## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 11 2001 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JOSHUA PRICE, JR., also known as Lil’ June, also known as June, also known as June Anderson,

Defendant-Appellant. No. 99-7078

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 98-CR-10-S)

Dennis A. Fries, Assistant United States Attorney, Eastern District of Oklahoma, (Bruce Green, United States Attorney, Eastern Distr ict of Oklahoma, with him on the briefs), Muskogee, Oklahoma, for Plaintiff/Appe llee. John M. Butler, Tulsa, Oklahoma, for Defendant/Appe llant.

Before TACHA , Chief Judge, BRORBY , Senior Circuit Judge, and MURPHY , Circuit Judge.

MURPHY , Circuit Judge.-2-



### I. INTRODUCTION Defendant-Appellant Joshua Price, Jr., appeals his various firearms, narcotics, and related convictions. Jurisdiction to consider Defendant’s appeal arises under 28 U.S.C. § 1291. Because Defendant h as not demonstrated reversible error, this court affirms his convictions. 

### II. FACTS AND PROCEDURAL HISTORY On appeal this court views the evidence, and all re asonable inferences therefrom, in the light most favorable to the gover nment. See United States v. Neal , 718 F.2d 1505, 1506-07 (10th Cir. 1983). In the summer of 1997, the Federal Bureau of Investigation (“FBI”), the United State’s Marshall’s Service, and the Muskogee Police Department were involved ina Task Force which investigated cocaine trafficking in the Muskogee, O klahoma area. During this investigation, Defendant was identified as a suspec t in cocaine trafficking. The Task Force gathered information on Defendant from i nformant Ebon Sekou Lurks. Lurks then assisted the Task Force by making numero us controlled drug purchases from Defendant. During this time, Lurks was going through a divorce . Apparently angry that Lurks was awarded custody of their children, L urks’ wife informed Defendant that Lurks had been working as an informant for the FBI and that all of-3-

the drug transactions between Defendant and Lurks h ad been taped. One week later, Lurks was murdered. The police suspected that Defendant was involved in the murder, and obtained a search warrant for the residence at whic h Defendant was believed to be staying. Upon executing the search warrant, the po lice found Price, a gun belonging to Price, and Price’s blood-stained tenni s shoe. DNA testing indicated a very high probability that the blood on Price’s t ennis shoe was from Lurks. Defendant was indicted in the United States Distric t Court for the Eastern District of Oklahoma for one count of conspiracy to distribute cocaine, 21 U.S.C. §§ 846 and 841(a)(1), six counts of distributing co caine, 21 U.S.C. § 841(a)(1), twelve counts of the use of a communication facility in committing a felony, 21 U.S.C. § 843(b), and two counts of “possess[ing] inor affecting commerce” a firearm after having been convicted of a crime puni shable by imprisonment for a term exceeding one year, 18 U.S.C. § 922(g). Befor e trial, the prosecution filed a motion to admit the out of court statements made by Lurks to FBI agents before Lurks was murdered. The prosecution argued that De fendant had waived any hearsay or Confrontation Clause objections to the s tatements by murdering Lurks and thus procuring Lurks’ unavailability as a witne ss. The district court held a hearing on this and other pretrial motions. After the hearing, the district court entered a written order granting the prosecution’s motion to admit Lurks’ out of-4-

court statements. The order stated that the govern ment had demonstrated by a preponderance of the evidence that Defendant had pr ocured the unavailability of Lurks as a witness, and in so doing had waived his hearsay and Confrontation Clause objections to the out of court statements. After a three day trial, the jury found Defendant g uilty on all counts. Defendant was sentenced to the following terms of i mprisonment: life for his conviction on one count of conspiracy to distribute cocaine; life for each of his six convictions for distributing cocaine; 48 months for each of his twelve convictions for the use of a communication facility in committing a felony; and 120 months for each of his two convictions for fire arms possession. All the sentences were to run concurrently. Defendant has appealed his convictions and sentences to this court, advancing numerous arguments. 

