Rehearing en banc granted by

order filed 1/17/01; published

opinion of 10/12/00 is vacated
Filed: November 20, 2000

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 96-4662(L)

(CR-94-41-V)

United States of America,

Plaintiff - Appellee,

versus

Corey Angle, et al.,

Defendants - Appellants.

ORDER

The court amends its opinion filed October 12, 2000, as

follows:

On page 15, second full paragraph, lines 6-7 -- the sentence

is corrected to end “and proven beyond a reasonable doubt.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4662

COREY ANGLE,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4672

JAMES EDWARD PHIFER, a/k/a Rick

Daye,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 99-4187

JAMES EDWARD PHIFER, a/k/a Rick

Daye,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of North Carolina, at Statesville.

Richard L. Voorhees, District Judge.

(CR-94-41-V)

Argued: October 29, 1999

Decided: October 12, 2000
Before WIDENER and MURNAGHAN,* Circuit Judges, and

James H. MICHAEL, Jr., Senior United States District Judge

for the Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by published opinion.

Senior Judge Michael wrote the opinion, in which Judge Widener

joined.

_________________________________________________________________

COUNSEL

ARGUED: James Frank Wyatt, III, Robert Adams Blake, Jr., LAW ARGUED:

OFFICES OF JAMES F. WYATT, III, Charlotte, North Carolina, for

Appellant Phifer; Thomas Franklin Loflin, III, LOFLIN & LOFLIN,

Durham, North Carolina, for Appellant Angle. Frank DeArmon Whitney, Assistant United States Attorney, Charlotte, North Carolina, for

Appellee. ON BRIEF: ON BRIEF: ON BRIEF: Mark T. Calloway, United States Attorney,

Charlotte, North Carolina, for Appellee.

_________________________________________________________________

OPINION

MICHAEL, Senior District Judge:

On December 6, 1994, a federal grand jury in the Western District

of North Carolina indicted defendant-appellant James Edward Phifer

a/k/a Rick Daye ("Phifer") and defendant-appellant Corey Eugene

Angle ("Angle"), with John Henry Angle, Smith L. Turner, and Robert Lee Smith on one count of conspiracy unlawfully to possess with

intent to distribute, and to distribute, cocaine in violation of 21 U.S.C.

§ 846. All five defendants were also indicted on one count of criminal

forfeiture in violation of 21 U.S.C. § 853. In addition, the grand jury

indicted Phifer on two counts of money laundering under 18 U.S.C.

_________________________________________________________________

* Judge Murnaghan heard oral argument in this case but died prior to

the time the decision was filed. The decision is filed by a quorum of the

panel pursuant to 28 U.S.C. § 46(d).

 2
§ 1956 and one count of money laundering forfeiture under 18 U.S.C.

§ 981. The government subsequently moved to supersede the indictment on July 12, 1995 to add an illegal gambling business count

under 18 U.S.C. § 1955 and a firearms count against Phifer. Defendants Turner and Smith entered pleas of guilty to count one of the

indictment.

The jury trial of the three remaining defendants, Phifer, Angle, and

John Henry Angle, began on October 23, 1995. After the government

and the defense completed their cases, the district court ruled that the

drug conspiracy count against all three defendants, as well as the two

money laundering counts against Phifer, should go to the jury. The

forfeiture matters, i.e. the count of criminal forfeiture as to all five

defendants and the count of money laundering forfeiture under 18

U.S.C. § 981 against Phifer, were bifurcated to await the resolution of

the remaining counts by trial. The jury found both Phifer and Angle

guilty of the count of drug conspiracy, found Phifer guilty of both

counts of money laundering, and acquitted John Henry Angle of the

count of drug conspiracy. On August 19, 1996, the district court sentenced Phifer to 292 months in custody and Angle to 210 months.

This court has jurisdiction to hear the appeal of this matter pursuant

to 28 U.S.C. § 1291. On appeal, the defendants make numerous challenges to their convictions and sentences. After carefully considering

the record in this case, the briefs, and the parties' arguments, this

court affirms the district court in part and vacates and remands in part,

for the reasons set out below.

I.

A. THE TRIAL

After seven days of testimony, a jury convicted Phifer and Angle

of conspiracy to possess with the intent to distribute, and to distribute,

cocaine. The jury also convicted Phifer of two counts of money laundering pursuant to 18 U.S.C. § 1956 and ordered the forfeiture of his

residence for its use in facilitating drug trafficking.

