NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0653n.06 No. 08-5009 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee

v. RONAL D J ONES, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TEN

NESSEE

BEF ORE: GI BB ONS, ROGERS, COOK, Circuit J udg es. ROGERS, Circuit J udg e. Def endant Ronald J ones appea ls the district court’s imposit ion of

a mandatory life sentenc e for possession with i n t ent to distribute 108 g rams of a mix ture or substance containing a detec table amount of methamphetamine. J ones arg ues that the jury made no finding s of fac t a s to the quantity of controlled substances involved, and that thus the district court

err ed i n co n cl uding that he was require d to serve a life sentenc e pursuant to 21 U.S.C. § 841(b)( 1)(A)

. He also contends that the district court e rre d in making f indings a s to the exi stence of prior convictions nece ssary for the imposit ion of a mandatory life sentenc e under § 841(b)( 1)(A)

. The Gover

nment conce des its err or on J ones’ first arg ument. Howeve r, J ones’ second arg ument is clea rly prec luded by Supreme Court prec edent. We acc ording ly vaca te J ones’ sentenc e and rema nd for r esente ncing

.No. 08-5009

United States v. J

ones

I n 2003, Memphis police office rs beg an investiga ting a methamphetamine distribution ring , and their interviews with persons involved in the enter prise led them to J ones. [P SR at 3 -4

. ] Offic ers eventua lly discovere d quantities of methamphetamine, along with digital scale s, at a hotel wher e J ones was renting a room. J ones admitted to of fice rs that the drug s belong ed to him. [P SR at 4-5

. ] T h e d ru gs we i ghed in at 108 g rams. [P SR at 5.] A g rand jury first char g ed J ones with various violations of the Controlled Substances Act on Dec ember 16, 2004. [DE 1.] On J une 21, 2005, a superse ding indictment was filed, char g ing J ones with (1) conspirac y to possess with the intent to distribute in excess of 500 g rams of a mix ture and substance containing a detec table amount of methamph et am ine, and (2) possession with intent to distribute approximately 108 g rams of a mix ture and substance containing a detec table amount of methamphetamine, both in violation of 21 U.S.C. § 841(a) (1). [DE 42.] The Gover nment filed an information pursuant to 21 U.S.C. § 851(a) on J uly 6, 2007, noting its intent to se ek a life sentenc e, should J ones be c onvicted, bec ause of his two prior convictions for violations of the Controlled Substances Act. [DE 136.] On J uly 13, 2007,

a fede ral jury found J ones g uilty of the second count, but a mistrial was decla red as to the first. [DE 1 146; DE 148.] I n reg ard to the quantity of methamphetamine involved, the only evidenc e prese nted at trial

was the testimony of the Gover nment’s drug chemistry ex p er t
. This expert testified that she had

ca l cu l ated the weig ht of the methamphetamine mix ture as 99 g rams. [DE 181 at 100.] She al s o explained that she had conducte d a purity anal y s is of a sample of the methamphetamine mix ture

The c ourt later g rante d the Gover nment’s motion to dis miss the first count. 1 - 2 -No. 08-5009

United States v. J

ones
from which she conclude d that 73 perc ent of the mix ture wa s methamphetamine; thus, she opined that the amount of “pure meth” rec overe d was approximately 72 g rams. [DE 181 at 100.] Despite the testimony in reg ard to quantity and the indictment’s notation of quantity as to both counts, when instructi n g t he jury as to the second count, the district court stated as follows: “I n the indictment, particula r amounts or quantities of methamphetamine are alleg ed. The evidenc e in the case need not establish the amount or quantity of methamphetamine alleg ed in the indictment, but only that a

measura ble amount of methamphetami n e was in fac t the subject of the acts char g ed in the indictment.” [DE 179 at 18.] Acc ording ly , the jury was asked solely to answe r whether J ones was g uilty or not g uilty as to eac h count and was no t re q uired to make a finding as to the particula r quantity of methamphe tamine involved. The court held a sentenc ing hear ing on Dec ember 11, 2007. I n conjunction with sentenc ing, the Gover

nment prese n t ed t es timony to prove J ones’ two prior convictions for purposes of the mandatory life sentenc e in § 841(b)( 1)(A) , and the district court not ed t h at it would decide the exis tence of t hese convictions. [ See DE 183 at 27.] The dist rict court did just that, revie wing the evidenc e submitt ed by the Gover nment as to the exis tence of these convictions and finding that “the g overnme nt ha[d] met its burden of proof bey ond a rea sonable doubt on those issues of fac t” and that “these are valid convictions” for purposes of § 841. [DE 184 at 25.] The dist rict court then went

on to sentenc e J ones to life in prison pursuant to § 841(b)( 1)(A)

. J ones now appea ls this sentenc e. The district court plainly err ed in apply ing 21 U.S.C. § 841(b)( 1)(A) without a jury finding

as to the amount of methamphetamine involved in J ones’ offe nse. Both parties conce de that plain

