UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ALFRED JEROILD WILSON, FREDERICK WAYNE BURLEY, and CARLOS DION HISHAW, Defendants-Appellants, Nos. 99-6348 99-6358 99-6383

ORDER Filed May 10, 2001

Before SEYMOUR , HENRY and LUCERO , Circuit Judges.
Appellant’s petition for rehearing, filed in appeal number 99-6383, United States v. Hishaw , is granted for the limited purpose of correcting footnote 7 of the court’s slip opinion filed on March 29, 2001. Footnote 7 is corrected to read as follows: Like Alfred Wilson, Mr. Hishaw filed a supplemental brief arguing Apprendirenders his sentence invalid. Although Mr. Hishaw ’s indictment identified specific quantities of drugs that he was charged with possessing and distributing, the jury was instructed that it n eed find only “a measurable amount” of drugs in order to convict. T he concurrent thirtyyear sentences given to Mr. Hishaw are longer than the unenhanced statutory maximum of twenty years, and Mr. Hishaw d oes not have a prior drug felony subjecting him to recidivism enhancemen ts. Because drug-2-

quantity increased his sentence beyond the unenhanc ed statutory maximum but was not found by the jury beyond a reasonable d oubt, the procedures followed in Mr. Hishaw’s case violated the new requ irements of Apprendi

. However, because he did not object to this violatio n at the time of trial, we review the issue only for plain error. See United States v. Keeling , 235 F.3d 533, 538 (10th Cir. 2000) (applying plain erro r to Apprendiissue); United States v. Dorris , 236 F.3d 582, 587 (10th Cir. 2000) (noting other circuits do same). We have discretion to notice a plain error if (1) there is an actual error (2) that is “plain,” or obvious, atthe time of appeal, (3) affects the defendant’s substantial rights, and (4) "seriously affect[s] the fairness, integrity or public reputation of judicia l proceedings." United States v. Olano , 507 U.S. 725, 732-33, 736 (1993). After Apprendi , the failure to submit drug quantity to the jury i s an error that is plain, and because it involves a ten- year increase in Mr. Hishaw’s sentence it certainly affects his substant ial rights. However, the fourth plain error requirement is not met in this c ase. The Supreme Court has explained that the omission of an essential ele ment of an offense from jury consideration does not seriously affect the fa irness or integrity of a proceeding if the evidence related to that element was overwhelming. See Johnson v. United States , 520 U.S. 461, 470 (1997). This is particularly true where a trial court follows procedures that we re universally considered fair at the time of trial. Accordingly, in Keeling , 235 F.3d at 539-40 (10th Cir. 2000), we determined that despite Apprendithere was no plain error in failing to submit drug quantity to t he jury because extensive quantity evidence had been presented at trial. Her e, too, the evidence was overwhelming. Mr. Hishaw’s sentence could be enhan ced to thirty years upon a finding of only five grams of crack cocaine – in contrast, trial evidence proved his involvement with over six kilog rams of the drug, over a thousand times more than the necessary amount. T herefore we find no plain error in this case and will not revise his se ntence despite the Apprendiviolation. A copy of the revised opinion is attached to this o rder. Entered for the Court Patrick Fisher, Clerk of Court By: Keith Nelson Deputy Clerk

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

### MAR 29 2001 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ALFRED JEROILD WILSON, FREDERICK WAYNE BURLEY, and CARLOS DION HISHAW, Defendants-Appellants, Nos. 99-6348 99-6358 99-6383

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CR-98-206-T)

99-6348, United States v. Wilson : Vicki Mandell-King, Assistant Federal Public Defend er (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, C olorado, for DefendantAppellant Wilson. Leslie M. Maye, Assistant United States Attorney (D aniel G. Webber, Jr., United States Attorney, and Sue Tuck Richmond, Assistant U nited States Attorney, with her on the briefs), Oklahoma City, Oklahoma, for Pl aintiff-Appellee. 99-6358, United States v. Burley , and 99-6383, United States v. Hishaw , submitted on the briefs: Thomas D. McCormick of Oklahoma City, Oklahoma, sub mitted briefs for Defendant-Appellant Burley.-2-

Joseph L. Wells of Oklahoma City, Oklahoma, submitt ed briefs for Carlos Dion Hishaw. Daniel G. Webber, Jr., United States Attorney, and Leslie M. Maye, Assistant United States Attorney, Oklahoma City, Oklahoma, su bmitted a brief in each case for Plaintiff-Appellee.

Before SEYMOUR , HENRY and LUCERO , Circuit Judges.

SEYMOUR , Circuit Judge.

Alfred Wilson, Frederick Burley, and Carlos Hishaw were three of thirteen defendants indicted together as part of an extensiv e drug distribution conspiracy operating in the Oklahoma City area. The three wer e tried jointly. They were convicted on multiple counts of possession and distribution of cocaine base (crack) and conspiracy in violation of 21 U.S.C. §§ 841 and 846. Each appeals various aspects of his conviction or sentence, and because the appeals share a factual history, we have consolidated them for purp oses of this disposition. We affirm appellants’ convictions and sentences for th e reasons discussed below.

