United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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 No. 00-2188

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United States of America, *

*

Appellee, *

*

v. *

*

Fortino E. Diaz, *

*

Appellant. *

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Appeals from the United States

 No. 00-2317 District Court for the

 ___________ District of Minnesota.

United States of America, *

*

Appellee, *

*

v. *

*

Robert R. Lohr, *

*

Appellant. *

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Submitted: January 16, 2002

Filed: July 11, 2002 

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1

The Honorable Roger L. Wollman stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on January 31,

2002. He has been succeeded by the Honorable David R. Hansen.

2

The Honorable Michael J. Davis, United States District Judge for the District

of Minnesota.

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Before WOLLMAN,1

 Chief Judge, McMILLIAN, BOWMAN, LOKEN, HANSEN,

MORRIS SHEPPARD ARNOLD, MURPHY, BYE, and RILEY, Circuit

 Judges.

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WOLLMAN, Chief Judge.

Fortino Diaz and Robert Lohr (Lohr) appeal their sentences that resulted from

their convictions of various crimes committed in furtherance of a conspiracy to

distribute cocaine and methamphetamine. A panel of this court originally affirmed

the sentences, but we granted rehearing en banc in order to resolve an apparent

conflict among our cases. We now reinstate the panel opinion.

I.

Diaz and Lohr were indicted and tried along with two other defendants, Daniel

Sherman and Vanessa Lohr. After trial in the district court,2 all the defendants were

convicted of conspiracy to distribute cocaine and methamphetamine in violation of

21 U.S.C. §§ 841(b)(1)(A-B) and 846 and aiding and abetting money laundering in

violation of 18 U.S.C. §§ 1956(a)(1)(A) and (2). Diaz was also convicted of one

count of attempting to possess with intent to distribute cocaine in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(C). Diaz was sentenced to 360 months’ imprisonment

and Robert Lohr was sentenced to 262 months.
3

U.S.S.G. § 5G1.2(d) provides:

If the sentence imposed on the count carrying the highest statutory

maximum is less than the total punishment, then the sentence imposed

on one or more of the other counts shall run consecutively, but only to

the extent necessary to produce a combined sentence equal to the total

punishment. In all other respects, sentences on all counts shall run

concurrently, except to the extent otherwise required by law. 

-3-

All of the defendants appealed their convictions and sentences. Sherman, Diaz

and Lohr argued that their sentences violated Apprendi v. New Jersey, 530 U.S. 466

(2000), because the district court relied on drug quantities it determined using the

preponderance of the evidence standard, not quantities proved to the jury beyond a

reasonable doubt. Under Apprendi, “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 490. Use of judicially determined drug quantity

as a basis for sentencing is permissible, however, so long as the defendant’s sentence

does not exceed the statutory maximum sentence available for an indeterminate

quantity of the drug, the offense simpliciter. United States v. Aguayo-Delgado, 220

F.3d 926, 933-34 (8th Cir. 2000). In our opinion affirming the defendants’ sentences,

we recognized that because Diaz’s 360-month sentence and Lohr’s 262-month

sentence exceeded the 240-month statutory maximum for an indeterminate quantity

of cocaine, the sentences ran afoul of Apprendi. Applying the plain error standard of

review, we affirmed their sentences because under U.S.S.G. § 5G1.2(d),3

 the district

court would have been required to run a portion of the drug sentences and the money

laundering sentences consecutively to reach the properly calculated total punishment

under the guidelines. Accordingly, we concluded that Diaz’s and Lohr’s substantial

rights were not affected by their sentences. United States v. Sherman, 262 F.3d 784,

792 (8th Cir. 2001). 
4

Diaz contends that he did in fact raise Apprendi issues before the district court

at sentencing, thus entitling him to de novo review. It appears to us, however, that

his contention in the district court was not an Apprendi-style claim, but rather a claim

that the government did not prove all the elements of the crime listed in the

indictment. Thus, Diaz is not entitled to de novo review. In any event, even under

a de novo review we would affirm Diaz’s sentence because the Apprendi error was

harmless. See United States v. Anderson, 236 F.3d 427, 429 (8th Cir. 2001) (per

curiam) (Apprendi did not create a structural error that requires per se reversal, and

so harmless error analysis appropriate); United States v. Jordan, 291 F.3d 1091, 1095

