United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-1590

___________

United States of America, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska

Jesse J. Smith, *

*

Appellee. *

___________

Submitted: October 17, 2000

Filed: January 26, 2001

___________

Before McMILLIAN, BOWMAN and LOKEN, Circuit Judges.

___________

McMILLIAN, Circuit Judge.

The United States government appeals from a final judgment entered in the

United States District Court for the District of Nebraska sentencing Jesse J. Smith to

24 months imprisonment, 5 years supervised release, and a special assessment of $100,

after a jury found Smith guilty of conspiring to distribute and possess with intent to

distribute cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1). For reversal, the

government argues that the district court lacked authority to sentence Smith below the
1

21 U.S.C. § 841provides in pertinent part:

(a) Unlawful acts

 Except as authorized by this subchapter, it shall be unlawful for any

person knowingly or intentionally – 

 (1) to . . . possess with intent to . . . distribute . . . a

controlled substance. 

(b) Penalties

 Except as otherwise provided in section 859, 860, or 861 of this title,

any person who violates subsection (a) of this section shall be sentenced

as follows:

 (1)(A) In the case of a violation of subsection (a) of this

section involving – 

. . . .

 (iii) 50 grams or more of a mixture or

substance . . . which contains cocaine base;

. . . . 

such person shall be sentenced to a term of imprisonment which may not

be less than 10 years or more than life . . . .

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10-year mandatory minimum sentence set forth in 21 U.S.C. § 841(b)(1)(A)(iii),1 where

the government has not filed a downward departure motion pursuant to 18 U.S.C.

§ 3553(e). For the reasons stated below, we vacate Smith's sentence and remand the

case to the district court for further proceedings consistent with this opinion. 

Jurisdiction in the district court was proper based upon 18 U.S.C. § 3231.

Jurisdiction in this court is proper based upon 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(b). The notice of appeal was timely filed pursuant to Fed. R. Crim. P. 4(b). 
2

Jesse Smith and Damion Johnson are referred to in the record as cousins. See,

e.g., Sentencing Transcript at 11 (Jan. 20, 2000). 

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Background

On June 11, 1998, law enforcement officers executed a search warrant at the

Omaha, Nebraska, apartment of Damion Johnson.2 Upon the officers' entry into the

apartment, Johnson attempted to escape through a window. The officers found baggies

containing cocaine base in Johnson's possession and at his feet. Smith, who had been

staying with Johnson, was found in the apartment with .4 grams of cocaine base on

him. A third individual, Dermayne Newsome, was found in the bathroom with .8 grams

of cocaine base on him; an additional amount was found in the toilet. In the apartment,

the officers found, among other things, firearms, ammunition, and a large amount of

cash inside a safe. 

On July 23, 1998, Smith, Johnson, and Newsome were indicted on one count of

conspiracy to distribute and possess with intent to distribute cocaine base and one

count of criminal forfeiture. In his first trial, Smith was found guilty on the conspiracy

count, but the district court ordered a new trial. Smith was subsequently charged by

a superseding indictment with one count of conspiracy to distribute and possess with

intent to distribute cocaine base and one count of possession with intent to distribute

cocaine base. In his second trial, Smith was found guilty on the conspiracy count and

not guilty on the possession with intent to distribute count. 

After a presentence investigation report (PSIR) was prepared by a probation

officer, Smith and the government each filed objections. Both parties objected to the

recommendation in the PSIR that a certain drug quantity be attributed to Smith based

upon the cash found inside a safe in Johnson's apartment. The government

acknowledged that there was no evidence in the record supporting the probation

officer's mathematical conversion of that money to a quantity of cocaine base for which
3Under the guidelines, level 32 corresponds with "at least 50 [grams] but less

than 150 [grams] of Cocaine Base." U.S.S.G. § 2D1.1(c). 

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Smith could be held accountable under the sentencing guidelines. The district court

sustained the government's objection and noted that, by excluding the amount of drugs

to which the money had been converted, Smith's base offense level dropped from 34

to 32. See Sentencing Transcript at 7 (Jan. 20, 2000). Smith further objected to the

guideline calculations on the ground that there still was no evidence establishing a

quantity of cocaine base for which he could be held accountable as a co-conspirator.

For example, he argued, there was no evidence of any specific activities carried out by

the alleged conspiracy, such as packaging, transporting, or selling cocaine base.

Therefore, he maintained, "the court should follow the lowest weight allowed under the

guidelines, which would be a level 12." Id. at 9-10. The district court overruled

Smith's objection and explained: 

[T]he reason I don't think [your argument] holds up is because if the drugs

are in front of him [Smith], and they are packaged, and he is in the room

where he is caught, and the only rational basis that I can see for why the

jury could convict him of the conspiracy was because it was in a place

that he sometimes lived and they had guns there that were being used

either by him or by his cousin, Mr. Johnson, and that creates the

conspiracy. 

