UNITED STATES of America, Plaintiff-Appellant,

v. Brent HARRIS, Stanley Harris, Defendants-Appellees.

No. 00-14200. United States Court of Appeals,

Eleventh Circuit. March 14, 2001. Appeals from the United States District Court for the Northern District of Georgia.(No. 99-00042-CR-01-02- 4-RLV), Robert L. Vining, Jr., Judge. Before BARKETT, HILL and KRAVITCH, Circuit Judges. BARKETT, Circuit Judge: The Government appeals the sentence imposed on William Brent Harris and Stanley Bernard Harris for their convictions, pursuant to guilty pleas, for dist ribution of illegal narcotics in violation of 21 U.S.C. § 841. On appeal, the Government argues that the district court erred in holding that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) precl udes its consideration of the Harrises' relevant conduct under U.S.S.G. § 1B1.3 in determining their sen tences and that the sentences should be vacated and remanded for resentencing. Background Brent Harris pled guilty to two counts of a 12-count indictment for violations of 21 U.S.C. § 841 and other drug related offenses. It is uncontested that th e amount of cocaine hydrochloride involved in the count to which Brent Harris pled guilty was 17.8 grams. Th e Sentencing Guidelines provide that the base offense level for an offense involving less than 25 grams of cocai ne is 12. U.S.S.G. § 2D1.1(c)(14). However, the probation officer prepared Brent Harris's presenten ce report based on the total amount of cocaine base, cocaine powder, and cocaine hydrochloride attributable to Brent Harris through all of the transactions alleged

in the indictment and calculated his base offense le vel as 32 pursuant to U.S.S.G. § 2D1.1(c)(4) and his corresponding sentencing range as 168 to 210 months impr isonment. Because the district court ruled that Apprendi prohibited the court from considering drug quan tities other than those involved in the counts of conviction, the district court calculated his offense level as 12 based on the quantity of 17.8 grams of cocaine hydrochloride involved in the two counts to which he pled guilty, resulting in a sentencing range of 15-21 months imprisonment.1 Stanley Harris's base offense level of 36 was cal culated including a two level enhancement for possession of a dangerous weapon pursuant to U.S.S.G. § 2D1.1(b)(1).

2 The Guidelines provide that in arriving at the b ase offense level with respect to a conviction for distribution of cocaine, see U.S.S.G. § 2D1.1(a)(3), the trial court may consider "quantities of drugs not specified in the count of conviction." Id. application note 12. Under U.S.S.G. § 1B1.3(a)(2), the base offense level is to be determined based on acts "that were part of the same course of conduct or common scheme or plan as the offense of conviction." Stanley Harris was also named in the indictment. He pled guilty to only one count of possessing and distributing cocaine base. Stanley Harris does not contest that this count involved the possession and distribution of 13.2 grams of cocaine base. The sente ncing guidelines provide that the base offense level for an offense involving between 5 and 20 grams of cocaine b ase is 26. U.S.S.G. § 2D1.1(c)(7). His presentence report found that based on the total amount of cocaine a ttributable to him through the transactions alleged in the indictment, his base offense level was 36 pursuant to U.S.S.G. § 2D1.1(c)(2) resulting in a guideline range

of 188 to 235 months. 1 Based solely on the quantity relating to th e count of conviction, without considering the amount included in the relevant conduct, the court de termined that Stanley Harri s's base offense level was 26 resulting in a sentencing range of 78 to 97 months imprisonment. Standard of Review The applicability of Apprendi v. New Jerseyis a pure question of law that we review de novo. See Doe v. Chiles, 136 F.3d 709, 713 (11th Cir.1998).

Discussion The narrow question before us is whether Apprendiapplies to the relevant conduct provision of the Sentencing Guidelines. 2 We recently decided this issue in United States v. Maldenaldo Sanchez, --- F.3d ----, Nos. 00-13347, 00-13447 (11th Cir. Feb. 26, 2001). In th at case, the defendants were convicted of one count of conspiracy to distribute and possess with the inte nt to distribute methamphetamine and amphetamine in violation of 21 U.S.C. §§ 841, 846. The defendants argued that in light of Apprendi, the district court erred in enhancing their sentences for possession of a fir earm in connection with a drug transaction pursuant to U.S.S.G. § 2D1.1 because that fact had not been proven beyond a reasonable doubt. We held that Apprendi does not apply to the Sentencing Guidelines. See also, United States v. Nealy, 232 F.3d 825, 829 n. 3 (11th Cir.2000). We explained in Maldenaldo Sanchez that Because a finding under the Sentencing Guidelines de termines the sentence within the statutory range rather than outside it, the decision in Apprendi, which addresses any increase in penalty for a crime outside the statutory maximum, has no application to the Guidelines.3 It will always be the case that the sentencing range identified by the Guidelines will not exceed the statutory maximum, as the Sentencing Guidelines requi re that the Guidelines cannot be used to increase the penalty beyond the statutory maximum. U.S.S.G. § 5G1.1. Id. The maximum sentence authorized for a non-quantity conviction pursuant to 21 U.S.C. § 841(a) is twenty years imprisonment. 21 U.S.C. § 841(a)(1)(C). Based on the amount of drugs that was attributable to the Harrises, it would not be possible for the distri ct court to sentence either of them to a sentence exceeding 20 years under the Sentencing Guidelines. T hus, while considering the relevant conduct in this case would have increased the Harrises' sentencing ranges under the Sentencing Guidelines, those ranges would not exceed the statutory maximum, and therefore we find that Apprendidoes not require the district court to disregard relevant conduct in this case. 3 See also, United States v. Garcia (2nd Cir.2001); United States v. Heckard, 238 F.3d 1222 (10th Cir.2001); United States v. Williams, 235 F.3d 858, 863 (3rd Cir.2000); United States v. Kinter, 235 F.3d 192, 201 (4th Cir.2000); United States v. Keith, 230 F.3d 784, 786-87 (5th Cir.2000); Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir.2000).

We therefore vacate the sentence and remand for the district court to make specific factual findings regarding the amount of drugs properly attributable to the defendants. We express no opinion as to whether the evidence supports a finding that the Harrises were res ponsible for the amount of drugs attributed to them by the presentence reports, holding only that the distri ct court erred in finding that it was prohibited from considering drug quantities relating to rele vant conduct under the Sentencing Guidelines.

VACATED AND REMANDED.