Guideline Sentencing Update

Guideline Sentencing Update is distributed periodically to inform judges and other judicial branch personnel of selected federal court decisions

on the sentencing reform legislation of 1984 and 1987 and the Sentencing Guidelines. Update refers to the Sentencing Guidelines and policy

statements of the U.S. Sentencing Commission, but is not intended to report Commission policies or activities. Update should not be considered a recommendation or official policy of the Center; any views expressed are those of the author.

a publication of the Federal Judicial Center • available via Internet at http://www.fjc.gov • vol. 11, no. 3 May 31, 2001

Criminal History

Consolidated or Related Cases

Supreme Court holds that decision whether an

offender’s prior convictions were consolidated for

Guidelines purposes is reviewed deferentially. In U.S. v.

Buford, 201 F.3d 937 (7th Cir. 2000), defendant pled guilty

to armed robbery. She had five prior felony convictions

for violent or drug-related crimes, any two of which

would subject her to career offender status if they were

not “related.” See USSG §§4A1.2(a)(2), 4B1.1, and

4B1.2(c). Four robberies were related, but the district

court held that the fifth conviction, a drug offense, was

not related to the robberies because of a lack of formal

consolidation, different prosecutors, separate proceedings, and little linkage between the crimes. Those factors

outweighed defendant’s claims that the offenses were

related because the drug possession occurred around

the same time as the robberies (which defendant said

were motivated by her drug addiction), they had been

“functionally consolidated” for sentencing, and she received concurrent sentences from the same judge. See

§4A1.2, comment. (n.3).

The court of appeals determined that “whether cases

have been ‘consolidated’ for trial or sentencing is a matter

of fact, to be reviewed deferentially by the court of appeals,” thus agreeing with the majority of circuits to decide this issue. See 201 F.3d at 941–42. Although “elements

of Buford’s situation support either characterization,”

the court affirmed because the district court “did not

commit a clear error in finding that the joint sentencing

was a matter of administrative convenience rather than

a ‘consolidation for sentencing.’” Id. at 942.

The issue for the Supreme Court was “should the appeals court review the trial court’s decision deferentially

or de novo? We conclude . . . that deferential review is

appropriate, and we affirm.” In this circumstance, “the

district court is in a better position than the appellate

court to decide whether a particular set of individual

circumstances demonstrates ‘functional consolidation.’

. . . [A] district judge sees many more ‘consolidations’

than does an appellate judge. As a trial judge, a district

judge is likely to be more familiar with trial and sentencing practices in general, including consolidation procedures. . . . Experience with trials, sentencing, and consolidations will help that judge draw the proper inferences

from the procedural descriptions provided.”

The Court added that “factual nuance may closely

guide the legal decision, with legal results depending

heavily upon an understanding of the significance of

case-specific details. . . . And the fact-bound nature of the

decision limits the value of appellate court precedent,

which may provide only minimal help when other courts

consider other procedural circumstances, other state

systems, and other crimes.”

Buford v. U.S., 121 S. Ct. 1276, 1278–81 (2001). Cf. U.S.

v. Hardin, 248 F.3d 489, 493–95 (6th Cir. 2001) (affirmed:

although not using it here because the case was argued

before Buford was decided, stating that Buford’s deferential review standard would be appropriate for decision

whether weapon was used “in connection with” another

felony offense under § 2K2.1(b)(5)).

See Outline at IV.A.1.c and generally at X.C

Apprendi Issues

Mandatory Minimums

Sixth Circuit holds that Apprendi applies to imposition

of mandatory minimum sentences; most circuits hold

otherwise. A defendant in the Sixth Circuit was convicted

of possession with intent to distribute cocaine. The district court sentenced him to a mandatory life term based

on its finding that defendant possessed more than five

kilograms of cocaine and had two prior felony convictions. 21 U.S.C. § 841(b)(1)(A). Although the indictment

charged defendant with possession of 5.2 kilograms of

cocaine, that issue was not decided by the jury.

