IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________

No. 99-50380

_________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RODNEY SLOAN DOGGETT; DUNOIS “DEE” T. BEMAN,

Defendants - Appellants.

---------------------------------

Appeal from the United States District Court

for the Western District of Texas

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October 6, 2000

Before WIENER, BENAVIDES and PARKER, Circuit Judges.

BENAVIDES, Circuit Judge:

Defendants Rodney Sloan Doggett and Dunois “Dee” T. Beman

challenge their convictions and sentences for possession of

methamphetamine with intent to distribute and conspiracy, in

particular the constitutionality of treating drug quantities as a

sentencing factor rather than an element of the underlying crime. 

Their appeal requires us to apply the Supreme Court’s recent

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

Apprendi held that “[o]ther 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.” Id. at 262-63. We hold,
1 United States v. Lewis, 2000 WL 1390065 (4th Cir. 2000);

United States v. Nordby, 2000 WL 1277211 (9th Cir. 2000); United

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

2

consistent with our sister circuits that have considered the

issue, that for purposes of § 841(b)(1), the quantity of drugs is

such a fact.1 Accordingly, Beman’s sentence is vacated and his

case is remanded to the district court for further proceedings. 

Since Doggett’s sentence was not impermissibly enhanced by the

court’s finding of the quantity of drugs, his sentence, with the

modified term of supervised release, is affirmed.

I. Facts and Procedural History

Rodney Sloan Doggett and Dunois “Dee” T. Beman were indicted

for conspiracy to manufacture an unspecified quantity of

methamphetamine in violation of 18 U.S.C. §§ 841(a) and 846

(Count 1), and for aiding and abetting the manufacture of

methamphetamine in violation of 21 U.S.C. § 841(a) and 18 U.S.C.

§ 2 (Count 2). The Government notified both Doggett and Beman of

its intent to seek an enhanced penalty against them based on the

quantity of drugs, and against Beman based on his two prior

felony drug convictions for possession with intent to distribute

methamphetamine.

At trial, Doggett’s defense concentrated on the theory that

the person who had tipped off the police to the methamphetamine

laboratory in Doggett’s garage was actually responsible for the

drugs. In November 1998, a jury convicted Doggett and Beman on
3

both counts. At sentencing, Doggett and Beman filed a joint

objection to the presentence report (“PSR”), arguing in pertinent

part that the Supreme Court’s recent holding in Jones v. United

States, 526 U.S. 227 (1999), indicated that the amount of drugs

was an element of the offense which must be presented to the jury

and not merely a sentencing factor. The district court overruled

the objection.

The district court sentenced Doggett to 235 months’

imprisonment on each count, followed by five years’ supervised

release on each count, with the sentences to run concurrently. 

The court sentenced Beman to life imprisonment on each count,

followed by eight years’ supervised release, with the sentences

to run concurrently. Both defendants filed timely notices of

appeal. Following briefing and oral argument in this case, the

Supreme Court issued its opinion Apprendi v. New Jersey, 120

S.Ct. 2348 (2000).

II. Analysis

Doggett and Beman contest the constitutionality of their

sentences, arguing that the amount of drugs in question should

have been proven to the jury beyond a reasonable doubt. They

also challenge the district court’s decision to exclude the

testimony of a defense witness, its admission of Beman’s prior

convictions for possession of methamphetamine with intent to

distribute, and its calculation of the amount of methamphetamine
4

attributable to the conspiracy.

A. Constitutional Challenge

1. Review of Supreme Court Precedent

Prior to Apprendi, the Supreme Court’s most recent decision

in this area was Jones v. United States, 526 U.S. 227 (1999). In

Jones, the Court considered a challenge to a conviction under the

federal car jacking statute (18 U.S.C. § 2119). The Court

determined that, given the structural uncertainty as to whether

the injury or death of a victim was a sentencing factor or an

element of an independent crime, the doctrine of constitutional

doubt required that the courts interpret the provisions as

establishing separate crimes, all elements of which had to be

proven to a jury beyond a reasonable doubt. Similarly, in

Castillo v. United States, 120 S.Ct. 2090 (2000), the Court

construed an ambiguous statute as setting out separate offenses

rather than a single offense with sentencing factors. The

Court’s analysis in these cases looks to the structure of the

statute in issue, the legislative history, and whether courts

historically considered a particular fact during the sentencing

phase. Compare Almendarez-Torres v. United States, 523 U.S. 224,

230 (1998) (finding that recidivism’s typical status as a

sentencing factor weighed against construing statute provision as

creating a separate element of the crime rather than a sentencing

factor) and Castillo v. United States, 120 S.Ct. at 2093-94 (use
5

of a machine gun not a typical sentencing factor).

