United States v. Nance, Wendell ( 2000 )

  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 00-1836
    United States of America,
    Wendell Nance, Sr.,
    Appeal from the United States District Court
    for the Southern District of Illinois.
    No. 4:98CR40057-001--J. Phil Gilbert, Judge.
    Argued September 28, 2000--Decided December 29, 2000
      Before Manion, Rovner, and Diane P. Wood, Circuit
      Diane P. Wood, Circuit Judge. Wendell Nance, Sr.,
    and his son Wendell Nance, Jr. (nicknamed
    "Ardell"), were charged and convicted for
    conspiring to distribute crack cocaine, in
    violation of 21 U.S.C. sec.sec. 846 and
    841(a)(1). Ardell chose to plead guilty, but
    Wendell’s case went to trial before a jury. Only
    Wendell has appealed. Initially, he challenged
    only two aspects of his sentence, but with the
    permission of this court, he added an argument
    that his sentence of 262 months was unlawful
    under the Supreme Court’s recent decision in
    Apprendi v. New Jersey, 
    120 S. Ct. 2348
     (2000). We
    agree that in principle his sentence of more than
    240 months (or 20 years) cannot be reconciled
    with Apprendi./1 Nevertheless, we conclude that
    Wendell’s failure to raise this point before the
    trial court means that our review is for plain
    error only, and on the record of this case there
    is none. As there is no merit in his two
    challenges to his sentence, we therefore affirm
    both the conviction and the sentence.
      The underlying facts are typical of the many
    cocaine conspiracy cases that reach this court.
    The two Nances moved to DuQuoin, Illinois, a
    small town north of Carbondale, in late February
    1998. Over the next month, they participated with
    several others in a cocaine distribution
    operation. Wendell, along with Ardell and co-
    conspirators David Jones and Dexter Dunklin, made
    a number of trips to St. Louis, Missouri, to
    purchase crack cocaine for redistribution in
    DuQuoin. On two such trips, Ardell and Jones
    obtained money from Wendell for the purchases,
    and upon their return they gave Wendell his share
    of the drugs. Jones testified that Ardell
    purchased between 1/8 ounce (3.5 grams) and 1/4
    ounce (7 grams) on each trip. After Ardell’s
    arrest on March 25, 1998, Jones and Wendell made
    two more trips to St. Louis to purchase more
    crack cocaine. Other evidence suggested that the
    total number of trips was at least seven, and
    apparently many more than that.
      While in DuQuoin, Wendell lived in Gynelle
    Ledbetter’s apartment. Not only did he also store
    his crack there, but he also made no secret of
    that fact. Ledbetter testified that on one
    occasion, he was in her residence with two large
    rocks of crack cocaine. She described one of them
    as approximately the size of a golf ball, and the
    other as slightly smaller. Wendell cut the
    smaller rock into 27 resale portions. Another
    witness, Shirley Horner (Ledbetter’s sister),
    also testified that she saw Wendell with a golf
    ball-sized chunk of crack cocaine at Ledbetter’s
      At the trial, Ardell testified that in late
    March Wendell told him to go to his grandmother’s
    house in Kansas to retrieve an SKS assault rifle.
    He explained that Wendell was concerned that the
    success of his new crack business might attract
    the attention of thieves. On his way back from
    Kansas, with the rifle in his possession, Ardell
    stopped in St. Louis to buy more cocaine for
    himself and Wendell. Once back in DuQuoin, Ardell
    stored the rifle at Phyllis Woody’s trailer,
    which was just a block from Ledbetter’s
    apartment. Wendell demonstrated that he knew
    where the rifle was located when, a short time
    later, he went to retrieve it and took it back to
    the Ledbetter apartment to break up an argument
    between David and Diane Jones. His methods were
    not too subtle: he pointed the rifle at the two
    troublemakers and threatened to shoot them, and
    he then threatened to shoot everyone. No one was
    shot, however, and afterwards Ledbetter and David
    Jones took the rifle and hid it in a storage
    locker in town.