Following Apprendi v. New Jersey, 120 S. Ct. 2348 (2000),

the appellate court reversed. “The ultimate effect of the

trial judge’s finding in this case is the same as the effect of

the judge’s finding in Apprendi: the trial judge made a

factual finding that determined the appropriate length of

the criminal sentence. More specifically, a finding as to

the weight of the drugs determined the range of penalties

that would apply to Flowal. Given Flowal’s two prior

felony convictions, life imprisonment without parole was

mandatory if he possessed five or more kilograms of

cocaine. 21 U.S.C. § 841(b)(1)(A). If he possessed less than

five kilograms but more than 500 grams, he could be

sentenced from ten years to life. . . . § 841(b)(1)(B). Finally,

if he possessed less than 500 grams, he could be imprisoned as long as thirty years but would not face a statutory

minimum. . . . § 841(b)(1)(C). Because the amount of the

drugs at issue determined the appropriate statutory punishment, a jury should have determined the weight of the

drugs beyond a reasonable doubt.”

Although defendant could still receive a life term for

possession of 4.997 kilograms [to which he admitted],

“such a penalty is not mandatory under the latter provi-
2 Guideline Sentencing Update, vol. 11, no. 3, May 31, 2001 • a publication of the Federal Judicial Center

sion. This difference is significant in this case because the

trial judge’s determination of the weight of the drugs took

away any discretion in terms of imposing a shorter sentence. It is not a foregone conclusion that the trial judge

would have sentenced Flowal to life without the possibility of release if a jury had determined the drugs weighed

4.997 kilograms. In fact, if the jury had determined that

the drugs weighed less than 500 grams, a life sentence

would not have even been an option . . . . The judge’s

determination effectively limited the range of applicable

penalties and deprived Flowal of the opportunity to receive less than life imprisonment without the possibility

of release.” In sum, “a fact that increases the applicable

statutory penalty range for a particular crime must be

proved beyond a reasonable doubt to the trier of fact.” The

court remanded for resentencing, stating that, if the parties agree that sentencing under § 841(b)(1)(B) for 4.997

kilograms of cocaine is appropriate, submitting the issue

of weight to the jury would not be necessary.

U.S. v. Flowal, 234 F.3d 932, 936–38 (6th Cir. 2000).

In a later case, where defendant received a mandatory

twenty-year sentence under § 841(b)(1)(A) following a

judicial finding of quantity, the court verified that the

holdings of Apprendi and Flowal should be applied when

the minimum sentence is increased. The court first stated

that the second part of the “basic holding of Apprendi is

. . . that it ‘is unconstitutional for a legislature’ to treat

‘facts that increase the prescribed range of penalties to

which a criminal defendant is exposed’ as mere sentencing factors, rather than facts to be established as elements

of the offense.”

In combination with Flowal, then, “[a]ggravating factors, other than a prior conviction, that increase the penalty from a nonmandatory minimum sentence to a mandatory minimum sentence, or from a lesser to a greater

minimum sentence, are now elements of the crime to be

charged and proved. From a practical perspective, this

means that when a defendant is found guilty of violating

21 U.S.C. § 841(a)(1), he must be sentenced under 21

U.S.C. § 841(b)(1)(C) unless the jury has found beyond a

reasonable doubt that the defendant possessed the minimum amounts required by § 841(b)(1)(A) and

§ 841(b)(1)(B). Because in this case the government did

not charge or attempt to prove to the jury a quantity of

drugs that would permit a mandatory sentence, we remand this case to the District Court with instructions to

sentence the defendant under 21 U.S.C. § 841(b)(1)(C)

and in accordance with the U.S. Sentencing Guidelines.”

U.S. v. Ramirez, 242 F.3d 348, 350–52 (6th Cir. 2001)

(Siler, J., concurred in the decision because “we cannot

overrule the decision of another panel,” but “question[ed]

whether Apprendi . . . is as far-reaching as we determine in

this case, following Flowal”). Cf. U.S. v. Camacho, 248 F.3d

1286, 1289–90 (11th Cir. 2001) (following holding of U.S. v.

