                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
           ___________

           No. 00-2188
           ___________

United States of America,              *
                                       *
              Appellee,                *
                                       *
      v.                               *
                                       *
Fortino E. Diaz,                       *
                                       *
              Appellant.               *
           ___________
                                             Appeals from the United States
           No. 00-2317                       District Court for the
           ___________                       District of Minnesota.

United States of America,              *
                                       *
              Appellee,                *
                                       *
      v.                               *
                                       *
Robert R. Lohr,                        *
                                       *
              Appellant.               *
                                  ___________

                             Submitted: January 16, 2002

                                 Filed: July 11, 2002
                                  ___________
Before WOLLMAN,1 Chief Judge, McMILLIAN, BOWMAN, LOKEN, HANSEN,
      MORRIS SHEPPARD ARNOLD, MURPHY, BYE, and RILEY, Circuit
     Judges.
                             ___________

WOLLMAN, Chief Judge.

       Fortino Diaz and Robert Lohr (Lohr) appeal their sentences that resulted from
their convictions of various crimes committed in furtherance of a conspiracy to
distribute cocaine and methamphetamine. A panel of this court originally affirmed
the sentences, but we granted rehearing en banc in order to resolve an apparent
conflict among our cases. We now reinstate the panel opinion.

                                          I.

       Diaz and Lohr were indicted and tried along with two other defendants, Daniel
Sherman and Vanessa Lohr. After trial in the district court,2 all the defendants were
convicted of conspiracy to distribute cocaine and methamphetamine in violation of
21 U.S.C. §§ 841(b)(1)(A-B) and 846 and aiding and abetting money laundering in
violation of 18 U.S.C. §§ 1956(a)(1)(A) and (2). Diaz was also convicted of one
count of attempting to possess with intent to distribute cocaine in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C). Diaz was sentenced to 360 months’ imprisonment
and Robert Lohr was sentenced to 262 months.




      1
       The Honorable Roger L. Wollman stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on January 31,
2002. He has been succeeded by the Honorable David R. Hansen.
      2
      The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.

                                         -2-
       All of the defendants appealed their convictions and sentences. Sherman, Diaz
and Lohr argued that their sentences violated Apprendi v. New Jersey, 530 U.S. 466
(2000), because the district court relied on drug quantities it determined using the
preponderance of the evidence standard, not quantities proved to the jury beyond a
reasonable doubt. Under Apprendi, “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.” Id. at 490. Use of judicially determined drug quantity
as a basis for sentencing is permissible, however, so long as the defendant’s sentence
does not exceed the statutory maximum sentence available for an indeterminate
quantity of the drug, the offense simpliciter. United States v. Aguayo-Delgado, 220
F.3d 926, 933-34 (8th Cir. 2000). In our opinion affirming the defendants’ sentences,
we recognized that because Diaz’s 360-month sentence and Lohr’s 262-month
sentence exceeded the 240-month statutory maximum for an indeterminate quantity
of cocaine, the sentences ran afoul of Apprendi. Applying the plain error standard of
review, we affirmed their sentences because under U.S.S.G. § 5G1.2(d),3 the district
court would have been required to run a portion of the drug sentences and the money
laundering sentences consecutively to reach the properly calculated total punishment
under the guidelines. Accordingly, we concluded that Diaz’s and Lohr’s substantial
rights were not affected by their sentences. United States v. Sherman, 262 F.3d 784,
792 (8th Cir. 2001).




      3
          U.S.S.G. § 5G1.2(d) provides:

            If 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. In all other respects, sentences on all counts shall run
      concurrently, except to the extent otherwise required by law.