### III. DISCUSSION A. Motion to Suppress Before trial Defendant filed a motion to suppress t he evidence seized during the residence search, which included the blo od-stained tennis shoe and the gun which was the basis of one of Defendant’s firearms convictions. The motion was not supported by an accompanying brief, and the grounds for suppression were simply listed as follows: 1. The Affidavit upon which the search warrant issu ed was insufficient as a matter of law.-5-

2. The issuing Judge incorrectly found probable cau se for the issuance of the warrant in the Affidavit. 3. The Affidavit did not contain facts sufficient a s a matter of law to establish probable cause. 4. The Search Warrant was invalid and improperly is sued. 5. The Affidavit does not show or attempt to show a ny relationship between the premises and the objects seized. Authority: 6. The search of the premises pursuant to the warra nt and the issuance of the warrant violated the Defendant’s ri ghts under the Fourth Amendment to the United States Constitution and Rule 41 of the Federal Rules of Criminal Procedure. 7. Statements in the Affidavit relating to the prem ises in which the objects were found are mere conclusions based upon suspicions, with the grounds for suspicion left unstated. The district court entered an order denying Defenda nt’s motion to suppress, concluding that the search warrant was supported byprobable cause and that, even if probable cause did not exist, exclusion of the evidence was not appropriate because the officers had acted in good faith in executing the warrant. See generally United States v. Leon , 468 U.S. 897 (1984). Unfortunately, Defendant’s appellate briefing on this issue is as cursory as the motion to suppress filed in the district court. This court c onstrues Defendant’s appellate brief as making two suppression arguments: (1) the search warrant was not supported by probable cause, and (2) the search was invalid because of technical deficiencies in the warrant.

We review de novo the district court’s probable cau se determination. Our review of the magistrate judge’ s issuance of a search warrant, however, is more deferential: Our d uty is to ensure that the magistrate judge had a substantial basis f or concluding that-6-

the affidavit in support of the warrant established probable cause. The task of the issuing magistrate is simply to mak e a practical, common-sense decision whether, given all the circum stances set forth in the affidavit[,] there is a fair probability that contraband or evidence of a crime will be found in a particular p lace. Because of the strong preference for searches condu cted pursuant to a warrant, the Supreme Court has instru cted us to pay great deference to a magistrate judge’s determinati on of probable cause. United States v. Nolan , 199 F.3d 1180, 1182 (10th Cir. 1999) (quotations and citations omitted). The government argues that even if probable cause t o issue the search warrant was lacking, the evidence obtained during t he search of the residence should not be excluded because the police officers acted in good faith and reasonable reliance on the warrant. In Leon , the Supreme Court held that when police officers act in good faith and reasonable re liance on a search warrant, the evidence obtained during the search should not be s uppressed even if the warrant was lacking in probable cause. See Leon , 468 U.S. at 913. If this court determines that the officers acted in good faith re liance on the search warrant, it does not need to reach the issue of whether probabl e cause existed for the

warrant. See United States v. McKneely , 6 F.3d 1447, 1453 (10th Cir. 1993). There is a presumption that when an officer acts up on a search warrant the officer is acting in good faith. See id. at 1454.-7-

The affidavit filed in support of the search warran t and the actual search warrant were sufficient to merit reasonable relianc e by the police officers. The affidavit lists the items to be recovered, gives a detailed description of the address to be searched, briefly describes how Defendant had been identified as a suspect based on various interviews, and explains how some of the information given during these interviews had been verified. Similar ly, the search warrant, although not a model of clarity, indicates the items to be s earched for and the address at which the search is to take place. A police office r could reasonably rely on this search warrant. Defendant has produced no evidence indicating that the officers acted in bad faith or unreasonably relied on the wa rrant, and admitted as much during oral argument to this court. Because the Leon good faith rule applies, Defendant’s probable cause argument is without meri t. Defendant also makes various technical challenges t o the form of the search warrant. Because Defendant did not make these argu ments to the district court, they are waived. See United States v. Dewitt , 946 F.2d 1497, 1502 (10th Cir. 1991). This court thus reviews Defendant’s argument only for plain error resulting in manifest injustice. See United States v. Smith , 131 F.3d 1392, 1397 (10th Cir. 1997). Under this standard, this court can correct an error only if it “seriously affects the fairness, integrity, or publ ic reputation of judicial proceedings.” Id. (quotation omitted). Even if Defendant is correctto note a-8-