During the trial, eight eyewitness co-conspirators testified against

Phifer: Larry Reginald Cartledge, Robert Lee Smith, J. Lee Sturgis,

 3
Robert "Snake" Chambers, Perry Jerome Knox, George Allen Scott

Redman, Robert Lee Griffin, and Earl Leslie Gray. Five eyewitness

co-conspirators testified against Angle: J. Lee Sturgis, Robert "Snake"

Chambers, Robert Lee Griffin, Linda Peak Walker, and Earl Leslie

Gray. In addition to the eyewitness testimony, numerous law enforcement officers testified about searches and undercover operations

including: (1) the discovery of $14,000 in currency and an Uzi pistol

in Phifer's bedroom in 1987, (2) the discovery of Phifer's palmprints

on a container of cocaine in 1988, (3) a sting operation witnessed by

an undercover agent in 1990 where Phifer sold cocaine to an informant, (4) the seizure of $8500 in currency and a .38 caliber pistol

from Angle during a takedown and arrest on March 1, 1993, (5) a pen

register and long distance phone calls in 1993-94, (6) tax information

and employment security records showing that Phifer and Angle had

insufficient legitimate or reported income to support their standard of

living, (7) the discovery of marked drug money in Angle's bedroom

dresser, and (8) the seizure of assault weapons, pistols, and scanners

on December 14, 1994.

The prosecution supported this testimony regarding the drug conspiracy with evidence of Phifer's laundering of his drug money into

the purchase of two different vehicles in 1990, titling a red 1984 Corvette in his brother's name, titling a 1955 Chevy pickup truck in his

mother's name, and switching the tags on the Chevy pickup truck.

1. Cocaine Conspiracy Evidence

Beginning as early as March of 1987 when law enforcement officers searched Phifer's bedroom, and continuing until the date of their

arrest on December 14, 1994, Phifer and Angle were central players

in a cocaine and crack conspiracy operating in both Iredell and

Rowan counties in mid-western North Carolina, particularly in and

around the city of Statesville and the town of Cleveland. Over the

eight-year period, the conspiracy involved as many as a dozen different conspirators and as much as thirty kilograms of powder cocaine

and three kilograms of crack. Local authorities profiled Phifer as a

major cocaine conspirator sometime in 1987; authorities believed

Angle entered the conspiracy as early as 1990.

Without setting out that testimony witness by witness, consideration of the record reveals eyewitness testimony and corroborating

 4
evidence of actual drug transactions involving Phifer and Angle on

various occasions, in sum extending over a period of years. The

record testimony is also complete from an eyewitness seller who sold

the two vehicles to Phifer. An eyewitness testified that Phifer often

hid the cocaine in a can or similar container. There was direct evidence of Phifer carrying a pistol, and evidence of seeing a pistol in

the laundry room of Phifer's residence during one of the drug deals.

In addition, there was evidence of marked money being used in a drug

deal and being found thereafter in a dresser drawer in Angle's residence.

Additionally, the prosecution introduced evidence buttressing the

testimony of the eyewitnesses, including the incriminating evidence

found in executing search warrants, palm prints of Phifer on a jar containing crack cocaine, sting operations, a search of Angle and his car,

various income tax returns, pen registers, $2150 of marked money in

a sum of $8099 found in Angle's bedroom during execution of a

search warrant, and seizures of various weapons, two police scanners,

and $2000 in currency found in executing a search of Phifer's bedroom. All this evidence tended to one degree or another to corroborate

and state in greater detail the evidence of the various eye witnesses.

2. Money Laundering Evidence

In the summer of 1990, well within the time frame of the drug conspiracy, Phifer purchased two vehicles from co-conspirator Larry

Cartledge - a red 1984 Corvette and a 1955 Chevy pickup truck.

Phifer titled the two cars in the names of his mother and brother,

respectively. In the case of the 1955 Chevy pickup, Phifer apparently

purchased a second 1955 Chevy pickup and switched license tags to

prevent authorities from tracing the car. The jury found that the transactions were designed in part to conceal the fact that he was the true

owner of the vehicles and convicted Phifer of both counts of laundering monetary instruments.

B. SUPPRESSION HEARING

During the trial, it became apparent that there was an error in the

search warrant affidavit, leading Angle's counsel to move to suppress

all evidence and the fruits thereof discovered during the search. The

 5
court interrupted the trial and held an extensive suppression hearing.

That hearing revealed that the warrant named a trailer to be searched

which was not in fact the one intended to be searched, though the two

trailers were located in close proximity to one another. The intended

trailer was in fact the one that was searched, and the one in which

incriminating evidence was found.

