United States v. Trammel , 7 F. App'x 829 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 13 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 00-5038
v. (N. District of Oklahoma)
(D.C. No. 99-CR-84-K)
OLLIN RAY TRAMMEL,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY, BRISCOE, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The court
therefore honors the parties’ requests and orders the case submitted without oral
argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Following a jury trial, Ollin Ray Trammel was convicted of one count of
conspiracy to manufacture a controlled substance in violation of 21 U.S.C. § 846;
one count of maintaining a location for the purpose of manufacturing and
distributing a controlled substance in violation of 21 U.S.C. § 856; and one count
of possession of equipment, chemicals, and products which may be used to
manufacture a controlled substance in violation of 21 U.S.C. § 843(a)(6).
Trammel was sentenced to a term of 235 months on the § 846 count, 235 months
on the § 856 count, and 120 months on the § 843(a)(6) count, with all sentences
to run concurrently. On appeal, Trammel raises the following single narrow
question of law: Whether the district court erred, in light of the Supreme Court’s
recent decision in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), in determining
drug quantity for purposes of computing Trammel’s sentence under the
Sentencing Guidelines, instead of submitting the question of drug quantity to the
jury. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.
As Trammel recognizes, because he did not raise this issue before the
district court, this court’s review is limited to plain error. See Fed. R. Civ. P. 52;
United States v. Hishaw, 235 F.3d 565, 574 (10th Cir. 2000) (holding that an
Apprendi claim raised for the first time on appeal is reviewed only for plain
error). Under the plain error standard, “[r]eversal is only warranted if there is:
(1) an error; (2) that is plain or obvious; (3) affects substantial rights; and (4)
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‘seriously affect[s] the fairness, integrity[,] or public reputation of judicial
proceedings.’” Hishaw, 235 F.3d at 574 (quoting United States v. Olano, 507
U.S. 725, 732 (1993)).
As noted above, Trammel’s legal challenge to his sentence is particularly
narrow. He does not, and could not under existing Tenth Circuit precedent,
contend that the underlying convictions are invalid or that he was sentenced to a
term in excess of the statutory maximum as to any of his convictions. See United
States v. Thompson, 237 F.3d 1258, 1262 (10th Cir. 2001) (“[W]here a defendant
is charged under 21 U.S.C. § 841(a), found guilty beyond a reasonable doubt, and
sentenced within the minimum statutory range of 0-20 years, there is no Apprendi
violation for failure to charge and prove the amount of drugs involved.”); United
States v. Jones, 235 F.3d 1231, 1236 (10th Cir. 2000) (same). Instead, Trammel
simply asserts that after Apprendi the question of drug quantity must always be
submitted to the jury and proved beyond a reasonable doubt, even when the drug-
quantity determination is only relevant to the question of determining a
Sentencing Guidelines range at or below the statutory maximum. This court
recently rejected this exact contention, holding as follows:
[T]he district court did not err in considering drug amount as
an aggravating or mitigating factor in establishing Defendant’s
offense level under the Sentencing Guidelines. Not all facts that
affect a defendant’s sentence are essential elements, requiring
prosecutorial proof and jury finding. The Apprendi court noted that
judges may still “exercise discretion--taking into consideration
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various factors relating to both offense and offender--in imposing a
judgment within the range prescribed by statute.” Apprendi, 120 S.
Ct. at 2358. In fact, the Court specifically avoided disrupting the use
or adequacy of the Sentencing Guidelines, noting that “[t]he
Guidelines are, of course, not before the Court. We therefore express
no view on the subject beyond what this Court has already held.” Id.at 2366 n.21. Judges may still ascertain drug quantities by a
preponderance of the evidence for the purpose of calculating offense
levels under the Sentencing Guidelines, so long as they do not
sentence above the statutory maximum for the jury-fixed crime. See
United States v. Angle, 230 F.3d 113, 123 (4th Cir. 2000)
(interpreting §§ 841 and 846 in light of Apprendi). Thus, while the
district court’s drug quantity finding increased Defendant’s offense
level and hence his sentence, it did not increase the maximum
sentence he faced, and as such did not infract Apprendi.
United States v. Heckard, 238 F.3d 1222, 1235-36 (10th Cir. 2001).
Because this court’s recent decision in Heckard forecloses Trammel’s claim
of error, the judgment of the United States District Court for the Northern District
of Oklahoma is hereby AFFIRMED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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