      Eventually Ardell was   arrested, and then the
    conspiracy unraveled as   far as Wendell was
    concerned. The two were   charged under a simple
    indictment that read as   follows:
      From on or about March 1, 1998, to on or about
    April 7, 1998, in Perry County, within the
    Southern District of Illinois,
    WENDELL NANCE, SR., a/k/a Wendell Simmons,
    defendants herein, did conspire and agree with
    each other and with others known and unknown to
    the Grand Jury, to knowingly and intentionally
    distribute a mixture and substance containing
    cocaine base, commonly known as crack cocaine, a
    Schedule II, narcotic controlled substance, in
    violation of Title 21, United States Code,
    Sections 846 and 841(a)(1).
    Notably, although this particular indictment did
    identify the type of drug the defendants were
    accused of conspiring to distribute, it said
    nothing about the drug quantity.
      At the sentencing stage, the two principal
    issues concerned the proper calculation of the
    quantity of crack cocaine for which Wendell was
    to be held responsible, see U.S.S.G. sec. 1B1.3
    and Application Note 2, para. 6, and the question
    whether the 2-level offense level increase for
    possession of a dangerous weapon should be
    imposed, see U.S.S.G. sec. 2D1.1(b)(1). The court
    concluded that the amount fell between 50 grams
    and 150 grams of crack, which gave a starting
    offense level of 32 under sec. 2D1.1 (c)(4). In
    doing so, it relied principally on a proffer
    statement that Ardell gave that estimated the
    total quantity as somewhere between 50 and 150
    grams--an estimate that the presentence report
    also relied upon. The court also found, based on
    the testimony about the SKS rifle, that the 2-
    level enhancement was indeed called for, which
    gave a final offense level of 34. Wendell’s
    criminal history category was VI; the prescribed
    Sentencing Guidelines range was therefore 262-327
    months; and his final sentence as noted was 262
    months to be followed by five years of supervised
      The most important question now before us
    concerns the effect of Apprendi on Wendell’s
    conviction and sentence. We therefore address it
    first, and then we turn to the points he has
    raised concerning only his sentence.
      The issue that the Court addressed in Apprendi-
    -whether a particular fact should be regarded as
    an element of the offense (and hence as something
    that must be charged in the indictment, submitted
    to the jury, and proven by the government beyond
    a reasonable doubt), or merely as a sentencing
    factor--was not a new one for the Court, even
    though it expressed the governing principles in
    Apprendi with greater clarity and more
    unequivocally than it had done in prior cases. We
    reviewed the line of cases that had led up to
    Apprendi in United States v. Smith, 
    223 F.3d 554
    563-66 (7th Cir. 2000). Perhaps the most
    important pre-Apprendi decision for our purposes
    was Jones v. United States, 
    526 U.S. 227
    in which the Court held that 18 U.S.C. sec. 2119,
    the federal carjacking statute, created three
    separate offenses, not just three sentencing
    levels for one offense, depending on the harm
    that the offender inflicted during the course of
    the crime. Jones was handed down on March 24,
    1999; Wendell’s trial began on May 3, 1999. Thus,
    in addition to the earlier decisions from the
    Supreme Court that were mentioned in Smith, it
    was clear at the time of Wendell’s trial that
    serious questions could be raised about the
    proper characterization of aggravating factors
    under many statutes.
      Indeed, as far back as 1997 defendants were
    arguing to this court that the type of drug that
    they were charged with distributing in violation
    of 21 U.S.C. sec. 841 was an element of the
    offense that had to be proven to the jury beyond
    a reasonable doubt. In United States v. Edwards,
    105 F.3d 1179
     (7th Cir. 1997), affirmed, 
    523 U.S. 511
     (1998), we rejected that claim, finding that
    under the Sentencing Guidelines drug type was a
    sentencing factor that could be determined by the
    sentencing judge and needed only to be proven by
    a preponderance of the evidence. Id. at 1180-81.