In a footnote to Jones, the Court foreshadowed its eventual

holding in Apprendi by noting that “under the Due Process Clause

of the Fifth Amendment and the notice and jury trial guarantees

of the Sixth Amendment, any fact (other than prior conviction)

that increases the maximum penalty for a crime must be charged in

the indictment, submitted to a jury, and proven beyond a

reasonable doubt.” Jones, 526 U.S. at 227 n.6. The Supreme

Court, however, then explicitly stated that its opinion “does not

announce any new principle of constitutional law, but merely

interprets a particular federal statute in light of a set of

constitutional concerns that have emerged through a series of our

decisions over the past quarter century.” Jones, 526 U.S. at 252

n.11. Given the clear congressional intent in § 841 and the

uncertain mandate of Jones, we would have been hesitant to

overturn our well-established precedent that the quantity of

drugs is a sentencing factor and not an element of the offense. 

See United States v. Hare, 150 F.3d 419, 428 n.2 (5th Cir. 1998);

United States v. Ruiz, 43 F.3d 985, 989 (5th Cir. 1995). 

Apprendi compels us to take this step.

In Apprendi, the Supreme Court overturned a sentencing

scheme that allowed a state judge, by a preponderance of the

evidence, to enhance a defendant’s penalty beyond the prescribed

statutory maximum. Apprendi had been indicted on 23 counts,
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relating to four separate shootings and the unlawful possession

of various firearms. As part of a plea agreement, Apprendi pled

guilty to two counts of unlawful possession in the second degree

(Counts 3 and 18) and one count of unlawful possession in the

third degree (Count 22). Under New Jersey law, a conviction for

a second degree crime carries a penalty of 5-10 years.

The state moved to enhance Apprendi’s sentence on Count 18

under New Jersey’s “hate crime” statute. The trial judge, by a

preponderance of the evidence, found Apprendi had “acted with a

purpose to intimidate an individual or group of individuals

because of race, color, gender, handicap, religion, sexual

orientation, or ethnicity,” Apprendi, 120 S.Ct. at 2351 (quoting

N.J.S.A. § 2C:44-3(e)), a finding which enhanced his sentence to

10-20 years. Apprendi was then sentenced to twelve years on

Count 18 with the sentences on the other two counts to run

concurrently. The Supreme Court of New Jersey affirmed

Apprendi’s sentence. The Supreme Court reversed, holding that

“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.” Id. at 2363-64.

2. 21 U.S.C. Section 841

This case presents the question recently left unanswered in

United States v. Meshack, 2000 WL 1218437 (5th Cir. 2000),

whether drug quantities under § 841(b) are sentencing factors or
7

elements of the offense. We conclude that there is no reasonable

construction of § 841 that would allow us to avoid the broad

constitutional rule of Apprendi. Notwithstanding prior precedent

of this circuit and the Supreme Court that Congress did not

intend drug quantity to be an element of the crime under 21

U.S.C. §§ 841 and 846, we are constrained by Apprendi to find in

the opposite. In a departure from its previous analysis, the

Apprendi Court, quoting Jones, 526 U.S. at 252-53 (STEVENS, J.

concurring), held that “it is unconstitutional for a legislature

to remove from the jury the assessment of facts that increase the

prescribed range of penalties to which a criminal defendant is

exposed.” Appendi, 120 S.Ct. at 2363. The relevant inquiry is

now whether a factual determination is involved, and whether that

determination increases the sentence beyond the maximum statutory

penalty.

The drug quantity determination is critical to the statutory

sentencing provisions in 21 U.S.C. § 841. Section 841 consists

of two relevant subsections. Section 841(a) makes it unlawful

for any person to manufacture or distribute a controlled

substance. Section 841(b) defines the applicable penalties for

violations of § 841(a) based on the type and quantity of drug,

previous convictions, and whether death or serious bodily injury

resulted from use of the drug. The structure of § 841 is similar

to that described by Justice Thomas in his concurrence to
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Apprendi, “if the legislature defines some core crime and then

provides for increasing the punishment of that crime upon a

finding of some aggravating fact--of whatever sort--the core

crime and the aggravating fact together constitute an aggravated

crime, just as much as grand larceny is an aggravated form of

petit larceny. The aggravating fact is an element of the

aggravating crime.” Apprendi, 120 S.Ct. at 2368.

Section 841 clearly calls for a factual determination

regarding the quantity of the controlled substance, and that

factual determination significantly increases the maximum penalty

from 20 years under § 841(b)(1)(C) to life imprisonment under §

841(b)(1)(A). Therefore, we hold 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. To the extent our prior precedent is

inconsistent with this holding and Appendi, it is overruled.