I Background In late 1995, Jeffrey Norris and Robert Moore forme d a partnership to-3-

transport cocaine powder from Houston and Los Angel es to the Oklahoma City area, “rock up” the cocaine powder into crack cocai ne, and then sell the crack on the local market. Their plan was to sell crack on the “volume discount” model employed by many legitimate businesses. By selling the drug at a low profit margin but in large quantity, they could offer belo w-market prices on each individual sale while still making significant prof its when all sales were aggregated. Like most successful entrepreneurs, th ey reinvested early profits into the business, using money from drug sales to pay th e salaries of drivers and other employees, to lease apartments, and to buy more coc aine powder to convert into crack. The business flourished, and as sales grew they hired a number of “wholesale distributors,” upper-level dealers who p urchased crack in quantities ranging from four-and-a-half ounces to over a kilog ram and then re-distributed the drug to middle-level dealers or directly to use rs. These wholesale distributors included Alfred Wilson, Frederick Burley, and Carlo s Hishaw. There was only one hitch in the Norris-Moore busine ss plan: the business itself was illegal. The Oklahoma City police department began investigating the drug ring in 1997, with help from the FBI, IRS, DEA , and a police task force based in Houston. By late 1998 all major co-conspi rators had been indicted. Despite its ultimate failure, the conspiracy did a substantial amount of business during its three years of operation, transporting an estimated 250 kilograms (over-4-

500 pounds) of cocaine powder into Oklahoma and transforming it into approximately 375 kilograms (over 800 pounds) of cr ack cocaine. Messrs. Wilson, Burley, and Hishaw, along with othe r alleged coconspirators, were charged in an eighty-seven countindictment filed in the Western District of Oklahoma in November 1998. Cou nt One charged all thirteen with conspiring with Jeffrey Norris and Robert Moor e to possess with intent to distribute and to distribute cocaine base in violat ion of 21 U.S.C. § 846. The majority of the remaining counts alleged possessionor distribution of cocaine base, describing particular drug transactions invol ving indicted individuals and setting forth the details of each transaction, incl uding the quantity of drugs allegedly possessed or distributed. After the other ten co-conspirators pled guilty or otherwise severed their cases, Messrs. Wilson, Burley, and Hishaw were trie d together before a jury. After one charge against Alfred Wilson was dismisse d at trial, he was convicted on the conspiracy charge and two counts of possessi on with intent to distribute crack cocaine. He was sentenced to 262 months’ imp risonment and five years’ supervised release on each of the three counts, wit h terms to run concurrently. The jury found Frederick Burley not guilty of one p ossession charge but guilty on seven other counts, including the conspiracy charge . He was given concurrent sentences of thirty years in prison and five years’ supervised release for each-5-

count. Carlos Hishaw was convicted on all fourteenof the counts charged against him, including the conspiracy count and a firearm p ossession charge. He was sentenced to concurrent terms of thirty years’ impr isonment and five years’ supervised release on all but the firearm charge, w hich carried a concurrent term of ten years in prison and three years’ supervised release. A forfeiture hearing was subsequently held, at whic h all defendants waived their right to a jury trial and consented to trial of the forfeiture issue by the district court. The court imposed the full forfeit ure amount sought by the government, $4.25 million, which was computed by mu ltiplying the 250 kilograms of cocaine allegedly sold by the “wholesa le price” of $17,000 per kilogram. The full $4.25 million forfeiture was le vied jointly and severally against all defendants, although in fact the govern ment could seize only a 1995 Camaro belonging to Carlos Hishaw and $6,245 in cas h belonging to two other co-conspirators. We address in turn the issues rai sed on appeal by each defendant.

II
Alfred Wilson Alfred Wilson originated his appeal to challenge tw o aspects of the final forfeiture order, in which all thirteen defendants were held jointly and severally-6-

liable for forfeiting $4.25 million in drug proceed s under 21 U.S.C. § 853. He argues first that the district court erred in holdi ng him jointly and severally liable for proceeds from the entire 250 kilograms of crack , since only 19.4 kilograms were attributed to him at sentencing. He argues fu rther that the court was wrong to order forfeiture of gross drug proceeds, contend ing the net profit after expense deductions yields a more appropriate figure. The d istrict court considered both objections and, while noting the Tenth Circuit had yet to rule on either issue, determined the proper standard for criminal forfeit ure under section 853 encompasses joint and several liability for gross p roceeds. We do not consider either question, since Mr. Wilson’s forfeiture chal lenge is unripe at this time.
A. Forfeiture The indictment issued against Mr. Wilson and the ot her defendants included allegations seeking criminal forfeiture of “[a]pproximately $4,250,000 in United States currency, in that such sum in aggregate was received in exchange for the distribution of controlled substances or is traceable thereto.” App., vol. 1, indict. at 45. This figure was obtained by multipl ying estimated sales of 250 kilograms of cocaine powder by a wholesale price of $17,000 per kilogram. During the course of the investigation, however, on ly $6,245 in cash and a Camaro were actually seized. Although the relevantstatute, 21 U.S.C. § 853, allows jury determinations of forfeiture questions during trial, the three-7-

