United States v. Pineiro ( 2004 )

  •                                                          United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                            REVISED AUGUST 3, 2004
                                                                     July 12, 2004
                                                               Charles R. Fulbruge III
                             FOR THE FIFTH CIRCUIT                     Clerk
                                 No. 03-30437
                                          Plaintiff - Appellee
         FRANCISCO D PINEIRO, also known as Frank Pineiro
                                          Defendant - Appellant
               Appeal from the United States District Court
                   for the Western District of Louisiana
    Before KING, Chief Judge, and BARKSDALE and PICKERING, Circuit
    KING, Chief Judge:
         In this case we are called upon to consider the impact on
    the federal Sentencing Guidelines of the Supreme Court’s recent
    opinion in Blakely v. Washington, 
    124 S. Ct. 2531
     (June 24,
    2004).    Defendant Francisco D. Pineiro was convicted in the
    district court of violating the federal controlled-substances
    laws.    During sentencing, the district judge followed then-
    uncontroversial pre-Blakely procedures and made various factual
    findings that determined Pineiro’s sentencing range under the
         This court assuredly will not be the final arbiter of
    whether Blakely applies to the federal Guidelines, but the
    unremitting press of sentencing appeals requires us to produce a
    decision.   We have undertaken to discern, consistent with our
    role as an intermediate appellate court, what remains the
    governing law in the wake of Blakely.      Having considered the
    Blakely decision, prior Supreme Court cases, and our own circuit
    precedent, we hold that Blakely does not extend to the federal
    Guidelines and that Pineiro’s sentence did not violate the
    Constitution.   Accordingly, the defendant’s sentence is affirmed.
                               I. BACKGROUND
         A three-count indictment charged Pineiro with committing
    federal drug offenses.   Count one charged Pineiro with carrying
    on a marijuana- and cocaine-distribution conspiracy, involving at
    least 100 kilograms of marijuana and 50 grams of cocaine, in
    violation of 21 U.S.C. §§ 841(a)(1) and 846.1     Count two charged
    him with possessing and aiding and abetting possession with
    intent to distribute approximately three-fourths of a pound of
              Section 841(a)(1) provides that “it shall be unlawful
    for any person knowingly or intentionally . . . to manufacture,
    distribute, or dispense, or possess with intent to manufacture,
    distribute, or dispense, a controlled substance.” Section 846
    makes it a crime to “attempt[] or conspire[] to commit any
    offense defined in this subchapter.”
    marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
    § 2.2       Count three charged him with possessing and aiding and
    abetting possession with intent to distribute approximately
    twenty-one pounds of marijuana in violation of 21 U.S.C.
    § 841(a)(1) and 18 U.S.C. § 2.
            Pineiro pleaded not guilty, and his case proceeded to trial.
    On the first count of the indictment, the verdict form required
    the jury to indicate the amounts (if any) of marijuana and
    cocaine that the jury found that Pineiro had conspired to
    distribute.       As to marijuana, the jury could choose whether
    Pineiro was guilty of conspiring to distribute “100 kilograms or
    more,” “50 to 100 kilograms,” “less than 50 kilograms,” or
    whether he was not guilty.       Similarly, for cocaine, the jury
    could choose from “50 grams or more,” “50 grams or less,” or not
    guilty.3       The jury found Pineiro guilty of conspiring to
    distribute the lowest amounts listed: “less than 50 kilograms” of
    marijuana and “50 grams or less” of cocaine.       The jury also found
    Pineiro guilty as charged on counts two and three.
            Based on the drug quantities found by the jury, the maximum
    sentences set forth in the United States Code were 20 years for
              Section 2 is the United States Code’s general
    prohibition on aiding and abetting violations of the federal
    criminal statutes.
