     Case: 12-31193      Document: 00512819703        Page: 1     Date Filed: 10/29/2014




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT



                                     No. 12-31193                       United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                                                        October 29, 2014
UNITED STATES OF AMERICA,                                                 Lyle W. Cayce
                                                                               Clerk
                                                Plaintiff-Appellee,
v.

RANDY L. RANDALL

                                                Defendant-Appellant.



                   Appeal from the United States District Court
                      for the Western District of Louisiana




Before DAVIS, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM:
       Randy L. Randall pleaded guilty pursuant to a plea agreement to one
count of conspiracy to possess with intent to distribute five kilograms or more
of cocaine (Count 1), in violation of 21 U.S.C. §§ 841(a)(1) 1 and 846, and one
count of possession of a firearm in furtherance of a drug trafficking crime
(Count 24). As part of a signed “Factual Basis,” he admitted that the facts
therein were sufficient to support the conspiracy charge and that the “overall



1 21 U.S.C. § 841(a)(1) provides: “(a) Except as authorized by this subchapter, it shall be
unlawful for any person knowingly or intentionally-- (1) to manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute, or dispense, a controlled
substance; . . .”
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scope” of the conspiracy involved five kilograms or more of cocaine. However,
the Factual Basis stated that only 148.8 grams of cocaine and 35.2 grams of
cocaine base had been seized from the apartment where Randall was arrested.
At rearraignment, Randall admitted that he did “knowingly and intentionally
conspire and agree together [with other persons] to possess with intent to
distribute 5 kilograms or more of a mixture and substance containing a
detect[a]ble amount of cocaine.” He also was advised that he faced a sentence
of 10 years to life. 2
       The PSR found that, although the overall drug amount involved in the
conspiracy was five kilograms or more of cocaine, Randall’s own “responsibility
and knowledge in this case was limited to 148.8 net grams of powder cocaine,
and 35.2 net grams of crack cocaine.” 3 Based on that drug amount, the PSR
calculated a Guidelines range of 70 to 87 months of imprisonment. However,
the PSR concluded that the statutory mandatory minimum sentence of 120
months under 21 U.S.C. § 841(b)(1)(A)(ii) was required.
       At sentencing, the district court “accept[ed] the findings of the probation
office.” Although the district court noted the applicable Guidelines range of 70
to 87 months, it concluded that it was required to impose the statutory
minimum sentence of 120 months for Count 1. Thus, Randall was sentenced
above the calculated Guidelines range to the statutory mandatory minimum of
120 months of imprisonment on Count 1 and a consecutive mandatory sentence



2 See 21 U.S.C. § 841(b)(1)(A)(ii) (providing 10-year mandatory minimum sentence for
offenses involving five kilograms or more of cocaine).
3 The PSR converted these drug amounts to a single marijuana equivalency of 155.46

kilograms.
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of 60 months of imprisonment on Count 24. He filed a timely notice of appeal.
He now argues for the first time on appeal that the district court erred by
imposing the statutory mandatory minimum sentence for Count 1.
       For the reasons set out below, we VACATE the sentence and REMAND
for resentencing consistent with this opinion.
                                      DISCUSSION
       In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court
held that “[o]ther 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,” 4 or, under Blakely
v. Washington, 542 U.S. 296, 303 (2004), admitted by the defendant. In Alleyne
v. United States, 133 S. Ct. 2151, 2158 (2013), the Supreme Court extended
this holding to facts that increase the mandatory minimum sentence, as in this
case. The issue in this appeal is whether or not Randall should be sentenced
based on the amount of drugs attributable to the conspiracy as a whole or only
on the amount attributable to him individually.
       Because Randall failed to preserve this objection, review of this issue is
for plain error only. To show plain error, he must show a forfeited error that is
clear or obvious and that affects his substantial rights. 5 If he makes such a
showing, this court has the discretion to correct the error but only if it
“‘seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.’” 6


4 530 U.S. at 490.
5 See Puckett v. United States, 556 U.S. 129, 135 (2009).
6 Id. (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).

