In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1836

United States of America,

Plaintiff-Appellee,

v.

Wendell Nance, Sr.,

Defendant-Appellant.



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
Judges.

  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.

I

  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
apartment.

  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:
THE GRAND JURY CHARGES:

  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,
and WENDELL NANCE, JR.,

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
release.

II

  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 (1999),
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
here.)

  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
States, 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 (2000).

  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.

III

  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.