technical deficiency in the warrant, this deficienc y could not affect the fairness, integrity, or public reputation of judicial proceed ings. B. Hearsay and Confrontation Clause Objections Defendant appeals the district court’s decision to admit the out of court statements of Lurks, claiming that these statements were hearsay and that his constitutional right to confront an adverse witness was violated. This court accepts the district court’s conclusion that Defend ant procured the absence of Lurks unless the conclusion was clearly erroneous. See United States v. Little , 60 F.3d 708, 713 (10th Cir. 1995) This court reviews de novo the district court’s legal conclusions concerning the Federal Rules of E vidence and the Confrontation Clause. See United States v. Torrez-Ortega , 184 F.3d 1128, 1132 (10th Cir. 1999). The district court found by a preponderance of the evidence that Defendant procured the unavailability of Lurks as a witness. The preponderance of the evidence standard was the correct standard for the district court to use. See United States v. Cherry , 217 F.3d 811, 820-21 (10th Cir. 2000). This find ing was not clearly erroneous. Much of Defendant’s argument on appeal focuses on w hether there was sufficient evidence linking Defendant to Lurks’ mur der besides the blood-stained tennis shoe found during the residence search. As noted above, however, this-9-

court concludes that, even if problems existed in r egard to the search warrant, exclusion of the evidence found during the search ( the blood stained tennis shoe) is not appropriate because the officers acted reaso nably and in good faith in executing the warrant. DNA testing indicated a very high probability that the blood on Price’s tennis shoe was from Lurks. Defen dant argues that police officers who investigated the Lurks murder scene mi ght have had some blood on their shoes from the investigation, and that this b lood was then transferred to Lurks shoe during the investigation. Defendant’s argument, while possible, is unlikely, and does not demonstrate that the distric t court’s conclusion was clearly erroneous. Viewing all the evidence in the record, this court determines that the district court’s finding that Defendant more likely than not procured the absence of Lurks as a witness was not clearly erroneous. Because Defendant procured the absence of Lurks, De fendant has waived his hearsay and Confrontation Clause objections. See id. at 820 (“A defendant may be deemed to have waived his or her Confrontati on Clause rights (and, a fortiori, hearsay objections) if a preponderance of the evidence establishes he or she participated directly in planning or procuring the declarant’s unavailability through wrongdoing.”); see also Fed. R. Evid. 804(b)(6) (recognizing an exception to the hearsay exclusionary rule when the party against whom the statement is offered has engaged in wrongdoing whic h procures the unavailability-10-

of the declarant). Thus, the decision of the distr ict court to admit Lurks’ out of court statements is affirmed. C. Chain of Custody Defendant argues on appeal that “the Government nev er presented any witness that was able to validate the Chain of Cust ody from any of the Defendants to the officer that took the drugs into possession” and thus “moves this Honorable Court to dismiss all drug-related cases for lack of establishing a ‘Chain of Custody.’” This court fails to comprehend Defendant’s argument. To the extent that Defendant is making an authentication argumentunder Federal Rule of Evidence 901, the argument is off-target because th e actual drugs recovered were never admitted into evidence. See United States v. Grant , 967 F.2d 81, 83 (2d Cir. 1992) (“In this case we need not determine whe ther the drugs were properly authenticated since the government did not offer th e drugs themselves into evidence.”). In any event, the prosecution did est ablish an adequate chain of custody of the drugs from Defendant to the OklahomaState Bureau of Investigation. Defendant’s argument is rejected.
D. Automobile Search Defendant challenges his conviction under count twe nty-one of the indictment for possession of a firearm in commerce after having been previously convicted of a crime punishable by a term of impris onment exceeding one year.-11-

The facts underlying this conviction arise from a t raffic stop of Defendant. Defendant filed a motion to suppress the firearm se ized as a result of the stop, which the district court denied. In reviewing the denial of a motion to suppress, this court accepts the factual findings of the dist rict court unless clearly erroneous and views the evidence in the light most favorable to the government. See United States v. Botero-Ospina , 71 F.3d 783, 785 (10th Cir. 1995) (en banc). The district court’s legal conclusions as to whether the stop co mplied with the Fourth Amendment are reviewed de novo

. See id

. Viewing the evidence in the light most favorable to the government, the following facts gave rise to Defendant’s conviction on count twenty-one. On the date in question, Defendant was driving ten miles p er hour over the speed limit. Defendant was pulled over by a Muskogee County law enforcement officer. As the officer approached Price’s vehicle, he saw and heard a “scanner,” which was “picking up Muskogee County frequency.” Defendant was removed from the vehicle and arrested for violating the following Ok lahoma statute:

