In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4405

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEVIN WILLIAMS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 95 CR 510-8—Elaine E. Bucklo, Judge.

____________

ARGUED OCTOBER 31, 2006—DECIDED JUNE 27, 2007

____________

Before POSNER, WOOD, and EVANS, Circuit Judges.

WOOD, Circuit Judge. Kevin Williams was convicted of

conspiracy to violate 21 U.S.C. § 846 by knowingly and

intentionally possessing and distributing “cocaine and

cocaine base, commonly known as ‘crack,’ . . . heroin and

marijuana.” In finding him guilty, the jury made no factual findings about either drug type or quantity, because

the trial took place before the Supreme Court’s pivotal

decision in Apprendi v. New Jersey, 530 U.S. 465 (2000).

The court sentenced Williams to 320 months’ imprisonment on June 24, 1998. Williams appealed both his

conviction and his sentence, complaining that the latter

was too heavy, and the government cross-appealed the

sentence on the ground that it was too light. See United
2 No. 05-4405

States v. Jackson, 207 F.3d 910 (7th Cir. 2000). Williams

was unsuccessful across-the-board, but the government

prevailed on its cross-appeal, and so the case was remanded for resentencing.

On remand, the district court imposed a harsher sentence of 360 months’ imprisonment. Williams, as he has

properly done throughout these proceedings, complained

that this sentence was invalid because there was neither

a jury finding nor an admission on his part about either

the drug type or quantity—both necessary to establish the

statutory maximum. Without specific findings, Williams

argues, he is entitled to be sentenced to no more than

10 years in prison, the lowest maximum sentence specified in 21 U.S.C. § 841(b) for someone with his criminal

history. (Since he has been in prison for more than 10

years, such a conclusion would mean that he would be

entitled to release.) Otherwise, the drug type (cocaine

base) and quantity (more than 1.5 kilograms) that the

district court attributed to Williams subjected him to a

statutory minimum of 20 years and a statutory maximum

of life. See 21 U.S.C. § 841(b)(1)(A)(iii). We review the

Sixth Amendment error under the harmless error standard, see Washington v. Recuenco, ___ U.S. ___, 126 S.Ct.

2546 (2006). Because there was ample evidence that

Williams could have foreseen the sale of more than 50

grams of cocaine base by members of the conspiracy, we

conclude that the error was harmless and affirm.

I

Williams was convicted in a massive narcotics conspiracy prosecution against members of a Chicago gang,

the Gangster Disciples, the details of which we recounted

in the consolidated appeal of Williams and his co-conspirators. See United States v. Jackson, supra. We described the

Gangster Disciples as an enterprise with 6,000 members,
No. 05-4405 3

“engaged mainly in the sale of crack and powder

cocaine . . . [with] revenues of some $100 million a year. As

befits an operation of such magnitude, the gang had an

elaborate structure. [The leader] was assisted by a board

of directors, and below the board were governors and

regents having territorial jurisdictions . . . .” Id. at 913.

Williams admitted to being a “regent” in the gang. This

was a managerial post in which he allegedly “supervised

more than a hundred Gangster Disciples” on the far south

side of Chicago in a territory known as “the hundreds”

(referring no doubt to the street numbers in that area of

the city). Id. at 921.

Williams was convicted on one count of conspiracy to

distribute narcotics under 21 U.S.C. § 846, for which the

penalties are equivalent to those for the distribution of

the underlying drug. Although the indictment alleged

that the conspiracy was to distribute “cocaine and cocaine

base, commonly known as ‘crack,’ . . . heroin and marijuana,” nothing in either the indictment nor the verdict

form specified what precise type or amount of drugs

were involved in the charged conspiracy. Notwithstanding the lack of input from the jury, Judge Marovich had

little trouble finding that Williams, like the other regents

who supervised the drug operation in the hundreds and

who were sentenced with him, was responsible for “at least

1.5 kilos of crack, or in the alternative, 150 kilos of powder.” The judge accordingly sentenced Williams to 320

months under 21 U.S.C. § 841(b)(1)(A), which carries a

mandatory minimum sentence of 20 years’ imprisonment

and a maximum of life if the defendant was responsible for

more than five kilograms of cocaine or 50 grams of crack

cocaine.