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      In the wake of Alleyne, we recently addressed a drug conspiracy case
whose reasoning is helpful here. In United States v. Daniels, 723 F.3d 562 (5th
Cir. 2013), modified in part on rehearing, 729 F.3d 496, the defendants were
charged with conspiracy to distribute and to possess with intent to distribute
five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(ii), and 846. Section 841(a)(1) makes it “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 841(b)(1)(A)(ii) provides a statutory mandatory minimum
of at least 10 years of imprisonment for offenses involving five kilograms of
cocaine or other enumerated substances. Section 846 provides: “Any person
who attempts or conspires to commit any offense defined in this subchapter
shall be subject to the same penalties as those prescribed for the offense, the
commission of which was the object of the attempt or conspiracy.”
      The jury returned a guilty verdict finding that the conspiracy involved
five kilograms or more of cocaine, and each of the defendants was sentenced in
accordance with § 841(b)(1)(A)(ii).
            Prior to sentencing, the district court conducted a
            hearing on drug quantity in which all defendants
            participated. At the hearing, the district court noted
            that the jury had found all of the defendants guilty of
            conspiring to distribute five kilograms or more of
            cocaine. Believing that not making a drug quantity
            finding as to each defendant could lead to problems on
            appeal, or could cause future complications depending
            on potential revisions to the sentencing guidelines, the
            defendants, led by Thomas, urged the court to make
            such findings. The defendants also acknowledged that

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              the five kilogram amount was found by the jury
              beyond a reasonable doubt, and was a floor for
              sentencing purposes. In response to the defendants’
              concern regarding drug quantity, the Government
              agreed to stipulate that the offenses involved five
              kilograms of cocaine. All defendants agreed to
              stipulate to this amount for the limited purpose of
              sentencing. Each defendant also reserved his or her
              right to argue sufficiency of the evidence on appeal
              with respect to the quantity of cocaine proved at trial.

              All defendants except Thomas had prior felony drug
              convictions, which mandated enhanced mandatory
              minimum sentences. 7

Most of the defendants were sentenced to statutory minimum sentences under
§ 841(b)(1)(A)(ii) which were above the otherwise applicable Guidelines range. 8
       On appeal, all defendants argued “that the evidence was insufficient to
establish that they entered into a conspiracy to possess with intent to
distribute five or more kilograms of powder cocaine (Count 1).” 9 We set out the
applicable standards, which apply equally to the instant case:
              To prove conspiracy under 21 U.S.C. § 846, the
              government must establish that: “(1) an agreement
              existed between two or more persons to violate federal
              narcotics law, (2) the defendant knew of the existence
              of the agreement, and (3) the defendant voluntarily
              participated in the conspiracy.” United States v.
              Ochoa, 667 F.3d 643, 648 (5th Cir. 2012).




7 723 F.3d at 567-58.
8 Id. at 568.
9 Id. at 570.

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              However, “if the government seeks enhanced penalties
              based on the amount of drugs under 21 U.S.C. §
              841(b)(1)(A) or (B), the [drug] quantity must be stated
              in the indictment and submitted to the [fact finder] for
              a finding of proof beyond a reasonable doubt.” United
              States v. Doggett, 230 F.3d 160, 164–65 (5th Cir. 2000).
              In the instant case, the Government sought enhanced
              penalties on the conspiracy charge under §
              841(b)(1)(A)(ii). In accordance with Doggett, the
              indictment alleged that the conspiracy involved at
              least five kilograms of cocaine. If an indictment alleges
              involvement in a conspiracy to distribute an amount of
              a controlled substance that triggers enhanced
              penalties under §§ 841(b)(1)(A) or (B), then Apprendi
              v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.
              Ed. 2d 435 (2000), requires the Government to prove
              beyond a reasonable doubt the quantity of the alleged
              drug as a fourth element of the offense. See United
              States v. Turner, 319 F.3d 716, 721 (5th Cir. 2003). 10

       In Daniels, although the jury found in its verdict that the conspiracy
involved five or more kilograms of cocaine, we concluded, after reviewing the
evidence presented at trial, that “we are not persuaded that the Government
proved a conspiracy involving at least five kilograms of cocaine beyond a
reasonable doubt.” 11 However, we explained that failure to prove the amount
charged “does not undermine the conviction. Rather, it only affects the
sentence.” 12 Specifically, we cited cases from other circuits which distinguished
the formal “elements” of offenses under §§ 841(a)(1) and 846 from “drug



10 Id. at 570.
11 Id. at 572.
12 Id. (citing United States v. Rolon–Ramos, 502 F.3d 750, 754–55 (8th Cir. 2007), and United

States v. Gomez–Rosario, 418 F.3d 90, 104 (1st Cir. 2005)).
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quantity and type,” which the Ninth Circuit “described as a ‘functional
equivalent of an element’ for Apprendi purposes.” 13 Although, prior to Daniels,
we had not “expressly stated the principle that failure to prove drug quantity
or type does not undermine a conviction under § 841(a)(1) and § 846,” at least
one prior Fifth Circuit case implicitly endorsed the “functional equivalents”
view. 14 We reiterated:
             Thus, where a defendant may be subject to enhanced
             statutory penalties because of drug quantity or type,
             the requisite fourth “element” under Apprendi is not a
             formal element of the conspiracy offense. Hence,
             defendants’ challenges to the quantity of cocaine
             charged in Count 1 of the indictment does not go to the
             validity of their convictions, but rather to the sentence
             that the district court may impose. 15