Rogers, 228 F.3d 1318, 1327 (11th Cir. 2000) [11 GSU #2],

that “drug quantity in section 841(b)(1)(A) and section

841(b)(1)(B) cases must be charged in the indictment and

proven to a jury beyond a reasonable doubt,” in finding

that district court erred in sentencing defendant to mandatory minimum ten years under § 841(b)(1)(A) even

though that was within otherwise applicable twenty-year

maximum; however, error was harmless because defendant stipulated to amount of drugs that authorized the

mandatory sentence).

Other circuits to decide the issue have held that, because Apprendi specifically stated that it did not overrule

McMillan v. Pennsylvania, 477 U.S. 79 (1986), which allows imposition of a mandatory minimum term based on

a preponderance of the evidence finding by a judge,

Apprendi does not apply to the finding of facts that result

in a mandatory sentence that is within the statutory maximum allowed by the jury’s verdict. See, e.g., U.S. v. Rodgers,

245 F.3d 961, 965–67 (7th Cir. 2001) (“the Court’s opinion

in Apprendi leaves no doubt that McMillan remains good

law insofar as mandatory minimum terms are concerned,” and “since Apprendi was decided, we have specifically rejected the notion that a factual determination

which has the effect of triggering a mandatory minimum

sentence constitutes an element of the offense that must

be submitted to the jury”); U.S. v. Harris, 243 F.3d 806, 809

(4th Cir. 2001) (“While the Supreme Court may certainly

overrule McMillan in the future and apply Apprendi to

any factor that increases the minimum sentence or

‘range’ of punishment, rather than only the maximum

punishment, . . . that is not our role.”); U.S. v. LaFreniere,

236 F.3d 41, 49–50 (1st Cir. 2001) (affirmed: refusing

defendant’s invitation “to read Apprendi more broadly to

include mandatory minimums” and holding “that no

Apprendi violation occurs when the district court sentences the defendant within the statutory maximum, regardless that drug quantity was never determined by the

jury beyond a reasonable doubt”); U.S. v. Pounds, 230 F.3d

1317, 1319–20 (11th Cir. 2000) (“Apprendi is inapplicable”

to imposition of mandatory ten-year term under 18

U.S.C. § 924(c)(1)(A)(iii) because “every conviction under

§ 924(c)(1)(A) carries with it a statutory maximum sentence of life imprisonment”); U.S. v. Keith, 230 F.3d 784,

787 (5th Cir. 2000) (affirming twenty-year mandatory

term because under Apprendi and McMillan “a fact used

in sentencing that does not increase a penalty beyond the

statutory maximum need not be alleged in the indictment

and proved to a jury beyond a reasonable doubt”); U.S. v.

Aguayo-Delgado, 220 F.3d 926, 934 (8th Cir. 2000) (same).

Cf. U.S. v. Garcia-Guizar, 234 F.3d 483, 489 (9th Cir. 2000)

(affirming because “sentencing range of 168–210 months

. . . exceeded the higher statutory minimum applied by

the district court . . . [and] any Apprendi error could not

have affected Garcia’s sentence”).
Guideline Sentencing Update, vol. 11, no. 3, May 31, 2001 • a publication of the Federal Judicial Center 3

Effect on Sentencing Guidelines

Most circuits rule that Apprendi does not apply to application of the Sentencing Guidelines within the statutory

maximum. Addressing a defendant’s “assertion that

Apprendi requires a district court to find drug quantities it

considers to be a part of a defendant’s relevant conduct

beyond a reasonable doubt,” the Seventh Circuit held that

“pursuant to the sentencing guidelines, district courts

may still determine a drug offender’s base level offense by

calculating quantities of drugs that were not specified in

the count of conviction but that the court concludes, by a

preponderance of the evidence, were a part of the

defendant’s relevant conduct, as long as that determination does not result in the imposition of a sentence that

exceeds the statutory maximum penalty for that crime.”

U.S. v. Jones, 245 F.3d 645, 651 (7th Cir. 2001).

See also U.S. v. Sealed Case, 246 F.3d 696, 698–99 (D.C.

