                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                                     PUBLISH
                                                                              FEB 27 2001
                     UNITED STATES COURT OF APPEALS
                                                                       PATRICK FISHER
                                                                                 Clerk
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                      No. 98-6487

 IRIS COLLETTE JACKSON,

          Defendant-Appellant.


      ON REMAND FROM THE UNITED STATES SUPREME COURT
                      (U.S. No. 00-5738)


Before BRORBY, McKAY, and BALDOCK, Circuit Judges.


BRORBY, Circuit Judge.


      This case is before us on remand for further consideration in light of the

Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). See

Jackson v. United States, ___ U.S. ___, 121 S. Ct. 621 (2000). At our request,

the parties submitted supplemental briefs addressing the Apprendi decision as

applied to the facts of this case. 1 Having considered these briefs and all


      1
         The United States’ unopposed Motion to File a Corrected Supplemental
Brief is granted.
applicable law, we conclude the district court erred by imposing a term of

imprisonment appropriate for offenses involving at least fifty grams of cocaine

base, even though Ms. Jackson had been indicted and convicted for committing

distinct offenses involving an unspecified quantity of cocaine base. We therefore

remand for re-sentencing.



                                   DISCUSSION

      Ms. Jackson was charged by a multi-count indictment with, inter alia,

distribution of cocaine base and possession with intent to distribute cocaine base,

all pursuant to 21 U.S.C. § 841(a)(1). The indictment clearly identified the

controlled substance at issue as “cocaine base (crack),” but did not specify the

amount of cocaine base involved in any count. The jury found Ms. Jackson guilty

on all counts of distribution of cocaine base and possession with intent to

distribute cocaine base. The district court sentenced Ms. Jackson to 360 months

imprisonment on those counts, pursuant to 21 U.S.C. § 841(b)(1)(A).



      We note Ms. Jackson’s trial and the disposition of her direct appeal

preceded the United States Supreme Court’s Apprendi decision. 2 Not


      2
        Because the Supreme Court remanded this case only for further
consideration in light of Apprendi, the panel’s decision on all other issues raised
on direct appeal but not impacted by Apprendi stands and is incorporated herein.

                                         -2-
surprisingly, then, Ms. Jackson did not raise a specific Apprendi objection to the

indictment at trial or during sentencing. She did, however, move the trial court

for a special verdict form seeking jury findings as to drug type and quantity. Ms.

Jackson also objected to the pre-sentence report with regard to drug amounts and

her alleged leadership role. On appeal, Ms. Jackson asserted the trial court erred

by rejecting her proposed jury instructions and special verdict form requiring the

jury to determine the type and quantity of controlled substance attributable to her,

and by overruling her objections to the pre-sentence report. After we rejected

those arguments, Ms. Jackson filed a petition for certiorari to the United States

Supreme Court, citing Apprendi for the proposition this court erred in declining to

require a jury finding on the quantity of crack cocaine that Ms. Jackson

distributed and possessed with intent to distribute. In her supplemental brief to

this court on remand, Ms. Jackson further complains “in all the counts listed in

the indictment ... there are no drug amounts alleged, thereby making the defense

of the indictment the same as trying to defend a moving target.”



      We review de novo the legal question of whether Ms. Jackson’s sentence

violates Apprendi. See United States v. Thompson, 237 F.3d 1258, 1261 (10th

Cir. 2001); see also United States v. Jones, 235 F.3d 1231, 1235 (10th Cir. 2000).




                                         -3-
Sufficiency of the Indictment Post-Apprendi

      Apprendi enunciated the following rule of constitutional law: “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. Applying that rule in Jones, 3

we unequivocally held:

      the quantity of drugs involved in a violation of § 841 is an essential
      element of the offense if that fact exposes the defendant to a
      heightened maximum sentence under § 841(b)(1)(A) or (B). A
      district court may not impose a sentence in excess of the maximum
      set forth in 21 U.S.C. § 841(b)(1)(C) unless the benchmark quantity
      of cocaine base for an enhanced penalty is alleged in the indictment
      in addition to being submitted to the jury and proven beyond a
      reasonable doubt.

235 F.3d at 1236. In other words, after Apprendi, a trial court may not utilize

§§ 841(b)(1)(A) and 841(b)(1)(B) for sentencing without the drug quantity being

charged in the indictment. Instead, the defendant may be sentenced only under

§ 841(b)(1)(C), which defines penalties for offenses involving cocaine base

without reference to drug quantity, and limits the sentence to not more than


      3
          In Jones, we held Apprendi, which involved the constitutionality of a
state statute under the Fourteenth Amendment’s Due Process Clause, applies
equally to criminal proceedings in federal court. See Jones, 235 F.3d at 1235
(citing United States v. Gaudin, 515 U.S. 506, 510 (1995)). Moreover, as “‘a new
rule for the conduct of criminal prosecutions,’” Apprendi “‘is to be applied
retroactively to all cases, state or federal, pending on direct review or not yet
final.’” Id. (quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). The
applicability of Apprendi to Ms. Jackson’s case therefore is not in dispute.