It shall be unlawful for any person to operate a mo bile radio capable of receiving transmissions made by any law enforcement agency for illegal purposes or while in the commiss ion of a crime and not otherwise and any person violating the prov isions hereof shall be guilty of a felony and upon conviction the reof shall be punished by imprisonment in the State Penitentiary for not more than three (3) years, or fined by not more than Five Tho usand Dollars ($5,000.00), or by both such imprisonment and fine.-12-

Okla. Stat. tit. 21, § 1214. The officer then perf ormed an inventory search of the vehicle. During this inventory, the officer found the firearm in question “between the seats there by the hump on kind of towards–more towards the driver on the driver’s side of the hump.” The district court concluded that the search was va lid both as a search incident to a lawful arrest and as an inventory sea rch prior to towing. This court concludes that the recovery of the gun in the inter ior of the car was lawful as a search incident to a lawful arrest.
In New York v. Belton , a New York state policeman pulled over a speeding vehicle. See 453 U.S. 454, 455 (1981). As the policeman walkedup to the vehicle and conversed with the occupants, he smelle d marihuana and saw an item on the floor of the car associated with marihuana. See id. at 455-56. The officer removed the occupants from the vehicle and arrested them for possession of marihuana. See id. at 456. The officer then searched the interior of the vehicle; during this search he found cocaine. See id. On appeal to the Supreme Court, the defendant charged with possession of cocaine arguedthat the cocaine had been seized in violation of the Fourth and Fourteenth Am endments. See id. at 456-57. The Supreme Court held that when a police officer m akes a lawful custodial arrest of the occupant of a vehicle, the interior of that vehicle may be contemporaneously searched. See id. at 460.-13-

The incident involving Defendant’s arrest is not di stinguishable in any relevant manner from Belton . Defendant notes that the Muskogee County officer did not know that the scanner was in use when the o fficer pulled him over. In Belton , however, the officer was not aware of the marihua na possession, the offense for which the occupants were arrested, unti l the officer walked up to the car and conversed with the occupants. See id. at 455-56. Defendant also argues that the search was invalid p ursuant to the recent Supreme Court case of Knowles v. Iowa , 525 U.S. 113 (1998). In Knowles , the Court held that a search of an automobile conducted after a traffic stop resulting in a traffic citation violated the Fourth Amendment

. See 525 U.S. at 114-17. Defendant, however, was not merely issued a citatio n in this case, he was arrested for violating the Oklahoma statute prohibiting the use of a scanner while committing a crime. Thus, Belton controls rather than Knowles . The decision of the district court denying Defendant’s motion to suppress is affirmed.
E. Joinder/Severance Defendant filed a motion in the district court chal lenging the joinder of his firearms charges with his drug charges and also arg uing that, even if joinder was proper, the district court should have severed the firearms charges because of possible prejudice to Defendant. After a pretrial hearing, the district court denied Defendant’s motion. Whether multiple offenses have been properly joined under-14-

Rule 8(a) of the Federal Rules of Criminal Procedur e is a question of law this court reviews de novo

. See United States v. Janus Indus. , 48 F.3d 1548, 1557 (10th Cir. 1995). The decision under Rule 14 of th e Federal Rules of Criminal Procedure to grant or deny severance of claims prop erly joined under Rule 8(a) is reviewed for an abuse of discretion. See id. Joinder of offenses under Rule 8(a) is appropriate if the offenses “are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or con stituting parts of a common scheme or plan.” Fed. R. Crim. P. 8(a). “Rule 8 i s construed broadly to allow liberal joinder to enhance the efficiency of the ju dicial system.” Janus , 48 F.3d at 1557 (quotation omitted). This court has previousl y affirmed the joinder of firearms and narcotics offenses under the theory “t hat the firearms and the drugs were being used in pursuit of a common unlawful act ivity.” See United States v. Valentine , 706 F.2d 282, 289 (10th Cir. 1983). There was te stimony at the pretrial hearing concerning how Defendant’s possess ion of firearms was related to his drug trafficking. Although Valentine can be distinguished from the present case because in Valentine the firearms and narcotics were discovered during the same search, that distinction is not relevant when there is specific testimony concerning the relationship of Defendant’s firearms and narcotics violations. Joinder of the firearms and drug offenses was prope r under Rule 8(a).1 Defendant’s appellate brief can also be construed t o argue that the failure

