4

,

resolution of these issues is unnecessary.

IV. Supervised Release

This Court has determined that a defendant with no prior felony drug conviction is “required

to receive a supervised release term of not less than nor more than three years.” See United States

v. Kelly

, 974 F.2d 22, 24 (5th Cir. 1992). “However, if a defendant does have a prior felony drug

conviction that has become final, ' 841(b) (1)(C) provides that the court must ‘impose a term of

supervised release of at least 6 years in addition to such term of imprisonment.’ ” United States v.

Cooper , 274 F.3d 230, 244 (5th Cir. 2001) (interpreting ' 3583(b)(2) and ' 841(b)(1)(C) ). The

government concedes that McWaine does not have a prior felony drug conviction.

Although McWaine does not raise this issue, we have the discretion to sua sponte modify the

term. We have raised s ua sponte Apprendi issues in other cases when necessary to avoid manifest8

“ Although an argument not raised on appeal is ordinarily deemed abandoned or waived, the Court may consider

it on its own accord when manifest injustice would otherwise occur.” G arcia

, 242 F.3d at 599 n.5. As in G arcia , we

find that it would be manifestly unjust “to ignore the clear-cut, mechanical application of Apprendi to [McWaine’s]

prison sentence simply because [he] did not ask for all the relief to which he was entitled.” Id.

13 injustice. S ee e.g., United States v. Garcia

, 242 F.3d 593 , 599 (5th Cir. 2001). 8 This Court has

modified terms of supervised release that exceeded the statutory maximum without remanding for

re-sentencing. S ee Doggett

, 230 F.3d at 165 n.2. A ccordingly, this Court hereby modifies the

district court’s sentence of five years’ supervised release for Count 1 to three years.

CONCLUSION

For the reasons stated herein, McWaine’s sentence is AFFIRMED and his term of supervised

release is AFFIRMED AS MODIFIED.

AFFIRMED in part and AFFIRMED AS MODIFIED in part.