Cir. 2001) (“declining to extend Apprendi” to Guidelines

decisions within statutory range); U.S. v. Sanchez, 242

F.3d 1294, 1299–1300 (11th Cir. 2001) (“Because a finding

under the Sentencing Guidelines determines the sentence within the statutory range rather than outside it,

the decision in Apprendi . . . has no application to the

Guidelines.”); U.S. v. Caba, 241 F.3d 98, 101 (1st Cir. 2001)

(“Apprendi simply does not apply to guideline findings

(including, inter alia, drug weight calculations) that increase the defendant’s sentence, but do not elevate the

sentence to a point beyond the lowest applicable statutory maximum”); U.S. v. Garcia, 240 F.3d 180, 183–84 (2d

Cir. 2001) (“a guideline factor, unrelated to a sentence

above a statutory maximum or to a mandatory statutory

minimum, may be determined by a sentencing judge

and need not be submitted to a jury”); U.S. v. Heckard, 238

F.3d 1222, 1226 (10th Cir. 2001) (“Judges may still ascertain

drug quantities . . . under the Sentencing Guidelines, so

long as they do not sentence above the statutory maximum for the jury-fixed crime.”); U.S. v. Kinter, 235 F.3d 192,

201–02 (4th Cir. 2000) (“Because Apprendi does not apply

to a judge’s exercise of sentencing discretion within a

statutory range, the current practice of judicial

factfinding under the Guidelines is not subject to the

Apprendi requirements—at least so long as that

factfinding does not enhance a defendant’s sentence beyond the maximum term specified in the substantive

statute.”); U.S. v. Williams, 235 F.3d 858, 862–63 (3d Cir.

2000) (nothing in Apprendi precludes, and the holding

of Edwards v. U.S., 523 U.S. 511 (1998), supports, conclusion that jury finding is not required under Sentencing

Guidelines where sentence is within statutory maximum); U.S. v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000)

(“The decision in Apprendi was specifically limited to

facts which increase the penalty beyond the statutory

maximum, and does not invalidate a court’s factual finding for the purpose of determining the applicable Sentencing Guidelines.”).

Harmless Error

Some circuits have held that, when there was “overwhelming” or uncontroverted evidence of drug quantity,

there was no plain error or Apprendi error was harmless.

For example, the Fourth Circuit affirmed, on review for

plain error, lengthy sentences for several defendants convicted of conspiracy to distribute cocaine and cocaine

base where drug quantity was neither charged in the

indictment nor found by the jury. “[W]e easily conclude,

beyond a reasonable doubt, that the jury verdict would

have been the same had the jury been asked specifically to

find whether the conspiracy in this case involved more

than 5 kilograms of cocaine or 50 grams of crack cocaine.

No defendant suggested that these amounts had not been

proven at trial, and we conclude that the uncontroverted

evidence demonstrated amounts hundreds of times

more than the amounts charged. . . . In short, the evidence

establishing the threshold amounts of cocaine and crack

cocaine for life imprisonment sentences was not only

overwhelming, but also uncontested.” U.S. v. Strickland,

245 F.3d 368, 380–81 (4th Cir. 2001).

Other circuits have reached similar conclusions. See,

e.g., U.S. v. Terry, 240 F.3d 65, 74–75 (1st Cir. 2001) (affirmed: because defendant did not contest quantity evidence, and essentially admitted to the charges in claiming a defense of entrapment, “[t]here is no question that

the petit jury in this case would have found Terry’s offenses to involve 50 or more grams of cocaine base”); U.S.

v. Anderson, 236 F.3d 427, 429–30 (8th Cir. 2001) (affirmed:

error harmless because “there was overwhelming evidence that appellants conspired to produce amphetamine in a quantity sufficient such that appellants’ thirtyyear sentences do not exceed the statutory maximum as

proscribed by Apprendi”); U.S. v. Nealy, 232 F.3d 825, 829–

30 (11th Cir. 2000) (affirmed: where 14.8 grams of cocaine

base were seized from defendant’s backpack, he did not

contest that amount at trial or sentencing, and he was

convicted of possessing that cocaine, “failure to submit

drug quantity to the jury was harmless beyond a reasonable doubt” because “no reasonable jury could have rationally concluded that Defendant was guilty . . . but that the

amount of cocaine [base] possessed was less than [the] 5

grams” necessary for sentencing under § 841(b)(1)(B)).