The court found that an innocent mistake had been made in the

affidavit for the search warrant, stemming from problems associated

with communications between law enforcement agencies in Statesville, and Cleveland, North Carolina, and the Rowan and Iredell

Counties' Sheriff's Offices, all of which agencies were attempting to

keep informed as to the search and its progress.

The court concluded that the mistaken identity of the trailer was an

honest error, that the affidavit had been prepared and tendered in good

faith, that the trailer intended to be searched was in fact the trailer

which was searched, was the trailer occupied by Corey Angle, the

intended target of the search, and was the trailer in which incriminating evidence was found.

The court concluded that the suppression motion should not be

granted.

C. SENTENCINGS

Both Phifer and Angle were sentenced on August 19, 1996, and the

district court filed their judgment and commitment orders on September 23, 1996. At both sentencing proceedings, the government relied

on a thorough and detailed presentence report ("PSR") prepared by

Probation Officer Christine S. Nickel. The presentence reports' estimates of the drug quantities and drug types reasonably foreseeable to

both Angle and Phifer were based on systematic analyses of the testimony of the witnesses and the admitted evidence.

At Phifer's sentencing, the district court accepted the PSR's total

offense level of 40 (a base offense level of 38 for the drug quantity

with a two-point enhancement for possession of a firearm). The district court reduced the criminal history category to Category I from

 6
the PSR's recommendation of Category II. Phifer faced an adjusted

sentencing range of 292 to 365 months and the district court sentenced him to 292 months.

At Angle's sentencing, the district court reduced the recommended

base offense level from 38 to 34. With a two-point enhancement for

the possession of a firearm, Angle's total offense level was 36. The

government conceded to a criminal history category reduction from

Category III to Category II because of confusion over Angle's criminal record. This reduced Angle's sentencing range from 360 months

to life to 210 to 262 months. The district court sentenced Angle to 210

months.

On August 26 and 27, 1996, Angle and Phifer, respectively, filed

timely notices of appeal of their convictions and sentences. On March

20, 1998 and again on March 3, 1999, the district court denied

Phifer's motions for a new trial. Also on March 3, 1999, Phifer noted

his appeal of the district court's denial of his new trial motions.

On appeal, the defendants make various challenges to their convictions and sentences. First, Phifer alleges that the district court abused

its discretion in failing to instruct the jury on the statute of limitations

issue regarding the drug conspiracy. Second, Angle alleges that the

district court committed reversible error in denying his motion to suppress evidence derived from a search of his residence. Third, Angle

contends that the district court erred in admitting into evidence photocopies of marked currency. Fourth, Phifer argues that the district court

was clearly erroneous when it failed to make specific findings in

determining the drug quantity and drug type attributed to Phifer at his

sentencing. Finally, Angle also alleges that the district court erred in

determining the drug quantity and drug type attributed to Angle at his

sentencing. Again, after carefully considering the record in this case,

the briefs, and the parties' argument, this court affirms the district

court's rulings in part but vacates and remands in part with respect to

Phifer and Angle's sentencings.

II.

Defendant Phifer first contends that the district court erred in failing to instruct the jury on the statute of limitations on the drug con-

 7
spiracy charge. A district court's refusal to charge the jury on an

instruction requested by a defendant constitutes reversible error only

when the requested instruction: (1) is correct, (2) is not substantially

covered by the court's charge to the jury, and (3) deals with some

point in the trial so important that failure to give the requested instruction seriously impairs the defendant's ability to conduct his defense.

See United States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995). Further,

for a court's refusal to give an instruction that involves a theory of

defense to be reversible error, there has to be a foundation in the evidence for that theory. See Matthews v. United States, 485 U.S. 58, 63

(1988); United States v. Hicks, 748 F.2d 854, 857 (4th Cir. 1984).

Phifer argues that the issue of whether an offense occurred within

the statute of limitations period is an issue for the jury to decide. By

failing to instruct the jury on the statute of limitations, Phifer argues,

he was deprived of his ability to argue a key theory of his defense -

that if the drug conspiracy existed at all, it had terminated more than

five years before December 6, 1994.

The statute of limitations for a conspiracy charged pursuant to 21

U.S.C. § 846 is five years. See 18 U.S.C. § 3282. The government,

however, is not required to prove an overt act to demonstrate the existence of a § 846 conspiracy. See United States v. Shabani, 513 U.S.

10, 15 (1994). "A conspiracy is deemed to continue as long as its purposes have neither been abandoned nor accomplished, and no affirmative showing has been made that it has terminated." United States v.

