UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 99-31027

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CLIFFORD BAPTISTE, CHRISTOPHER FRANK, LeSHAWN PARKER, GARION McCOY,

BRIAN ANTHONY JONES, PERCY FRANKLIN and RICO SCHEXNAYDER,

Defendant-Appellants.

_________________________________________________________________

Appeals from the United States District Court

for the Eastern district of Louisiana

_________________________________________________________________ ON PETITION FOR REHEARING

October 2, 2002

Before KING, Chief Judge, REAVLEY and JONES, Circuit Judges.

BY THE COURT:

The panel issued an opinion in this case in August 2001.

United State s v. Baptiste, et al. , 264 F.3d 578 (5th Cir. 2001).

Under Fifth Circuit precedent at the time, we were required to

vacate the defendants’ life sentences and remand the case for resentencing because drug quantity ha d not been included in the

indictment. The United States filed a petition for rehearing and1 Some of t he appellants have raised the issue by adoption of

the others’ briefs.

2 requested that the mandate be held until the United States Supreme

Court and the Fifth Circuit sitting e n banc resolved similar

Apprendi issues in pending cases. These cases have been decided,

and all parties have submitted supplemental briefs. U nited States

v. Cotton , 122 S.Ct. 1781 (2002); United States v. Longoria , 2002

WL 1491784, (5th Cir. (Tex.), July 12, 2002).

The petition for panel rehearing is GRANTED.

IT IS ORDERED t hat the introductory paragraph and

sections II(E), II(F), and III of the original opinion be WITHDRAWN

and that the following be substituted:

EDITH H. JONES, Circuit Judge:

Appellants Clifford Baptiste, Christopher Frank, Percy

Franklin, Brian Jones, LeShawn Parker, Garion McCoy, and Rico

Schexnayder challenge their convictions for firearm and

drug-related crim es. For the following reasons, we affirm their

convictions and sentences on the drug conspiracy counts but vacate

and remand three appellants’ sentences for firearms offenses.

* * * * *

II. DISCUSSION

E. Apprendi issues

By hook and crook, 1 all of the appellants contend that

their sentences, which, with the exception of Franklin’s, call for3

life imprisonment, exceed the statutory maximum o f the drug

conspiracy crime of which they were convicted. Their arguments

rely on this court’s interpretation of Apprendi v. New Jersey

, 530

U.S. 466, 120 S.Ct. 2348 (2000), the Supreme Court decision holding

that, “other than 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.” 530

U.S. at 490, 120 S.Ct. at 2362-63.

In this court, drug trafficking crimes defined in 21

U.S.C. § 841 are governed by Apprendi analysis on the theory that

the dramatically tiered s entences for increasing quantities of

ill egal drugs enhance the “core” statutory maximum of

§ 841(b)(1)(C). United States v. Doggett , 230 F.3d 160, 163 (5th

Cir. 2000). Consequently, the quantity of drugs should be alleged

in the indictment and proved to the jury beyond a reasonable doubt

if, as here, the governme nt seeks enhanced penalties under

§ 841(b)(1)(A) or (b)(1)(B). Id . at 164-65.

The Fifth Circuit’s early A pprendi decisions had held

that an enhanced sentence u nder § 841(b) must necessarily be

vacated where the indictment failed to allege drug quantity.

Evidence of drug quantity was not considered relevant to our plainerror analysis because the defect in the indictment was in some

sense a “jurisdictional error”. This rule has since been

abrogated.4 The Supreme Court granted certiorari in United States v.

Cotton to resolve “whether the omission from a federal indictment

of a fact that enhances the statutory maximum sentences justifies

a court of appeals’ vacating the enhanced sentence, even though the

defendant did not object in the trial court.” 122 S.Ct. 1781, 1783

(2002). The Court held that indictment omissions are not

“jurisdictional” and that appellate courts should apply plain error

r eview. Moreover, as is relevant to this case, C otton mak es it

very clear that appellate courts must assess the evidence of drug

quantity in order to determine whether the error “seriously

affect[ed] the integrity, fairness, or public r eputation of

judicial proceedings.” I d. at 1785. The Court’s decision in

Cotton fundamentally changed this circuit’s Apprendi jurisprudence.

See United States v. Longoria

, --- F.3d

--- (5th Cir. 2002)(en

banc).

We turn now to the facts of this case. The indictment

alleges defendants’ involvement in a conspiracy to traffic in

cocaine a nd cocaine base, but it does not allege the quantity of

drugs. The other counts of the indictment involve serious federal

firearms offenses, but none of them alleges a quantity of drugs

involved in the appellants’ trafficking. Further, while the

evidence at trial abundantly demonstrated that conspiracy members

were selling an ounce of crack cocaine or m ore every week for

several years, the jury was never asked to find a particular

quantity of drugs. None of the appellants sought jury instructions2 Defendant Franklin’s imprisonment sentence of 240 months

is within the primary statutory limit for his offense and so raises

no Apprendi issue. His enhanced sentence of supervised release

will be discussed below.

3 See Fed. R . Crim. Proc. 52(a)(error must affect

“substantial rights” to cause reversal). In most cases, “the error

must have been prejudicial: It must have affected the outcome of

the district court proceedings.” U nited States v. Olano

, 507 U.S.

725, 734, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993).

5 on drug quantity. Several appellants objected at sentencing that

the element of drug quantity had been neither alleged in the

indictment nor spec ifically submitted to the jury in their case.

The other appellants did not preserve Apprendi error in the trial

court.

