251 F.3d 1041 (D.C. Cir. 2001)
United States of America, Appelleev.Thomas Fields, a/k/a Woozie, Appellant
No. 99-3138 Consolidated with No. 99-3139
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed June 12, 2001

[Copyrighted Material Omitted]
On Appellee's Petition for Rehearing
Before:  Edwards, Chief Judge, Ginsburg and Tatel,  Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge:


1
In United States v. Fields, 242 F.3d  393 (D.C. Cir. 2001) ("Fields I"), issued on March 13, 2001,  the sentences of defendants Thomas "Woozie" Fields and  Bernard "Tadpole" Johnson were vacated and the case was  remanded to the District Court for resentencing.  The Government now petitions for rehearing, claiming that Fields I  misapplied Apprendi v. New Jersey, 530 U.S. 466 (2000), in  holding "the jury was required to find beyond a reasonable  doubt that defendants were responsible for the quantity of  drugs attributed to them for purposes of determining their  base offense level under the Sentencing Guidelines."  Government's Pet. for Reh'g at 1.  We agree that there is some loose  language in Fields I which can be read to exceed the bounds  of the Supreme Court's holding in Apprendi.  We therefore  grant the Government's petition for rehearing so that we may  clarify the court's holdings in Fields I.


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3
In Apprendi, 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."  530 U.S. at 490.  Therefore, as we held in  Fields I, it "follows that drug quantity is an element of the  offense where a factual determination of the amount of drugs  at issue may result in a sentence that exceeds a maximum  sentence prescribed in the applicable statute."  242 F.3d at  395 (emphasis in original).  Apprendi therefore applies to  sentences predicated on drug quantity where progressively  higher statutory maximums are triggered by findings of  progressively higher quantities of drugs.  Id. at 396;  In re  Sealed Case, 246 F.3d 696, 699(D.C. Cir.  Apr. 24, 2001).  Thus, as noted in Fields I, in drug cases  charged under 21 U.S.C.      841 and 846, where the prescribed statutory maximum depends upon the amount of  drugs involved, before a defendant can be sentenced to a  higher statutory maximum, "the Government must state the  drug type and quantity in the indictment, submit the required  evidence to the jury, and prove the relevant drug quantity  beyond a reasonable doubt."  242 F.3d at 396.


4
Fields I goes awry in suggesting that Apprendi also applies  to a Sentencing Guidelines enhancement that results in a  sentence within the statutory range.  For example, Fields I  states that "[t]he Government was required to convince the  jury, beyond a reasonable doubt, that the defendants possessed enough of a controlled substance for the District Court  to adjust the base offense level to 38," id. at 397, and that  "the issue of leadership [role] must be charged in an indictment, submitted to a jury, and proved beyond a reasonable  doubt."  Id. at 398.  These passages overstate the holding of  Apprendi.  As this court recently has held, Apprendi does  not apply to sentencing findings that elevate a defendant's  sentence within the applicable statutory limits.  See In re: Sealed Case, 2001 WL 409116, at *2-*3.  In other words,  Apprendi does not apply to enhancements under the Sentencing Guidelines when the resulting sentence remains within  the statutory maximum.  This understanding of Apprendi is  shared by our sister circuits.  See, e.g., United States v. Caba,  241 F.3d 98, 101 (1st Cir. 2001);  United States v. Jackson,  240 F.3d 1245, 1249 (10th Cir. 2001);  United States v. Garcia,  240 F.3d 180, 182-84 (2d Cir. 2001);  United States v.  Williams, 235 F.3d 858, 862-63 (3d Cir. 2000);  United States  v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000), cert. denied, 121  S. Ct. 1152 (2001);  Talbott v. Indiana, 226 F.3d 866, 869-70  (7th Cir. 2000).  Any language to the contrary in Fields I is in  error and is not the law of this circuit.


