2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 4-6-2004 

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w . vi l l a no va . e du/thir dc ir c uit_2004/875NOT PRE CEDENT IAL
THE UNITED STATES COURT OF APPEALS

FO R T HE TH IRD CIR CU IT

___________ No. 01-3443

___________ UNITED S TATES OF AMERI CA

vs. J ER OME KE NT a/

k/ a/ J AME S WI LL I AMS Jerome Kent, Appellant

___________ ON APPEAL FROM THE UNI TED STATES DIST RICT COURT FO R T HE MID DL E D ISTR ICT O F PE NN SY LV AN IA

(D.C. Crimi nal No. 98-cr -00136-7) Distri ct Judge: The Honorable Sy lvia H. Rambo

___________ Submitte d Under Third Circ uit LAR 34.1(a)

January 26, 2004

BE FO RE : NY GA AR D, F UE NT ES , and ST AP LE TO N, Circu it Judges
. (Fil ed April 6, 2004)2 ___________ OPINI ON OF THE COURT

___________ NY GA AR D, Circu it Judge
.

Jero me Ke nt ch allen ges the D istrict Co urt’s par tial d enia l of h is 28 U.S .C. § 2255 motion. In part icular, Kent cl aims that (1) the District Court

erred by fail ing to find
an Apprendi violatio n in h is sente nce, (2 ) the trial co urt con structive ly amen ded h is indict ment and (3) he recei ved ineffective ass ist ance of counsel . We agree with t he Dis tric t Co urt o n ea ch o f thes e i ss ues andwil l a ffirm. I. The facts o f this m atter are we ll know n to the parties, for w hom we write exclusi vely , and we thus r ecount them only briefl y. Kent was charged with being involved in the unlawful dist ribut ion of and cr iminalconspir acy to distribut e in exces s of fifty gr ams of crack cocaine. 21 U.S. C. §§ 841(a)( 1) and 846. The j uryretur ned a generalverdict

of guilt y and di d not dete rmine the ty pe or quantity

of control led sub stan ce a t issu e.

At sentencing, the Court adopte d the fi ndings of t he present ence report that Ke nt w as in vol ved in th e dis tribu tion of b etw een 150 and 500 gra ms of c rack coc aine
. Given Kent’s circumstance s, t he sentenc ing guidel ines for this amount of crack c ocaine call ed for a sent ence of between 324 and 393 months in pri son. The Court sentence d3

Ke nt to 324 mo nth s. K ent th en filed a 28 U .S.C . § 22 55 m otio n ch allen gin g hi s sen tenc e. The Distric t Cou rt initially grante d that m otion in part an d den ied it in p art in ord er to
re se nt en ce Ken t unde r Un it edSt at es Sente nc in g Gu id el in e ( “U. S. S. G. ”) § 5G 1. 2( d) . O n Kent’s Rule 60(b) motion, the Court de termine d that, because the government had fi led an inform ation regarding prior conv ictions pursuan t to 21 U .S.C. § 851 (a)(1), Kent’s sentence was within the statutory limit and no resentencing was required. The Court also adju sted the s upe rvise d-re leas e pe riod dow nw ard to six years.

In thi s appeal Kent

rais es thr ee iss ues. Taken ver batim fr om his bri ef, they
are: (1) that t rialcounsel was i neffective for fai ling to make a request under the Jencks Act for Andre W hite’s pri or statements; (2) that [ Kent’s] s entence vi olate s the r ule announced in Apprendi v. New Jersey , 530 U.S. 466 ( 2000), beca use it was based on the Distri ct Court’ s findi ng of drug quantity under the pr eponderance of the evi dence standard; and (3) that the Distric t Cou rt cons tructive ly amen ded th e indic tmen t wh en it instructed t

he jury that it could f

ind him gui lty

without maki ng find ing s as to dru g id entit y and dru g qu antit y. Appellant ’s Brie f at 2.4 We hav e jurisdiction under 28 U.S.C. §§ 129 1 and 2253, and w e exercise plen ary rev iew ove r the Dis trict C our t’s de nial o f K ent’ s m otio n un der § 22 55. United Statesv. Jenkins , 333 F.3d 151, 153 (3d Cir. 2003). We may aff irm that denialon any gro und sup por ted b y the re cor d. Id. We w ill address Kent’s Apprendi issue f irst, then h is
cons tructive ame ndm ent cla im, an d fina lly his ineffective assistan ce of coun sel arg um ent. II. A. Und er Apprendi , any