At that point, Williams’s case became procedurally

complicated. On direct appeal, his conviction was upheld

but this court remanded the case for re-sentencing,

because we concluded that the district court erred in

applying a downward “minor participant” adjustment
4 No. 05-4405

under U.S.S.G. § 3B1.2(b). See Jackson, 207 F.3d at 921-

22. Although Williams raised his Sixth Amendment

objection to his sentence during that round, we rejected it.

Id. at 920-21. Later, the Supreme Court vacated the

sentence of one of his co-defendants following Apprendi,

but Williams’s own petition for certiorari from this court’s

decision was denied. See United States v. Jackson, 531

U.S. 953 (2000).

For reasons that are not explained, it was almost four

years before Williams had a new sentencing hearing.

Without the benefit of the two-point reduction, the court

found on May 7, 2004, that a higher sentence of 360

months was required. Williams raised his Sixth Amendment claim at this hearing, and it was again rejected, this

time by Judge Bucklo, to whom the case had been reassigned. Williams filed a notice of appeal and, following

the Supreme Court’s decision in United States v. Booker,

543 U.S. 220 (2005), the government filed a brief confessing that the court had erred in treating the Sentencing

Guidelines as mandatory. We vacated Williams’s sentence and remanded again for re-sentencing consistent

with Booker.

On this second remand, the district court again sentenced Williams to 360 months in prison. Williams (again)

raised his Sixth Amendment objection, which the court

(again) rejected, holding that the failure to have the jury

find drug type and quantity was not a structural error

under “the law as interpreted by the Seventh Circuit.”

II

Williams argues that the district court erred under

Apprendi (and, more accurately, Booker, which is the case

in this line that deals directly with the federal sentencing

guidelines) because it sentenced him to a term that was
No. 05-4405 5

longer than the one that would have been possible based

on the facts found by the jury. He insists that only reversal

will cure this error. The existence of the Booker error is

plain enough to require little discussion. Williams’s second

proposition, however, is more problematic. The difficulty

of prevailing on the crucial second step of his argument

became significantly greater after the briefs were filed

in this appeal as a result of the Supreme Court’s decision

in Washington v. Recuenco, supra. Williams has been

arguing that failure to prove drug type and quantity to

a jury is the kind of structural error that justifies automatic reversal. See United States v. Orozco-Prada, 732

F.2d 1076 (2d Cir. 1984). Recuenco definitively rejects

that position; at this point, only if Williams can show that

the conceded Booker error was not harmless can he

prevail.

Harmless error review is grounded in FED. R. CRIM. P.

52(a), which stipulates that “[a]ny error, defect, irregularity or variance which does not affect substantial rights

shall be disregarded.” Although the error alleged in this

case is of a constitutional dimension, “most constitutional

errors can be harmless.” Neder v. United States, 527 U.S.

1, 8 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279,

306 (1991)). For constitutional errors that do not affect the

“framework within which the trial proceeds,” Neder, 527

U.S. at 8, courts must apply “Rule 52(a)’s harmless error

analysis and must ‘disregar[d]’ errors that are ‘harmless

beyond a reasonable doubt,’ ” Id. at 7 (quoting Chapman v.

California, 386 U.S. 18, 24 (1967)). “The test . . . is

whether it appears ‘beyond a reasonable doubt that the

error complained of did not contribute to the verdict

obtained.’ ” Neder, 527 U.S. at 15 (quoting Chapman, 386

U.S. at 24).

In Recuenco, the Court concluded that “sentencing

factors, like elements, are facts that have to be tried to the

jury and proved beyond a reasonable doubt.” 126 S.Ct. at
6 No. 05-4405

2552. The implication of equating sentencing factors and

elements of a crime for purposes of the requirements of the

jury and the burden of proof is to equate them also for

harmless error purposes. Thus, the Court held in

Recuenco, “an instruction that omits an element of the

offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining

guilt or innocence.” Id. at 2551 (emphasis in original).

Accordingly, “[f]ailure to submit a sentencing factor to

the jury, like failure to submit an element to the jury, is

not a structural error,” and harmless error review must

be applied. Id. at 2553. Applied to this case, that means

that we must decide whether the failure to have the jury

decide beyond a reasonable doubt the drug type and

quantity issues that would raise the statutory maximum

from 10 years to life was harmless error.

We reiterate that we now know, with the benefit of 20-20

hindsight, that it was indeed error not to obtain a jury

finding on drug type and amount. As Apprendi put it,

“[o]ther than the fact of 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. The

Court clarified in Blakely v. Washington that “the ‘statutory maximum’ for Apprendi purposes is the maximum

sentence a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. 296, 303 (2004) (emphasis in original).