And he at least has an understanding that he is participating in a

conspiracy that intends to distribute at least what is in the room in

packages and that puts him at a level 32. 

Id. at 11-12. 

The district court did not make an express finding as to the amount of cocaine

base attributable to Smith, but determined that Smith's base offense level was 32.3 The

district court then added two levels for Smith's possession of a firearm, see U.S.S.G.

§ 2D1.1(b)(1), subtracted four levels for Smith's role as a minimal participant, see id.
4

In the course of counsel's arguments concerning the application of 21 U.S.C.

§ 841(b), the following exchange took place between the district court and defense

counsel. 

THE COURT: You're saying that if I have to impose the statutory

minimum, then I can't downwardly depart?

COUNSEL: Right. It has a great impact on your ability to depart in the

absence of a government motion if the mandatory minimum applies.

Sentencing Transcript at 18.

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§ 3B1.2(a), and concluded that Smith's total offense level was 30, with a criminal

history category of I. See Sentencing Transcript at 13. The district court then stated:

"[s]entencing guideline range is 97 to 121 months, but because of the statutory

minimum it is 120 months." Id. 

Defense counsel questioned the applicability of the 120-month (or 10-year)

statutory minimum sentence, noting that the district court's authority to depart

downward would be affected if the statutory minimum applied.4 Defense counsel

argued that the statutory 10-year mandatory minimum should not apply unless the

government alleged in the indictment and proved to the jury beyond a reasonable doubt

that Smith's violation involved 50 or more grams of cocaine base. The government

argued in response that such sentencing factors were matters for the court to decide

under the preponderance of the evidence standard. The district court agreed with the

government and overruled Smith's objection. However, the district court did not make

an express finding as to the amount of cocaine base involved in Smith's offense, nor

expressly rule on the applicability of 21 U.S.C. § 841(b)(1)(A)(iii). 

The district court then proceeded to address Smith's motion for a downward

departure. The district court rejected Smith's argument that a departure was justified

because the violation in question constituted a single act of aberrant behavior. The
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district court agreed, however, that the present case fell outside the "heartland" of cases

contemplated by the sentencing guidelines and that a downward departure was justified

on that basis. The district court explained:

I am going to risk and tempt fate here, but I listened to this case

twice, and I have to tell you, it's the skinniest case I ever saw in my life,

but there is a rational basis for the jury deciding the way they did, but I

really don't think that this is in the heartland of cases.

The heartland of cases contemplates something much more serious

than what I saw in the evidence. 

. . . .

Mr. Smith's participation was so minimal, and I think that his

mother's letter basically sums it up best, and that is that Mr. Smith was

looking the other way so he could support his drug habit. 

And I really believe that that's what the evidence shows, and

because of that he allowed his cousin to use those guns in the apartment.

The problem with this whole case is that he is convicted of the

conspiracy, but he is not convicted of the possession with intent [to

distribute], which is very difficult for me to square with very much of

having anything to do with the conspiracy if he doesn't even have any

control or possession or anything else of the drugs. 

So I firmly believe that this is outside the heartland. 

Sentencing Transcript at 23-24.

Then, to arrive at Smith's sentence of 24 months of imprisonment, the district

court reasoned as follows.
5The district court judge apparently meant to refer to "Mr. Smith" rather than

"Mr. Johnson." Id. at 28. 

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Mr. Johnson [sic[5]] and Mr. Newsome both had about a half a

gram in their pocket. I think Mr. Newsome had about .8 grams and Mr.

Smith had .4 grams or thereabouts. That puts him at level 14. Guns were

involved. That's a two level increase. That puts him at level 16. 

I don't think in a million years he was distributing, if he was any,

more than a half gram at a time. 

And, as I indicated before, I don't think that he was significantly

involved in this conspiracy, other than not having his guns in his parents'

house because they didn't want them there, so he sends them over to his

cousin's house and Mr. Johnson utilizes them as his protection and Mr.

Smith basically reaps the benefit of that because he gets a supply of drugs

for just doing stupid stuff so that he can keep up with his habit.

I don't know how much he is participating in any drug activity,

because there was never any evidence of that.

So I'm going to calculate his downward departure at a level 16,

which is 21 to 27 months.

Id. at 28-29. 
6Addressing Smith, the district court stated:

[with] your diabetes, you are going to kill yourself if you keep

doing drugs, and today I had the possibility of basically putting you in jail

forever. 

I think that I'm making the right decision based on what I heard. 