    To similar effect, the defendants in United
    States v. Jackson, 
    207 F.3d 910
     (7th Cir. 2000),
    argued that Jones required us to overrule cases
    like Edwards and to recognize that drug
    quantities and drug types were both elements of
    the offense created by 21 U.S.C. sec. 841. See
    id. at 920-21. We rejected that argument too, but
    the fact that it was made and that we considered
    it shows that it was a theory available to
    defendants even before Apprendi. Wendell,
    however, did not raise the point in the district
    court, and this court’s decision in Jackson was
    still practically a year in the future. (Even if
    Jackson had already been decided, a responsible
    lawyer could have preserved the right to argue on
    appeal that Jackson was inconsistent with Jones
    by raising the issue with the district court.)
      Under the circumstances, we conclude that
    Wendell forfeited his right to argue that the
    quantity of drugs involved should have been
    charged in the indictment and proved beyond a
    reasonable doubt. Our review at this stage is
    therefore only for plain error. Under Johnson v.
    United States, 
    520 U.S. 461
     (1997), we must
    decide (1) whether there was an error at all, (2)
    whether it was plain, (3) whether it affected the
    defendant’s substantial rights, and (4) whether
    (if the first three factors are present) it
    seriously affected the fairness, integrity, or
    public reputation of the judicial proceedings.
    Id. at 466-67.
      Although we have found it unnecessary in a
    number of cases to decide whether Apprendi
    effectively overruled our holding in Jackson that
    drug type and quantity are sentencing factors,
    see, e.g., United States v. Cavender, 
    228 F.3d 792
     (7th Cir. 2000); Talbott v. Indiana, 
    226 F.3d 866
     (7th Cir. 2000), the question is squarely
    presented here because Wendell’s sentence
    exceeded the statutory maximum of 20 years found
    in 21 U.S.C. sec. 841(b)(1)(C). Under the
    statute, a sentence as long as Wendell’s is
    available only under 21 U.S.C. sec.
    841(b)(1)(B)(iii), which permits a sentence of up
    to 40 years in prison for a violation that
    involves 5 grams or more of cocaine base, or
    under 21 U.S.C. sec. 841(b)(1)(A)(iii), which
    permits even a life sentence if 50 grams or more
    of cocaine base are involved. (We note for the
    sake of completeness that Wendell is not arguing
    that there is a problem with the drug type in his
    case. First, the indictment specified that the
    substance was cocaine base. In its instructions
    to the jury, the court stated that the defendant
    had been charged with "the offense of conspiracy
    to distribute cocaine base, commonly known as
    crack cocaine"; it told the jury that they had to
    be convinced beyond a reasonable doubt that the
    defendant was "guilty as charged"; and it
    instructed the jury that crack cocaine was a
    Schedule II narcotic controlled substance. Thus,
    it is clear that everything Apprendi could have
    required with respect to drug type was done
      We are not the first circuit to consider the
    question whether defendants may be subjected to
    an enhanced sentence based on drug type and
    quantity, as provided in sec. 841(b), without
    charging and proving those facts. More
    importantly, our sister circuits have thus far
    unanimously concluded that Apprendi means that
    they may not. See United States v. Rogers, 
    228 F.3d 1318
    , 1326-28 (11th Cir. 2000); United
    States v. Doggett, 
    230 F.3d 160
     (5th Cir. 2000);
    United States v. Angle, 
    230 F.3d 113
     (4th Cir.
    2000); United States v. Nordby, 
    225 F.3d 1053
    1056 (9th Cir. 2000); United States v. Rebmann,
    226 F.3d 521
    , 524 (6th Cir. 2000); United States
    v. Aguayo-Delgado, 
    220 F.3d 926
    , 931 (8th Cir.
