[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOV - 8 2000
________________________
THOMAS K. KAHN
CLERK
No. 99-12061
Non-Argument Calendar
________________________
D.C. Docket No. 97-06051-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SEAN ANTHONY GERROW,
a.k.a. Damien Gerrow, etc.,
ANNETTE MARIE GERROW,
a.k.a. Annette Brown, et al.,
Defendants-Appellants.
__________________________
Appeals from the United States District Court for the
Southern District of Florida
_________________________
(November 8, 2000)
Before BIRCH, BLACK and CARNES, Circuit Judges.
PER CURIAM:
Appellants Sean Anthony Gerrow and Annette Marie Gerrow were tried and
convicted of conspiracy to possess with intent to distribute cocaine,
21 U.S.C.
§§ 841(a)(1) and 846, and attempt to possess with intent to distribute cocaine,
21
U.S.C. §§ 841(a)(1) and 846. Their co-defendant, Appellant Clarence Allen Forrester,
was tried and convicted of the same crimes and of carrying a firearm during a drug-
trafficking crime,
18 U.S.C. § 924(c)(1), and assaulting a special agent of the DEA
engaged in the performance of his official duties,
18 U.S.C. § 111(a). On appeal,
Appellants raise several issues. The only two issues warranting discussion are
Appellant Forrester’s failure to allocute claim and the Gerrows’ claims that their
sentences were imposed in violation of the principle the Supreme Court announced
in Apprendi v. New Jersey, __ U.S. __,
120 S. Ct. 2348 (2000).1
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Appellants also challenge the amount of drugs the district court attributed to them and the
denial of their requests for minor-role reductions. Appellants Sean and Annette Gerrow challenge
the district court’s imposition of a firearm enhancement. Appellants Annette Gerrow and Forrester
claim the district court improperly admitted into evidence the testimony of a financially-motivated
Government informant, refused to sever the trial, admitted into evidence the statements of non-
testifying co-defendants, and failed to sanction the Government for alleged discovery violations.
Appellant Forrester challenges the district court’s failure to directly offer him an opportunity to
allocute at sentencing, the sufficiency of the evidence to support his § 924 conviction, and the
accuracy of the district court’s jury instructions regarding flight. Appellant Sean Gerrow challenges
the district court’s determination of his criminal history category. We affirm these issues pursuant
to 11th Cir. R. 36-1.
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I. STANDARD OF REVIEW
We generally review the legality of a criminal sentence de novo. See United
States v. Tamayo,
80 F.3d 1514, 1518 (11th Cir. 1996). A district court’s failure to
address a defendant personally at sentencing is reviewed for plain error, however,
where the defendant failed to make a timely objection. See
id. at 1521. The Gerrows
did not challenge the constitutionality of the district court’s finding of drug quantity,
nor did they challenge the omission of the quantity from the indictment. The
Apprendi claim is therefore reviewed for plain error. See United States v. Swatzie,
228
F.3d 1278 (11th Cir. 2000), slip op. at 46.
II. DISCUSSION
A. Appellant Forrester’s Failure to Allocute Claim
Before imposing a sentence, the district court must “address the defendant
personally and determine whether the defendant wishes to make a statement and to
present any information in mitigation of the sentence[.]” Fed. R. Crim. P. 32(c)(3)(C).
This process permits a defendant “an opportunity to plead personally to the court for
leniency in his sentence by stating mitigating factors and to have that plea considered
by the court in determining the appropriate sentence.” Tamayo,
80 F.3d at 1518. The
district court must clearly inform the defendant of his allocution rights, leaving “no
room for doubt that the defendant has been issued a personal invitation to speak prior
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to sentencing.” Green v. United States,
365 U.S. 301, 305,
81 S. Ct. 653, 655 (1961).
If the district court fails to afford a defendant such an opportunity, but the defendant
does not object, this Court will remand only if “manifest injustice” results from the
omission. Tamayo,
80 F.3d at 1521.
Before imposing the sentence, the district court asked Appellant Forrester’s
attorney whether his client wished to address the court. Since the district court had
disclosed its intention to impose a sentence at the lowest end of the guidelines, counsel
replied, “In light of your announcements, Your Honor, no. It is not necessary.” The
court then asked, “Is there anybody else here who would like to speak for him?”
Counsel stated he wished to adopt the statements made by Appellant Forrester’s
family at the sentencing hearing. The district court then imposed a sentence at the
lowest end of the guideline range.
The district court’s failure to address Appellant Forrester personally did not
result in manifest injustice. Counsel’s response to the district court’s invitation for
Appellant to speak suggests Appellant did not intend to address the court directly.
Appellant instead chose to rely on statements by his wife and counsel in light of the
district court’s announced intention to impose a sentence at the lowest end of the
guideline range. Further, Appellant offers nothing which, if conveyed personally to
the district court, could have resulted in a sentence lower than the lowest end of the
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guideline range. Accordingly, Appellant Forrester suffered no prejudice or “manifest
injustice.” Tamayo,
80 F.3d at 1521; United States v. Rodriguez-Velasquez,
132 F.3d
698, 700 (11th Cir. 1998) (no manifest injustice where defendant did not object to
amount of sentence and was sentenced at lowest end of guideline range).
B. Gerrows’ Apprendi claims
1. Terms of Imprisonment.
In Apprendi, the Supreme Court stated, “Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.”
