IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30299

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

KENNETH GARY WASHINGTON, also known as Kenny Washington,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 2:05-CR-20084-12

Before WIENER, PRADO, and OWEN, Circuit Judges.

PER CURIAM:

*

Defendant-Appellant Kenneth Gary Washington appeals the life sentence

imposed following his jury trial conviction for Count One of a multi-count

indictment that charged him with a drug trafficking conspiracy involving more

than “5 kilograms [of] cocaine and marijuana” in violation of 21 U.S.C. §§ 846(a)

and 841(b)(1)(A). Specifically, he argues that the jury verdict was ambiguous

with respect to how much of either drug the jury found to be involved in the

conspiracy and that his sentence for that offense therefore could not exceed the

United States Court of Appeals

Fifth Circuit

F I L E D

May 13, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 10-30299 Document: 00511476904 Page: 1 Date Filed: 05/13/2011
No. 10-30299

lowest of the potentially applicable statutory maximums. He contends that,

because the verdict is ambiguous, it could be interpreted to mean that the jury

convicted him of conspiring to distribute 50 kilograms or less of marijuana and

no amount of cocaine.

As Washington concedes, because the argument he raises on appeal was

not raised before the district court, our review is for plain error. See United

States v. Arnold, 416 F.3d 349, 357 (5th Cir. 2005). To show plain error,

Washington must show that the error was clear or obvious and affects his

substantial rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).

If he makes such a showing, we have the discretion to correct the error but only

if it “‘seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.’” Id.

Generally, “[a] jury verdict in a criminal case is ambiguous if the

defendant is charged with a multiple-drug conspiracy and the jury verdict does

not specify whether the jury found the defendant guilty with respect to some or

all of the drugs.” United States v. Carbajal, 290 F.3d 277, 288 (5th Cir. 2003)

(citing United States v. Cooper, 966 F.2d 936, 940 (5th Cir. 1992)). In that

situation, the sentencing court “is limited to imposing a sentence that does not

exceed the maximum penalty under the statute providing the least severe

punishment.” Cooper, 966 F.2d at 940. In United States v. Green, 180 F.3d 216,

225 (5th Cir. 1999), we clarified, however, that a general verdict for a conspiracy

with more than one object-offense is not “ambiguous ipso facto.” Thus, “even

where there is a conspiracy general verdict, the sentencing court can still

conclude that the jury found, beyond a reasonable doubt, guilt for more than just

one object-offense.” Id. at 226.

Relatedly, drug types and quantities that the government intends to rely

on to seek penalty enhancements under § 841(b)(1)(A) or (B) must be charged in

the indictment, submitted to the jury, and proved beyond a reasonable doubt.

See United States v. Slaughter, 238 F.3d 580, 582-83 (5th Cir. 2000). In the

2

Case: 10-30299 Document: 00511476904 Page: 2 Date Filed: 05/13/2011
No. 10-30299

context of a drug trafficking conspiracy, the government must prove the drug

types and quantities involved with the conspiracy as a whole. See United States

v. Turner, 319 F.3d 716, 722 (5th Cir. 2003).

There was overwhelming and uncontroverted evidence before the jury that

the charged conspiracy distributed both cocaine and marijuana and that it

involved more than five kilograms of cocaine. Accordingly, there was no

reversible plain error with respect to the district court’s finding that the

statutory maximum term of imprisonment for Count One of Washington’s

indictment was life in prison. See United States v. Cotton, 535 U.S. 625, 633

(2002); Green, 180 F.3d at 227; § 841(b)(1)(A). The district court’s judgment is

AFFIRMED.

3

Case: 10-30299 Document: 00511476904 Page: 3 Date Filed: 05/13/2011