                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           MAR 17 2003
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,
                                                          No. 02-6087
    v.                                               (D.C. No. 98-CR-94-T)
                                                       (W.D. Oklahoma)
    IRIS COLLETTE JACKSON,

                  Defendant - Appellant.


                               ORDER AND JUDGMENT         *




Before SEYMOUR , KELLY , and LUCERO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Iris Collette Jackson was convicted by a jury of one count of conspiring to

distribute cocaine base in violation of 21 U.S.C. § 846 (Count 1); one count of



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
maintaining a place for the distribution and use of a controlled substance in

violation of 21 U.S.C. § 856 (Count 2); three counts of distributing cocaine base

in violation of 21 U.S.C. § 841(a)(1) (Counts 5, 7, and 8); and one count of

possessing cocaine base with intent to distribute in violation of § 841(a)(1)

(Count 9). The district court sentenced Ms. Jackson to concurrent thirty-year

prison terms on Counts 1, 5, 7, 8, and 9 and to a concurrent twenty-year prison

term on Count 2.

       On certiorari review, the United States Supreme Court vacated the district

court’s judgment and remanded the case to this court for further consideration in

light of its decision in   Apprendi v. New Jersey , 530 U.S. 466 (2000).   See Jackson

v. United States , 531 U.S. 1033 (2000). On remand, we concluded that, because

Ms. Jackson was indicted and convicted for committing drug offenses under

§ 841(a)(1) based on unspecified quantities of cocaine base, the district court

erred under Apprendi by imposing thirty-year concurrent sentences on Counts 1,

5, 7, 8, and 9 under § 841(b)(1).   1
                                        United States v. Jackson , 240 F.3d 1245, 1248-

49 (10th Cir.), cert denied , 534 U.S. 847 (2001). As we explained:

       [A]fter 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


1
       Although Ms. Jackson’s conviction on Count 1 was for conspiring to
distribute cocaine base in violation of § 846, the penalties for the conspiracy
offense are provided by § 841(b)(1).

                                              -2-
       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 twenty years . . . .

Id. at 1248. Thus, we remanded the case to the district court for resentencing

“within the statutory range for the offenses of which Ms. Jackson was convicted.”

Id. at 1249.

       On remand, the district court concluded that it was required by U.S.S.G.

§ 5G1.2(d) to run Ms. Jackson’s sentences on Counts 1, 5, 7, 8, and 9

consecutively to the extent necessary to reach a combined sentence equal to the

“total punishment” it originally imposed through application of the sentencing

guidelines.   2
                  Consequently, because the district court had originally imposed

a thirty-year prison term as the “total punishment” for these counts, the court:

(1) sentenced Ms. Jackson to twenty-year prison terms for Counts 1, 5, 7, 8, and

9; (2) reimposed the twenty-year prison term for Count 2; (3) directed that the

twenty-year prison terms for Counts 1, 5, 7, and 8 would run concurrently with

each other and with Count 2; and (4) directed that ten years of the twenty-year



2
       Section 5G1.2 is entitled “Sentencing on Multiple Counts of Conviction,”
and sub-section (d) provides that “[i]f the sentence imposed on the count carrying
the highest statutory maximum is less than the total punishment, then the sentence
imposed on one or more of the other counts shall run consecutively, but only
to the extent necessary to produce a combined sentence equal to the total
punishment.” U.S.S.G. § 5G1.2(d). The Commentary to § 5G1.2 further explains
that “[t]he combined length of the sentences (‘total punishment’) is determined
by the adjusted combined offense level.”

                                            -3-
prison term imposed for Count 9 would run consecutively with the sentences

imposed for Counts 1, 5, 7, and 8 and that the other ten years would run

concurrently.

       In this appeal, Ms. Jackson claims the district court violated     Apprendi

and the Double Jeopardy Clause by resentencing her to a thirty-year prison term

for her convictions under § 841. She further claims that § 841 is facially

unconstitutional in light of       Apprendi . Having analyzed these legal issues de novo,

we reject Ms. Jackson’s arguments.

       First, we have held that the “stacking” provision in § 5G1.2(d) is a

mandatory requirement that must be applied in cases involving multiple counts of

conviction, and that it obviates any       Apprendi error so long as the defendant does

not receive a sentence in excess of the statutory maximum for any individual

count. See United States v. Price , 265 F.3d 1097, 1108-09 (10th Cir. 2001),

cert. denied , 122 S. Ct. 2299 (2002);      United States v. Lott , 310 F.3d 1231,

1242-43 (10th Cir. 2002).      3
                                   As a result, on remand, the district court was required

by § 5G1.2(d) to impose consecutive sentences in order to reach the thirty-year

prison term it originally imposed under the sentencing guidelines, and the




3
       Ms. Jackson argues that Price and Lott are distinguishable because they
involved plain error review. Her argument is without merit because both cases
established unequivocally that compliance with § 5G1.2(d) is mandatory.

                                               -4-
imposition of the consecutive sentences was not error under         Apprendi since none

of the individual sentences exceeded the twenty-year statutory maximum.

       Second, because Ms. Jackson was successful in establishing that her

original sentence was unlawful, the district court did not violate double jeopardy

by resentencing her to the same thirty-year prison term.        See Ward v. Williams ,

240 F.3d 1238, 1243-44 (10th Cir. 2001) (holding that there is no double jeopardy

violation when a defendant establishes on appeal that his original sentence was

unlawful and, on remand, the district court “reimpose[s] the same total

sentence . . . by increasing the sentence on a different count”).

       Finally, two other panels of this court have previously held that     Apprendi

did not render § 841 facially unconstitutional.     See United States v. Cernobyl ,

255 F.3d 1215, 1218-19 (10th Cir. 2001);      United States v. James , 257 F.3d 1173,

1182-83 (10th Cir. 2001),    cert. denied sub nom. , Davis v. United States , 534 U.S.

1106 (2002). We are bound by       Cernobyl and James absent en banc

reconsideration or a superseding contrary decision of the Supreme Court.           See In

re Smith , 10 F.3d 723, 724 (10th Cir. 1993).

       The resentencing judgment of the district court is AFFIRMED.


                                                           Entered for the Court


                                                           Stephanie K. Seymour
                                                           Circuit Judge

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