120 S. Ct. at 2362-63. Here, the district court determined at sentencing the
drug quantities for which Appellants were responsible. Appellant Annette Gerrow
was sentenced to 151 months’ imprisonment and 5 years’ supervised release, and
Appellant Sean Gerrow was sentenced to 235 months’ imprisonment and 5 years’
supervised release. Both of the imprisonment sentences are below the statutory
maximum of 20 years, set forth in
21 U.S.C. § 841(b)(1)(C), for a cocaine offense
without reference to drug quantity. This statutory maximum applies to the Gerrows
because the drug quantity in this case was not alleged in the indictment or proven to
the jury beyond a reasonable doubt. See United States v. Rogers,
228 F.3d 1318 (11th
Cir. 2000), slip op. at 82 (holding that defendant must be sentenced without regard
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to drug quantity where drug quantity is not charged in the indictment and proven to
a jury beyond a reasonable doubt).
The Gerrows concede the rule of Apprendi does not apply to the imprisonment
portions of their sentences, as the terms of imprisonment imposed were below the
“prescribed statutory maximum.”2 We agree and hold there is no error, plain or
otherwise, under Apprendi where the term of imprisonment is within the statutory
maximum set forth in § 841(b)(1)(C) for a cocaine offense without regard to drug
quantity. Other circuits that have considered the issue have reached the same
conclusion. See, e.g., United States v. Angle, 4th Cir., 2000, __ F.3d __ (Nos. 96-
4662, 96-4672, and 99-4187, October 12, 2000); United States v. Doggett, 5th Cir.,
2000, __ F.3d __ (No. 99-50380, October 6, 2000); United States v. Aguayo-Delgado,
220 F.3d 926, 934 (8th Cir. 2000).
2. Terms of Supervised Release.
The Gerrows do, however, argue that the supervised release portions of their
sentences violate the rule of Apprendi. Both were sentenced to 5 years of supervised
release. Section 841(b)(1)(C), the provision which provides the statutory maximum
sentence for Appellants, provides for “a term of supervised release of at least 3
2
Appellant Annette Gerrow makes this concession in her supplemental brief. Appellant Sean
Gerrow previously adopted all issues already raised and all additional issues raised by co-appellants.
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years[.]” A violation of § 841(b)(1)(C) is a Class C felony because the maximum term
of imprisonment for such a violation is 20 years. See
18 U.S.C. § 3559(a)(3). Under
18 U.S.C. § 3583(b)(2), the maximum term of supervised release for a Class C felony
is 3 years, “[e]xcept as otherwise provided[.]” The Gerrows claim 3 years is therefore
the maximum term of supervised release under § 841(b)(1)(C). Most circuits that
have addressed this issue have concluded that § 841(b)(1)(C) provides only a
minimum term of supervised release, and that any term over that minimum may be
imposed notwithstanding the provisions of § 3583(b)(2). See, e.g., United States v.
Abbington,
144 F.3d 1003, 1006 (6th Cir. 1998); United States v. Bongiorno,
139 F.3d
640, 641 (8th Cir. 1998); United States v. Garcia,
112 F.3d 395, 397-98 (9th Cir.
1997); United States v. Orozco-Rodriguez,
60 F.3d 705, 707-08 (10th Cir. 1995);
United States v. Eng,
14 F.3d 165, 172-73 (2d Cir.), cert. denied,
115 S. Ct. 54 (1994).
But see United States v. Good,
25 F.3d 218, 221 (4th Cir. 1994) (a term of supervised
release under § 841 cannot exceed the maximum term authorized by § 3583(b));
United States v. Kelly,
974 F.2d 22, 24-25 (5th Cir. 1992) (same). We have no circuit
precedent on this issue.3
3
Appellants rely on United States v. Hofierka,
83 F.3d 357, 360 n.6 (11th Cir. 1996) in
support of their position. That case, however, merely noted that, pursuant to
18 U.S.C. § 3583(e),
the maximum term of imprisonment upon revocation of supervised release where the underlying
offense was a Class A felony drug offense was 5 years. Hofierka did not dispose of the issue
Appellants raise in this case.
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Appellants did not raise this issue before the district court. “Before an appellate
court can correct an error not raised at trial, there must be (1) error, (2) that is plain,
and (3) that affect[s] substantial rights. . . . If all three conditions are met, an
appellate court may then exercise its discretion to notice a forfeited error, but only if
(4) the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Swatzie, 228 F.3d, slip op. at 46 (quoting Johnson v. United States,
520
U.S. 461, 466-67,
117 S. Ct. 1544, 1548-49 (1997)). An error cannot meet the
“plain” requirement of the plain error rule if it is not “obvious” or “clear under current
law.” United States v. Humphrey,
164 F.3d 585, 588 (11th Cir. 1999) (quoting United
States v. Olano,
507 U.S. 725, 734,
113 S. Ct. 1770, 1777 (1993)); see also United
States v. Aguillard,
217 F.3d 1319, 1321 (11th Cir. 2000). We have therefore held
that “where neither the Supreme Court nor this Court has ever resolved an issue, and
other circuits are split on it, there can be no plain error in regard to that issue.”
Aguillard,
217 F.3d at 1321 (citing Humphrey,
164 F.3d at 588).
Here, there is no Supreme Court or Eleventh Circuit precedent on the issue of
whether § 3583(b)(2) provides the maximum term of supervised release for a
defendant sentenced under § 841(b)(1)(C). It is unnecessary for us to decide the issue
today. Not only are the other circuits that have addressed the issue split, but the
majority of them have resolved it against the position Appellants take here.
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Accordingly, the district court could not have committed plain error in imposing terms
of supervised release in excess of 3 years, regardless of the quantity of drugs involved.
See Aguillard,
217 F.3d at 1321.
III. Conclusion
For the reasons stated above, Appellants’ convictions and sentences are
affirmed.
AFFIRMED.
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