defendants waived their right to a jury trial on fo rfeiture and agreed to have a separate hearing before the court at the conclusion of other proceedings. At the forfeiture hearing, the government sought to hold all co-conspirators jointly and severally liable for forfeiture of the entire $4.25 million garnered by the crack distribution scheme. Carlos Hishaw objec ted to the government’s seeking joint and several liability as opposed to h olding each co-conspirator individually liable for the amount of drugs attribu ted to him at sentencing. He also objected to calculating the forfeiture figure based upon gross drug proceeds rather than the profit actually netted after deduct ing expenses. Frederick Burley merely noted he had no interest in any of the seize d property. Mr. Wilson stated that “there was no property seized [from him], so w e don’t . . . . claim any interest in the property.” App., vol. 8 at 1311. However, he went on to “incorporate” Mr. Hishaw’s objection to calculating forfeiture amount s based on gross proceeds rather than net profits. Id . The court determined the Tenth Circuit had not r uled on either of the two objections, but surveyed the l aw of other circuits and concluded the proper forfeiture standard is one of joint and several liability for gross proceeds, ultimately holding each defendant r esponsible for forfeiture of the full $4.25 million sought by the government. Mr. Wilson now seeks to raise both of the earlier o bjections. His argument regarding the use of gross proceeds instead of net profits fails from the start.1 Neither party raised the issue of justiciability i n briefs or at oral argument.

Since the question of ripeness relates to the subje ct matter jurisdiction of the federal courts, however, we consider it sua sponte

. See Utah v. U.S. Dep’t of the Interior , 210 F.3d 1193, 1196 (10th Cir. 2000); Keyes v. Sch. Dist. No. 1, Denver, Colo. , 119 F.3d 1437, 1444 (10th Cir. 2000). -8- While this appeal was pending we decided that quest ion in United States v. Keeling , 235 F.3d 533, 537 (10th Cir. 2000), holding secti on 853 contemplates forfeiture of “gross proceeds and not merely profit s.” Mr. Wilson’s appeal suffers from a more basic problem, however: his app eal of the forfeiture order is not ripe. Under Article III of the Constitution, federal courts have subject matter jurisdiction only over “cases and controversies.” 1 Whether a claim is ripe for adjudication, and therefore presents a case or cont roversy, bears directly on this jurisdiction. See New Mexicans for Bill Richardson v. Gonzales , 64 F.3d 1495, 1498-99 (10th Cir. 1995). The ripeness doctrine is “intended ‘to prevent the courts, through avoidance of premature adjudication , from entangling themselves in abstract disagreements.’” Id. at 1499 (quoting Abbott Labs. v. Gardner , 387 U.S. 136 (1967)). “In short, the doctrine of ripen ess is intended to forestall judicial determinations of disputes until the contr oversy is presented in clean-cut and concrete form.” Id. (internal quotations and citations omitted). In determining whether a claim is ripe, two issues mus t be evaluated: (1) the fitness of the issue for judicial resolution and (2) the ha rdship to the parties of-9-

withholding judicial consideration. U.S. West, Inc. v. Tristani , 182 F.3d 1202, 1208 (10th Cir. 1999). Although this Court has con fronted the ripeness of challenges to fines and punishments, we have not co nsidered the ripeness of an appeal of a forfeiture order under 21 U.S.C. § 853 (2000). Compare United
States v. Koonce , 885 F.2d 720, 722 (10th Cir. 1989) (not ripe to a rgue defendant subject to multiple punishments for same offense if defendant not yet convicted and punished) with United States v. Grose , 687 F.2d 1298, 1300 (10th Cir. 1982) (en banc) (appeal of fine ripe for review where alr eady certain fine would come due). In order for Mr. Wilson to challenge the forfeiture order, he must demonstrate that his claim is ripe. As Mr. Wilson himself noted at the forfeiture hearing, however, no property was taken from him an d he claims no interest in any of the seized property. The criminal forfeitur e statute is limited on its face to property obtained from or used in the underlying cr ime. See 21 U.S.C. § 853(a); see also United States v. One Parcel Property , 106 F.3d 336, 339 (10th Cir. 1997) (per curiam) (government must show connection betwe en offense and forfeited property). It is difficult to discern what actual liability Mr. Wilson has under the forfeiture order. At least in theory, he is respon sible for turning over $4.25 million to the government. The final order of forf eiture did not expressly limit the forfeitable property to that already seized, co ndemning “$4,250,000 in-10-

proceeds from the unlawful conspiracy, which included” the $6,245 and the Camaro. If a hidden cache of drug proceeds belongi ng to Mr. Wilson and connected to these transactions were later discover ed, the government might be able to seek forfeiture of the money based on Mr. W ilson’s liability under the forfeiture order. At present, however, such possib ilities remain purely hypothetical and speculative. Consequently, the is sue is not fit for judicial resolution at this time. Cf. Fort Wayne Books, Inc. v. Indiana , 489 U.S. 46, 60 (1989) (“These claims can only be reviewed when (orif) such remedies are enforced against petitioner.” (emphasis added)). Nor can w e discern how withholding judicial consideration would cause Mr. Wilson any hardship, since at present there appears to be no property connected t o his crime for the government to seize. Therefore, we hold that Mr. Wilson’s cla im is not ripe, and is not justiciable. B. Application of Apprendi While this appeal was pending, the Supreme Court de cided Apprendi v. New Jersey , 120 S.Ct. 2348 (2000), which held that “[o]ther t han the fact of a prior conviction, any fact that increases the penal ty for a crime beyond the prescribed statutory maximum must be submitted to ajury, and proved beyond a reasonable doubt.” Id. at 2362-63. After receiving permission from this court, Mr. Wilson filed a supplemental brief asserting the trial and sentencing-11-