of the district court to sever the firearms and dru g charges violated his due process rights. To the extent that Defendant does m ake this claim on appeal, and to the extent that this claim is different than Def endant’s claim under Rule 14, it is waived because it was not presented to the distr ict court. In any event, for those reasons set out above, we conclude that the j oinder of the narcotics and firearms counts did not deny Defendant a fundamenta lly fair trial on any of the counts. -15- Defendant argues that even if joinder was proper un der Rule 8(a), the drug and weapons offenses should have been severed underRule 14. Defendant has the burden of showing real prejudice from the joind er of the two counts. See United States v. Muniz , 1 F.3d 1018, 1023 (10th Cir. 1993). “The burden of the defendant to show an abuse of discretion in this co ntext is a difficult one.”
Janus , 48 F.3d at 1557 (quotation omitted). The extent of Defendant’s attempt on appeal to show prejudice is the following statement: “[The weapons and drug charges ] were two isolated and separate offenses and distinct from all of the othe r charges, which resulted in prejudiced [sic] into the Defendant.” This court h as previously noted, however, that prejudice is more likely to occur when the off enses are of the exact same character. See Muniz , 1 F.3d at 1023. Defendant has not met his burden to identify prejudice from the joinder; the district c ourt’s refusal to sever the drug and firearms offenses is therefore affirmed. 1
F. Interstate Commerce Issues-16-

Defendant challenges the constitutionality of all t hree of the statutes under which he was convicted and also asserts that the go vernment failed to meet its burden of proof with respect to the firearms charge s. Constitutional challenges to a statute are reviewed de novo

. See United States v. Morris , 247 F.3d 1080, 1085 (10th Cir. 2001). “[I]n reviewing the sufficiency of the evidence to support a jury verdict, this court must review the record de novo and ask only whether taking the evidence—both direct and circumstantial, together w ith the reasonable inferences to be drawn therefrom—in the light most favorable t o the government, a reasonable jury could find the defendant guilty bey ond a reasonable doubt.” United States v. Voss , 82 F.3d 1521, 1524-25 (10th Cir.1996) (quotations omitted). 1. Sufficiency of the Evidence Section 922(g) makes it a crime for a person convic ted of a crime punishable by imprisonment for a term exceeding one year “to ship or transport in interstate or foreign commerce, or possess in or af fecting commerce, any firearm or ammunition; or to receive any firearm or ammunit ion which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g). There was testimony at trial that the two weapons found in th e possession of Defendant were manufactured outside of Oklahoma. A reasonable jurycould have found beyond a reasonable doubt that this testimony established th e effect on interstate commerce-17-

required for a conviction under § 922(g); Defendant ’s sufficiency of the evidence challenge is therefore rejected. 2. Constitutional Challenges Defendant also challenges the constitutionality of all three statutes under which he was convicted, arguing that they exceed Co ngress’ ability to regulate interstate commerce. The Supreme Court has “identi fied three broad categories of activity that Congress may regulate under its comme rce power.” United States v. Lopez , 514 U.S. 549, 558 (1995). First, Congress can re gulate the use of the channels of interstate commerce. Second, Congress can regulate the instrumentalities of interstate commerce and person s or things in interstate commerce. Finally, Congress can regulate those act ivities that substantially affect interstate commerce. See id. at 558-59.
In United States v. Wackerthis court rejected a constitutional challenge to § 841(a)(1) and § 846. See 72 F.3d 1453, 1475 & n.18 (10th Cir. 1996). In Wackerwe noted that “the conduct regulated by [§ 841(a)( 1) and § 846] clearly implicates interstate commerce, and Congress made e xplicit findings explaining the conduct’s substantial and direct effect upon in terstate commerce.” Id. at 1475 (quotation omitted). Defendant argues that Wackermust be reexamined in light of the Supreme Court’s recent decision in United States v. Morrison , 529 U.S. 598 (2000). In Morrison , the Supreme Court held that Congress did not have2 Section 846 makes it a crime to conspire to commit a violation of §