fact t hat inc reases a defendant’ s sente nce bey ond the statu tory m axim um mu st be sub mitte d to the ju ry and pro ved beyo nd a reas ona ble d oub t. 530 U.S . at 490 . Ken t argue s that be caus e the a mo unt an d iden tity of drug s invo lved in his cas e were not submit ted to t he jury , his sentence exceeds the catch- all maxi mum of one year, and Apprendi is vi olate d. The government concedes that the jury

was not asked to sp ecif ically d eterm ine th e ide ntity or qua ntity of the d rug s inv olv ed in this c ase . However, the gover

nment contends that t

he jury ’s fai lure t o determi ne the i dentit y of t he drugs was harmle ss err or and that no App rend i violation occurr ed with res pect t o drug qua ntity be cau se K ent w as se nten ced belo w th e sta tuto ry ma xim um .

Under the harml ess error analy sis appl icabl e to Apprendi , we must determ ine w hethe r “it app ears b eyond a reaso nable dou bt that th e error com plaine d of did not contribute to the verdi ct obta ined. ” Neder v. United States , 527 U.S. 1, 15 (1999) (int ernal quotations omitt ed). The Dist rict Court dete rmined that because the government5

filed an info rmation pu rsuant to 21 U .S.C. § 851 , Kent’s senten ce of tw enty-seven years
wa s w ithin the s tatut ory m axim um of th irty years u nde r 21 U.S .C. § 841 (b)(1 )(C ). W e agree with this conclusi on.

On September 28, 1998, the government put Kent on noti ce that it intended to seek an e nhanced sent ence under 21 U.S. C. § 841 based on hi s two prior drug convict ions that occur

red in 1996 and 1989. Under § 841(b)(1) (C), a per son convict ed of distribution of a S chedu le II controlled substan ce may be se ntenced to up to thirty years imprisonm ent if that person “ comm it[ted] such a violation after a prior con viction for a felony drug offense [ha d] become final .” In order to s eek the enhanc ement of a sent ence based on a pri or conviction, t he government must

file an informat ion pursuant to 21 U.S.C. § 851. That infor mation must

identi fy t

he convict ions on which t he government will r ely in seeking the enhancement . If t he government fi les suc h an informat ion, t he Court must, before sent encing but after convict ion, inquire of t he defendant whethe r he admits that he h as been p reviously convicted a s identified in the go vernm ent’s informat ion. 21 U.S. C. § 851(b). A person may not chall enge the val idit

y of any convict ion that

occurred more than fi ve years befor e the dat e on which the gover nment filed its information. 21 U.S.C . § 851(e)

At sentencing, Kent chal lenged the 1996 convict ion but admi tted t hat the 1989 charges “a

ppeared” t o resul t in a c onvicti on. App. at 22. Rather

than engage in the inquir y r equired unde r § 851, t he District Court

and government agr eed to treat t he § 8516

informa tion as mo ot because the drug ide ntity and quantity, as determined b y the Court during se ntenci ng, inc reased Kent’ s stat utory maximum beyond the thir ty year s provide d in § 841(b) (1)(C). The government, however, did not withdraw the § 851 informati on but sim ply agree d to trea t it as mo ot.

We agree with the Distri ct Court t hat, based on the gove rnment’s § 851 informat ion, t

he stat utory maximum applicabl e to Kent was thirty year s. Even though the Distri ct Court c ommitted er ror by not conduct ing the inquiry requir ed under § 851, t hat
error was harmless. Kent’s counse l admitted that there “appeared” to be a 1989 felony convict ion. Fur

ther, that c onvicti on was identi fied i n the pre- sentence report and Kent did not cha llenge this part of t hat repor t. Give n the admit

ted exi stence of

this convict ion, Kent could not

chall enge it s underl yi ng validity because i t was entered more than fi ve years before t

he governmen t filed i s § 851 information. 21 U.S.C. § 851(e). Regardless of the validity of th e 199 6 con viction , the ex istence of the 198 9 con viction results in Ke nt’s statu tory max imum being increa sed to thirty years und er § 8 41(b )(1)(C ). His sentence of 27 year s was within t hat st atutor

y maximum and the re is no Apprendi violation. B.