procedures followed in his case violate the rule of Apprendi . Although the jury did not determine drug quantity beyond a reasonable doubt, Mr. Wilson’s sentence falls within the prescribed statutory maxi mum of the offense the jury did consider. Consequently, as we discuss below, no Apprendiviolation occurred in this case. Mr. Wilson argues drug quantity is an essential ele ment which must be considered in the wake of Apprendi . Although Apprendiwas decided after Mr. Wilson’s trial and sentencing, its holding is appli cable to his pending appeal on direct review. See Griffith v. Kentucky , 479 U.S. 314, 328 (1993). In the months since Apprendiwas decided, this court has held that drug quantity is one fact which must be proven to the ju ry beyond a reasonable doubt, see United States v. Anthony Hishaw , 235 F.3d 565, 575 (10th Cir. 2000), and that the logic of Apprendirequires drug quantity to be included in an indict ment as well, see United States v. Jones , 235 F.3d 1231, 1236 (10th Cir. 2000). The indictment in this case charged Mr. Wilson with pos sessing and distributing two eighteen-ounce quantities of crack cocaine. The go vernment filed an information prior to trial and pursuant to 21 U.S.C. § 851 stat ing that any sentence Mr. Wilson might receive should be enhanced due to his prior d rug felony conviction. He stipulated to the two eighteen-ounce amounts at tri al, but then requested a jury instruction explaining that the government must pro ve possession of the-12-

approximate quantities charged in the indictment. See Supp. App., vol. 2, doc. 184. The district court instead followed common pr e-Apprendipractices and instructed the jury that “the government is not req uired to prove the specific amount or quantity of the controlled substance as a lleged in the indictment, but only that a measurable amount of the controlled sub stance was involved.” Supp. App., vol. 2, doc. 206, instr. 25. The issue of drug quantity arose again at sentencin g. Mr. Wilson’s presentence report alleged he should be held responsib le for distributing 19.4 kilograms of crack cocaine over the course of the c onspiracy. He objected, asserting trial testimony established his involveme nt with only ten kilograms. The sentencing judge noted the probation office had done a careful job of calculating the amount of drugs to be attributed to Mr. Wilson as relevant conduct, and held 19.4 kilograms was the correct am ount. The difference between ten kilograms and 19.4 kilograms was essent ially irrelevant in any event, since the applicable sentencing guideline was trigg ered at a markedly lower threshold of 1.5 kilograms. Based on Mr. Wilson’s criminal history and this amount of drugs, his sentencing guideline range was 262-327 months in prison and at least five years of supervised release, and he was sentenced to 262 months and five years on each count, with the sentences to run concurrently. When drug quantity is used to enhance a sentence b eyond the statutory2 One ounce equals 28.35 grams; thirty-six ounces is equivalent to 1,020.6

grams.

3 The government argues the jury need not have consi dered quantity because Mr. Wilson stipulated during trial to posse ssing the approximate quantities charged in the indictment. See generally United States v. Mason , 85 F.3d 471, 472 (10th Cir. 1996) (“The jury need not resolve the existence of an element when the parties have stipulated to the fac ts which established that element.”). If the jury is assumed to have found M r. Wilson guilty of possessing thirty-six ounces of cocaine base, his violation wo uld fall under 21 U.S.C. § 841(b)(1)(B)(iii), which carries sentences of up to forty years. His 262-month sentence would fit easily within this maximum, and there would be no Apprendi error. Mr. Wilson responds by pointing out there w as no reason to contest quantities at trial, since drug quantity was purely a sentencing issue prior to Apprendi

. See generally United States v. Cutler , 676 F.2d 1245, 1248 (9th Cir. 1982) (appellant relieved of stipulation where inte rvening change in law rendered conduct non-criminal). We are not inclined to consider the stipulation as controlling, considering the lack of incentive to contest drug quantity befo re Apprendiand the fact that Mr. Wilson did request a jury instruction requiring the jury to consider approximate quantity. In any event, the issue is n ot determinative since there is no Apprendierror under the standard of “any measurable amount .” -13- maximum after Apprendi , it must be charged in an indictment and proven to a jury beyond a reasonable doubt. Mr. Wilson’s indictmentspecified two eighteenounce quantities of crack cocaine, or just over one kilogram of the drug. 2 The jury, however, was instructed that it need only fin d Mr. Wilson possessed “a measurable amount” of the drug. 3 Supp. App., vol. 2, doc. 206, instr. 25. Since Apprendiheld that any fact which increases a sentence beyond the maximum prescribed by statute must be found by a jury beyond a reasonable doubt, the Apprendirule was violated for Mr. Wilson if drug quantity increased his sentence beyond the statutory maximum established for the of fense which the jury did4 Courts will most likely submit drug quantity to th e jury in order to