Arnold, 117 F.3d 1308, 1313 (11th Cir. 1997).

In the present case, the district court expressly instructed the jury

that to convict Phifer of Count I, the drug conspiracy charge, it

"should first determine whether or not the conspiracy existed as

alleged." (J.A. 632.) Because Count I alleged that the conspiracy

existed from 1987 through "the present" - or the date of the original

indictment, December 6, 1994 - and because the prosecution occurred

within the five year period following December 6, 1994, it is not

barred by any statutory limitation. The district court's instructions,

taken as a whole, covered the point of law which Phifer complains the

district court misinstructed. Phifer's allegation of error is without

merit.

 8
III.

Defendant Corey Angle contends that the district court erred in

failing to suppress the evidence discovered during a search of his

home pursuant to a search warrant. Specifically, he sought to suppress

the photocopy of the money seized which had been found in his

dresser drawer. Angle contends that the officer knowingly made

materially false representations to the issuing magistrate regarding the

mobile home to be searched.

As set forth above, at the suppression hearing during the middle of

trial, the district court denied Angle's motion to suppress and was correct in doing so. In United States v. Leon, 468 U.S. 897 (1984), the

United States Supreme Court established the good faith exception to

the exclusionary rule. The Supreme Court held that"the marginal or

nonexistent benefits produced by suppressing evidence obtained in

objectively reasonable reliance on a subsequently invalidated search

warrant cannot justify the substantial costs of exclusion." Id. at 922.

Nevertheless, the Court found that an "officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency

of the warrant he issues must be objectively reasonable, and it is clear

that in some circumstances the officer will have no reasonable

grounds for believing that the warrant was properly issued." Id. at

922-23 (citations omitted).

None of the four situations outlined in Leon which would cause an

officer's reliance on the validity of a search warrant to be unreasonable is applicable under the facts of this case. See id. at 923.

Under Leon, the proper test of an officer's good faith is "whether

a reasonably well trained officer would have known that the search

was illegal despite the magistrate's authorization." Id. at 922 n.23.

This objective test requires a determination of the knowledge of a reasonable officer, not an examination of an officer's subjective motives.

See United States v. Clutchette, 24 F.3d 577, 582 (4th Cir. 1994);

United States v. George, 971 F.2d 1113, 1123 (4th Cir. 1992). Here,

the officer's actions in applying for and executing the challenged

search warrant fall under Leon's good faith exception to the exclusionary rule.

 9
As the district court found, it was objectively reasonable under the

circumstances for the officer to have believed he had described the

correct mobile home to search, and he did in fact search the correct

mobile home. The officer knew that Angle was the target of the sting,

and knew where Angle's mobile home was located. The district

court's denial of Angle's motion to suppress is affirmed.

IV.

Corey Angle also contends that the district court erroneously

admitted into evidence photocopies of marked money given to the

undercover agent and of the seized money from the dresser drawer in

Angle's residence under the best evidence rule. This court reviews the

district court's evidentiary rulings for abuse of discretion. See Supermarket of Marlinton, Inc. v. Meadow Gold Dairies, Inc., 71 F.3d 119,

126 (4th Cir. 1995).

The best evidence rule requires the admission of the"original" of

a "writing" or "recording" to prove the content of the writing or

recording. See Fed. R. Evid. 1002. The best evidence rule, however,

also permits the admission of duplicates "unless (1) a genuine question is raised as to the authenticity or continuing effectiveness of the

original or (2) in the circumstances it would be unfair to admit the

duplicate in lieu of the original." Fed. R. Evid. 1003.

The photocopy of the marked money that the detective made before

she turned the money over to the undercover officer for use in the

sting operation was the actual piece of evidence that she kept in her

custody. She photocopied the $2400 and, in her own handwriting,

wrote the date of July 15, 1994, on the photocopy. After she gave the

money to the undercover officer, she faxed her photocopy to the

Rowan County Sheriff's Office, and also gave to that office another

copy of the original photocopy.

Both the fax and the extra copy were used to compare the serial

numbers of the money seized from Corey Angle's dresser drawer with

the serial numbers of the money that was turned over to the undercover officer for use in the sting operation. On $2150 of the $2400,

the serial numbers were identical. Before the seized money was trans-

 10
ferred, a photocopy of the seized money was made to keep for the

records of the transferring office.

The photocopy identified and introduced at trial as Exhibit 30 was

in fact the "original" document that the detective used to convey the

serial numbers of the marked money. Thus, the original writing as

prepared by the detective, the photocopy of the marked money with

the date written on the photocopy, was properly introduced into evidence and the trial court did not abuse its discretion.