I don't know whether anybody is going to agree with me, but that's

what I'm doing. 

Id. at 30. 

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In addition to imposing sentence, the district court recommended a drug

treatment program for Smith.6 The government objected to the sentence and timely

filed the present appeal.

Discussion

The government argues on appeal that, because Smith was subject to the 10-year

mandatory minimum in 21 U.S.C. § 841(b), the district court lacked authority to

sentence him to a term of imprisonment below 10 years absent a government motion

for a downward departure pursuant to 18 U.S.C. § 3553(e). See Brief for Appellant

at 11-15 (citing cases). In support of the assumption that the 10-year statutory

minimum applies, the government relies on the district court's statement: "[s]entencing

guideline range is 97 to 121 months, but because of the statutory minimum it is 120

months." Id. at 9 (citing Sentencing Transcript at 13). The government interprets the

district court's comment as an implicit ruling on the applicability of 21 U.S.C.

§ 841(b)(1)(A)(iii). Id. at 15.

In response, Smith maintains that § 841(b)'s 10-year mandatory minimum

sentence was not clearly applied to him in the present case. He points out that the
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district court made no express finding as to the quantity of cocaine base involved in the

offense, that the district court's statements on the relevant drug quantity were

contradictory and unclear, and that the district court's statements of fact and the

sentence ultimately imposed are inconsistent with the view that he should be held

accountable for 50 or more grams of cocaine base. Smith highlights the following

statements made by the district court at the sentencing hearing:

I don't think in a million years [Smith] was distributing, if he was

any, more than a half gram at a time. 

And, as I indicated before, I don't think that he was significantly

involved in this conspiracy, other than not having his guns in his parents'

house because they didn't want them there, so he sends them over to his

cousin's house and Mr. Johnson utilizes them as his protection and Mr.

Smith basically reaps the benefit of that because he gets a supply of drugs

for just doing stupid stuff so that he can keep up with his habit.

I don't know how much he is participating in any drug activity,

because there was never any evidence of that.

Brief for Appellee at 4-5 (quoting Sentencing Transcript at 28-29). 

The law is firmly established that a district court lacks authority to sentence

below the 10-year statutory minimum if the pertinent provisions in 21 U.S.C. § 841(b)

apply and the government has lawfully declined to move for a downward departure

under 18 U.S.C. § 3553(e). See United States v. Rodriguez-Morales, 958 F.2d 1441,

1442-47 (8th Cir.), cert. denied, 506 U.S. 940 (1992). In the present case, the question

of whether the 10-year minimum in § 841(b) applies depends on whether 50 or more

grams of cocaine base were involved in Smith's offense. See 21 U.S.C. § 841(b). The

relevant quantity of drugs, for purposes of determining the applicability of § 841(b), is

essentially the same as the relevant quantity used for determining a defendant's base

offense level under the sentencing guidelines. See United States v. Jones, 965 F.2d
7

In the present case, the ten-year statutory minimum sentence does not exceed

the statutory maximum sentence applicable to Smith's offense without reference to drug

quantity. See 21 U.S.C. § 841(b)(1)(C) (establishing, for Smith's offense and

circumstances, a maximum term of imprisonment of 20 years). 

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1507, 1517 (8th Cir. 1992) ("The same standards govern the district court's drug

quantity determinations for section 841(b) and the Sentencing Guidelines."); accord

United States v. Fitch, 137 F.3d 277, 280 (5th Cir. 1998) (punishment under § 841(b)

is based on type and quantity or weight of controlled substances involved in the

offense; the guidelines use "the same factors" coupled with criminal history to produce

a guideline range); United States v. Hughes, 970 F.2d 227, 234 (7th Cir. 1992) (noting

that "the amount of cocaine involved" would affect both the offense level under the

guidelines and the mandatory minimum sentence). The district court may determine at

sentencing the quantity of drugs involved in the offense for purposes of applying

§ 841(b), even if the drug quantity was not charged in the indictment and found by the

jury beyond a reasonable doubt, provided that any mandatory minimum sentence

imposed on the basis of that drug quantity does not exceed the statutory maximum

allowed without reference to drug quantity.7 See United States v. Aguayo-Delgado,

220 F.3d 926, 931-34 (8th Cir.) (discussing and applying Apprendi v. New Jersey, 530

U.S. 466 (2000)), cert. denied, 121 S. Ct. 600 (2000); United States v. Sheppard, 219

F.3d 766, 768-69 & nn.2-3 (8th Cir. 2000) (same). 

Where a drug conspiracy is concerned, the law of the Eighth Circuit regarding

the determination of drug quantity at sentencing is as follows.