preserve the entire range of enhanced sentencing op tions, but by Apprendi ’s specific terms the jury need only determine specifi c quantity if it leads to sentences beyond the maximum for mere possession. See, for example, United States v. Thompson , No. 00-7028, 2001 WL 63361 (10th Cir. Jan. 24, 20 01), and cases cited therein, finding Apprendiis not violated if a defendant’s sentence falls within the twenty-year maximum sentence of 21 U.S.C . § 841(b)(1)(C), regardless of whether the indictment charged and the jury cons idered drug quantity. See also United States v. Jones , 235 F.3d 1231, 1236 (10th Cir. 2000) (drug quanti ty an essential element of offense if exposes defendant t o sentence beyond maximum); but see United States v. Heckard, No. 99-2186, 2001 WL 15532, at *10-11 (10th Cir. Jan. 8, 2001) (error for jury not to consider drug quantity even though sentence below the maximum, but not “plain error” b ecause no substantial rights affected); United States v. Hishaw , 235 F.3d 565, 575-76 (10th Cir. 2000) (same); United States v. Keeling , 235 F.3d 533, 538-39 (10th Cir. 2000) (same). -14- consider, possession of “a measurable amount” of cr ack cocaine. See Jones , 235 F.3d at 1237 (conviction sound where indictment all eged and jury convicted on drug offense, even if quantity enhancement invalid) . If drug quantity did not cause Mr. Wilson’s sentence to exceed the statutorymaximum, Apprendidoes not require that the jury make findings on quantity. 4 It is clear the sentencing judge considered drug amounts beyond the thirty-six ounce s alleged in the indictment when computing Mr. Wilson’s sentence, but that is n ot error unless the statutory maximum was exceeded. See Anthony Hishaw , 235 F.3d at 577 (“as long as the defendant’s sentence falls within the maximum estab lished by statute, Apprendi does not foreclose consideration of drug quantities beyond the offense of conviction”). The primary federal statute regarding possession an d distribution of-15-

controlled substances is 21 U.S.C. § 841. Section 841 is divided into two subsections: subsection (a), which makes it illegal to manufacture or distribute controlled substances or to possess them with the i ntent to manufacture or distribute, and subsection (b), which establishes three tiers of penalties distinguished by the amount of drugs involved in anoffense. For cocaine base, dealing in any measurable amount of the drug is cov ered by 21 U.S.C. § 841(b)(1)(C), which carries a sentence of “not more than twenty years” in prison and three years’ supervised release for each violat ion. In contrast, amounts in excess of five grams are covered by section 841(b)( 1)(B)(iii), which establishes sentences of five to forty years, and amounts over fifty grams appear in section 841(b)(1)(A)(iii), which carries the longest senten ce of ten years to life in prison. The jury found Mr. Wilson guilty of distributing a measurable amount of crack cocaine. Mr. Wilson argues there is an Apprendierror in his case because the general maximum penalty for violations of secti on 841(b)(1)(C) is twenty years in prison, a number exceeded by his 262-monthsentence. See Jones , 235 F.3d at 1237 (defendant’s conviction sound where “i ndictment indisputably stated [drug] offense” and jury voted to convict, but rese ntencing required because sentence exceeded statutory maximum). As the gover nment points out, however, Mr. Wilson has been previously convicted of a drug felony, and each level of section 841(b) sets out a higher maximum sentence f or drug recidivists. As stated5 In fact, Mr. Wilson was sentenced to five years’ s upervised release, which

is lower than the six-year minimum required for pri or drug felons under 21 U.S.C. § 841(b)(1)(C). Because this error did not prejudi ce Mr. Wilson, there is no need to remand for its correction. -16- in subsection 841(b)(1)(C): “If any person commits such a violation after a prior conviction for a felony drug offense has become fin al, such person shall be sentenced to a term of imprisonment of not more tha n 30 years” and a minimum of six years’ supervised release. 21 U.S.C. § 841( b)(1)(C). Mr. Wilson’s 262- month sentence fell within this heightened maximum, 5 and thus there is no Apprendierror in his case. Mr. Wilson asserts that because the existence of a prior drug felony increases the sentence for drug crimes, this too sh ould be treated as an essential element to be presented in an indictment and decide d by a jury. His argument is expressly foreclosed by the Supreme Court’s decisio n in Almendarez-Torres v. United States , 523 U.S. 224 (1998), which held recidivism may be treated as a sentencing factor rather than an essential element of the underlying offense. Id. at 239. Although Mr. Wilson asserts that “Apprendiforeshadows the overruling of Almendarez-Torres ,” Appellant Supp. Br. at 11, the holding of AlmendarezTorres remains the controlling law. See United States v. Dorris , 236 F.3d 582, 587 (10th Cir. 2000) (explaining same); United States v. Martinez-Villalva , 232 F.3d 1329, 1331 (10th Cir. 2000) (same). The new rule of Apprendispecifically-17-

carves out the recidivism issue, requiring that fac ts “other than the fact of a prior conviction” be proven to a jury. Id . There is no way to predict whether the Supreme Court would overrule Almendarez-Torres on further consideration, and in fact there may be valid reasons for treating rec idivism as an exception to Apprendi . As the Court pointed out in Almendarez-Torres , “the introduction of evidence of a defendant’s prior crimes risks signif icant prejudice,” and is often unnecessary “in respect to facts that are almost ne ver contested.” 523 U.S. at
235. Almendarez-Torres remains the prevailing legal standard, and there i s no error in treating Mr. Wilson’s prior felony drug co nviction as a sentence enhancer without presenting it to the jury. Because Mr. Wilson’s sentence fell within the enhan ced statutory maximum for possession of any measurable amount of crack co caine, the offense for which the jury actually convicted him, there is no Apprendiviolation in this case and his sentence is affirmed.