Angle has not raised any question of doubt about the authenticity

or accuracy of the photocopy of the seized money, labeled Exhibit 35

at trial, but rather has claimed that its use at trial was "unfair" because

the jury was not able to view the actual money. The actual seized currency was not available for admission at Angle's trial because it had

been returned to the Iredell County Sheriff in the normal course of

business six months after the seizure. There was never any dispute

about whether the money was handled correctly or any dispute about

a chain of custody on any of the photocopies. After the money was

back in the hands of the Iredell County Sheriff's Department, months

after the sting operation was complete, the money was placed back

into official use in other undercover operations and therefore was not

available for display at trial. Angle did not identify any prejudice that

resulted from the district court's admission of Exhibit 35, other than

the blanket assertion that the admission was "unfair." Exhibit 35 was

properly introduced into evidence and the trial court did not abuse its

discretion. The evidentiary rulings of the district court are affirmed.

V.

Both Phifer and Angle challenge the district court's findings in

determining the drug quantity and drug type attributed to each of

them at sentencing. Angle invokes the new Supreme Court case of

Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), as authority for the

proposition that the judicial finding at sentencing of Angle's base

offense level of 34 is inappropriate because corresponding facts necessary to support such a finding were not alleged in the indictment.

Apprendi governs this case as to both defendants because Apprendi

was decided while this case was on direct review. See Teague v. Lane,

489 U.S. 288, 303-04 (1989).

 11
The Court announced as a constitutional rule in Apprendi a principle that had been suggested as one in Jones v. United States, 526 U.S.

227, 243 n.6 (1999) [hereinafter Jones I] (questioning constitutionality of enhancing penalties through judicial findings by a preponderance of the evidence). In Apprendi, the Supreme Court held, "Other

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." 120 S. Ct.

at 2362. Under Apprendi, sentencing factors that support a specific

sentence within the statutorily prescribed penalty range are still properly submitted to a judge to be found by a preponderance of the evidence. See id. at 2359 n.11.

In McMillan v. Pennsylvania, 477 U.S. 79 (1986), the Court first

coined the term "sentencing factor" as distinct from an element of a

crime: the former being something not found by a jury but affecting

the sentence imposed by the judge. See Apprendi, 120 S. Ct. at 2360.

Every element of a crime must be proven to a jury beyond a reasonable doubt. See United States v. Gaudin, 515 U.S. 506, 510 (1995),

cited in Apprendi, 120 S. Ct. at 2356. In announcing the rule in

Apprendi, the Court specifically noted that Apprendi neither overrules

McMillan, see 120 S.Ct. at 2361 n.13, nor makes the term "sentencing

factor" devoid of meaning, see id. at 2365 n.19. Ultimately, a court

may still consider aggravating and mitigating factors that support a

specific sentence within the statutorily prescribed range when sentencing a defendant, so long as the sentence imposed is not greater

than the maximum statutory penalty for the statutory offense established by the jury's verdict. See id.

Turning to the present matter, the issue presented is whether the

different drug quantities attributed to Phifer and Angle at sentencing

were elements that should have been proven to a jury beyond a reasonable doubt, or sentencing factors that were properly found by the

district court judge by a preponderance of the evidence. In order to

put the inquiry into perspective, a brief review of the relevant federal

drug statutes is appropriate.

Phifer and Angle were convicted of The Attempt and Conspiracy

statute, 21 U.S.C. § 846, which makes the penalty for conspiring to

commit certain offenses the same as the penalty for those offenses.

 12
Generally, 21 U.S.C. § 841(a) defines the crime that was the object

of the conspiracy: namely, making it unlawful for any person, knowingly or intentionally, to manufacture, distribute, or dispense controlled or counterfeit substances. The penalties for violating § 841(a)

are set forth in 21 U.S.C. § 841(b), which lists terms of imprisonment

in § 841(b)(1)(A)-(D). The fallback imprisonment penalty for certain

drug types is § 841(b)(1)(C), which states that "In the case of a controlled substance in schedule I or II . . . except as provided in subparagraphs (A), (B), and (D), such person shall be sentenced to a term of

imprisonment of not more than 20 years. . . ." Thus, under

§ 841(b)(1)(C), regardless of the quantity of schedule I or II drug, a

defendant convicted of a violation of § 841(a) is eligible for a term

of imprisonment ranging from zero to twenty years. 1 In the other penalty sections of § 841(b)(1), the term of imprisonment is linked to

quantity of drugs. For example, in § 841(b)(1)(A), based on a finding

of a particular amount of drugs, the term of imprisonment ranges from

ten years to life.