              Some of the amounts on the verdict form do not line up
    with the gradations in 21 U.S.C. § 841(b). At oral argument we
    inquired as to why the form was confected in this way, but
    neither side could provide an explanation.
    count one, see 21 U.S.C. § 841(b)(1)(C) (establishing maximum
    sentences for any amount of cocaine less than 500 grams), and 5
    years for counts two and three, see id. § 841(b)(1)(D)
    (establishing maximum sentences for less than 50 kilograms of
         In accordance with the usual practice, a probation officer
    prepared a Presentence Investigation Report (PSR) to assist the
    judge in determining an appropriate sentence within the statutory
    range.   The PSR used the 2002 version of the United States
    Sentencing Commission’s Guidelines Manual.    The PSR held Pineiro
    responsible for amounts of drugs much greater than the amounts
    found by the jury: based on statements from several unnamed
    cooperating witnesses, the PSR indicated that Pineiro was
    responsible for 453.6 kilograms of marijuana and 1,048.95 grams
    of cocaine in connection with the conspiracy charge.    Based on
    this quantity of illegal drugs, the PSR concluded that the base
    offense level for the first count was 28.    See U.S.S.G.
    § 2D1.1(c) (Drug Quantity Table).    The PSR further recommended
    that Pineiro also receive a four-level sentence enhancement under
    U.S.S.G. § 3B1.1(a) for being “an organizer or leader” of the
    conspiracy.   The resulting total offense level of 32, when
    combined with Pineiro’s criminal history category of I (he had no
    prior convictions), yielded a Guidelines sentencing range of 121
    to 151 months.
         Pineiro objected to the PSR on several grounds, two of which
    are relevant to this appeal.   First, he objected to the base
    offense level of 28, complaining that the jury’s findings with
    respect to drug quantities required a lower base offense level.
    His objection argued that using the larger quantities would
    conflict with Apprendi v. New Jersey, 
    530 U.S. 466
     (2000), and
    would disrespect “the sanctity of the jury proceedings.”   Second,
    he objected to the four-level “organizer or leader” enhancement
    on the ground that the evidence at trial did not support such a
    factual finding, but he did not raise the constitutional claim
    regarding this enhancement.
         The district court overruled Pineiro’s objections and
    sentenced him to 121 months on the first count, 60 months on the
    second count, and 60 months on the third count, with the
    sentences to run concurrently.
         Piniero then appealed his sentence.   In his initial brief,
    he conceded that his Apprendi-based challenge to the district
    court’s drug-quantity calculation was foreclosed by circuit
    precedent, but he nonetheless raised the issue to preserve it for
    further review.   After briefing was completed but before oral
    argument, the Supreme Court decided Blakely, and we ordered
    supplemental briefing to assess its impact.   Pineiro contends
    that Blakely applies to the federal Guidelines and that his
    sentence must be vacated and the case remanded for resentencing.4
    The government contends that Blakely does not apply.
                               II. ANALYSIS
    A.   Impact of Blakely
         Had today’s case been decided a month ago, Pineiro’s
    Apprendi challenge would not have been a difficult one to
    resolve.   Although post-verdict judicial findings of fact
    increased Pineiro’s sentence substantially, the resulting
    sentence does not exceed the statutory maximum set forth in the
    United States Code.   We therefore would simply have applied long-
    entrenched circuit precedent that holds Apprendi inapplicable to
    such circumstances.   See, e.g., United States v. Floyd, 
    343 F.3d 363
    , 372 (5th Cir. 2003), cert. denied, 
    124 S. Ct. 2190
    United States v. McIntosh, 
    280 F.3d 479
    , 484 (5th Cir. 2002);
    United States v. Keith, 
    230 F.3d 784
    , 787 (5th Cir. 2000), cert.
    531 U.S. 1182
     (2001); Doggett, 230 F.3d at 165-66.    This
    line of authority embraces the view that judge-made factual
              Pineiro argues, and we agree, that his Apprendi-based
    objection to the PSR’s drug-quantity calculations was sufficient
    to preserve for de novo appellate review the constitutional
    challenge to his sentence. See United States v. Doggett, 
    230 F.3d 160
    , 162-63, 165 (5th Cir. 2000) (holding that an objection
    to a PSR based on Jones v. United States, 
    526 U.S. 227
    preserved an Apprendi challenge to the defendant’s sentence). As
    to the sentence enhancement for being a leader or organizer,
    Pineiro does not claim that his fact-based objection to the PSR
    was sufficient to preserve the constitutional issue; he claims,
    however, that the district court committed reversible plain error
    in light of Blakely.
