UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 99-30254

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOHNNY CLINTON,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Louisiana

June 27, 2001

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before KING, Chief Judge, DUHÉ and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

This case is on remand from the United States Supreme Court

for further consideration in light of Apprendi v. New Jersey , 120

S. Ct. 2348 (2000). A pprendi was decided after this Court affirmed

criminal defendant Johnny Clinton's drug trafficking convictions

and sentences on direct appeal, see United States v. Reliford

, 210

F .3d 285 (5 th Cir. 2000), and the arguments presented herein were

not presented to the district court or this Court on initial

appeal. We have, therefore, carefully considered the record in2

light of Clinton's arguments on remand and the plain error standard

of review. See United States v. Fort

, 248 F.3d 475, 483 (5 th Cir.

2001); U nited States v. Green

, 246 F.3d 433, 436 (5 th Cir. 2001);

United States v. Rios-Quintero

, 204 F.3d 214, 215 (5 th Cir.), cert.

denied

, 121 S. Ct. 301 (2000). Having concluded that review, we

find no remediable error and once again affirm Clinton's criminal

convictions as well as the sentences imposed by the district court.

I.

Clinton was charged in an indictment allegi ng one count of

conspiracy to distribute cocaine base (crack cocaine), in violation

of 21 U.S.C. § 841(a)(1) and §846, and one count of distribution of

c ocaine base (crack cocaine), in violation of 21 U. S.C.

§ 841(a)(1). The matter was tried to a jury, which returned guilty

verdicts on both counts. Clinton was senten ced to 292 months

imprisonment on the conspiracy count, a nd to 240 months

imprisonment on the distribution count, to run concurrently.

On direct appeal, Clinton challenged the sufficiency of the

evidence to sup port the jury's verdict. Clinton also challenged

certain fac tual determinations made by the district court when

applying the sentencing guidelines. Specifically, Clinton

maintained th at the district court's factual determinations that

Clinton possessed a dangerous weapon, see U.S.S.G. § 2D1.1(b)(1),

and that Clinton was a leader, manager, or supervisor of the

conspiracy, see U.S.S.G. § 3B1.1, were clearly erroneous. We3

rejected each of these arguments. See Reliford , 210 F.3d at 298-

99, 307-09.

II.

In June 2000, after this Court's mandate issued, the Supreme

Court decided Apprendi

. A pprendi extended ea rlier Supreme Court

holdings in cases like Jones v. United States

, 119 S. Ct. 1 215

( 1999), by holding that any fact, other than the fact of a prior

conviction, that increases the penalty for a crime beyond the

statutory maximum is an essential element of the offense, which

must be charged in the indictment, submitted to the jury, and

proved beyond a reasonable doubt. A ppren di , 120 S. Ct. at 2355;

see also Green , 246 F.3d at 436; United States v. Salazar-Flores

,

238 F.3d 672, 673 (5 t h Cir. 2001); United States v. Doggett

, 230

F.3d 160, 164 (5 th Cir. 2000), cert. denied

, 121 S. Ct. 1152 (2001).

While Apprendi involved a state law hate crime provision, this

Court has squarely held that Apprendi overrules this Court's prior

jurisprudence treating drug quantity as a sentencing factor rather

than as an essential element of the federal drug traf ficking

statutes. S ee Doggett

, 230 F.3d at 163 -65 (drug quantity is an

essential element when quantity is used t o enhance a defendant's

sentence); see also United States v. DeLeon

, 247 F.3d 593, 596 (5 th

Cir. 2001); G reen

, 246 F.3d at 436; United States v. Garcia

, 242

F.3d 593, 599 (5 th Cir. 2001); Salazar-Flores , 238 F.3d at 673;4

United States v. Keith , 230 F.3d 784, 786 (5 t h Cir. 2000), cert

.

denied , 121 S. Ct. 1163 (2001).

Title 21 U.S.C. § 841, the offense provision at issue here,

sets out a list of unlawful acts in § 841(a) and then provides for

a differentiated scheme of penalties in § 841(b), which is tied to

the quantity of drugs, the type of drugs, and other factors. With

respect to the crack cocaine at issue here, § 841(b)(1)(C) provides

for a baseline sentence of up to twenty years for offenses

involving a quantity less than or in circumstances different from

those provided for in other provisions of § 841(b). Subsections

841(b)(1)(A) and (B), on the other hand, permit harsher sentences

on the basis of higher quantities. See § 841(b)(1)(A) & (B).