(9th Cir. 2002) (using harmless error standard where defendant preserved Apprendi

argument). As we discuss below, the district court’s factual findings regarding drug

quantity were proper, and any Apprendi error in his sentence would be cured by the

mandatory imposition of consecutive sentences under U.S.S.G. § 5G1.2(d).

-4-

In so holding, the panel relied on United States v. Sturgis, 238 F.3d 956 (8th

Cir. 2001) in which we held that the defendant’s substantial rights were not violated

where the Apprendi error could have been corrected by running the sentences

consecutively under § 5G1.2(d). Id. at 960-61. Diaz and Lohr filed a petition for

rehearing en banc, arguing that the panel in their appeal was not bound by Sturgis

because two subsequently decided cases, United States v. Bradford, 246 F.3d 1107

(8th Cir. 2001) and United States v. Hollingsworth, 257 F.3d 871 (8th Cir. 2001),

remanded to the district court for resentencing under similar circumstances. We

vacated the panel decision as to Diaz and Lohr and granted rehearing en banc to

resolve this apparent conflict in our cases.

II.

Diaz and Lohr, like the defendants in Sturgis, Bradford, and Hollingsworth, did

not raise an Apprendi claim in the district court. Thus, we review their claims for

plain error.4

 United States v. Cotton, 122 S. Ct. 1781 (2002). Under the plain error

test, we can grant relief only if (1) there was an error; (2) the error was plain; (3) the
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error affected substantial rights; and (4) the error seriously affected the fairness,

integrity, or public reputation of judicial proceedings. Id. at 1785. The government

acknowledges, as it must, that the first two prongs of the test are met in this case,

since both Diaz and Lohr were sentenced in violation of Apprendi. The question

before us is whether the acknowledged Apprendi error affected the defendants’

substantial rights. We conclude, following Sturgis, that it did not.

We held in Sturgis that an Apprendi error in sentencing does not violate a

defendant’s substantial rights in a case in which the district court would have

otherwise imposed the same sentence because of the mandatory imposition of

consecutive sentences under U.S.S.G. § 5G1.2(d). Sturgis, 238 F.3d at 960-61. In

contrast, the Bradford and Hollingsworth courts remanded cases with similar facts for

resentencing, holding that district courts have discretion whether to impose

consecutive or concurrent sentences. Bradford, 246 F.3d at 1114; Hollingsworth, 257

F.3d at 878. 

Apprendi does not forbid a district court from finding the existence of

sentencing factors, including drug quantity, by a preponderance of the evidence;

rather, it prevents courts from imposing sentences greater than the statutory maximum

based on such findings. See Aguayo-Delgado, 220 F.3d at 933-34; United States v.

Buckland, 289 F.3d 558, 570 (9th Cir. 2002) (en banc) (Apprendi does not limit

courts’ ability to make drug quantity findings and impose sentences based on those

findings if the sentence is within the statutory maximum sentence for the crime of

conviction found by the jury). Thus, even after Apprendi, the first step in sentencing

is for the district court to make findings and calculate a sentencing range under the

guidelines based on those findings. If the sentencing range exceeds the statutory

maximum, Apprendi requires that the defendant be sentenced to not more than the

statutory maximum term of imprisonment instead of to the total punishment

calculated under the guidelines. 
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When a defendant has been convicted of multiple counts, however, the

sentencing court may not merely reduce the sentence imposed from the guidelines

range to the statutory maximum on the greatest count. Section 5G1.2(d) of the

guidelines requires that if the maximum sentence allowed under any one count does

not reach the total punishment as calculated under the guidelines, the district court

must impose consecutive sentences on the multiple counts until it reaches a sentence

equal to the total punishment calculation under the guidelines. This is permissible,

because imposing consecutive sentences on multiple counts does not violate

Apprendi when the sentence for each count does not violate the statutory maximum

for that count. Sturgis, 238 F.3d at 961; see also United States v. McWaine, 290 F.3d

269, 276 (5th Cir. 2002); Buckland, 289 F.3d at 572; United States v. McLeod, 251

F.3d 78, 82 (2nd Cir. 2001); United States v. Smith, 240 F.3d 927, 930 (11th Cir.