    findings that determine Guidelines ranges below the
    congressionally enacted maximum sentence are constitutionally
    equivalent to the sentencing judge’s historic discretion to
    choose a sentence within a legislatively authorized range.    But
    because of the Supreme Court’s recent decision in Blakely, we are
    now required to consider the viability of that line of cases, and
    indeed the continued force of certain prior Supreme Court
    decisions as well.   Committed as we are to principles of stare
    decisis and orderliness, we do not depart from settled law in the
    absence of an on-point en banc or Supreme Court holding.     See,
    e.g., Robinson v. Parsons, 
    560 F.2d 720
    , 721 n.2 (5th Cir. 1977).
         Blakely involved the sentencing regime of the State of
    Washington.   The Washington criminal code establishes maximum
    sentences for felonies according to whether the crime is a class
    A, B, or C felony.   Also codified as part of the state statutes,
    however, is the Sentencing Reform Act, which establishes
    presumptive sentencing ranges based on the “seriousness level” of
    the offense and the offender’s criminal history.   The seriousness
    level of the offense is for the most part a function of the
    statute of conviction.   The Act permits the judge to impose a
    sentence above the presumptive range when there exist
    “substantial and compelling reasons justifying an exceptional
    sentence.”    The Act sets out a list of such factors, but the list
    is only illustrative, not exhaustive.   A factor is a permissible
    reason for imposing an exceptional sentence only if it is not
    already taken into account in the calculation of the presumptive
         Blakely pleaded guilty to second-degree kidnaping with a
    firearm.   As a class B felony, it was punishable under the state
    criminal code by a sentence of up to 10 years.    The Sentencing
    Reform Act, though, specified a presumptive range of only 49 to
    53 months for this particular crime.   At sentencing, the judge
    imposed an exceptional sentence of 90 months on the ground that
    Blakely had acted with “deliberate cruelty,” a statutorily
    enumerated ground for upward departure.   The defendant objected
    to the increase, but the trial judge adhered to his decision
    after conducting a three-day bench hearing.
         In reaching its decision that Blakely’s sentence was imposed
    in violation of the Constitution, the Supreme Court took as its
    primary precedent its decision in Apprendi v. New Jersey.
    Apprendi involved two New Jersey statutes, one that authorized a
    10-year term for the second-degree offense of unlawful possession
    of a firearm and a second statute that provided for a term of 10
    to 20 years if the trial judge found that the defendant acted
    with the intent to intimidate the victim based on his race or
    other protected statuses.   530 U.S. at 468-69.   The Apprendi
    Court concluded that the factual findings supporting the enhanced
    sentence had to be made by the jury, not the judge.    “Other than
    the fact of a prior conviction,” the Court held, “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.”   Id. at 490 (emphasis added).   Two years
    later, in Ring v. Arizona, 
    536 U.S. 584
    , 597, 604-09 (2002), the
    Court applied Apprendi to an Arizona capital-sentencing statute
    that permitted imposition of the death penalty when a judge found
    one of ten aggravating factors.   As the Court described them in
    Blakely, the Apprendi and Ring decisions both held “that the
    defendant’s constitutional rights had been violated because the
    judge had imposed a sentence greater than the maximum he could
    have imposed under state law without the challenged factual
    finding.”   Blakely, slip op. at 6-7.