5
With these legal principles in mind, we will now reconsider  our application of the law to the facts in Fields I.


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7
The Government concedes that, under Apprendi, the District Court committed plain error in this case in imposing life  sentences on the drug conspiracy count in the absence of jury  findings as to drug quantity.  The Government claims, however, that in assessing whether this constituted reversible error  under the plain error doctrine,"[t]he right question" is whether there was "overwhelming proof" that defendants' crimes involved 50 or more grams of cocaine base, or 1 kilogram or  more of phencyclidine ("PCP") mixture, or at least 1,000  kilograms of marijuana.  Government's Pet. at 10.  The  Government is right as to the amounts of drugs required by  statute to authorize a life sentence, but wrong in its claim that  the District Court relied on "overwhelming proof" that the  conspiracy involved these amounts.


8
As noted in Fields I, defendants Fields and Johnson were  convicted on 40 and 16 counts, respectively, including convictions for Narcotics Conspiracy (Count 1), RICO Conspiracy  (Count 3), and kidnaping, gang rape, and attempted murder  (Counts 12-18).  At defendants' sentencing hearing, the District Court adopted the calculations in the Presentence Investigation Report ("PIR"), as well as the Government's proposed findings of fact and conclusions of law, and found that  "well above" a preponderance of the evidence demonstrated  that 1,670 grams of crack cocaine, 11,388 grams of PCP, and  3,490 kilograms of marijuana were "directly attributable to  defendant Thomas Fields."  United States v. Fields, Crim.  No. 98-071-01, Mem. Op. at 16 (D.D.C. Oct. 8, 1999).  The  District Court also found that 1,670 grams of crack, 11,328  grams of PCP, and 2,182 kilograms of marijuana were "reasonably foreseeable and part of jointly undertaken activity by  defendant Johnson, and therefore are appropriately attributable to him."  United States v. Johnson, Crim. No.  98-071-06, Mem. Op. at 8 (D.D.C. Oct. 13, 1999).  The life  sentences imposed on defendants were predicated on these  calculations.  It is undisputed, however, that these drug  quantities were never proven to a jury beyond a reasonable  doubt;  indeed, most of the asserted quantities are not based  on any concrete proof.  While the jury verdict form required  specified findings that defendants distributed specific quantities of controlled substance in connection with Count 2 (Continuing Criminal Enterprise), the jury deadlocked on this  count in the case of both defendants.  In short, the jury did  not make any finding at all as to the amount of drugs  involved, let alone a finding that defendants possessed, beyond a reasonable doubt, enough of a controlled substance to impose a life sentence under 21 U.S.C.      841.  The life  sentences therefore contravened Apprendi.


9
Though the District Court erred in imposing the life sentences based on drug quantity, neither defendant objected at  trial to the failure to submit drug quantity to the jury.  At  sentencing, defendants objected only on the grounds that the  calculations were speculative and based on trial testimony of  various individuals who had entered into agreements with the  Government.  Hence, as noted in Fields I, our review is for  plain error.  Fed. R. Crim. P. 52(b);  United States v. Wolff,  195 F.3d 37, 40 (D.C. Cir. 1999).  We may exercise our  discretion to correct an error pursuant to Rule 52(b) only  when an "error" is "plain" or "obvious" under current law,  affects substantial rights, and seriously affects the fairness,  integrity, or public reputation of judicial proceedings.  Johnson v. United States, 520 U.S. 461, 466-67 (1997);  United  States v. Olano, 507 U.S. 725, 731-35 (1993).


10
The Government argues that, although the life sentences  imposed on defendants based on drug quantities resulted in  plain error, no relief is warranted because the error did not  affect defendants' substantial rights.  We disagree.  The  Government maintains that the District Court correctly determined that the quantity of drugs involved exceeded the  amount required under the applicable provision of       841(b)(1).  However, the Government has no good basis  upon which to rest such a claim.  The District Court relied  heavily on the imprecise testimony of various witnesses who  were cooperating with the Government.  In its petition for  rehearing, the Government once again points to this testimony as well as admissions from Fields that he "made a living  selling crack," sold or supplied marijuana to ten named  individuals, "worked selling marijuana four to five days a  week," and "had no idea how much marijuana he had sold." Government's Pet. at 10 n.4.  Apart from this vague testimonial evidence, the only other "evidence" to which the Government can point is that provided by a DEA chemist who  testified to the chemical analysis of approximately 7 grams  (i.e., .007 kilograms) of cocaine base and over twenty kilograms of marijuana that had been seized in the case.  Id. This evidence is far from "overwhelming proof" that defendants' crimes involved the drug quantities necessary to trigger a life sentence under 21 U.S.C.      841(b)(1)(A).  And  given the gravity of the sentence and the lack of any "overwhelming" evidence to support it, we have no basis for  concluding that the error did not "seriously affect[ ] the  fairness, integrity or public reputation of judicial proceedings."  Johnson, 520 U.S. at 469-70.