3. Application to Doggett and Beman

As had been the practice in this circuit, no specified

amount of drugs were charged in the indictment or submitted to

the jury in this case. Following the jury’s guilty verdict, the

judge determined, by a preponderance of the evidence, the

quantity of drugs attributable to each defendant. Doggett and

Beman raised their constitutional objections to their sentences
9

during the sentencing hearing. Therefore, they have adequately

preserved error on this issue and it is squarely before us on a

de novo standard of review. See United States v. Ocana, 204 F.3d

585, 588-89 (5th Cir. 2000) (error is preserved for de novo

review where objections made in the sentencing process).

a. Rodney Sloan Doggett

As we explained to a similarly situated defendant in

Meshack, the Supreme Court’s decision in Apprendi does not effect

Doggett’s term of imprisonment because it does not exceed the

statutory maximum authorized by the jury’s findings. See

Meshack, 2000 WL 1218437, *12. Doggett was charged under § 846

for conspiracy to manufacture a quantity of methamphetamine

(Count 1) and under § 841(a)(1) and 18 U.S.C. § 2 with aiding and

abetting and manufacture of a quantity of methamphetamine (Count

2). The jury found him guilty beyond a reasonable doubt on both

counts. The court, based on the PSR, concluded Doggett was

responsible for 575 grams of a mixture or substance containing

methamphetamine. The enhanced penalty under § 841(b)(1)(A) for

this quantity of methamphetamine is 10 years to life on each

count.

The jury in this case made no finding concerning the

quantity of methamphetamine that Doggett manufactured, conspired

to manufacture, or aided and abetted in manufacturing. The

jury’s verdict only represents a finding that he conspired and
2 Since the elements found by the jury satisfied only a

conviction under § 841(b)(1)(C), a Class C felony, Doggett’s term

of supervised release could not exceed three years. See §

3583(b)(2) (authorizing a term of supervised release of “not more

than three years” for a Class C felony); United States v. Kelly,

974 F.2d 22, 24-25 (5th Cir. 1992). Accordingly, we modify

Doggett’s supervised release to the statutorily mandated three-year

term. United States v. Gracia, 983 F.2d 625, 630 (5th Cir. 1993).

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possessed methamphetamine for these purposes or with the intent

to achieve these purposes in violation of § 841(a)(1). Thus,

Doggett can only be sentenced using the statutory range contained

in § 841(b)(1)(C), which provides a maximum penalty of twenty

years for the manufacture of Schedule II controlled substances,

such as methamphetamine. As Doggett’s sentence of 235 months

falls short of this statutory maximum, his claim fails. 

Doggett’s sentence was not enhanced beyond the statutory maximum

by a factor not contained in the indictment or submitted to the

jury.2

As instructed by U.S.S.G. § 1B1.3(a)(1)(A), (B), and (2),

the district court determined Doggett’s base offense level on the

basis of all acts and omissions that were part of the same course

of conduct or common scheme or plan as the offense of the

conviction. In controlled substance cases, this involves

aggregating the drug quantities manufactured, distributed, or

possessed by the defendant and any co-conspirators. The district

court determined a base level of 34, which applies when the total

amount of methamphetamine is between 300 grams and one kilogram. 
11

U.S.S.G § 2D1.1(a)(3)(c)(3). The base level was increased two

levels for obstruction of justice for a total offense level of

36. Doggett had no criminal history points and therefore he was

placed in the Criminal History Category of I. Under the

Guidelines’ Sentencing Table these findings translate into a

range of 188-235 months. U.S.S.G. § 5A.

To the extent that Doggett argues Apprendi prohibits the

trial court from determining the amount of drugs for relevant

conduct purposes under the Sentencing Guidelines, this argument

is rejected. See Meshack, 2000 WL 1218437, *12. 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 purposes of determining the

applicable Sentencing Guidelines. Apprendi, 120 S.Ct. 2363-64. 

Apprendi did not affect the Supreme Court’s prior holding in

Edwards v. United States, 523 U.S. 511, 118 S.Ct. 1475 (1998),

that the judge determines the kinds and amounts of the controlled

substances when imposing sentences within the statutory range. 

This limited reading of Apprendi is in line with the approach

taken by this Circuit. See Meshack, 2000 WL 1218437, *12 (noting

“the Apprendi majority expressly declined to reverse an earlier

opinion allowing a judge to determine by a preponderance whether

an enhancement should apply, instead limiting the case’s ‘holding

to cases that do not involve the imposition of a sentence more
12

severe than the statutory maximum for the offense established by

the jury’s verdict.’ Id. at 2361. n.13 (discussing McMillan v.

Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411 (1986))”). Doggett’s

sentence does not violate the Sixth Amendment or his due process

rights under the Fifth Amendment, as the district judge’s finding

of the amount of drugs merely aided him in rendering the proper

sentence within the statutory range authorized by the jury’s

verdict.

b. Dunois “Dee” T. Beman

Beman, as opposed to Doggett, does benefit from Apprendi. 

As aforementioned in the discussion of Doggett’s sentence, the

baseline statutory penalty for any quantity of methamphetamine is

in § 841(b)(1)(C). This subsection provides for an increase in

the statutory penalty for individuals, such as Beman, who have a

prior felony conviction. Since the Supreme Court in Apprendi did

not overrule its decision in Almendarez-Torres, the sentencing

court did not err by using Beman’s prior convictions to enhance

his sentence, even though the prior convictions were not

submitted to the jury. See Apprendi, 120 S.Ct. at 2362-63;

Almendarez-Torres v. United States, 523 U.S. 224, 230 (1998). 

Nevertheless, even considering the proper enhancement, the

maximum penalty for Beman under § 841(b)(1)(C) is 30 years on

each count. Because the district court sentenced Beman to two

concurrent life sentences, we remand Beman’s case for
3 Similar to Doggett, Beman’s base offense level was

calculated at 34. Beman received a three-level enhancement because

of his two prior felony controlled substance convictions, for a

total offense level of 37. Pursuant to U.S.S.G. § 4B1.1, Beman is

a career offender and his Criminal History Category must be VI.

Given these findings, the Guidelines’ Sentencing Table proscribes

a range of 360 months to life imprisonment. U.S.S.G. §5A. Because

Apprendi does not affect a judge’s ability to determine the

quantity of drugs in formulating the appropriate sentencing range

under the Guidelines, the range of 360 months to life is still

applicable on remand. However, as discussed in the body of the

opinion, the sentencing judge is limited, in that the jury did not

find a quantity of drugs, to a maximum sentence of 30 years on each

count.

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resentencing consistent with this opinion.3

B. Defendants-Appellants’ Evidentiary and Sentencing Claims

Defendants-Appellants’ remaining claims are not meritorious

and require only summary treatment.

Defendant Doggett complains of the district court’s denial

of admission of a defense witness’ testimony. The witness is the

former landlord of an acquaintance of Doggett’s named Robert

Greer. One of Doggett’s defense theories at trial was that the

methamphetamine laboratory discovered in his garage was in fact

controlled by Greer. The proposed witness would have testified

to the slovenly state of Greer’s apartment. We review a district

court’s decision to admit or deny testimony for abuse of

discretion. See United States v. Townsend, 31 F.3d 262, 267-68

(5th Cir. 1994). The proposed witness’ information would not

have been probative of Greer’s involvement in the methamphetamine

laboratory in Doggett’s garage or in the drug manufacture or
14

distribution trade in general. It was not an abuse of discretion

for the district court to refuse admission of the witness’

testimony.

Next, Beman contends that the district court should not have

admitted evidence of his prior convictions for possession with

intent to distribute methamphetamine. Again, we review this

evidentiary ruling for abuse of discretion. Because Beman pled

not guilty to the conspiracy charge, his motive, intent,

knowledge, and absence of mistake were in issue and the admission

of evidence of extrinsic acts could therefore be warranted. See

United States v. Bermea, 30 F.3d 1539, 1562 (5th Cir. 1994). The

district court made a sufficient Fed.R.Evid. 404(b) finding, see,

e.g. United States v. Broussard, 80 F.3d 1025, 1040 (5th Cir.

1996), and provided adequate limiting instructions to the jury

regarding the prior convictions. The district court did not

abuse its discretion in admitting the evidence of Beman’s prior

convictions.

Finally, Beman and Doggett contend that the district court

erred in its calculation of the quantity of methamphetamine in

determining the appropriate offense level under the Sentencing

Guidelines. This Court reviews the trial court’s interpretation

of the Sentencing Guidelines de novo and its factual findings for

clear error. See United States v. Huerta, 182 F.3d 361, 364 (5th

Cir. 1999). The district court did not clearly err in crediting
15

one expert’s analysis over the other’s or in accepting an

eyewitness’ testimony as to the amount of component material

shipped to the defendants.

III. Conclusion

For the above reasons, Doggett’s sentence is AFFIRMED and

his term of supervised release is AFFIRMED AS MODIFIED. Beman’s

sentence is VACATED and REMANDED to the district court for

further proceedings.