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United States v. J

ones

err or re view applies in this case . Fur ther, the Gover

nment conce des that the district court e rre d in this respec t. Be cause J ones di d not raise an obj ection to the l ack of a finding as to the quantity of drug s at issue befor e the district cour t, we review for pl ain error. United St ates v. Page , 232 F.3d 536, 543 (6th Cir. 2000). This require s that (1) ther e be a n err or, (2) that is plain or clea r, (3) that aff ects J ones’ substantial rig hts, and (4) that “ser iously aff ect[s] the fairne ss, integ rity or public reputa tion of judicial proce eding s.” United States v. Martinez , 253 F.3d 251, 255 (6th Cir. 2001). I t i s p l ai n that the di strict court erre d in J ones’ sentencing as Apprendi v. New Jerse y , 530 U. S

. 4 6 6 , 490 (2000), clea rly holds that “[o] ther than the fac t of a prior conviction, any fac t that incre ases the penalty for a crime bey ond the presc ribed statutory maxi mum must be submitt ed to a jury , and prove d bey ond a re asonable doubt.” Section 841(b)(1)(A ) provides for a mandatory life sentenc e if a person with two prior felony drug convictions commits a violation of § 841(a) involving “50 g rams or more of methamphetamine

. . . or 500 g rams or more of a mix t u re o r substance contai n i n g a d etectable amount of methamphetamine.” Howeve r, the maxi mum sentenc e for a person with a simil ar criminal h i s t o ry wh o commits a violation of § 841(a) involving an indeterminate amount of methamphe tamine, a sc hedule I I controlled substanc e, is thirty y ear s. 21 U.S.C. § 841(b)( 1)(C). Thus, the amount of methamphetamine involved wo rk s t o incre ase the penalty for a § 841(a) violation, requ i ri n g a determination bey ond a reasonable doubt by a jury of this fact. This court has rec og nized Apprendi ’s application in sentenc ing under § 841(b)( 1). See, e.g. , United States v. W

ettstain , 618 F.3d 577, 592 ( 6th Cir. 2010); United States v. Graham , 275 F.3d

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United States v. J

ones 490, 521-24 (6th Cir. 2001); Page , 232 F.3d at 542-45. For example, in Graham , the prese ntence repor t noted that the defe ndant was responsible for one-hundr ed marijuana plants, which incre ased his maxi mum punishment from five y ear s’ imprisonment to forty y ear s’ imprisonment. 275 F.3d at 521-23. Howeve r, the jury did not make any finding s as to the amount of marijuana involved. Id. at 523. We held that Apprendi had been violated, vaca ted the defe ndant’s sentenc e, and rema nded for rese ntencing

. Id. at 524. I t is clea r that the district court violated Apprendi by sentenc ing J ones to life in prison in the absenc e of a jury finding as to the quantity of methamphe tamine involved. Having established that the district court clea rly violated the principles laid out in Apprendi , we must next addre ss the rema ining require ments for a finding of p l ain err or—whe ther the err or aff ecte d J ones’ substantial rig hts and whether the err or aff ecte d the fair n ess, integ rity , or public reputa tion of jud i cial proce eding s. Both are met in J ones’ case . I n Page , we analy zed these require ments for plain e rror in terms of an Apprendi violation: An err or aff

ects substantial rig hts when the er ro r wa s prejudicia l, that is, when it “af fec ted the outcome of the district court proce eding s.” There is no doubt that imposing additional y ear s of imprisonment bey ond that authorized by a jury ’s verdic t aff ects a defe ndant’s subst anti al rig hts. Fur thermore , a sentenc ing err or seriously aff ects the fairne ss, integ rity , or public reputa tion of judi ci al proce eding s when a court’s e rror

results in imposit ion of a sente nce w hich is not authorized by law. 232 F.3d at 5 4 4 (citations omitted). Her e, J ones rec eived a term of imprisonment bey ond that authorized by the jury ’s verdic t. At most, the jury ’s verdic t permitted him to be sentenc ed to thirty y ear s, but the court imposed a life sentenc e. This was c lear err or. The district court did not err , howeve r, in f inding that J ones had been previously convicted of felony drug char g es. Apprendi expli citly excepts this ty pe of fac t finding from its require ment of - 5 -No. 08-5009

United States v. J

ones a jury deter mination. 530 U.S. at 490; see also U nited States v. Matthews , 278 F.3d 560, 563 (6th Cir. 2002). Thus, “a judge is permitted to find, based on the preponde ranc e of the evidenc e, the fac t of a prior conviction.” United States v. Martin , 526 F.3d 926, 941 (6th Cir. 2008). This prec edent is binding. For these re asons, we va cate J ones’ se ntence and re mand for r esente ncing

.

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