The primary question is whether the life sentences of six

of the defendants – Baptiste, Frank, Schexnayder, Jones, Parker,

and McCoy – must be vacated under Apprendi

. 2

For the appellants who did no t object at trial, C otton

requires us to apply plain-error analysis and, more specifically,

to assess the evidence of drug quantity to determine whether the

sentenc ing error seriously affects the integrity, fairness, or

public reputation of the judicial proceedings. If the evidence

supporting the omitted fact is “o verwhelming” and “essentially

uncontroverted,” then the error cannot be said to seriously affect

the integrity of the proceedings. Cotton , 122 S.Ct. at 1786.

For the appellants who objected at sentencing, we apply

harmless error analysis. 3 The Eleventh Circuit recently decided a

case where the indictment c harged the defendant with possession6

with intent to distribute an unspecified amount of crack cocaine.

The defendant was convicted and sentenced to life imprisonment. At

sentencing, the def endant objected that A pprendi (which had been

decided six days after he was convicted) prevented the district

court from sentencing him to more than the 20-year statutory

maximum imposed by 21 U.S.C. § 841(b)(1)(c). S ee United States v.

Anderson

, 289 F.3d 1321, 1323-25 (11th Cir. 2002). The Eleventh

Circuit held that A pprendi errors are subject to harmless error

analysis because they “do not fall within the limited class of

‘fundamental constitutional errors that defy analysis by harmless

error standards.’” Id. at 1326 (quoting Neder v. United States

, 527

U.S. 1, 7, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35 (1999)). A nderson

then articulated the harmless error question in this way:

Simply put, the failure to charge or submit to the jury

a specific drug quantity is harmless error under Apprendi

if, by finding the defendant guilty, the jury necessarily

must have found, beyond a reasonable doubt, that a

cer tain quantity of drugs was involved in the offense.

Put differently, if no reasonable juror could have found

the defendant guilty without also f inding that the

specific quantity of drugs was involved , then the

defendant is not entitled to a resentencing.

Anderson , 289 F.3d at 1327.

W hether analyzed under plain error or harmless error

review, the validity of the sentences in this case rests on the

weight of the evidence regarding drug quantity.

For Baptiste, Frank, and Schexnayder to be sentenced to

life imprisonment, the statute required proof that their drug

trafficking crimes involved only five grams or more of cocaine or4 Baptiste had personally been arrested by the police twice

and found to possess more than five grams on his person. For the

first time on appeal, Schexnayder asserts that the government erred

in charging that he had been convicted twice before of drug crimes,

thus triggering a life sentence at the level of 5 grams of cocaine

or cocaine base in the instant offense. We review this point under

the plain error standard and find it obviated, at a minimum, by the

fact that 50 grams or more of cocaine or cocaine base were

implicated in the conspiracy.

5 The court made detailed findings substantiating 50 grams

or more in the sentencing hearing by a preponderance of the

evidence, but in light of Apprendi , this procedure was incorrect.

7 cocaine b ase, because the government filed bills of information

alleging their prior drug distribution convictions. 4 Jones, Parker

and McCoy, on the other hand, had no hi s tory of prior drug

trafficking offenses, and the government had to prove that the

instant crimes involved 50 grams or more of cocaine or cocaine

base. 5

With respect to all of the defendants, the evidence

showed that the crack distributed during the pe riod of the

conspiracy far exceeded the quantities necessary to justify their

sentences. Government witnesses Womack and Thompkins provided

evidence of the quantity of the drugs involved. Their testimony

was apparently found credible by the jury, because the jury relied

on their testimony to convict the appellants for using firearms

during and in relation to drug traffi cking crimes. Finally,

because the appellants chose as their defense strategy to challenge

the existence of any conspiracy, they did not seriously contest the

testimony concerning the quantity of drugs distributed.8 In sum, the chances are virtually nil that the jury,

confronted with this testimony about appellants’ long-lasting

conspiracy, would have found that the appellants distributed less

than 50 grams of cocaine or cocaine base. The omission of drug

quantity from the indictment is harmless error (with respect to the

appellants who objected at sentencing) and is not reversible plain

error (with res pect to the appellants who did not object). The

life sentences for Baptiste, Frank, Schexnayder, Jones, Parker, and

McCoy are therefore affirmed.

All seven appellants assert Apprendi challenges to their

supervised release terms. The foregoing discussion renders those

challenges meritless.

F. Other sentencing issues

The appellants have raised other sentencing issues as

well. The only issue left unresolved by our discussion of Cotton

concerns the convictions for using or carrying a firearm in the

commission of a drug crime, in violation of 18 U.S.C. § 924(c)(1).

Jones and Parker expressly challenged, and Baptiste

raised the issue by adoptio n, whether the district court should

have sentenced them to consecutive sentences for multiple uses of

firearms to advance a single drug conspiracy. These three

appellants were convicted of one drug trafficking offense –

conspiracy to distribute crack

– but two to four counts of carrying

firearms offenses. As noted in Section I(E), Baptiste, Jones, and

Parker received consecutive sente nces for their separate 924(c)9

violations. Imposing consecutive sentences in these circumstances

is inconsistent with the rule in this circuit that “each firearms

offense [under § 924(c)] must be sufficiently linked to a separate

drug trafficking offense” in order to avoid violating double

jeopardy principles. U nited States v. Privette

, 947 F. 2d 1259,

1262-63 (5 th Cir. 1991). Accordingly, we vacate the sentences with

respect to the § 924(c) counts and remand for resentencing. See

United States v. Tolliver , 61 F.3d 1189, 1222 (5th Cir. 1995).

* * * * *

III. CONCLUSION

We AFFIRM the appellants’ convictions and their sentences

for the drug conspiracy offenses. We VACATE the sentences of

Jones, Baptiste and Parker for firearms violations and REMAND for

resentencing them on those offenses.