Applying A pprendi to these provisions, this court has h eld

that the government may not seek enhanced penalties based upon drug

quantity under 21 U.S.C. § 841(b)(1)(A) or (B) unless that quantity

is charged in the indictment, submitted to the jury, and proved

beyond a reasonable doubt. S ee Green , 246 F.3d at 436; D oggett

,

230 F.3d at 164-65. The Court has tempered that rule, however, by

holding that “when a defendant's sentence does not exceed the

statutory maximum authorized by the jury's findings, Apprendi does

not affect the sentence.” United States v. Garcia , 242 F.3d 593,

599 ( 5 th Cir. 2001); see also Salazar-Flores

, 238 F.3d at 673-74;

United Sta tes v. Meshack , 225 F.3d 556, 575-76 (5 t h Cir. 2000),

cert. den ied , 121 S. Ct. 834 (2001). The Court has further

tempered that rule by holding that Apprendi does not apply to cases5

“in which a sentence is enhanced within a statutory range based

upon a finding of drug quantity.” U nited States v. Keith

, 230 F.3d

784, 787 (5 th Cir. 2000) (emphasis add ed). Thus, the Court has

expressly r ejected the argument that A pprendi applies to

enhancements based upon the sentencing guidelines, whether tied to

quantity or some other relevant fact, which do not cause the

sentence to exceed th e statutory range authorized by the jury's

verdict. S ee Doggett

, 230 F.3d at 166. We now turn to an

application of these principles in this case.

III.

Clinton was convicted on two counts; a conspiracy count and a

su bstantive count of distribution. With respect to the

dis tribution count, Clinton was charged with distributing “a

quantity of a mixture and substance containing a detectable amount

of cocaine base (crack cocaine).” The jury was not instructed to

find any particular quantity. With respect to the distribution

count, then, the jury's determination of guilt will not support a

sentence in excess of the twenty-year statutory maximum authorized

by 21 U.S.C. § 841(b)(1)(C). Given that Clinton was sentenced to

240 months (20 years) imprisonment on this count, there is no

Apprendi error, plain or otherwise, with respect to the

distribution count of conviction.

With respect to the conspiracy count, Clinton’s6

indictment charged conspiracy “to distribute fifty (50) grams or

more of cocaine base (crack cocaine).” 21 U.S.C.

§ 841(b)(1)(A)(iii) provides that the sentenc ing range for “50

grams or more” of cocaine base is ten years to life. Clinton was

sentenced to 292 months for conspiracy, which is clearly within the

statutory maximum of life. See DeLeon , 247 F.3d at 597 (“An

indictment’s allegation of a drug-quantity range, as opposed to a

precise drug quantity, is sufficient to satisfy A pprendi and its

progeny.”). There is, therefore, no defect in the indictment.

Clinton's jury was instructed that each defendant was “charged

with conspiracy to distribute fifty (50) grams or more of cocaine

base.” Shortly thereafter, and in the same context, Clinton's jury

was further charged that it could not find Clinton guil ty of the

conspiracy unless it found that “[t]wo or more persons, directly or

indirectly, reached an agreement to distribute th e controlled

substances described above ” (emphasis added). Thus, Clinton's jury

was at least arguably asked to directly find that the conspiracy

involved at least 50 grams or more of cocaine base. When read in

context, we find it likely, even probable, that the jury understood

that it was required to find, and indeed, that it made a finding,

that the conspiracy involved at least 50 grams of cocaine base

(crack cocaine). A pprendi

, however, imposes a higher standard.

When drug quantity “is an essential element of the offense,” on the

basis of which the government will seek an enhanced penalty, we7

have stated that the district court should expressly identify drug

quantity as an essential element in its instructions to the jury.

See United States v. Slaughter

, 238 F.3d 580, 583 (5 th Cir.), cert.

denied

, 121 S. Ct. 2015 (2001). We, therefore, find A pprendi error

infecting Clinton's conspiracy conviction on the basis that his

jury, while it may have understood the fact, was not expressly

directed to find beyond a reasonable doubt that the conspiracy

involved 50 grams or more of cocaine base (crack cocaine).