                                          -4-
twenty years for defendants who have not previously been convicted of a felony

drug offense, and thirty years if the defendant has a prior felony drug conviction. 4



      The government concedes Ms. Jackson’s indictment failed to allege the

quantity of cocaine base supporting any of the § 841(a) distribution/possession

counts, and therefore her sentence pursuant to 21 U.S.C. § 841(b)(1)(A) is in

error. Because Ms. Jackson had no prior felony drug conviction, the maximum

sentence she could receive under § 841(b)(1)(C) for distribution and possession



      4
          As described in Jones, 21 U.S.C. § 841 is:

      the primary federal statute concerning the criminal use of controlled
      substances. Subsection (a), entitled “Unlawful acts,” makes it
      “unlawful for any person knowingly or intentionally ... to
      manufacture, distribute, or dispense, or possess with the intent to
      manufacture, distribute, or dispense, a controlled substance.” 21
      U.S.C. § 841(a), (a)(1). Subsection (b) establishes the penalties for
      violations of § 841(a). See 21 U.S.C. § 841(b).... [Section]
      841(b)(1)(C) states that “[i]n the case of a controlled substance in
      schedule I or II, ... except as provided in subparagraphs (A), (B), and
      (D), such person shall be sentenced to a term of imprisonment of not
      more than 20 years.” Subparagraphs (A) and (B) provide for
      enhanced sentences based on the quantity of controlled substance
      involved in the violation. For cocaine base, a Schedule II controlled
      substance, these subparagraphs prescribe a minimum of ten years and
      a maximum of life for fifty grams or more and a minimum of five
      years and a maximum of forty years for five grams or more,
      respectively. See 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii).

235 F.3d at 1235-36.


                                          -5-
with intent to distribute an unspecified quantity of crack cocaine is twenty years.

She was sentenced to thirty years.



      The government proceeds, however, to argue this error is reviewable under

the plain error standard, see Fed. R. Crim. P. 52(b), or alternatively, for harmless

error. According to the government, Ms. Jackson’s Apprendi claim fails under

either standard. We must reject the government’s argument. The error in Ms.

Jackson’s case, as in Jones, is best characterized as sentencing in excess of the

statutory maximum penalty applicable to the offense of conviction. Jones, 235

F.3d at 1238. As noted in Jones, “such unauthorized sentences warrant reversal.”

Id. As we find no reasoned distinction between the sentencing error in these two

cases, Jones controls, and we must reverse and remand for re-sentencing. See

United States v. Meyers, 200 F.3d 715, 720 (10th Cir. 2000) (“The precedent of

prior panels which this court must follow includes not only the very narrow

holdings of those prior cases, but also the reasoning underlying those holdings,

particularly when such reasoning articulates a point of law.”)



Jury Determination of Drug Type and Quantity

      Ms. Jackson further argues Apprendi requires a new trial or remand for re-

sentencing because the district court refused her proposed jury instruction and


                                          -6-
special verdict form relating to drug type and quantity. This argument is without

merit. Ms. Jackson stipulated to a quantity of cocaine base at trial (24.36 grams)

sufficient to support a sentence of up to forty years under 21 U.S.C.

§ 841(b)(1)(B); 5 therefore, drug type and quantity were no longer facts required to

be determined by the jury. See e.g. United States v. Poulack, 236 F.3d 932, 938

(8th Cir. Jan. 9, 2001); In re Green, 2000 WL 1683480, *1 (D.C. Cir. Oct. 19,

2000). Having been read the stipulation, which attributed 24.36 grams of cocaine

base to Ms. Jackson, no reasonable jury could have rationally concluded Ms.

Jackson was guilty of the charged offenses – possession, with intent to distribute

cocaine base – but that the amount of cocaine possessed was less than five grams.

See United States v. Champion, 234 F.3d 106, 110 (2d Cir. 2000); United States

v. Nealy, 232 F.3d 825, 829-30 (11th Cir. 2000). Moreover, because the jury was

instructed it could accept the stipulated evidence without further proof, any error

for failure to otherwise instruct the jury as Ms. Jackson requested was harmless.



Constitutionality of USSG 3B1.1(a) and the United States Sentencing Guidelines


      5
         Ms. Jackson stipulated the proposed testimony of government witnesses
would establish that certain government exhibits admitted at trial contained
cocaine base, and that the witnesses would testify as to a precise weight for each
exhibit, the aggregate weight of which totaled 24.36 grams. The trial testimony
of other witnesses attributed the cocaine base in those exhibits directly to Ms.
Jackson or to her co-defendant/co-conspirator Dwight Jackson.


                                         -7-
Post-Apprendi

      Citing Justice O’Connor’s dissent, Ms. Jackson argues Apprendi overrules

the Federal Sentencing Guidelines, including, specifically, those “portions of the

Sentencing Guidelines that allow a four level increase for being a leader or

organizer.” This argument, too, lacks merit. A dissenting opinion obviously does

not constitute binding precedent. More important, the Supreme Court majority

“specifically avoided disrupting the use or adequacy of the Sentencing

Guidelines” by affirmatively stating in Apprendi “‘[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.’” United States v. Heckard, ___ F.3d ___, 2001 WL

15532, *11 (10th Cir. Jan. 8, 2001) (quoting Apprendi, 120 S. Ct. at 2366 n.21).

See also Nealy, 232 F.3d at 829 n.3 (“The Sentencing Guidelines are not subject

to the Apprendi rule.”); Talbott v. Indiana, 226 F.3d 866, 869-70 (7th Cir. 2000)

(Apprendi has nothing to do with the Sentencing Guidelines).



      For the reasons stated, this case is REMANDED to the district court for

sentencing within the statutory range for the offenses of which Ms. Jackson was

convicted. The mandate shall issue forthwith.




                                         -8-