         The aspect of Blakely that threatens the federal Guidelines
    is the Court’s reasoning regarding the relevant “statutory
    maximum” for Apprendi purposes.   The State argued that the
    relevant maximum was the 10-year maximum that the criminal code
    specified for class B felonies.   Since the judge’s exceptional
    90-month sentence was still within the 10-year maximum, the State
    contended that there was no Apprendi violation.     The Court
    pointedly rejected that argument, instead concluding that the
    relevant maximum was 53 months, the top of the presumptive
    sentencing range under Washington’s Sentencing Reform Act:
         Our precedents make clear . . . that the “statutory
         maximum” for Apprendi purposes is the maximum sentence a
         judge may impose solely on the basis of the facts
         reflected in the jury verdict or admitted by the
         defendant. In other words, the relevant “statutory
         maximum” is not the maximum sentence a judge may impose
         after finding additional facts, but the maximum he may
         impose without any additional findings. When a judge
         inflicts punishment that the jury’s verdict alone does
         not allow, the jury has not found all the facts “which
         the law makes essential to the punishment,” and the judge
         exceeds his proper authority.
    Id. at 7 (citations omitted).   The Court then pointed out that
    the trial judge could not have imposed the 90-month sentence
    based solely on the facts admitted in the guilty plea.     Id. at 7-
    8.   To support that sentence, the judge had to find the
    aggravating factor.   The Court explained:
         The “maximum sentence” is no more 10 years here than it
         was 20 years in Apprendi (because that is what the judge
         could have imposed upon finding a hate crime) or death in
         Ring (because that is what the judge could have imposed
         upon finding an aggravator).
    Id. at 8.
         The Court acknowledged, and did not overrule, prior cases
    upholding sentencing schemes that impose a mandatory minimum
    sentence based on judge-made factual findings.     See Harris v.
    United States, 
    536 U.S. 545
     (2002); McMillan v. Pennsylvania, 
    477 U.S. 79
     (1986).   The Court also reaffirmed the constitutionality
    of indeterminate-sentencing regimes in which a sentencing judge
    may, but need not, rely on factual determinations outside of the
    verdict in fixing a sentence within a broad statutory range.       See
    Williams v. New York, 
    337 U.S. 241
     (1949).    But the Court
    distinguished mandatory-minimum and indeterminate-sentencing
    systems from the Washington system on the ground that they did
    not involve sentences “greater than what state law authorized on
    the basis of the verdict alone.”     Blakely, slip op. at 8.
           Justice Scalia’s opinion for the Blakely majority noted that
    the federal Guidelines were not before the Court, and the Court
    expressly declined to express any opinion as to them.    Id. at 9
    n.9.    That disclaimer does not by itself mean that Blakely
    carries no import for the federal Guidelines, for the binding
    force of a Supreme Court decision is ordinarily not limited to
    the particular set of facts that produces it.   Indeed, the
    dissenting Justices certainly thought that the Court’s reasoning
    might foretell the end of the federal Guidelines.    See id. at 12-
    13 (O’Connor, J., dissenting); id. at 19-21 (Breyer, J.,
    dissenting).    That prophecy has already been realized in several
    courts across the country, see, e.g., United States v. Booker,
    No. 03-4225 (7th Cir. July 9, 2004); United States v. Croxford,
    No. 2:02-CR-00302PGC, 
    2004 WL 1521560
     (D. Utah July 7, 2004),
    though those courts have reached no consensus on how sentencing
    is to proceed after the overthrow of the old regime.
           In the wake of Blakely, the constitutional fate of the
    federal Guidelines depends on whether the Guidelines effectively
    operate as statutes that define different offenses with different
    maximum sentences; expressed in different terms, the question is
    whether a Guidelines sentencing range unenhanced by judicial
    findings sets a “maximum sentence” for purposes of Apprendi.     If
    that is how the Guidelines operate, then Pineiro’s sentence is
    unconstitutional because the verdict did not authorize the
    sentence; instead, the judge’s findings effectively determined
    the offense of which Pineiro was convicted.       The competing vision
    of how the Guidelines operate--the position that the government
    urges--pictures the Guidelines as a tool for channeling the
    sentencing court’s historic discretion to choose a sentence
    within the broad range established by the crime’s statutory
    (i.e., United States Code) minimum and maximum.      On this second
    view, a sentencing judge’s factual findings under the Guidelines
    do not raise the “maximum sentence” to which the defendant is
    exposed, the infirmity that the Court identified in Apprendi and
    Ring; the only constitutionally relevant “maximum sentence,”
    according to this second view, is the 20-year sentence authorized
    in § 841 of Title 21 of the United States Code.      The
    constitutional implication of this second view is that judge-made
    factual findings that determine Guidelines ranges within the
    statutory maximum are no more problematic than the sentencing
    judge’s historic discretion to choose a sentence within a
    legislatively authorized range.    As explained more fully below,
    both the Supreme Court and this court have for some time embraced
    the second vision of how the Guidelines operate.