The government basically concedes such error in this case and

argues instead that the error was neither plain nor harmful and,

thus, is not remediable. Without regard to the plainness of the

error, we agree that the error is harm less. The test for

“determining harmlessness when a jury is not instructed as to an

element of an offense is ‘whether the record contains evidence that

could rationally lead to a contrary finding with respect to the

omitted element.'” G reen

, 246 F.3d at 437 (quoting Neder v. United

States

, 119 S. Ct. 1827, 1833-34 (1999)). We have already held and

here reinstate our conclusion that the evidence presented at trial

was sufficient to tie Clinton individually to the conspiracy found

by the jury. The jury convicted Clinton and his co-defendants on

all cou nts. The quantities involved in the various transactions

alleged by the government to be included in the conspiracy, and

found beyond a reasonable by the jury, far exceeded the fifty-gram

thr eshold for application of the penalties provided for in

§ 841(b)(1)(A)(iii). There was no testimony at trial and there is8

no evidence in the record tending to exclude sufficient quantities

to bring the quantity involved in the conspiracy to fewer than 50

grams of crack cocaine. To the contrary, the defendants stipulated

that the government had seized more than two hundred grams of

cocaine base (crack cocaine), and the transaction specific

stipulation was not further c hallenged at trial. Similarly,

although Clinton made other objections to the jury charge, he did

not make any quantity-based objection to the instructions. While

Clinton did mak e quantity-based objections to the 1,071.63 grams

attributed to the conspiracy in the Presentence Report, none of

those objections would have reduced the drug quantity to less than

fifty grams. Having reviewed the record, we are convinced that it

does not contain any evidence from which a rational juror could

conclude that the conspiracy found by the jury involved less than

50 grams of crack cocaine. For that reason, any A pprendi error

premised upon the jury instructions on the conspiracy count is

harmless.

IV.

Clinton makes several o ther arguments which are plainly

foreclosed by this Court's precedent. We address these only

briefly, for the purpose of noting that Clinton has preserved the

issue for further review.

Clinton points out that the district court's determination of

quantity and the district court's determinations that Clinton9

possessed a dangerous weapon and occupied a leadership role in the

c onspiracy all supported a significant increase in the minimum

sentence to which he was exposed. Clinton then argues that

Apprendi should be construed to apply when facts not charged in the

indictment and found by the jury increa se the minimum applicable

sentence, whether by reference to a statutory range or by reference

to the sentencing guidelines.

Clinton finds support fo r this argument in Justice Thomas's

concurring opinion in Apprendi

. S ee Apprendi

, 120 S. Ct. at 2379-

80 (Thomas, J., concurring) (“Those courts, in holding that such a

fact was an element, did not bother with any distinction between

changes in the maximum and the minimum. What mattered was simply

the overall increase in the punishment provided by law.”). With

respect to drug quantity, this is both a statutory and a guideline

based argument because § 841(b)(1)(A) provides a mandatory minimum

of ten years, while § 841(b)(1)(C) provides only for a sentence of

up to twenty years. Clinton emphasizes the broad range of

sentencin g discretion vested with the trial judge by the federal

drug trafficking statutes, arguing that this circumstance presents

exactly the evil that a majority of the Apprendi Court found

unlikely to arise in light of political checks against legislative

action designed to give trial judges such unbridled discretion.

See Apprendi

, 120 S. Ct. at 2362 n.16. Clinton makes the same

argum ent with respect to the sentencing guidelines, pointing out

that the district court's factual determinations that he possessed10

a dangerous weapon and that he occupied a leadership role in the

conspiracy significantly increased the minimum sentence to which he

was exposed. Whatever the merits of these arguments, they are

plainly foreclosed by this Court's precedent, which limits Apprendi

error to the situation where proof of a fact, other than the fact

of a prior conviction, increases the penalty for a crime beyond the

statutory maximum penalty otherwise allowed. See

, e.g.

, Doggett

,

230 F.3d at 166. Clinton has, however, preserved the arguments for

further Supreme Court review.

CONCLUSION

Defendant Johnny Clinton's convictions for conspiracy to

distribute 50 grams or more of cocaine base (crack cocaine) and for

distribution of crack cocaine and the sentences imposed for those

offenses are in all respects AFFIRMED.