A defendant convicted of conspiracy is properly held accountable

for all reasonably foreseeable acts and omissions of any co-conspirator

taken in furtherance of the conspiracy. Thus, in a drug conspiracy, the

district court may consider amounts from drug transactions in which the

defendant was not directly involved, provided that those other dealings

were part of the same course of conduct or scheme. Before a quantity of
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drugs may be attributed to a particular defendant, the sentencing court is

required to find by a preponderance of the evidence that the transaction

or activity involving those drugs was in furtherance of the conspiracy and

either known to that defendant or reasonably foreseeable to him. 

United States v. Brown, 148 F.3d 1003, 1008 (8th Cir. 1998) (citations omitted), cert.

denied, 525 U.S. 1169 (1999); see also United States v. Jones, 965 F.2d at 1517 (the

district court may sentence a defendant for drugs possessed and sold by co-conspirators

if the district court finds by a preponderance of the evidence that their activities were

in furtherance of the conspiracy and known or reasonably foreseeable to the defendant;

"[f]or activities of a co-conspirator to be 'reasonably foreseeable' to a defendant, they

must fall within the scope of the agreement between the defendant and the other

conspirators"). 

As noted above, the district court in the present case did not expressly find that

50 grams or more of cocaine base were involved in Smith's offense, nor did it

specifically rule on the applicability of 21 U.S.C. § 841(b). The district court's

statement, "[s]entencing guideline range is 97 to 121 months, but because of the

statutory minimum it is 120 months," Sentencing Transcript at 13, does not appear to

be a ruling on the applicability of § 841(b) when read in the context of the entire

sentencing hearing. For example, the district court elected to depart downward

notwithstanding its apparent awareness that its authority to do so could be adversely

affected if the statutory minimum applied. The district court's explanation for imposing

a term of imprisonment corresponding with a total offense level of 16 also suggests that

the district court may have believed the amount of cocaine base involved in Smith's

offense was less than 50 grams. On the other hand, the district court's comment, "I

don't think in a million years [Smith] was distributing, if he was any, more than a half

gram at a time," id. at 28-29, also fails to dispose of the issue because Smith is

responsible for all reasonably foreseeable acts of his co-conspirators in furtherance of

the conspiracy. See United States v. Brown, 148 F.3d at 1008. Finally, while the

district court did determine that Smith's base offense level was 32, which implies that
8We note, however, that the district court came close to satisfying these

requirements when it observed:

 

if the drugs are in front of him [Smith], and they are packaged, and he is

in the room where he is caught, and the only rational basis that I can see

for why the jury could convict him of the conspiracy was because it was

in a place that he sometimes lived and they had guns there that were being

used either by him or by his cousin, Mr. Johnson, and that creates the

conspiracy. 

And he at least has an understanding that he is participating in a

conspiracy that intends to distribute at least what is in the room in

packages . . . . 

Sentencing Transcript at 11-12.

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50 or more grams of cocaine base were involved in the offense, the district court still

did not make the underlying findings required by United States v. Brown, id. ("[b]efore

a quantity of drugs may be attributed to a particular defendant, the sentencing court is

required to find by a preponderance of the evidence that the transaction or activity

involving those drugs was in furtherance of the conspiracy and either known to that

defendant or reasonably foreseeable to him.").8 

Accordingly, we vacate the sentence imposed by the district court and remand

the case to the district court for resentencing. On remand, the district court shall make

a factual finding as to the quantity of cocaine base involved in Smith's offense for

purposes of determining the applicability of 21 U.S.C. § 841(b)(1)(A)(iii). We reiterate

that Smith is "accountable for all reasonably foreseeable acts and omissions of any coconspirator taken in furtherance of the conspiracy" and that "the [district] court is

required to find by a preponderance of the evidence that the transaction or activity

involving those drugs was in furtherance of the conspiracy and either known to [Smith]

or reasonably foreseeable to him." United States v. Brown, 148 F.3d at 1008. "[T]he
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district court may consider amounts from drug transactions in which [Smith] was not

directly involved, provided that those other dealings were part of the same course of

conduct or scheme." Id. If, on remand, the district court concludes that the relevant

quantity of cocaine base is 50 grams or more, the 10-year statutory minimum shall

apply, and, in the absence of a government downward departure motion under 18

U.S.C. § 3553(e), the district court will be precluded from sentencing Smith to a term

of imprisonment below 10 years, consistent with our holdings in United States v.

Rodriguez-Morales, 958 F.2d at 1442-47, and United States v. Aguayo-Delgado, 220

F.3d at 934. 

Conclusion

Smith's sentence is vacated, and the case is remanded to the district court for

further proceedings consistent with this opinion. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.