                                          -3-
       In so holding, the panel relied on United States v. Sturgis, 238 F.3d 956 (8th
Cir. 2001) in which we held that the defendant’s substantial rights were not violated
where the Apprendi error could have been corrected by running the sentences
consecutively under § 5G1.2(d). Id. at 960-61. Diaz and Lohr filed a petition for
rehearing en banc, arguing that the panel in their appeal was not bound by Sturgis
because two subsequently decided cases, United States v. Bradford, 246 F.3d 1107
(8th Cir. 2001) and United States v. Hollingsworth, 257 F.3d 871 (8th Cir. 2001),
remanded to the district court for resentencing under similar circumstances. We
vacated the panel decision as to Diaz and Lohr and granted rehearing en banc to
resolve this apparent conflict in our cases.



                                           II.

       Diaz and Lohr, like the defendants in Sturgis, Bradford, and Hollingsworth, did
not raise an Apprendi claim in the district court. Thus, we review their claims for
plain error.4 United States v. Cotton, 122 S. Ct. 1781 (2002). Under the plain error
test, we can grant relief only if (1) there was an error; (2) the error was plain; (3) the


      4
        Diaz contends that he did in fact raise Apprendi issues before the district court
at sentencing, thus entitling him to de novo review. It appears to us, however, that
his contention in the district court was not an Apprendi-style claim, but rather a claim
that the government did not prove all the elements of the crime listed in the
indictment. Thus, Diaz is not entitled to de novo review. In any event, even under
a de novo review we would affirm Diaz’s sentence because the Apprendi error was
harmless. See United States v. Anderson, 236 F.3d 427, 429 (8th Cir. 2001) (per
curiam) (Apprendi did not create a structural error that requires per se reversal, and
so harmless error analysis appropriate); United States v. Jordan, 291 F.3d 1091, 1095
(9th Cir. 2002) (using harmless error standard where defendant preserved Apprendi
argument). As we discuss below, the district court’s factual findings regarding drug
quantity were proper, and any Apprendi error in his sentence would be cured by the
mandatory imposition of consecutive sentences under U.S.S.G. § 5G1.2(d).

                                           -4-
error affected substantial rights; and (4) the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings. Id. at 1785. The government
acknowledges, as it must, that the first two prongs of the test are met in this case,
since both Diaz and Lohr were sentenced in violation of Apprendi. The question
before us is whether the acknowledged Apprendi error affected the defendants’
substantial rights. We conclude, following Sturgis, that it did not.

      We held in Sturgis that an Apprendi error in sentencing does not violate a
defendant’s substantial rights in a case in which the district court would have
otherwise imposed the same sentence because of the mandatory imposition of
consecutive sentences under U.S.S.G. § 5G1.2(d). Sturgis, 238 F.3d at 960-61. In
contrast, the Bradford and Hollingsworth courts remanded cases with similar facts for
resentencing, holding that district courts have discretion whether to impose
consecutive or concurrent sentences. Bradford, 246 F.3d at 1114; Hollingsworth, 257
F.3d at 878.

        Apprendi does not forbid a district court from finding the existence of
sentencing factors, including drug quantity, by a preponderance of the evidence;
rather, it prevents courts from imposing sentences greater than the statutory maximum
based on such findings. See Aguayo-Delgado, 220 F.3d at 933-34; United States v.
Buckland, 289 F.3d 558, 570 (9th Cir. 2002) (en banc) (Apprendi does not limit
courts’ ability to make drug quantity findings and impose sentences based on those
findings if the sentence is within the statutory maximum sentence for the crime of
conviction found by the jury). Thus, even after Apprendi, the first step in sentencing
is for the district court to make findings and calculate a sentencing range under the
guidelines based on those findings. If the sentencing range exceeds the statutory
maximum, Apprendi requires that the defendant be sentenced to not more than the
statutory maximum term of imprisonment instead of to the total punishment
calculated under the guidelines.