841(a)(1). See 21 U.S.C. § 846. As we did in Wacker , this court holds that if the underlying substantive provision is constitutional, a provision which criminalizes conspiracy to commit the underlying crime is also c onstitutional. See United States v. Wacker , 72 F.3d 1453, 1475 n.18 (10th Cir. 1996). -18- power under the Commerce Clause to enact 42 U.S.C. § 13981, which provided a federal civil remedy for victims of gender-motivate d violence. See id. at 601-02, 617-19. In both Morrison and Lopez , which involved a statute making it a federal crime to knowingly possess a firearm in a school zo ne, the Supreme Court struck down laws which criminalized non-economic behavior. See id. at 610-11 (discussing non-economic nature of the criminal statute struck down in Lopez ); id. at 613 (discussing how gender-motivated violence is not an economic activity). In contrast, § 841(a)(1) makes it illegal to “manuf acturer, distribute, or dispense, or possess with intent to manufacturer, distribute, or dispense a controlled substance.” 21 U.S.C. § 841(a)(1). 2 These activities are, by their nature, economic in character. See United States v. Meienberg , No. 00-1390, 2001 WL 967841, at *3 (10th Cir. Aug. 27, 2001). Because Morrison involved the regulation of non-economic activities, while § 841( a)(1) deals with the regulation of economic activities, Morrison does not require a different conclusion than the one reached in Wacker . Thus, § 841(a)(1) and § 846 are within Congress’ power to regulate interstate commerce.-19-

Section 843(b) makes it a crime to “knowingly or in tentionally [] use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter.” 21 U.S.C. § 843(b). When, as in this case, a defen dant violates § 843(b) by using a communication facility to facilitate a violation of § 841(a)(1), the substantial affect on interstate commerce is obvious. As previ ously explained, violations of § 841(a)(1) substantially effect interstate commerce. See Wacker , 72 F.3d at 1475. Thus, the use of a communication facility in connec tion with a violation of § 841(a)(1) also substantially affects interstate com merce. See United States v.
Tisor , 96 F.3d 370, 373-75 (9th Cir. 1996). Defendant’s constitutional challenge to his convictions under § 843(b) is rejected. Finally, this court has repeatedly affirmed the con stitutionality of § 922(g). See e.g. United States v. Dorris , 236 F.3d 582, 584-86 (10th Cir. 2000); United States v. Bolton , 68 F.3d 396, 400 (10th Cir. 1995). Thus, the con stitutionality of § 922(g) is controlled by circuit precedent, and De fendant’s argument is without merit. G. Apprendi Claims Defendant challenges the life sentences imposed foreach violation of §§ 846 and 841(a)(1), arguing that these sentences runafoul of Apprendi v. New Jersey , 530 U.S. 466 (2000). Because this objection was not made in the district-20-

court, this court reviews only for plain error. See Jones v. United States , 527 U.S. 373, 388 (1999). Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceed ings. See id . at 389.
In Apprendithe Supreme Court held that any fact other than a prior conviction which increases the prescribed statutorymaximum penalty must be submitted to a jury and proved beyond a reasonable doubt. See 530 U.S. at 490. In this case, the district court determined that th e total amount of drugs involved in Defendant’s convictions was over fifty grams of cocaine base, and that the statutory maximum term of imprisonment was, pursuant to 21 U.S.C. § 841(b)(1)(A), life. The district court also determ ined that the proper sentence under the United States Sentencing Guidelines (“Gui delines”) was life imprisonment. The district court thus sentenced De fendant to life imprisonment for each violation of §§ 846 and 841(a)(1). The quantity of drugs was not listed in the indictm ent nor submitted to the jury as a fact to be proved beyond a reasonable dou bt. Thus, the life sentences imposed pursuant to § 841(b)(1)(A) were “error” that was “plain.” See United
States v. Jones , 235 F.3d 1231, 1236-37 (10th Cir. 2000). Defendant should have been sentenced under § 841(b)(1)(C), which provides for a maximum sentence of twenty years for each of Defendant’s seven narcotic s convictions.-21-

The government, however, argues that Defendant’s “s ubstantial rights” were not affected. The government reasons that the district court, if it had properly sentenced Defendant under § 841(b)(1)(C), would have been required under § 5G1.2(d) of the Guidelines to impose the maximum sentence for Defendant’s drug convictions and to run these sente nces consecutively in order to approximate the life sentence required by the Guide lines. Section 5G1.2(d) of the Guidelines states: If the sentence imposed on the count carrying the h ighest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall ru n consecutively, but only to the extent necessary to produce a combi ned sentence equal to the total punishment. In all other respec ts, sentences on all counts shall run concurrently, except to the extentotherwise required by law. This court rejected a similar argument in Jones . In Jones , the government argued that the defendant suffered no prejudice fro m an Apprendierror because “the district court demonstrated its desire to impo se a total sentence [beyond the statutory maximum] as recommended by the presentenc e report and could have achieved that result by imposing consecutive terms of ten and twenty years or partially concurrent twenty-year terms.” 235 F.3d at 1238. This court rejected the argument, explaining that “[w]e will not permitour result to be guided by idle speculation as to the sentence that might be impose d by the district court on remand.” Id.-22-