      We therefore concluded that district court had wrongfully imposed the
statutory mandatory minimum sentences based on five kilograms or more of
cocaine in violation of Apprendi and Alleyne:
             In sum, although the Government did not prove the
             five kilogram quantity alleged, this failure does not
             invalidate defendants’ conspiracy convictions; rather,
             it only affects the sentence. We are mindful of the
             Supreme Court’s recent clarification in Alleyne v.
             United States that “[w]hen a finding of fact alters the
             legally prescribed punishment so as to aggravate it,
             the fact necessarily forms a constituent part of a new
             offense and must be submitted to the jury.” ––– U.S. –

13 Id. at 572-73 (quoting United States v. Toliver, 351 F.3d 423, 430-31 (9th Cir. 2003),
abrogated on other grounds by Blakely v. Washington, 542 U.S. 296 (2004)); see also United
States v. Collins, 415 F.3d 304 (4th Cir. 2005) (discussed in Daniels).
14 723 F.3d at 573 (citing United States v. Hayes, 342 F.3d 385 (5th Cir. 2003)).
15 Id.

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                   –––, 133 S. Ct. 2151, 2162, 186 L. Ed. 2d 314 (2013).
                   Here the five kilogram quantity of cocaine, which
                   would have aggravated the punishment, was
                   submitted to and found by the jury. As discussed
                   above, we found the evidence insufficient to support
                   the five kilogram finding. In remanding for
                   resentencing under § 841(b)(1)(B)(ii), we acknowledge
                   that the way the verdict form was structured, the jury
                   did not have an opportunity to make an explicit
                   finding that 500 grams or more of cocaine were
                   involved in the conspiracy. Even so, we are confident
                   that the jury’s finding that 5 kilograms of cocaine were
                   involved also encompassed a jury finding that the
                   lesser quantity of 500 grams or more was involved.
                   Thus resentencing under § 841(b)(1)(B)(ii) is
                   appropriate. 16

          Thus, in both Daniels and the instant case, the defendants were charged
under the same statutes for a conspiracy involving five or more kilograms of
cocaine in violation of 21 U.S.C. § 841(a)(1) and 846. The main difference is
that the issue in Daniels was whether the jury had sufficient evidence to find
that the aggregate amount involved in the conspiracy as to all defendants was
five kilograms or more, while the issue here is whether Randall actually
pleaded guilty to facts requiring the statutory minimum sentence for five
kilograms or more of cocaine under § 841(b)(1)(A)(ii).
          The Government concedes that the drug quantity in a conspiracy case
must be proved beyond a reasonable doubt or admitted by the defendant under
Alleyne, but it argues that under United States v. Turner, 319 F.3d 716, 721
(5th Cir. 2003), Randall must be sentenced based on the quantity attributable


16   Id. at 574.
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to the entire conspiracy, not just to him. Turner does not stand for that
proposition. Rather, Turner stated that once the Government made a showing
that the entire conspiracy involved a certain drug quantity for the conviction,
“at sentencing, it need only prove the drug quantity attributable to Turner by a
preponderance of the evidence (provided that his sentence falls within the
statutory maximum made applicable by the fact finder’s conspiracy-wide drug
quantity determination).” 17 Thus, even in Turner the Government had to
demonstrate the amount attributable to a particular defendant for sentencing
purposes. 18 Moreover, under Alleyne, the imposition of a statutory mandatory
minimum sentence requires that the drug quantity be proved beyond a
reasonable doubt or admitted by the defendant.
       Indeed, we have expressly reached that conclusion in two unreported
cases, United States v. Guajardo, 391 F. App’x 384, 386 (5th Cir. 2010), and
United States v. Gurrusquieta, 54 F. App’x 592 (5th Cir. 2002). Both of these
cases ultimately were decided on other grounds, but the reasoning is sound. In
Guajardo, the district court sentenced the defendant to both the 10-year
statutory mandatory minimum under § 841(b)(1)(a) and, in the alternative, the
same 10-year sentence in an upward departure from the otherwise applicable



17319 F.3d at 723 (footnote omitted, emphasis added).
18 The Government also cites United States v. Alvarez-Salinas, 292 F. App’x 368 (5th Cir.
2008) for the proposition that a defendant “seal[s] his fate” by pleading guilty to a charge, but
we specifically noted that “the drugs attributed to Alvarez were not based on relevant conduct,
but on the offense to which Alvarez pleaded guilty: namely a violation of § 841(a) whereby he
possessed or aided and abetted possession of greater than 100 kilograms of marijuana. The
factual basis to which he stipulated showed that 132.5 kilograms were involved in his
offense . . . .” Id. at 371 (emphasis added). The sentence necessarily depends on the facts
actually admitted by the defendant or found by a jury beyond a reasonable doubt.
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                                      No. 12-31193