    2000). Furthermore, we note that the Supreme
    Court vacated this court’s decision in United
    States v. Whitt, 
    211 F.3d 1022
     (7th Cir. 2000),
    in which we rejected the defendant’s arguments
    that the amount of drugs for which he was to be
    held responsible was a matter for the jury. See
    211 F.3d at 1026 n.10. See Whitt v. United
    121 S. Ct. 423
     (2000). The Court’s order
    directed us to reconsider Whitt, which had relied
    on our earlier decision in Jackson, in light of
    Apprendi. To similar effect, the Court vacated
    and remanded the judgment of this court in United
    States v. Hughes, 
    213 F.3d 323
     (7th Cir. 2000),
    for further consideration in light of Apprendi,
    even though it is not clear that the defendant
    there argued that he was entitled to a jury on
    the quantity issue. See Hughes v. United States,
    121 S. Ct. 423
      We agree with our sister circuits that Apprendi
    indeed requires us to overrule that part of our
    Jackson decision that concluded that drug
    quantities under sec. 841(b) are always a
    sentencing factor. By the same token, however, as
    we have indicated in cases like Talbott, 226 F.3d
    at 869-70, and Hernandez v. United States, 
    226 F.3d 839
    , 841-42 (7th Cir. 2000), (albeit in the
    context of deciding whether an error under
    Apprendi supports a second or successive petition
    for a writ of habeas corpus), the Apprendi rule
    applies only to drug quantities that permit a
    sentence in excess of the default statutory
    maximum of twenty years. In this case, Wendell’s
    sentence of 262 months exceeded that statutory
    maximum. This brought him into the range
    authorized by sec. 841(b)(1)(B), which provides
    for a maximum term of imprisonment of 40 years
    for an offense that (among other things) involves
    "5 grams or more of a mixture or substance
    described in clause (ii) [which includes cocaine]
    which contains cocaine base." Under Apprendi,
    before Wendell could receive a sentence greater
    than 20 years but no more than 40 years, the
    indictment should have charged that he had
    conspired to distribute 5 grams or more of the
    cocaine base mixture and that issue should have
    been submitted to the jury and proven beyond a
    reasonable doubt by the government.
      Granting that the failure to take these steps
    was an error, we must now decide whether that
    error requires us to vacate Wendell’s sentence
    and to remand the case for resentencing, or if
    this is the kind of error subject to harmless
    error analysis. Two aspects of this case convince
    us that reversal is not required. First, as we
    have already noted, Wendell failed to preserve
    his objection to the indictment and to the fact
    that the drug quantity issue was not presented to
    the jury, and thus our review is for plain error.
    Second, even if it were not plain error, we would
    still need to consider whether this was a
    harmless error under Neder v. United States, 
    527 U.S. 1
     (1999), or if it was a structural error so
    fundamental that it cannot be left unremedied.
      The list in Neder of errors not subject to
    harmless error analysis is a short one, as the
    Court itself emphasized. See 527 U.S. at 8
    (mentioning complete denial of counsel, biased
    trial judge, racial discrimination in grand jury
    selection, denial of self-representation at
    trial, denial of public trial, and defective
    reasonable doubt instruction as examples of
    structural errors). The Court there rejected the
    contention that a jury instruction error that
    omits an element of the offense falls within that
    narrow class; it held instead that this was in
    the broader group of trial errors that may be
    subjected to harmless error review. In our view,
    the errors about which Wendell is complaining are
    analogous to the instructional error the Court
    considered in Neder. (Indeed, part of Wendell’s
    argument is precisely that the instructions to
    the jury did not require it to find drug
    quantity; part of the argument, however, focuses
    on the indictment.) Whether or not we are
    applying the stringent plain error screen, the
    Apprendi error therefore requires us to ask
    whether it is "clear beyond a reasonable doubt
    that a rational jury would have found the
    defendant guilty absent the error." Id. at 18.
      For plain error purposes, even if we grant that
    an error was made (as we have found), and we
    grant that the error was "plain" and affected the
    defendant’s substantial rights (by increasing the
    sentence by 22 months), we must still decide
    whether it seriously affected the "fairness,
    integrity, or public reputation of the judicial
    proceedings." Johnson v. United States, 520 U.S.
    at 466-67. If it is clear beyond a reasonable
    doubt that a properly worded indictment and a
    properly instructed jury would have found Wendell
    guilty absent this error, then we cannot say that
    the error was so serious that it requires us to
    set aside the judgment.