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12
The Government argues, in the alternative, that defendants  should not prevail under the plain error standard, because the  life sentence on the RICO conspiracy count was a "statutorily  available sentence" under Apprendi.  In support of this claim,  the Government cites United States v. Meshack, 225 F.3d 556,  577 (5th Cir. 2000), cert. denied sub nom. Parker v. United  States, 121 S. Ct. 834 (2001), amended on reh'g, 244 F.3d 367  (5th Cir. 2001), in which the court held that even if a 10-year  sentence on a marijuana count was unlawful under Apprendi,  there was no plain error warranting reversal where the  defendant was not challenging a greater 324-month concurrent sentence on another count.  The decision in Meshack  was based on the court's conclusion that the defendant would  receive no meaningful benefit from having his infirm sentence  vacated, because he would not serve less time as a result of  resentencing, and no collateral consequences would flow from  the court's failure to correct the sentence.  244 F.3d at 368.


13
The "concurrent sentence" thesis enunciated in Meshack is  premised on the fact that, quite apart from the infirm sentence, there was an unchallenged and longer concurrent  sentence on a different count.  In this case, the Government  asserts that, because the District Court could have sentenced  defendants to life based on the jury conviction for armed  kidnaping, defendants' challenges to the life sentences imposed on the drug conspiracy count do not warrant reversal  for plain error.  In other words, the Government says that,  by finding defendants guilty of Racketeering Act 21, which  alleged an armed kidnaping under the D.C. Code, the jury found all of the facts needed to make life a statutorily  available sentence as to the RICO conspiracy count.


14
The problem with the Government's argument is that,  although it is true that the District Court imposed concurrent  life sentences on the RICO conspiracy count, there is no clear  finding by the trial court that it intended to impose life  sentences under RICO for Racketeering Act 21 (i.e., armed  kidnaping).  Indeed, the Government does not suggest otherwise.  The Government's entire argument rests on the claim  that there is a possibility of a life sentence on the RICO  conspiracy count, because of the defendants' convictions for  armed kidnaping.


15
The Government may be correct that life is a "statutorily  available sentence" on the RICO conspiracy count;  but this is  a far cry from Meshack, which involved a concurrent sentence  based on known and uncontested grounds.  In this case, we  cannot comprehend the District Court's basis for the life  sentences on the RICO conspiracy count and "[w]e will not  permit our result to be guided by idle speculation as to the  sentence that might be imposed by the district court on  remand."  United States v. Jones, 235 F.3d 1231, 1238 (10th  Cir. 2000);  see also United States v. Bradford, 246 F.3d 1107 (8th Cir.2001).  Accordingly, we  remand to afford the District Court the opportunity in the  first instance to recalculate the defendants' sentences in a  manner consistent with our decision here and in Fields I.  On  remand, the Government will be free to argue to the District  Court that life sentences should be imposed on the RICO  conspiracy count premised on the defendants' convictions for  armed kidnaping.


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17
With respect to leadership enhancement, the Government  is correct that Fields I incorrectly holds that Apprendi  applies to enhancements based on role-in-offense findings  under the Guidelines.  A finding of leadership role can raise a  defendant's offense level under the Guidelines and the resulting sentence;  it cannot, however, elevate that sentence above the applicable statutory maximum.  Indeed, the Guidelines  themselves recognize as much.  See U.S. Sentencing Guidelines Manual      5G1.1 (1998).  Thus, a leadership enhancement based on a role-in-offense finding is not a "fact that  increases the penalty for a crime beyond the prescribed  statutory maximum."  See, e.g., United States v. Gallego, 247 F.3d 1191, 1199-1200 (11th Cir.2001); Caba, 241 F.3d at 101;  Jackson, 240 F.3d at 1249.


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19
In sum, Fields I is clarified as indicated above.  The case is  hereby remanded to the District Court for resentencing  consistent with this opinion.