See also U.S. v. Noble, 246 F.3d 946, 955–56 (7th Cir.

2001) (remanded: although plain Apprendi error is harmless “when evidence supporting a sentence above the

statutory maximum is overwhelming,” here there was

“limited physical evidence and minimal corroborating

testimony” insufficient to support quantity finding); U.S.

v. Wims, 245 F.3d 1269, 1273–74 (11th Cir. 2001) (affirmed:

where purchase of six kilograms of cocaine was undisputed at trial and sentencing and only issue was whether

drugs belonged to defendant, “jury’s guilty verdict reveals

that they did attribute the drugs to Wims” and it was not

plain error to sentence him to life term based on court’s
Guideline Sentencing Update, vol. 11, no. 3, May 31, 2001

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finding of that amount); U.S. v. Fields, 242 F.3d 393, 398

(D.C. Cir. 2001) (affirmed: although “the issue of leadership must be charged in an indictment, submitted to a

jury, and proved beyond a reasonable doubt” when it

“may increase a defendant’s sentence beyond the prescribed statutory maximum,” as here, “the record evidence overwhelmingly demonstrates that Fields managed and masterminded various offenses” and “there is

proof beyond a reasonable doubt that Fields held a leadership role in the criminal activities for which he was

convicted”).

Several circuits also find harmless error or no plain

error when the defendant had stipulated or otherwise

agreed to the amount of drugs used in sentencing. In the

Eleventh Circuit, defendant had “stipulated to the quantity of drugs involved in his crime—39.77 kilograms. The

stipulation took the issue away from the jury, and the

jury’s guilty verdict on the substantive offense rested

upon the quantity to which [he] stipulated. The stipulation thus acts as the equivalent of a jury finding on drug

quantity . . . [and] the imposition of [his] sentence under

section 841(b)(1)(A) was error [under Apprendi]—but

harmless error.” U.S. v. Camacho, 248 F.3d 1286, 1290

(11th Cir. 2001).

See also U.S. v. DeLeon, 247 F.3d 593, 597–98 (5th Cir.

2000) (affirmed: “neither the omission of a specific drug

quantity from the indictment nor the absence of a jury

charge on drug quantity rises to the level of plain error”

when “defendant stipulated at trial that the substance

seized was 1035.2 pounds (469.47 kilograms) of marijuana,” which supported sentence under § 841(b)(1)(B);

also noting that use of drug quantity range in the indictment, rather than precise amount, satisfies Apprendi);

U.S. v. Duarte, 246 F.3d 56, 62–64 (1st Cir. 2001) (affirmed

on plain error review because defendant “signed a plea

agreement in which he unequivocally accepted responsibility for a specified amount of drugs (1,000 to 3,000

kilograms) . . . [that] took any issue about drug quantity

out of the case”); U.S. v. White, 240 F.3d 127, 134 (2d Cir.

2001) (affirmed: Apprendi error was harmless in sentencing defendant for sale of cocaine base because “the parties entered stipulations regarding the type and quantity

of drugs involved . . . , well over the 5 gram minimum

required for sentencing under section 841(b)(1)(B)”); U.S.

v. Jackson, 240 F.3d 1245, 1249 (10th Cir. 2001) (defendant

“stipulated to a quantity of cocaine base at trial (24.36

grams) sufficient to support a sentence of up to forty years

under . . . §841(b)(1)(B); therefore, drug type and quantity

were no longer facts required to be determined by the

jury”); U.S. v. Poulack, 236 F.3d 932, 938 (8th Cir. 2001) (no

plain error in sentence where defendant stipulated to

quantity used by court in sentencing).

See Outline generally at II.A.3.a and c.

Note to readers: U.S. v. Angle, 230 F.3d 113 (4th Cir. 2000),

summarized in 11 GSU #2, was vacated for rehearing en

banc on Jan. 17, 2001.