Ke nt argu es ne xt that th e D istrict Co urt con structive ly amen ded h is indict ment by referring to a controll ed substance “such as c rack cocaine or cocai ne” twice during i ts j urycharge. In Un ited Sta tes v. Le wis , this Co urt w as pre sented with a nea rly7

identi cal fact

ual si tuati on. 113 F.3d 487, 492-93 (3d Cir . 1997). In Lew is , the defendant
wa s ind icted for distr ibu ting in ex ces s of five gra ms of c oca ine b ase . Id. at 492. The tri al
cour t, how ever, in structed the jury tha t it could find L ew is guilty rega rdless o f w hethe r it fou nd t hat h e dis tribu ted c oca ine b ase or c oca ine p ow der
. Id. On appe al, the C ourt h eld that this variance be tween the indictmen t and the ch arge did no t require that the Co urt
vac ate L ew is’s c onv ictio n be cau se n one of h is su bsta ntial righ ts w ere p reju dice d. Id. Th is ho ldin g is o n po int an d co ntro lling in th is ca se.

As de scribed abo ve, Ken t was sen tenced w ithin the applicable statutory maximum regardle ss of what Schedul e II cont roll ed substance he was convict ed of distributing. Ther efore, as in Lew is , the varianc e between his indict ment and the t

rial jud ge’ s ch arg e did not prejud ice a ny sub stan tial rig ht. Id. at 492-93. C. Finally, Kent argues t

hat he re ceived i neffective assi stance of counsel because hi s att orney

did not obt ain the prior stat ements of Andre White, a witness call ed by t he government at

sentencing, and, as a res ult, elic ited incriminating t esti mony from Wh ite. In order to succee d on this argu ment, K ent must estab lish that his attorney’s actio ns w ere d efic ient a nd t hat th ose deficien cies prejud iced his d efe nse . Stri ckland v. Washington , 466 U.S. 668, 693 (1984). Even if his attor ney’ s failure to obt ain any of1 The government argue s, a nd the Dist ri ct Court

accept ed, that White di d not test if y befor e the gr and jury and was simply i nterviewed by feder al agent s. While that inter vie w w as p lace d in a re po rt, the g ov ern m en t claim s tha t it w as n ot su bje ct to dis clo su re u nd er th e J en ck s A ct. See United St ates v. Ramos , 27 F. 3d 65, 69- 70 (3d Cir. 1994) ( explai ning that the Jencks Act onl y requi res the disc losur e of transcr ipt s of gra nd jury testim on y, sig ne d o r ad op ted state m en ts, or a sub stan tially v erb atim recor ding, tr anscripti on or cont emporaneous mem ori ali zati on of a witness’ oral state m en t). W e n ee d n ot d ec ide w he the r an y p rior s tatem en t of W hite falls w ithin the se d isclo sur e ru les b ec au se K en t ha s faile d to sho w an y p reju dic e b ase d o n h is attor ne y’s failu re to req ue st su ch a sta tem en t. 8 Wh ite’s prev ious sta teme nts w as de ficien t, 1 Ken t has not sho wn tha t such a failure prejudi ced his def

ense. I n fact, the rec ord shows that Kent’s attorney

cross- examined Wh ite in an attem pt to dis credit h im, an d suc cessf ully elicited ad missio ns tha t he w as in jail for a drug offe nse a nd h ad pr eviou sly failed a polygrap h test in c onn ection with his
ow n trial. W hile it is true , as K ent insis ts, that his c oun sel’s ex amin ation o f W hite elic ited an answer including the f act that Kent was car

ry ing a gun and that thi s might have been avoided had c ounsel been provided with a Jencks Act statement, there was no prejudi ce because t

he fact t hat Kent had a gun was pr eviously di sclose d by White on dire ct ex am inati on. III.

For the for egoing rea sons, we wil l affi rm the Dist rict Court’s parti al deni al of K ent’ s 28 U.S .C. § 225 5 m otio n.