2001) (per curiam); United States v. Parolin, 239 F.3d 922, 930 (7th Cir. 2001). 

Because § 5G1.2(d) mandates consecutive sentences in those cases in which

the total punishment exceeds the statutory maximum for any one count and the

district court’s calculation of total punishment is not affected by an Apprendi error,

remand to allow the district court to consider whether to impose consecutive or

concurrent sentences would be an idle act. See United States v. Price, 265 F.3d 1097,

1109 (10th Cir. 2001) (because § 5G1.2(d) is mandatory, the court did not have to

engage in “idle speculation as to the sentence the district court could impose upon

remand” (internal quotation omitted)); but see United States v. Vasquez-Zamora, 253

F.3d 211, 214 (5th Cir. 2001) (district court has discretion under the guidelines). The

Bradford and Hollingsworth courts believed that the Sturgis court found remand

unnecessary because the record was “so clear that we [were] able to recalculate the

appellants’ sentences ourselves.” Hollingsworth, 257 F.3d at 878; see also Bradford,

246 F.3d at 1115. In truth, however, Sturgis did not rely on the clarity of the record

but on the district court’s correctly calculated sentence under the guidelines. The

court then applied the mandatory rule of § 5G1.2(d) and held that because the

defendant’s sentence would have been the same after recalculation to correct the
5

At oral argument before the en banc court, Lohr for the first time argued that

his case is factually distinguishable from Sturgis because his sentencing range

straddled the statutory maximum of 240 months. Thus, he argues, the district court

could have imposed a 240-month sentence consistent with Apprendi and § 5G1.2(d)

because the total punishment fell within the guidelines range. Lohr’s argument

depends on defining the term “total punishment” in § 5G1.2(d) as the sentencing

range and not as the actual sentence imposed by the district court. If total punishment

means the actual sentence imposed, here 262 months, then § 5G1.2(d) would require

the imposition of consecutive sentences to reach that level. We need not decide this

issue, however, because we do not consider arguments first raised at oral argument.

See United States v. Mitchell, 31 F.3d 628, 633 n.3 (8th Cir. 1997). In any event,

even if Lohr is correct, he would not succeed under the plain error standard because

there is no question that his 262-month sentence is permissible under the guidelines,

and so his substantial rights have not been violated. 

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Apprendi error, the defendant suffered no prejudice. Sturgis, 238 F.3d at 960-61; see

also Price, 265 F.3d at 1109. 

Finally, the Bradford and Hollingsworth courts also cited the district court’s

ability to depart downward from the guidelines scheme as a basis for remand.

Hollingsworth, 257 F.3d at 878; Bradford, 246 F.3d at 1114. In those cases, as in

Sturgis and this case, however, each defendant had the opportunity to request a

downward departure at the first sentencing. If such a request was made, the district

courts declined to depart downward from the sentence actually imposed. Where the

district court has already determined not to depart downward, there is no need for a

remand for it to reconsider that decision.

 

In sum, we hold that Sturgis correctly states the law of this circuit. Bradford

and Hollingsworth are overruled to the extent that they hold that § 5G1.2(d) is

discretionary and that remand is necessary where the Apprendi violation can be cured

by running sentences consecutively under that section.5
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Because their sentences do not exceed those required by § 5G1.2(d), Diaz and

Lohr suffered no prejudice to their substantial rights as a result of the Apprendi

violation, and thus they are entitled to no relief. Accordingly, the panel opinion is

reinstated as to them, as are the judgments in their respective cases.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.