Historically, this court and all of her sister circuits have held that

drug quantity is a sentencing factor, not an element of the crime. See

United States v. Powell, 886 F.2d 81, 85 (4th Cir. 1989); United

States v. Thomas, 204 F.3d 381, 384 (2d Cir. 2000); United States v.

Hester, 199 F.3d 1287, 1291 (11th Cir. 2000); United States v. Williams, 194 F.3d 100, 107 (D.C. Cir. 1999); United States v. Mabry,

3 F.3d 244, 250 (8th Cir. 1993); United States v. Underwood, 982

F.2d 426, 429 (10th Cir. 1992); United States v. Moreno, 899 F.2d

465, 472-73 (6th Cir. 1990); United States v. Barnes, 890 F.2d 545,

551 n.6 (1st Cir. 1989); United States v. Gibbs, 813 F.2d 596, 599-

600 (3d Cir. 1987); United States v. Morgan, 835 F.2d 79, 81 (5th

Cir. 1987); United States v. Normandeau, 800 F.2d 953, 956 (9th Cir.

1986). After the Supreme Court noted in Jones I that precedent suggested that any fact, other than prior conviction, that could increase

the penalty beyond the statutory maximum penalty, must be charged

_________________________________________________________________

1 The court notes that, although § 841(b)(1)(C) authorizes imprison- 1 

ment for not more than thirty years where death or serious bodily injury

occurs and in particular cases of recidivism, these are not issues in the

present case and the court does not address how Apprendi may apply in

such cases. Accordingly, in this opinion the court refers to the statutory

maximum of § 841(b)(1)(C) as not more than twenty years.

 13
in the indictment, submitted to a jury, and proven beyond a reasonable doubt, see 526 U.S. at 243 n.6, circuit courts applying Jones I

interpreted this opinion as a suggestion rather than an absolute rule.

Thus, they continued to view drug quantity as a sentencing factor.

See, e.g., United States v. Thomas, 204 F.3d 381, 384 (2d Cir. 2000)

(holding that notwithstanding Jones I, drug quantity remains a sentencing factor); United States v. Williams, 194 F.3d 100, 107 (D.C.

Cir. 1999) (maintaining precedent that drug quantity is a sentencing

factor because "Jones [I] never ultimately resolved the constitutional

doubts it raised"). Of particular interest is the Tenth Circuit case of

United States v. Jones [hereinafter "Circuit Jones"], which analyzed

the issue of drug quantity in light of the Supreme Court Jones I, holding "Because Jones [I] `suggests' rather than establishes a new principle of constitutional law, 119 S.Ct. at 1224 n.6, we adhere to the

doctrine of stare decisis and decline to reexamine whether the penalty

provisions of § 841(b)(1) violate the Fifth and Sixth Amendments."

Circuit Jones, 194 F.3d 1178, 1186 (10th Cir. 1999), vacated, Jones

v. United States, 120 S. Ct. at 2739 (2000)[hereinafter Jones II]. In

Jones II, the Supreme Court vacated the judgment of Circuit Jones

and remanded for further consideration in light of Apprendi. See

Jones II, 120 S.Ct. 2739. The Supreme Court's remand of Circuit

Jones indicates the possible or even likely view of the Court that

Apprendi does change the traditional interpretation that drug quantity

is always a sentencing factor.

One of the traditional reasons for refusing to consider quantity as

an element of a drug offense was based on the determination that, by

listing the quantities in 21 U.S.C. § 841(b), labeled "penalties," rather

than in 21 U.S.C. § 841(a), entitled "unlawful acts," Congress

intended quantity to be a sentencing factor, not an element of the

crime. However, the Court in Apprendi made clear that labels are an

unacceptable solution to making the "constitutionally novel and elusive distinction between `elements' and `sentencing factors.'" 120

S.Ct. at 2365 (citations omitted); see also Jones I, 526 U.S. at 233

("The `look' of the statute . . . is not a reasonable guide to congressional intentions."). The Court further explained, "the relevant inquiry is

one not of form, but of effect--does the required finding expose the

defendant to a greater punishment than that authorized by the jury's

guilty verdict?" Apprendi, 120 S.Ct. at 2365. Accordingly, for the

present matter, if the findings of particular drug quantities expose the

 14
defendants to sentences greater than authorized by the jury's verdict

of guilty under 21 U.S.C. § 846, then the requirement of Apprendi has

not been satisfied.