The government’s argument in this case, while simil ar, is different than the one advanced in Jones because the government here claims that § 5G1.2(d) is a mandatory provision that must be applied. A pletho ra of recent circuit court cases have addressed this issue, and most have concluded that application of § 5G1.2(d) is mandatory and thus renders moot any Apprendierror. See United States v. Roberts , 2001 WL 929847, at *3 (4th Cir. Aug. 16, 2001) (a lthough Apprendi error was plain, the defendant’s substantial rights were not affected because of the mandatory application of § 5G1.2(d)); United States v. Angle , 254 F.3d 514, 518-19 (4th Cir. 2001) (same); United States v. Sturgis , 238 F.3d 956, 960-61 (8th Cir. 2001) (same); United States v. Page , 232 F.3d 536, 543-45 (6th Cir. 2000) (same); United States v. Gallego , 247 F.3d 1191, 1200 n.19 (11th Cir. 2001) (same (dicta)); United States v. Kentz , 251 F.3d 835, 842 (9th Cir. 2001) (any Apprendierror in district court’s sentencing did not affec t Defendant’s substantial rights because of mandatory application of § 5G1.2( d)); United States v. White , 238 F.3d 537, 542-43 (4th Cir. 2001) (same); see also United States v. Caldwell , 255 F.3d 532, 533-34 (8th Cir. 2001) (reasoning that although Apprendierror was plain, the defendant’s substantial rights were not affected because the district court could have applied § 5G1.2(d) and run the sen tences consecutively); United States v. White , 240 F.3d 127, 135-36 (2nd Cir. 2001) (affirming the district court’s use of § 5G1.2(d) to run sentences consecut ively); United States v.-23-

Parolin , 239 F.3d 922, 929-30 (7th Cir. 2001) (same). But see United States v. Alvarez , 254 F.3d 725, 728 (8th Cir. 2001) (remanding to t he district court in light of Apprendierror for determination of whether to run sentence s consecutively pursuant to § 5G1.2(d)); United States v. Vasquez-Zamora , 253 F.3d 211, 213-14 (5th Cir. 2001) (remanding to district court for resentencing in light of Apprendierror and suggesting that application of § 5G1.2(d ) is discretionary rather than mandatory); United States v. Bradford, 246 F.3d 1107, 1113-15 (8th Cir. 2001) (stating that “pruden[ce]” requires remand to district court for resentencing in light of Apprendierror and noting the district court’s “fairly broad discretion to impose either concurren t or consecutive sentences”). The conflict among the circuits is whether § 5G1.2( d) is a mandatory or discretionary provision; those courts holding that § 5G1.2(d) is mandatory have routinely concluded that an Apprendierror did not affect the defendant’s substantial rights, while those courts holding that§ 5G1.2(d) is discretionary have generally remanded to the district court for resent encing. But see Caldwell , 255 F.3d at 533-34 (reasoning that although Apprendierror was plain, the defendant’s substantial rights were not affected because the di strict court could have applied § 5G1.2(d) and run the sentences consecutively). Thi s court agrees with those circuits which have concluded that § 5G1.2(d) is a mandatory provision. Section 5G1.2(d) speaks in terms of “shall” rather than “may.” Because § 5G1.2(d) is a-24-

mandatory provision, there is no “idle speculation” as to the sentence the district court could impose upon remand. Jones , 235 F.3d at 1238. The district court would be required to impose twenty-year terms on De fendant’s seven drug convictions and to run these sentences, as well as Defendant’s sentences on the other convictions, consecutively, resulting in a to tal consecutive sentence of 208 years. Under these circumstances, the Defendant’s substantial rights were not affected by the Apprendierror. Thus, Defendant has failed to demonstrate plain error and the district court’s sentence is affirmed

. 

### IV. CONCLUSION For the reasons stated above, this court AFFIRMS Defendant’s convictions and sentences.