         Undeniably, Blakely strikes hard at the prevailing
    understanding of the Guidelines.       The Guidelines, unlike
    Washington’s Sentencing Reform Act, are not statutes, but they
    are nonetheless binding on sentencing courts.       See Stinson v.
    United States, 
    508 U.S. 36
    , 42, 44-45 (1993).       Federal statutes
    direct the district judge to follow the Guidelines.        See 18
    U.S.C. § 3553(b) (stating that the sentencing court “shall impose
    a sentence of the kind, and within the range,” established by an
    applicable Guideline).   Like the judge who disregards the
    Washington sentencing rules, a federal judge who disregards the
    Guidelines does so on pain of reversal.    The Guidelines Manual is
    not a catalog of mere suggestions.
         But Blakely, which did not actually involve the federal
    Guidelines, is not the only case that we must consider.    While we
    are bound to follow Blakely, as an inferior court we are also
    bound to examine the Supreme Court’s prior pronouncements and
    guidance regarding the nature of the Guidelines.    That
    examination reveals that a number of the Court’s prior cases,
    including cases that reject various constitutional challenges to
    the Guidelines, are founded on the proposition that there are
    constitutionally meaningful differences between Guidelines ranges
    and United States Code maxima.    These cases paint a picture of
    how the Guidelines operate that clashes with the one that Pineiro
    would have us adopt.
         In canvassing those prior rulings, we look first to
    Mistretta v. United States, 
    488 U.S. 361
     (1989).     Decided shortly
    after the promulgation of the Guidelines, Mistretta upheld them
    against constitutional arguments that Congress had delegated
    excessive authority to the Sentencing Commission and that the
    Commission was constituted in violation of the separation of
    powers.   Id. at 370-71, 380.    The opinion did not discuss the due
    process or Sixth Amendment considerations involved in Apprendi
    and Blakely, but the case is not without meaning for us.    In the
    course of the Court’s rejection of the argument that the
    placement of the Sentencing Commission in the judicial branch
    violated the separation of powers by placing legislative
    policymaking authority in the judiciary, see id. at 383, 385, the
    Court described the Guidelines as follows:
         [The Guidelines] do not bind or regulate the primary
         conduct of the public or vest in the Judicial Branch the
         legislative responsibility for establishing minimum and
         maximum penalties for every crime. They do no more than
         fetter the discretion of sentencing judges to do what
         they have done for generations--impose sentences within
         the broad limits established by Congress.
    Id. at 396 (emphasis added).   Thus, part of the reason that the
    Court was able to reject the separation-of-powers challenge was
    its conclusion that the Guidelines do not set maximum sentences
    in the same way as do congressional enactments.
         Later Supreme Court cases have consistently embraced and
    relied on the distinction between Guidelines ranges and maximum
    sentences in rejecting various challenges to the Guidelines.      One
    example of this practice is Edwards v. United States, 
    523 U.S. 511
     (1998).   The defendants in Edwards were charged with
    conspiring to distribute cocaine powder and crack.   The jury
    convicted them, but the instructions stated that the government
    only had to prove a conspiracy involving powder or crack.    In
    determining the sentence, the judge held the defendants
    responsible for certain amounts of both forms of the drug.   The
    defendants challenged their sentences on the ground that the
    sentencing judge was required by the Guidelines, the statutes,
    and the Constitution to consider only powder, which is punished
    less harshly than crack.   The unanimous Supreme Court disagreed.