Phifer and Angle's convictions for violating § 846 make the penalties listed in § 841(b) applicable to them. There was no drug quantity

charged in the indictment (J.A. 52) or submitted to the jury (J.A. 626-

27). Accordingly, applying Apprendi, the jury's finding of a violation

of § 846 authorizes sentences for the defendants under § 841(b)(1)(C)

to terms of not more than twenty years.

Pursuant to Apprendi, in order for imprisonment penalties under

§ 841(b)(1)(A) or (B) to apply to the defendants, such that findings

of particular drug quantities could expose them to imprisonment

terms greater than § 841(b)(1)(C)'s catch-all statutory maximum of

twenty years, the drug quantity must be treated as an element: charged

in the indictment, submitted to a jury, and proven beyond a reasonable doubt. Where no drug quantity is charged in the indictment or

found by a jury, but a jury has found a violation of § 841(a), the standard statutory term of imprisonment is not more than twenty years.

See § 841(b)(1)(C). In these cases, where the quantity is not charged,

the drug amount is still a proper aggravating or mitigating factor to

be considered by the judge in determining a sentence at or below the

statutory maximum sentence. See Apprendi, 120 S. Ct. at 2359 n.11.

Thus, the judge still may determine the amount of drugs by a preponderance of the evidence for the purposes of calculating the offense

level and relevant conduct under the United States Sentencing Guidelines. However, if the determination of the judge with respect to quantity leads to a suggested sentence range under the Sentencing

Guidelines that is greater than the twenty year statutory maximum,

the judge only may sentence at or below the statutory maximum penalty, i.e. not more than twenty years. See U.S.S.G. § 5G1.1(a).

Angle received a sentence of 210 months for his violation of § 846.

(J.A. 512.) Because Angle's sentence is not more than twenty years,

the sentence comports with § 841(b)(1)(C), which is the applicable

penalty for this case, as explained above. Contrary to Angle's position

on appeal, consideration by the district court judge of the quantity of

drugs in determining the appropriate sentence at or below the statutory maximum was proper under Apprendi, also explained above.

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However, notwithstanding the finding that the district court was in

compliance with Apprendi when it sentenced Angle, as detailed in the

following section of the opinion, the district court must make additional findings with respect to Angle's sentence. See infra Part VI.

Phifer received a sentence of 292 months for his violation of § 846.2

(J.A. 504-05.) The court rejects Phifer's challenge to the district

court's attribution of drug quantities, finding that the district court's

attribution of quantities meriting a base offense level of 38 was

proper. Thus, with respect to Phifer, the district court properly found

a quantity of drugs that directed a sentence under the guidelines in the

range of 292 to 365 months. However, by sentencing Phifer to 292

months, it is clear that the district court did not sentence Phifer in

accordance with the applicable statutory penalty of § 841(b)(1)(C), as

explained above, which authorizes a term of imprisonment not more

than twenty years. Rather, the district court's findings with respect to

quantity make it likely that the defendant was sentenced under

§ 841(b)(1)(A), which authorizes a maximum term of life imprisonment. This court notes that, because the district court did not have

benefit of Apprendi, the district court was reasonable, and followed

this court's precedent, when the district court considered its findings

of drug quantities attributable to Phifer a sentencing factor, thereby

sentencing Phifer under § 841(b)(1)(A). However, this court's rule of

Powell, 886 F.2d at 85, and its progeny, that drug quantity is a sentencing factor that may be proven by a preponderance of the evidence,

must be abandoned to the extent that the rule is inconsistent with

Apprendi. See, e.g., United States v. Aguayo-Delgado, 220 F.3d 926

(8th Cir. 2000) (abandoning Eighth Circuit law upholding drug quantity as sentencing factor to the extent it does not comport with

Apprendi). In light of Apprendi, drug quantity is an element of

§ 841(b)(1)(A), because § 841(b)(1)(A) allows findings of quantity to

expose defendants to greater penalties than the maximum penalties

authorized in the fallback penalty provision for schedule I and II drug

offenses, § 841(b)(1)(C).

_________________________________________________________________

2 Phifer also was sentenced to 240 months on each count under 18 2 

U.S.C. § 1956 (a)(1)(B)(i), to run concurrently with one another and with

the sentence for the drug count. (J.A. 504-05.) These sentences are unaffected by this decision.