Booker extended these holdings to the federal sentencing

regime. 543 U.S. at 243-44. Under 21 U.S.C. § 841, which

describes the underlying substantive crime that forms the

basis for Williams’s sentence, the statutory maximum

penalty that can be imposed in the absence of special

findings on drug type and amount is 10 years (given

Williams’s criminal history). See 21 U.S.C. § 841(b)(1)(D)

(less than 50 kilograms of marijuana; repeat offender). In
No. 05-4405 7

contrast, as we noted earlier, the maximum penalty for

possessing with intent to distribute more than 50 grams

of crack or five kilograms of cocaine is life in prison. See

21 U.S.C. § 841(b)(1)(A). Williams’s 30-year sentence

plainly exceeds that which would have been possible based

on the facts the jury found. See, e.g., Knox v. United States,

400 F.3d 519, 522 (7th Cir. 2005). The error is, therefore,

obvious.

The central question is whether “it appears ‘beyond a

reasonable doubt that the error complained of did not

contribute to the verdict obtained.’ ” Neder, 527 U.S. at 15

(quoting Chapman, 386 U.S. at 24). We are convinced,

beyond a reasonable doubt, that this is the case. The

government presented evidence of crack cocaine that

Williams sold; it obtained that evidence from ledgers that

recorded the drug transactions of the Gangster Disciples,

taken from the home of one of his co-defendants. (The

ledgers themselves were not part of the record on appeal,

but they were summarized in the government’s brief on

direct appeal. In addition to detailing the general structure

of the Gangster Disciples, this summary also lists records of specific drug transactions.) Included are records

of drugs being given to Williams to sell, such as “3 ounces

to ‘K-Dog’ [Kevin Williams]” and “41⁄2” for a price of

“$3500.” Three ounces is approximately 85.72 grams, while

four and a half ounces is about 114.28 grams; together

these two transactions alone far exceed the 50 grams of

crack necessary to bring Williams within the statutory

sentencing range of 20 years to life.

In addition, the government presented extensive evidence about the sales of crack and powder cocaine conducted by the drug conspiracy as a whole. Even if we

were to disregard the ledger evidence of Williams’s personal drug activity (and there is no reason why we should),

he would still be criminally responsible for the drugs

reasonably foreseeable to him that were handled by the
8 No. 05-4405

rest of his co-conspirators. See United States v. Edwards,

945 F.2d 1387 (1991). It is difficult to imagine how a

person in the managerial role of regent in the Gangster

Disciples—an enterprise whose principal business was

dealing crack and cocaine—could not have foreseen the

sale of drugs of a type, and in an amount, sufficient to

trigger § 841(b)(1)(A)’s greater statutory maximum. In

assessing the sentence of Harold Jackson, one of the

other regents in the hundreds, we noted that he could

have been convicted by a jury “of being involved in the

sale of hundreds, if not thousands of grams of crack.”

United States v. Jackson, 236 F.3d 887, 888 (7th Cir.

2001). Williams’s role as a regent was also important. At

sentencing for the regents who presided over the hundreds,

including both Williams and Jackson, the government

singled out Williams for the scope of his role in the drug

conspiracy and asked that the court give him a longer

sentence than the other regents to reflect his greater role

in the drug conspiracy.

At the first sentencing hearing, Judge Marovich calculated the amount of drugs Williams and the other regents

in the hundreds could reasonably have foreseen were being sold as part of the conspiracy on the turf that they

governed. The evidence before him showed that the more

than 100 Gangster Disciples in that area were dealing

“15 kilograms of powder a day, or four and a half kilos of

crack per day, without drawing a distinction between those

two controlled substances.” He calculated that approximately 312 kilos of crack and 2,080 kilos of power were

sold on an annual basis in Williams’s area, with each of

the regents supervising “anywhere from 10 to 12 percent”

of those sales. Those numbers more than satisfied the

court that the regents could be held responsible for “at

least 1.5 kilos of crack, or in the alternative, 150 kilos of

powder.” Given the evidence of the size of the Gangster

Disciples’ crack and cocaine operation in the hundreds
No. 05-4405 9

and Williams’s leadership role, we are satisfied that the

error in failing to submit the questions of drug type and

quantity to a jury was harmless.

The sentence of the district court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-27-07