                                         -5-
       When a defendant has been convicted of multiple counts, however, the
sentencing court may not merely reduce the sentence imposed from the guidelines
range to the statutory maximum on the greatest count. Section 5G1.2(d) of the
guidelines requires that if the maximum sentence allowed under any one count does
not reach the total punishment as calculated under the guidelines, the district court
must impose consecutive sentences on the multiple counts until it reaches a sentence
equal to the total punishment calculation under the guidelines. This is permissible,
because imposing consecutive sentences on multiple counts does not violate
Apprendi when the sentence for each count does not violate the statutory maximum
for that count. Sturgis, 238 F.3d at 961; see also United States v. McWaine, 290 F.3d
269, 276 (5th Cir. 2002); Buckland, 289 F.3d at 572; United States v. McLeod, 251
F.3d 78, 82 (2nd Cir. 2001); United States v. Smith, 240 F.3d 927, 930 (11th Cir.
2001) (per curiam); United States v. Parolin, 239 F.3d 922, 930 (7th Cir. 2001).

       Because § 5G1.2(d) mandates consecutive sentences in those cases in which
the total punishment exceeds the statutory maximum for any one count and the
district court’s calculation of total punishment is not affected by an Apprendi error,
remand to allow the district court to consider whether to impose consecutive or
concurrent sentences would be an idle act. See United States v. Price, 265 F.3d 1097,
1109 (10th Cir. 2001) (because § 5G1.2(d) is mandatory, the court did not have to
engage in “idle speculation as to the sentence the district court could impose upon
remand” (internal quotation omitted)); but see United States v. Vasquez-Zamora, 253
F.3d 211, 214 (5th Cir. 2001) (district court has discretion under the guidelines). The
Bradford and Hollingsworth courts believed that the Sturgis court found remand
unnecessary because the record was “so clear that we [were] able to recalculate the
appellants’ sentences ourselves.” Hollingsworth, 257 F.3d at 878; see also Bradford,
246 F.3d at 1115. In truth, however, Sturgis did not rely on the clarity of the record
but on the district court’s correctly calculated sentence under the guidelines. The
court then applied the mandatory rule of § 5G1.2(d) and held that because the
defendant’s sentence would have been the same after recalculation to correct the

                                         -6-
Apprendi error, the defendant suffered no prejudice. Sturgis, 238 F.3d at 960-61; see
also Price, 265 F.3d at 1109.

       Finally, the Bradford and Hollingsworth courts also cited the district court’s
ability to depart downward from the guidelines scheme as a basis for remand.
Hollingsworth, 257 F.3d at 878; Bradford, 246 F.3d at 1114. In those cases, as in
Sturgis and this case, however, each defendant had the opportunity to request a
downward departure at the first sentencing. If such a request was made, the district
courts declined to depart downward from the sentence actually imposed. Where the
district court has already determined not to depart downward, there is no need for a
remand for it to reconsider that decision.

       In sum, we hold that Sturgis correctly states the law of this circuit. Bradford
and Hollingsworth are overruled to the extent that they hold that § 5G1.2(d) is
discretionary and that remand is necessary where the Apprendi violation can be cured
by running sentences consecutively under that section.5




      5
        At oral argument before the en banc court, Lohr for the first time argued that
his case is factually distinguishable from Sturgis because his sentencing range
straddled the statutory maximum of 240 months. Thus, he argues, the district court
could have imposed a 240-month sentence consistent with Apprendi and § 5G1.2(d)
because the total punishment fell within the guidelines range. Lohr’s argument
depends on defining the term “total punishment” in § 5G1.2(d) as the sentencing
range and not as the actual sentence imposed by the district court. If total punishment
means the actual sentence imposed, here 262 months, then § 5G1.2(d) would require
the imposition of consecutive sentences to reach that level. We need not decide this
issue, however, because we do not consider arguments first raised at oral argument.
See United States v. Mitchell, 31 F.3d 628, 633 n.3 (8th Cir. 1997). In any event,
even if Lohr is correct, he would not succeed under the plain error standard because
there is no question that his 262-month sentence is permissible under the guidelines,
and so his substantial rights have not been violated.

                                         -7-
       Because their sentences do not exceed those required by § 5G1.2(d), Diaz and
Lohr suffered no prejudice to their substantial rights as a result of the Apprendi
violation, and thus they are entitled to no relief. Accordingly, the panel opinion is
reinstated as to them, as are the judgments in their respective cases.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -8-