III Frederick Burley Frederick Burley was the only defendant to testify in his own defense. During cross-examination, the government asked him several questions about past arrests for drug-related crimes. Mr. Burley conten ds these questions violated-18-

Rule 609 of the Federal Rules of Evidence, which al lows questions about past
convictions in some circumstances but makes no provision for m ention of arrests

. The government asserts the questions about past dru g arrests were valid as impeachment of Mr. Burley’s direct testimony, since he had denied all involvement with drugs. We conclude that it was er ror to allow questions based on past arrests, but that this error was harmless i n light of the weight of other evidence presented. At trial, Mr. Burley testified that he did not use, sell, or buy crack cocaine and that he did not know any of the other alleged c o-conspirators. App., vol. 6 at 1203. He denied specific allegations of distributi ng crack, id. at 1195, denied knowing the main prosecution witness, id. at 1196, denied operating a crack house, id. at 1199-1200, and stated categorically that he “ne ver [saw] any crack cocaine, period,” id. at 1214. In response, the prosecutor asked him, “Y ou have been charged in the State of Oklahoma with charges involving crack cocaine; is that correct?” Id . at 1215. She went on to ask about four other arr ests, most for possession of marijuana, and concluded, “So you’ve had a lot of contacts with the police; is that correct?” Id. at 1215. Mr. Burley objected to the court’s allow ing questions based on past arrests, but the objection was overruled. We review evidentiary matters for abuse of discretion. See United States v. Haslip , 160 F.3d 649, 653 (10th Cir. 1998), cert. denied, 526 U.S. 1044 (1999).-19-

Mr. Burley contends the mention of past arrests was improper under Rule 609 of the Federal Rules of Evidence. Rule 609 pro vides that “[f]or the purpose of attacking the credibility of a witness, . . . ev idence that an accused has been convicted of [a felony] shall be admitted if the co urt determines that the probative value of admitting this evidence outweighs its prej udicial effect to the accused.” Fed. R. Evid. 609(a)(1). We agree that questions b ased upon past arrests are not properly within the scope of this rule. Rule 609 r efers specifically to convictions, and one may not extrapolate from convictions to oth er situations such as arrests. See, e.g. , United States v. Enjady , 134 F.3d 1427, 1435 (10th Cir.), cert. denied, 525 U.S. 887 (1998) (Rule 609 “inapposite” where ac ts in question “did not result in criminal convictions”). Even if the rule’s bala ncing test were applicable to arrests, the potential for prejudice is high and pa st arrests have little probative value because “[a]rrest without more does not, in l aw any more than in reason, impeach the integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty.” United States v. Robinson , 978 F.2d 1554, 1559- 60 (10th Cir. 1992) (quoting Michelson v. United States , 335 U.S. 469, 482 (1948)). In response, the government argues the evidence was admissible under Rules 404(a)(1), 405(a), or 608(b) of the Federal Rules of Evidence. The objection at trial was not based upon a particular rule, and we may affirm if the-20-

evidence was admissible under any of the rules. See Robinson , 978 F.2d at 1562. However, the arrest evidence was not admissible und er these rules. Rule 404(a) allows facts offered by the prosecution to rebut “e vidence of a pertinent trait of character offered by an accused.” Fed. R. Evid. 40 4(a)(1). Even to the extent that “not using or selling drugs” could be consider ed a “trait of character,” Rule 404(b) goes on to instruct that “[e]vidence of othe r crimes, wrongs, or acts is not admissible to prove the character of a person in or der to show action in conformity therewith.” Fed. R. Evid. 404(b). Pastarrests for drug possession are admissible under Rule 404(b) if certain clearly def ined conditions are met, see United States v. Ramirez , 63 F.3d 937, 942-43 (10th Cir. 1995), but the rul e requires more than “simply testimony that records i ndicate an arrest took place,” Robinson , 978 F.2d at 1560. It makes sense to restrict use of arrest testimony under Rule 404, since Rule 609 was enacted to curb the potentially prejudicial use of conviction evidence, and arrests receive more pr otection than convictions. Rule 405(b) is inapposite, since it relates to “cas es in which character or a trait of character of a person is an essential elementof a charge, claim, or defense” (emphasis added). Fed. R. Evid. 405(b). There is no trait of character essential to convictions for drug crimes. Rule 608 is releva nt “only if the conduct relates to truthfulness or untruthfulness,” United States v. McHorse , 179 F.3d 889, 901 (10th Cir.), cert. denied, 528 U.S. 994 (1999), and, while the government wa s-21-

