[ DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

_________ _______________ No. 10

- 13702

________________________ D.C. Docket No. 1:08

- cr - 00371

- ODE

- AJB

- 2

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus STEVEN BERNARD JORDAN, a.k.a. Steven Dodson, a.k.a. Ladarius Timmons, Defendant

- Appellant.

_______ _________________ No. 10

- 13703

_______ _________________ D.C. Docket No. 1:08

- cr - 00371

- ODE

- AJB

- 4

UNITED STATES OF AMERICA, Plaintiff

- Appellee, Case: 10-13702 Date Filed: 09/25/2013 Page: 1 of 42 versus BENJAMIN D. SMARR, Defendant

- Appellant.

___________ _____________ Appeals from the United States District Court for the Northern District of Georgia

________________________ (September 25, 2013) ON REMAND FROM THE UNITED STATES SUPREME COURT Before WILSON and EDMONDSON, Circuit Judges, and VINSON, * Distric t Judge. PER CURIAM: This case is before us on remand from the Supreme Court for consideration in light of Alleyne v. United States , — U.S.

— , 133 S. Ct. 2151 (2013). Following a jury trial, Steven Bernard Jordan and Benjamin D. Smarr were found guilty of both conspiracy and possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii)(II), and 846. In a special verdict form, the jury found Jordan and Smarr responsible for 500 grams or more of cocaine but decline d to find them responsible for the greater amount of five kilograms or

* Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida, sitting by designation.

Case: 10-13702 Date Filed: 09/25/2013 Page: 2 of 43 more. 1 Nonetheless, the district judge found at sentencing that the government had established by a preponderance of the evidence that (contrary to what the jury had found) the defendants were responsible for five kil ograms or more of cocaine. The district court accordingly sentenced Jordan to the statutory minimum sentence of 240 months’ incarceration. Smarr, who had no criminal record at the time, was sentenced to the statutory mandatory minimum of 10 years’ imprisonment. Jordan and Smarr appealed, arguing, inter alia , t hat “the quantity of cocaine that was attributed to them at sentencing ” was “contrary to the jury verdict.” United States v. Jordan , 488 F. App’x 358, 365 n.9 (11th Cir. 2012) (per curiam) , vacated , 133 S. Ct. 2852 (2013) . We affirmed, finding that this particular argument merited no discussion because it was “foreclosed by binding circuit precedent.” Id. ; see Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S. Ct. 2348,
2362

– 63 (2000) (holding that “[o]ther than the fact of a prior conviction, any fact th at increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”); Spero v. United States , 375 F.3d 1285, 1286 (11th Cir. 2004) (per curiam) (stating that “the Apprendi rule doe s not apply in minimum mandatory circumstances where the

1 The special verdict form permitted the jury to find the defendants responsible for cocaine (1) weighing less than 500 grams, (2) weighing 500 grams or more, or (3) weighing 5 kilograms or more.

Case: 10-13702 Date Filed: 09/25/2013 Page: 3 of 44 enhanced minimum mandatory sentence does not exceed the non

- enhanced maximum sentence ” ). The Supreme Court then decided Alleyne , in which it overruled its previous decision in Harris v. United Sta tes , 536 U.S. 545, 122 S. Ct. 2406 (2002), and concluded that : [a]ny fact that, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an “element” that must be submitted to the jury. 133 S. Ct. at 2155 (citation omitted). Alleyne compels that we vacate Jordan and Smarr’s sentences and remand t his case to the district court so that they may be resentenced. At trial, t he jury found that Jordan and Smarr were responsible for 500 grams or more of cocaine, but expressly declined to attribute five or more kilograms of cocaine to these defendants. T he district judge , however, found by a preponderance of the evidence that Jordan and Smarr were responsible for five or more kilograms of cocaine, and used that amount to increase the mandatory minimum sentence applicable to them. Their sentences thus run afoul of Alleyne ’s command

. Accordingly, we VACATE the sentences of Jordan and Smarr and REMAND so that the district court can re sentence them in accordance with Alleyne

. VACATED AND REMANDED. Case: 10-13702 Date Filed: 09/25/2013 Page: 4 of 4