    The Court’s opinion was mainly concerned with how the Guidelines’
    “relevant conduct” rules operate: Since the Guidelines instruct
    the judge to examine relevant conduct as well as conduct
    underlying the conviction, the crack could be considered even if
    the verdict were limited to powder.   Id. at 513-14.   But the
    Court also turned away a potential constitutional argument,
    observing that the defendants’ contentions might have been more
    persuasive had the defendants’ sentences exceeded the statutory
    maxima set forth in the United States Code.   Id. at 515.   This
    remark is only suggestive in itself--the Court did not really
    explain what the potential constitutional argument would be5--but
    it gathers meaning by virtue of the fact that the Court cited
    this passage from Edwards at the close of Apprendi:
         The Guidelines are, of course, not before the Court. We
         therefore express no view on the subject beyond what this
         Court has already held. See, e.g., Edwards v. United
    523 U.S. 511
    , 515 (1998) (opinion of BREYER, J.,
         for a unanimous court) (noting that “[o]f course,
         petitioners’ statutory and constitutional claims would
         make a difference if it were possible to argue, say, that
         the sentences imposed exceeded the maximum that the
         statutes permit for a cocaine-only conspiracy. That is
         because a maximum sentence set by statute trumps a higher
         sentence set forth in the Guidelines. [United States
              The defendants’ briefs show that they raised Sixth
    Amendment and due process considerations.
         Sentencing Commission, Guidelines Manual § 5G1.1 (Nov.
    Apprendi, 530 U.S. at 497 n.21.    Our precedents have accordingly
    read Apprendi as intending to leave undisturbed the rule,
    described in Edwards, that the sentencing judge may properly find
    facts that move the Guidelines range within the statutory
    maximum.   See United States v. McWaine, 
    290 F.3d 269
    , 274 (5th
    Cir.), cert. denied, 
    537 U.S. 921
     (2002); Doggett, 230 F.3d at
    166; see also United States v. Kinter, 
    235 F.3d 192
    , 201-02 (4th
    Cir. 2000) (similarly harmonizing Apprendi and Edwards).    Indeed,
    the Supreme Court’s own post-Apprendi cases have continued to
    treat the United States Code maximum as the relevant
    consideration for purposes of Apprendi.    See United States v.
    535 U.S. 625
    , 633 n.3 (2002) (noting that the defendants
    challenged the PSR’s determination that the crime involved 1.5
    kilograms of cocaine, which yielded a Guidelines offense level of
    38, but “they never argued that the conspiracy involved less than
    50 grams of cocaine base, which is the relevant quantity for
    purposes of Apprendi, as that is the threshold quantity for the
    penalty of life imprisonment in 21 U.S.C. § 841(b)(1)(A)”
    (emphasis added)).
         Also instructive is Witte v. United States, 
    515 U.S. 389
    (1995).    There, the drug-quantity calculations that supported the
    defendant’s sentence for a conviction arising from a 1991 drug
    transaction included quantities from an uncharged 1990 drug
    transaction as relevant conduct.      When the defendant was later
    indicted for the 1990 transaction, he moved to dismiss the
    indictment on double-jeopardy grounds.      The Court recognized that
    the inclusion of the 1990 conduct increased the defendant’s
    offense level and corresponding Guidelines range, but it pointed
    out that the sentence “still falls within the scope of the
    legislatively authorized penalty (5 to 40 years).”      Id. at 399
    (emphasis added).   The Court then concluded that the defendant’s
    first sentence did not count as “punishment” for the separate
    offense of committing the 1990 transaction.      Id. at 399-400.     The
    Court observed that courts had traditionally been permitted to
    use uncharged conduct to inform their sentencing discretion, and
    the Court specifically stated that the advent of the Guidelines,
    with their “relevant conduct” rules, did not mean that offenders
    were now being “punished” for uncharged conduct as a separate
    offense.   Id. at 397-402.   The Court concluded:
         Because consideration of relevant conduct in determining
         a   defendant’s   sentence    within   the    legislatively
         authorized   punishment    range   does    not   constitute
         punishment for that conduct, the instant prosecution does
         not violate the Double Jeopardy Clause’s prohibition
         against the imposition of multiple punishments for the
         same offense.
    Id. at 406.