Guidelines range. The defendant challenged both the statutory mandatory
minimum sentence and the alternative upward departure from the Guidelines
range. We concluded the defendant was correct in his challenge to the statutory
minimum:
                 Guajardo first contends that the district court erred by
                 finding the 10-year mandatory minimum penalty of §
                 841(b)(1)(A) applicable. Guajardo is correct. For
                 sentencing purposes, a defendant is accountable only
                 for the drug quantity “with which he was directly
                 involved, and all reasonably foreseeable quantities of
                 marijuana” within the scope of the joint criminal
                 activity. See U.S.S.G. § 1B1.3, comment. (n.2). The
                 presentence report, which was adopted by the district
                 court, determined that the drug quantity attributable
                 to Guajardo was the equivalent of 300.51 kilograms of
                 marijuana. That is less than the threshold quantity
                 (1,000 kilograms of marijuana) necessary for
                 triggering the 10-year statutory minimum penalty.
                 Thus, the 10-year mandatory minimum penalty of §
                 841(b)(1)(A) was not applicable. See id. 19

We ultimately concluded that the district court did not err in the alternative
above-Guidelines sentence. 20
         In Gurrusquieta, we concluded that the district court erred in imposing
the statutory mandatory minimum sentence for similar reasons:
                 As our review of the record shows, it is not readily
                 apparent why the district court believed the
                 mandatory ten-year minimum was applicable. Part of
                 the confusion may stem from the fact that, in Count 1,
                 Juan was indicted for conspiring to distribute in excess


19   391 F. App’x at 386.
20   Id. at 386-87.
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              of 1,000 kilograms of marijuana, in violation of 21
              U.S.C. § 841(a)(1), which carries a mandatory
              minimum sentence of 10 years. Juan’s conviction
              under § 846, however, does not automatically trigger
              the mandatory minimum sentence found in §
              841(a)(1). For sentencing purposes, a defendant is only
              accountable for all quantities of the marijuana with
              which he was directly involved, and all reasonably
              foreseeable quantities of marijuana that were within
              the scope of the criminal activity that he jointly
              undertook. See U.S.S.G § 1B1.3, comment. (n.2). In
              other words, an individual convicted of conspiring to
              distribute at least 1,000 kilograms of marijuana under
              21 U.S.C. §§ 846 and 841(b)(1)(A)(vii) is not
              necessarily subject to the ten-year minimum. Only if
              the defendant is responsible for at least 1,000
              kilograms, as determined by the Sentencing
              Guidelines, does the mandatory statutory minimum
              apply. The district court was therefore incorrect,
              insofar as it determined that 1,067 pounds (or 483
              kilograms)      required    a    ten-year   mandatory
              minimum.   21


Nevertheless, we concluded that the defendant in Gurrusquieta could not
establish plain error because the erroneous statutory mandatory minimum fell
within the otherwise applicable Guidelines range and therefore did not entitle
the defendant to resentencing. 22 Two sister circuits have applied the same rule
as Guajardo and Gurrusquieta. 23




21 54 F. App’x 592, at *3.
22 Id. (citing United States v. Leonard, 157 F.3d 343, 346 (5th Cir. 1998)).
23 See United States v. Cox, 565 F.3d 1013, 1017 (6th Cir. 2009), and United States v. Colon-

Solis, 354 F.3d 101, 103 (1st Cir. 2004).
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          With these cases in mind, this case is easily resolved. Randall’s case is
similar to both Guajardo and Gurrusquieta. As in those cases, Randall was
found guilty on a conspiracy charge in which the overall conspiracy involved a
sufficient amount of drugs to trigger an increased mandatory minimum
penalty under §§ 841 and 846. However, as in those cases, the Factual Basis
and PSR only attributed a lesser quantity of drugs to Randall (148.8 grams of
powder cocaine and 35.2 grams of cocaine base), which would not be sufficient
to trigger the statutory mandatory minimum sentence. The district court
expressly adopted the facts set out in the PSR.
          Accordingly, we conclude that the district court plainly erred in imposing
the mandatory minimum sentence. Given the disparity between the otherwise
applicable Guidelines range of 70 to 87 months and the erroneously applied
120-month statutory mandatory minimum the district court applied, we
conclude that the error affects Randall’s substantial rights, and failure to
correct the error would “seriously affect the fairness, integrity, or public
reputation of judicial proceedings.” 24
                                        CONCLUSION
          For the reasons set out above, we VACATE and REMAND for
resentencing consistent with this opinion.




24   United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392, 80 L. Ed. 555 (1936).
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