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The district court's finding of the quantity of drugs attributable to

Phifer suggested a term of imprisonment under the Sentencing Guidelines that increased Phifer's term of imprisonment beyond the applicable statutory maximum. Under Apprendi, such factor must be found

by a jury beyond a reasonable doubt if it is to be acted upon, or, pursuant to U.S.S.G. § 5G1.1(a), the statutory maximum shall be considered the guideline sentence. Although the district court judge did not

have the benefit of Apprendi at the time of sentencing, the error of

exceeding the twenty year statutory maximum is not harmless and

must be corrected on re-sentencing. Phifer's sentence for the conviction of § 846 is vacated in light of Apprendi and the case is remanded

for re-sentencing consistent with this opinion.

VI.

Finally, defendant Angle contends that his sentence should be

vacated and his case remanded for re-sentencing with instructions that

the district court make specific findings of fact proved by a preponderance of the evidence as to the type and amounts of cocaine attributable to him. The PSR recommended that Angle be held responsible

for at least 6.5 kilograms of cocaine powder and 3 kilograms of

cocaine base, having a marijuana equivalency of 61,300 kilograms.

Angle's PSR contains the exact same factual findings as the PSR

compiled for Phifer, including reference to "several individuals previously prosecuted for illegal drug distribution" who named Phifer as

their source of cocaine, a description of how their testimony resulted

in the number of grams of cocaine attributed to Phifer by Special

Agent Boone, and specific references to the testimony of Earl Gray.

(J.A. 664.) The PSR determined that Angle's base offense level is 38.

Angle objected to the findings in the PSR with respect to its drug

quantity determination, arguing that the testimony by the government's witnesses was unreliable. At his sentencing hearing, the district court heard argument from Angle challenging the drug quantity

determination and the evidence relied upon by the probation officer

in making those determinations. After hearing the response of the

government, the district court stated that "on examination of the evidence and the preponderance thereof, the Court finds the amount of

drugs attributable to the Defendant in this matter would give him a

Level 34 base level instead of 38. Consequently, that changes the

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Guidelines." (J.A. 456.) In its "Statement of Reasons" form attached

to Angle's criminal judgment, the district court stated it adopted the

factual findings and guideline application in Angle's PSR except that

it sustained "defendant's objection to drug quantity and finds a base

offense level of 34 rather than 38; finds criminal history category III

overstates defendant's history and finds appropriate Criminal History

to be II." (J.A. 517-18.)

Unlike at Phifer's sentencing, the district court did not impliedly

adopt the factual findings in the Angle's PSR regarding attributable

drug weight, but instead determined that Angle deserved a lower base

offense level than recommended in the PSR. However, the court did

not specify the exact quantity nor the identity of the drugs involved,

nor how it came to the conclusion that the defendant should have a

base offense level of 34. Thus, with respect to defendant Angle, this

court cannot conduct an effective appellate review of the district

court's drug quantity determinations according to the proper standards. See, e.g., United States v. Cook, 76 F.3d 596, 604 (4th Cir.

1996) (holding government has burden of proof at sentencing to

establish drug quantities attributed to a defendant by a preponderance

of the evidence); United States v. Lamarr, 75 F.3d 964, 972 (4th Cir.

1996) (base offense level in a drug conspiracy case is determined by

the amount of drugs "reasonably foreseeable . . . within the scope of

[the] unlawful agreement"); United States v. Uwaeme, 975 F.2d 1016,

1018-19 (4th Cir. 1992) (holding accuracy is important but mathematical precision is not required when determining reasonable approximation of drug quantity for sentencing). This court remands the case

so that the district court can make the required factual findings with

respect to defendant Angle and the drug types and quantities attributable to him.

VII.

Upon review of the record in this case, the briefs, and the parties'

argument, this court concludes that the district court did not abuse its

discretion in failing to instruct the jury on the statute of limitations

issue regarding the drug conspiracy. Second, the district court did not

commit reversible error in denying defendant Angle's motion to suppress evidence derived from a search of his residence. Third, the district court did not err in admitting into evidence photocopies of

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marked currency and seized currency. Fourth, although the district

court properly attributed drug quantities to Phifer establishing a base

offense level of 38, it is error under Apprendi to allow judicial findings of quantity to cause the penalty to exceed the applicable statutory

maximum penalty. Accordingly, Phifer's sentence with respect to the

§ 846 conviction must be vacated and remanded for re-sentencing in

light of Apprendi and in accordance with this opinion. Finally, the

district court failed to determine the drug quantity and drug type attributed to Angle at his sentencing. Defendant Angle's case is remanded

to the district court to make the necessary findings as to drug quantity

and type.

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED

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