         These cases, and others like them,6 do not discuss the Sixth
    Amendment right to a jury trial, and we do not pretend otherwise.
    What is true, however, is that the Supreme Court has repeatedly
    blessed the Guidelines and upheld them against sundry
    constitutional challenges, often employing the proposition that
    the United States Code, and not the Guidelines, establishes
    maximum sentences for offenses.    The Supreme Court’s cases, and
    ours, have articulated a particular vision of the interaction
    between the Guidelines and the United States Code, and it is a
    vision that has held constitutional meaning.   To reject that view
    of the Guidelines would not directly “overrule” any Supreme Court
    holding--a prerogative reserved unto the Court itself--but it
    would plainly create an unsettling tension with them.
         Blakely may have weakened the long-embraced distinction
    between United States Code maxima and Guidelines ranges, but we
    cannot conclude that Blakely–-which explicitly reserved comment
    on the Guidelines--has abolished the distinction’s importance.
    The sentencing scheme at issue in Blakely, like that involved in
    Apprendi, essentially established two distinct statutory maximum
    sentences, with the choice between them turning on judge-made
              See, e.g., United States v. Watts, 
    519 U.S. 148
    , 156
    (1997) (per curiam) (stating that “we have held that application
    of the preponderance standard at sentencing generally satisfies
    due process”). The Watts Court held that the sentencing judge
    could consider conduct underlying charges of which the defendant
    had been acquitted, the same factual scenario at issue in today’s
    case. See id. at 156-57.
    findings of fact.    In such a circumstance, it makes sense to say
    that the legislature has effectively created distinct offenses.7
    When the legislature has thus created different offenses, the
    defendant has a right to have a jury of his peers decide whether
    he is guilty of all of the elements of the more aggravated
    offense.    See Apprendi, 530 U.S. at 476-77.   But the Guidelines
    do not present such a stark case.     We do not believe that the
    Sentencing Commission can be thought of as having created for
    each United States Code section a hundred different Apprendi
    “offenses” corresponding to the myriad possible permutations of
    Guidelines factors, with each “offense” then requiring jury
    findings on all of its (Guidelines-supplied) elements.     Given the
    nature of the Guidelines, we think the better view--and one that
    respects the prior decisions of both the Supreme Court and this
    court--is that the relevant “offenses” and “maximum punishments”
    are those defined and authorized by Congress in the United States
    Code.    Judicial findings under the Guidelines that set sentences
    within that authorized range therefore do not offend the
              See Ring, 536 U.S. at 609 (explaining that the judge’s
    finding of “an aggravating circumstance necessary for imposition
    of the death penalty . . . operates as the functional equivalent
    of an element of a greater offense” (internal quotation marks
    omitted)); Apprendi, 530 U.S. at 494 (observing that the effect
    of the hate-crime enhancement was “to turn a second-degree
    offense into a first-degree offense”).
         The Supreme Court might later decide that Blakely is broad
    enough to sweep away any distinction between the federal
    Guidelines and the statutes that the Court addressed in Apprendi,
    Ring, and Blakely; the peculiar nature of the Guidelines might
    not serve to save them from the fate of the statutes involved in
    those cases.    Cf. Blakely, slip op. at 12-13 (O’Connor, J.,
    dissenting).   Nonetheless, considering the entire matrix of
    Supreme Court and circuit precedent, we adhere to the position
    that the Guidelines do not establish maximum sentences for
    Apprendi purposes.    In writing these words we are more aware than
    usual of the potential transience of our decision.   We trust that
    the question presented in cases like this one will soon receive a
    more definitive answer from the Supreme Court, which can resolve
    the current state of flux and uncertainty; and then, if
    necessary, Congress can craft a uniform, rational, nationwide
    B.   Drug-quantity findings
         In light of our conclusion that Blakely does not apply to
    Pineiro’s case, the sentencing judge’s factual findings regarding
    drug quantities are not problematic under governing law.   The
    Guidelines direct the judge to impose a sentence based not only
    on the conduct reflected in the verdict but also on other related
    conduct.    See U.S.S.G. § 1B1.3; Edwards, 523 U.S. at 513-15.