trying to test the veracity of the witness, the dru g crimes themselves (the “conduct” at issue) have no relation to truth or un truth. Accordingly, it was error for the district court to allow mention of Mr. Burley’s past arrests under any of the Federal Rule s of Evidence. “Where the evidence against a defendant is overwhelming,” howe ver, “any error in mentioning a defendant’s criminal record is harmles s.” United States v. Anaya , 117 F.3d 447, 449 (10th Cir. 1997) (quoting United States v. Sloan , 65 F.3d 861, 865 (10th Cir. 1995)). In light of the weight of e vidence offered by the prosecution showing Mr. Burley’s involvement with c rack distribution, the mention of his past arrests was unlikely to have th e required “substantial influence on the jury’s verdict.” Id. at 448 (quoting United States v. Arutunoff , 1 F.3d 1112, 1118 (10th Cir. 1993)); see also Kotteakos v. United States , 328 U.S. 750, 764 (1946) (“If, when all is said and done, th e conviction is sure that the error did not influence the jury, or had but very s light effect, the verdict and the judgment should stand . . .”). We hold that the er ror in allowing crossexamination regarding Mr. Burley’s past arrests was harmless.

IV
Carlos Hishaw Carlos Hishaw raises four arguments on appeal. He contends the district-22-

court should have granted his two motions for mistr ial, the first based on a trial witness’ improper mention of Mr. Hishaw’s jail sent ence and the second based on a question posed to Frederick Burley regarding a jo int arrest with Mr. Hishaw. He also argues there was insufficient evidence to s upport his conviction. Finally, he contends the district court erred in computing t he amount of drugs to be attributed to him at sentencing. We address each i ssue in turn and affirm. A. Inappropriate Answer by Witness Mr. Hishaw moved for a mistrial based on possibly p rejudicial witness testimony that gave the impression Mr. Hishaw had b een in jail. We review the court’s denial of that motion for abuse of discreti on. See Sloan , 65 F.3d at 865. Mr. Hishaw argues the prosecutor’s conduct in solic iting the testimony was improper. Even where a prosecutor’s conduct is imp roper, we will only overturn the conviction if that misconduct “was flagrant eno ugh to influence the jury to convict on grounds other than the evidence presente d.” United States v. Lowder , 5 F.3d 467, 473 (10th Cir. 1993). Here, the prosec utor was very careful to avoid mention of Mr. Hishaw’s jail sentence, asking the w itness about an occasion when Mr. Hishaw “went away for a while.” App., vol. 3 at 401. The witness, Anthony Watkins, attempted to reply in kind. At one point, however, he mentioned “when he [Mr. Hishaw] got out . . .,” id . at 403, implying the reason for Mr. Hishaw’s absence was a prison term. On overruling Mr. Hishaw’s objection, the court-23-

noted this comment had been uttered almost under th e witness’ breath and that there was a “good chance” that the jury did not hea r it, adding “I would offer to give a limiting or cautioning instruction, but I th ink . . . that would unduly highlight it.” Id . at 404-05. Considering this context and the weig ht of valid testimony regarding the alleged offenses, any errorstemming from the accidental testimony was harmless and the court did not abuse its discretion in denying Mr. Hishaw’s motion for mistrial.
B. Mention of Past Arrest Mr. Hishaw’s second motion for mistrial stemmed fro m one of the questions asked of Frederick Burley regarding his p ast arrests. The prosecutor asked Mr. Burley: “And you were arrested with Carl os Hishaw, with Killer, on December 8th of 1994 for possession of marijuana; i s that correct?” App., vol. 6 at 1217. On objection, the court acknowledged the question was improperly prejudicial with regard to Mr. Hishaw, but it overr uled his motion because the question “does not rise to the level of prejudice s uch as would justify a mistrial.” Id . at 1221-23. We have determined the questions bas ed on past arrests were error with regard to Mr. Burley, who was the actual witness, and so they were certainly error with regard to Mr. Hishaw. Once ag ain, however, we conclude the6 The government argues the proper standard is one o f plain error, since Mr.

Hishaw did not object to the prosecutor’s question until after the witness had been excused. Since we find the error harmless and harm less errors cannot meet the standard for plain error, the result is the same un der either standard. See United States v. Olano 507 U.S. 725, 733-34 (1993) (error must affect out come of trial to be “plain error”). -24- error was harmless 6 in the context of the case as a whole. See Anaya , 117 F.3d at
449. C. Sufficiency of the Evidence Finally, Mr. Hishaw challenges the sufficiency of t he conspiracy evidence presented against him. It is difficult to succeed with such an argument, “since we reverse on a sufficiency of the evidence claim ‘onl y if no rational trier of fact could have found the essential elements of the crim e beyond a reasonable doubt.’” Haslip , 160 F.3d at 652 (quoting United States v. Wacker , 72 F.3d 1453, 1462-63 (10th Cir. 1995)). While we review the record de n ovo, we must draw all reasonable inferences in the light most favorable t o the government, and we may not consider the credibility of witnesses or weigh the trial evidence. See id. at 652-53. Here, Mr. Hishaw argues, in essence, that the government’s key witness could not be trusted because he admitted to lying u nder oath on other occasions, and that without his testimony there was not enoughevidence to prove Mr. Hishaw’s involvement in the conspiracy. The credib ility of witnesses and weighing of the evidence presented are squarely wit hin the province of the jury.7Like Alfred Wilson, Mr. Hishaw filed a supplementa l brief arguing

