* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 17 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. IRIS COLLETTE JACKSON,

Defendant - Appellant. No. 02-6087 (D.C. No. 98-CR-94-T) (W.D. Oklahoma)

ORDER AND JUDGMENT *

Before SEYMOUR , KELLY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Iris Collette Jackson was convicted by a jury of on e count of conspiring to distribute cocaine base in violation of 21 U.S.C. § 846 (Count 1); one count of1 Although Ms. Jackson’s conviction on Count 1 was fo r conspiring to

distribute cocaine base in violation of § 846, the penalties for the conspiracy offense are provided by § 841(b)(1). -2- maintaining a place for the distribution and use of a controlled substance in violation of 21 U.S.C. § 856 (Count 2); three count s of distributing cocaine base in violation of 21 U.S.C. § 841(a)(1) (Counts 5, 7, and 8); and one count of possessing cocaine base with intent to distribute i n violation of § 841(a)(1) (Count 9). The district court sentenced Ms. Jackso n to concurrent thirty-year prison terms on Counts 1, 5, 7, 8, and 9 and to a c oncurrent twenty-year prison term on Count 2. On certiorari review, the United States Supreme Court vacated the district court’s judgment and remanded the case to this court for further consideration in light of its decision in Apprendi v. New Jersey , 530 U.S. 466 (2000). See Jackson v. United States , 531 U.S. 1033 (2000). On remand, we concluded th at, because Ms. Jackson was indicted and convicted for committi ng drug offenses under § 841(a)(1) based on unspecified quantities of coca ine base, the district court erred under Apprendi by imposing thirty-year concurrent sentences on Co unts 1, 5, 7, 8, and 9 under § 841(b)(1). 1 United States v. Jackson , 240 F.3d 1245, 1248- 49 (10th Cir.), cert denied , 534 U.S. 847 (2001). As we explained: [A]fter Apprendi , a trial court may not utilize §§ 841(b)(1)(A) and 841(b)(1)(B) for sentencing without the drug quantity being charged in the indictment. Instead, the defendant may be s entenced only2 Section 5G1.2 is entitled “Sentencing on Multiple C ounts of Conviction,”

and sub-section (d) provides that “[i]f the sentenc e imposed on the count carrying the highest statutory maximum is less than the tota l punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sente nce equal to the total punishment.” U.S.S.G. § 5G1.2(d). The Commentary to § 5G1.2 further explains that “[t]he combined length of the sentences (‘tota l punishment’) is determined by the adjusted combined offense level.” -3- under § 841(b)(1)(C), which defines penalties for o ffenses involving cocaine base without reference to drug quantity, an d limits the sentence to not more than twenty years . . . . Id. at 1248. Thus, we remanded the case to the distri ct court for resentencing “within the statutory range for the offenses of whi ch Ms. Jackson was convicted.” Id. at 1249. On remand, the district court concluded that it was required by U.S.S.G. § 5G1.2(d) to run Ms. Jackson’s sentences on Counts 1, 5, 7, 8, and 9 consecutively to the extent necessary to reach a co mbined sentence equal to the “total punishment” it originally imposed through ap plication of the sentencing guidelines. 2Consequently, because the district court had orig inally imposed a thirty-year prison term as the “total punishment”for these counts, the court: (1) sentenced Ms. Jackson to twenty-year prison terms for Counts 1, 5, 7, 8, and 9; (2) reimposed the twenty-year prison term for Co unt 2; (3) directed that the twenty-year prison terms for Counts 1, 5, 7, and 8 would run concurrently with each other and with Count 2; and (4) directed that ten years of the twenty-year3 Ms. Jackson argues that Price and Lott are distinguishable because they

involved plain error review. Her argument is witho ut merit because both cases established unequivocally that compliance with § 5G 1.2(d) is mandatory. -4- prison term imposed for Count 9 would run consecuti vely with the sentences imposed for Counts 1, 5, 7, and 8 and that the othe r ten years would run concurrently. In this appeal, Ms. Jackson claims the district court violated Apprendi and the Double Jeopardy Clause by resentencing her to a thirty-year prison term for her convictions under § 841. She further claim s that § 841 is facially unconstitutional in light of Apprendi . Having analyzed these legal issues de novo, we reject Ms. Jackson’s arguments. First, we have held that the “stacking” provision i n § 5G1.2(d) is a mandatory requirement that must be applied in cases involving multiple counts of conviction, and that it obviates any Apprendi error so long as the defendant does not receive a sentence in excess of the statutory m aximum for any individual
count. See United States v. Price , 265 F.3d 1097, 1108-09 (10th Cir. 2001), cert. denied , 122 S. Ct. 2299 (2002); United States v. Lott , 310 F.3d 1231, 1242-43 (10th Cir. 2002). 3 As a result, on remand, the district court was re quired by § 5G1.2(d) to impose consecutive sentences in or der to reach the thirty-year prison term it originally imposed under the sentenc ing guidelines, and the-5-

imposition of the consecutive sentences was not error under Apprendi since none of the individual sentences exceeded the twenty-year statutory maximum. Second, because Ms. Jackson was successful in estab lishing that her original sentence was unlawful, the district court did not violate double jeopardy by resentencing her to the same thirty-year prison term. See Ward v. Williams , 240 F.3d 1238, 1243-44 (10th Cir. 2001) (holding th at there is no double jeopardy violation when a defendant establishes on appeal th at his original sentence was unlawful and, on remand, the district court “reimpo se[s] the same total sentence . . . by increasing the sentence on a diff erent count”). Finally, two other panels of this court have previously held that Apprendi did not render § 841 facially unconstitutional. See United States v. Cernobyl , 255 F.3d 1215, 1218-19 (10th Cir. 2001); United States v. James , 257 F.3d 1173, 1182-83 (10th Cir. 2001), cert. denied sub nom. , Davis v. United States , 534 U.S. 1106 (2002). We are bound by Cernobyl and James absent en banc reconsideration or a superseding contrary decision of the Supreme Court. See In re Smith , 10 F.3d 723, 724 (10th Cir. 1993). The resentencing judgment of the district court is AFFIRMED.

Entered for the Court
Stephanie K. Seymour Circuit Judge