      If this jury was going to convict Wendell at
    all--which it plainly did--there is simply no way
    on this record that it could have failed to find
    that he was conspiring to distribute 5 grams or
    more of crack cocaine. One does not need to find
    that the district court’s assessment that
    approximately 102 grams was involved was accurate
    beyond a reasonable doubt to reach this
    conclusion. Almost any piece of evidence tending
    to prove the conspiracy standing alone would have
    done the job. Ardell, for example, testified that
    on his first trip to St. Louis he purchased 1/4
    ounce (7 grams) and 1/16 ounce (1.75 grams) of
    crack. David Jones testified to at least four
    trips to St. Louis to purchase drugs for the
    conspiracy, and he said that Ardell bought
    between 3.5 grams and 7 grams on each trip, for
    a total of 14 to 28 grams. Agent Dueker’s
    estimates of the amounts the defendants handled
    included one single occasion where an entire
    ounce, or 28 grams, was purchased, as well as
    several other occasions where lesser amounts
    (still above 5 grams) were involved. Reviewing
    this record as a whole, we are satisfied that the
    stringent Neder standard has been met, and that
    this jury would have found Wendell guilty beyond
    a reasonable doubt of a crime involving 5 grams
    or more of crack cocaine. The error did not
    seriously affect the public integrity, fairness,
    or reputation of these proceedings, and thus we
    will not upset the verdict on plain error review.
      Last, we touch briefly on the sentencing points
    that formed the original basis of Wendell’s
    appeal. He argues that the district court should
    not have given him a two point increase in his
    sentencing level for using a weapon in connection
    with the conspiracy, as required by U.S.S.G. sec.
    2D1.1(b)(1), and that it erred in determining the
    amount of crack cocaine for which he could be
    sentenced. We consider both these arguments under
    the clear error standard of review.
      The weapons enhancement is required "[i]f a
    dangerous weapon (including a firearm) was
    possessed" in connection with the offense. Here,
    the government argued that Wendell and his co-
    conspirators possessed the SKS assault rifle that
    Ardell had fetched from his grandmother’s house
    in connection with the conspiracy. The district
    court agreed, and we find no clear error in its
    decision. Ardell had the weapon in his possession
    when he and Dexter stopped to purchase crack in
    St. Louis; Wendell himself brought the gun from
    Phyllis Woody’s trailer to Ledbetter’s apartment,
    the center of the conspiracy’s operations; and
    Dexter testified that Wendell admitted that he
    wanted to use the weapon to protect himself in
    case the drug operation got out of hand. This is
    more than enough evidence to support the district
    court’s finding.
      Even without the Apprendi issue, the court’s
    finding that a quantity of 102 grams was involved
    remains important, as this is what determines the
    initial offense level for purposes of sec.
    2D1.1(c) of the Sentencing Guidelines. The
    district court was entitled to credit Ardell’s
    proffer statement, in which Ardell estimated the
    amount to be somewhere between 50 and 150 grams.
    In addition, there was other evidence supporting
    this range. Apart from the proffer statement,
    Ardell testified that during the course of a
    five-week period he traveled to St. Louis every
    two or three days to purchase crack. This amounts
    to at least 42 grams by itself, if we assume only
    every three days and the smaller amount of 3.6
    grams per trip (instead of 7, as it might have
    been). Other conspirators made similar trips, as
    did Wendell himself, which easily took the total
    over the 50 gram mark. There was no clear error
    in the court’s decision to accept the 102 gram
    number, which was the one used in the Presentence
    Report, and to rely on the evidence before it.
      For these reasons, we AFFIRM the judgment of the
    district court.
    /1 Because this holding overrules part of our
    earlier decision in United States v. Jackson, 
    207 F.3d 910
     (7th Cir. 2000) (which was handed down
    before the Court decided Apprendi), the opinion
    has been circulated to all judges in regular
    active service under Circuit Rule 40(e). All have
    voted not to hear this matter en banc.