Apprendirenders his sentence invalid. Although Mr. Hishaw ’s indictment identified specific quantities of drugs that he was charged with possessing and distributing, the jury was instructed that it need find only “a measurable amount” of drugs in order to convict. The concurrent thirty-year sentences given to Mr. Hishaw are longer than the unenhanced statutory max imum of twenty years, and Mr. Hishaw does not have a prior drug felony subjec ting him to recidivism enhancements. Because drug quantity increased his sentence beyond the unenhanced statutory maximum but was not found by the jury beyond a reasonable doubt, the procedures followed in Mr. Hi shaw’s case violated the new requirements of Apprendi . However, because he did not object to this violation at the time of trial, we review the issue only for pla in error. See United States v. (continued...) -25- Based on the combined testimony of several trial wi tnesses, a reasonable juror could have found Mr. Hishaw guilty of conspiracy. We will not overturn his conviction on appeal. D. Computation of Drug Totals At sentencing, Mr. Hishaw objected to the probationoffice’s calculation that he should be attributed with responsibility fo r over ten kilograms of cocaine base, arguing the total was based on “guesses at be st by unreliable witnesses who all had something to gain by testifying for the gov ernment.” Appellant Br. at 3-4. While we review the legal basis for sentencing de n ovo, we will accept the district court’s findings of fact unless they are c learly erroneous. See Keeling , 235 F.3d at 535-36. No crack cocaine was actually seized from Mr. Hishaw; the ten kilogram total was based on trial testimony reg arding 6.5 kilograms alleged in the indictment 7and on application of relevant conduct at sentenci ng, attributing to7 (...continued)

Keeling , 235 F.3d 533, 538 (10th Cir. 2000) (applying plai n error to Apprendi issue); United States v. Dorris , 236 F.3d 582, 587 (10th Cir. 2000) (noting other circuits do same). We have discretion to notice a plain error if (1) there is an actual error (2) that is “plain,” or obvious, at th e time of appeal, (3) affects the defendant’s substantial rights, and (4) "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." United States v. Olano , 507 U.S. 725, 732-33, 736 (1993). After Apprendi , the failure to submit drug quantity to the jury i s an error that is plain, and because it involves a ten-year i ncrease in Mr. Hishaw’s sentence it certainly affects his substantial rights. Howev er, the fourth plain error requirement is not met in this case. The Supreme C ourt has explained that the omission of an essential element of an offense from jury consideration does not seriously affect the fairness or integrity of a pro ceeding if the evidence related to that element was overwhelming. See Johnson v. United States , 520 U.S. 461, 470 (1997). This is particularly true where a trial co urt follows procedures that were universally considered fair at the time of trial. Accordingly, in Keeling , 235 F.3d at 539-40 (10th Cir. 2000), we determined that desp ite Apprendithere was no plain error in failing to submit drug quantity to t he jury because extensive quantity evidence had been presented at trial. Her e, too, the evidence was overwhelming. Mr. Hishaw’s sentence could be enhan ced to thirty years upon a finding of only five grams of crack cocaine – in co ntrast, trial evidence proved his involvement with over six kilograms of the drug, ov er a thousand times more than the necessary amount. Therefore we find no plain e rror in this case and will not revise his sentence despite the Apprendiviolation. -26- him reasonably foreseeable amounts possessed in furtherance of the jointly undertaken criminal activity. See United States v. Sloan , 65 F.3d 861, 865 (10th Cir. 1995); see also Keeling , 235 F.3d at 536 (discussing relevant conduct). When drugs are not seized from a defendant or the a mount seized does not reflect the true amount, the court may rely on esti mates it deems sufficiently reliable. See United States v. Ruiz-Castro , 92 F.3d 1519, 1534 (10th Cir. 1996). Here, the estimates were based largely upon the tes timony of two co-conspirators-27-

serving as government witnesses, Anthony Watkins an d Jeffrey Norris. Mr. Hishaw asserts Anthony Watkins’ testimony was unrel iable. It is the sentencing court’s job to weigh the witness’ credibility, howe ver, see Sloan , 65 F.3d at 865, and the court determined Mr. Watkins was credible, see App., vol. 11 at 4-5. Several other witnesses also testified regarding th e quantity of drugs distributed by Mr. Hishaw. See App., vol. 3 at 249-51 (Jeffrey Norris), vol. 4 at537-40 (Darrell Turner), vol. 5 at 832-36 (Steve Laster), vol. 6 at 1026-29 (Robert Moore). Considering in particular that his sentenc ing guideline was triggered at a threshold of 1.5 kilograms, far below the total est ablished by witness testimony, we find no clear error in the court’s decision thatten kilograms was the proper

amount.

V
Conclusion
We AFFIRM appellants’ convictions and sentences on all count s.