    That was the proper approach in this case, notwithstanding the
    fact that the jury specifically acquitted Pineiro of the large
    drug quantities later found by the judge.    See Watts, 519 U.S. at
    152-57 (holding that the sentencing judge may consider drug
    quantities of which a defendant has been acquitted).
    C.   “Organizer or leader” enhancement
         The district court imposed a four-level enhancement under
    U.S.S.G. § 3B1.1 based on its conclusion that Pineiro acted as an
    “organizer or leader” of a criminal activity.   Pineiro objected
    on the ground that the evidence did not support such a finding.
    We review the district court’s interpretation and application of
    the Guidelines de novo and its underlying factual findings for
    clear error.    United States v. Cabrera, 
    288 F.3d 163
    , 168 (5th
    Cir. 2002).    A finding of fact is clearly erroneous if, based on
    a consideration of all the evidence, we are left with the
    definite and firm conviction that a mistake has been made.     Id.
         In deciding whether to impose the enhancement, the court is
    to consider the following factors: (1) the exercise of
    decisionmaking authority, (2) the nature of the defendant’s
    participation in the commission of the offense, (3) the
    recruitment of accomplices, (4) any claimed right to a larger
    share of the fruits of the crime, (5) the degree of participation
    in planning or organizing, (6) the nature and scope of the
    illegal activity, and (7) the degree of control or authority
    exercised over others.   U.S.S.G. § 3B1.1, cmt. n.4.
         Pineiro argues that the district court erred in applying the
    enhancement because the evidence showed only that he sold a
    substantial amount of drugs to his accomplices, not that he acted
    as a leader of the enterprise.   As he points out, several
    circuits have held that a buyer-supplier relationship is
    insufficient to qualify for the “organizer or leader” sentence
    enhancement.   See United States v. Sayles, 
    296 F.3d 219
    , 225 (4th
    Cir. 2002) (citing cases).   This record, however, discloses
    evidence that goes well beyond a mere buyer-seller relationship
    between Pineiro and his co-conspirators.   The evidence permits
    the conclusion, for instance, that Pineiro directed and paid
    several couriers, including a courier who acted for a co-
    conspirator.   The general character of the evidence, as a fact-
    finder could view it, is that Pineiro oversaw the logistics of a
    drug-distribution scheme in which he had drugs delivered from
    Mexico to his property in Texas and then acted as the exclusive
    supplier to several co-conspirators in Louisiana over the course
    of several years.   The evidence here is thus not unlike that in
    past cases in which we have upheld the organizer enhancement.
    See United States v. Cooper, 
    274 F.3d 230
    , 246-47 (5th Cir.
    2001); United States v. Castillo, 
    77 F.3d 1480
    , 1493 (5th Cir.
    1996).   Further, our precedents permit the district judge to
    consider the quantity of drugs supplied as one factor among
    others in considering the organizer enhancement, see United
    States v. Valencia, 
    44 F.3d 269
    , 273 (5th Cir. 1995), and, on the
    basis of the district court’s factual findings, a substantial
    amount of drugs was indeed involved.8   The evidence was
    conflicting on many issues, but we cannot say that we are left
    with a firm conviction that a mistake has been made.    Therefore,
    there was no clear error in imposing the enhancement.
                             III. CONCLUSION
         For the foregoing reasons, the defendant’s sentence is
              Pineiro also argues that, even if the district judge’s
    factual findings are not clearly erroneous considering the record
    as a whole, we must nonetheless vacate and remand for further
    findings because the district judge legally erred in imposing the
    enhancement solely on the basis of the PSR’s conclusion that
    Pineiro was a “supplier of drugs.” But the same paragraph of the
    PSR also stated more broadly that Pineiro was “responsible for
    the distribution” of a large amount of drugs, and other portions
    of the PSR (which the district court adopted) provided a factual
    basis for the organizer enhancement. Cf. Valencia, 44 F.3d at
    272-73 (rejecting an argument similar to Pineiro’s).