                                                           NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                  No. 09-3308
                                 _____________

                         UNITED STATES OF AMERICA

                                        v.

                               JAMES WHITTED
                                A/K/A Mohamed

                               JAMES WHITTED,
                                          Appellant
                                 _____________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                        (D.C. Crim. No. 05-cr-00598-002)
                 District Judge: Honorable Michael M. Baylson
                                 ____________

                   Submitted Under Third Circuit LAR 34.1(a)
                                June 20, 2011
                                ____________

              Before: BARRY, AMBRO and COWEN, Circuit Judges

                           (Opinion Filed: July 8, 2011)
                                  ____________

                                    OPINION
                                  ____________

BARRY, Circuit Judge

     James Whitted appeals a 180-month, mandatory minimum sentence imposed
following his conviction for various drug and firearm offenses, arguing that the District

Court impermissibly used a fact not proven by the jury beyond a reasonable doubt to

increase his maximum sentence. We will affirm.

                                      I. Background

       Writing only for the parties, who are familiar with the extensive record in this case,

we review only those facts that are especially pertinent to our analysis.

       Whitted and twelve others were indicted in 2006 on twenty-one counts alleging

drug and firearm offenses committed by the Harris Organization, a narcotics outfit that

distributed some 200 kilograms of cocaine in Chester, Pennsylvania, and other locations

over the course of nearly six years. He and one of his co-defendants proceeded to a jury

trial, at which they were convicted on four counts, including conspiracy to distribute

cocaine. The evidence overwhelmingly established Whitted’s guilt, and we affirmed his

conviction, but vacated his 420-month sentence because he had been erroneously

classified as a career offender. We remanded for resentencing. United States v. Whitted,

304 F. App’x 52 (3d Cir. 2008).

       On remand, the District Court imposed a 180-month sentence, comprised of a 120-

month mandatory minimum for conspiracy to distribute five or more kilograms of

cocaine, see 21 U.S.C. §§ 841(b)(1)(A) & 846, and a consecutive 60-month mandatory

minimum for possession of a firearm in furtherance of drug trafficking, see 18 U.S.C. §




                                              2
924(c)(1). 1 Whitted now appeals that sentence, arguing that, in violation of Apprendi v.

New Jersey, 530 U.S. 466 (2000), the District Court, rather than the jury, determined that

the quantity of drugs attributed to the conspiracy as a whole was personally attributable to

him. Arguing that imposing the mandatory minimum sentence triggered by that quantity

was plain error, he seeks vacatur of his conviction and retrial, or resentencing yet again. 2

                                       II. Discussion

       The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       We review for clear error factual findings that are relevant to sentencing, such as

the quantity of drugs involved in the offense. United States v. Yeung, 241 F.3d 321, 322

(3d Cir. 2001). “Although we generally review jury instructions for abuse of discretion,

our review is plenary when the question is whether a district court’s instructions misstated

the law,” and we have discretion to correct plain error, such as alleged here, where

counsel did not preserve the issue in the trial proceedings. United States v. Dobson, 419

F.3d 231, 236 (3d Cir. 2005) (internal alterations and quotations omitted) (citing United

States v. Olano, 507 U.S. 725, 733-35 (1993)).



   1
      Whitted also received 120-month sentences on two remaining counts, but because
they were ordered to run concurrent with his 180-month sentence on the first two counts,
his effective sentence was below his advisory guidelines range of 195 to 228 months,
based on an offense level of 32 and a criminal history category of II.
    2
      Whitted also argues that his sentence violates Gall v. United States, 552 U.S. 38
(2007), asserting that the District Court procedurally erred by improperly calculating his
Guidelines range. This claim largely reprises the substantive basis of his putative
                                              3
       As at sentencing, Whitted concedes only that the evidence at trial rightly attributed

to him an eight-ounce bag of cocaine with his fingerprints on it recovered after his arrest.

Relying on United States v. Collins, 415 F.3d 304 (4th Cir. 2005), he argues that the

District Court erred by essentially directing the jury to impute to him responsibility for

any and all cocaine attributed to the conspiracy as a whole, rather than instructing the jury

“to make an individualized inquiry into the drugs attributable to [him]” personally.

Appellant’s Br. at 17; see Apprendi, 530 U.S. at 490 (“Other 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.”). As we

understand it, therefore, he presses as legal error what, at bottom, is a policy argument

that a mandatory minimum effectively functions to “increase” a defendant’s “maximum”

sentencing exposure if it is triggered by facts that ostensibly faulty jury instructions may

insufficiently bring to the jury’s attention, yielding a Sixth Amendment violation. 3




Apprendi claim, albeit under the different guise that attribution to him of the entire
quantity erroneously triggered a higher offense level. The claim is without merit.
    3
      While the practical functioning of mandatory minimum triggers in the context of a
conspiracy – where it is not unusual for various co-conspirators to have more or less
culpable roles – may, at first blush, create the appearance of an Apprendi factor-
increasing-maximum-sentencing-exposure issue, assuming proper jury instruction or a
proper plea colloquy, Apprendi is not implicated at all. See, e.g., United States v. Colon-
Solis, 354 F.3d 101-03 (1st Cir. 2004) (vacating a mandatory minimum sentence for an
apparently minor player in a drug conspiracy where the plea colloquy was “conspicuous
for its scantiness” and “did not allude in any way to specific drug weights” attributable to
him, while observing that Apprendi-premised claims on similar facts “appear[] to have
been considered and rejected in earlier decisions.”).
                                               4
       As a threshold matter, the record in no way suggests that the quantity finding itself

was clearly erroneous. See Yeung, 241 F.3d at 322. Moreover, Whitted confuses the

relevance of evidence for a substantive offense, versus that for a conspiracy offense,

which requires no completed act. Because “the essence of a conspiracy is an agreement

to commit an unlawful act[, and t]hat agreement is a distinct evil, which may exist and be

punished whether or not the substantive crime ensues,” United States v. Jimenez Recio,

537 U.S. 270, 274 (2003) (internal quotation marks and citations omitted), Whitted’s

conspiracy conviction in toto was the predicate for the mandatory minimum. Because the

record makes it abundantly clear that the jury was not improperly instructed, no crucial

assessment of facts was impermissibly removed from its purview, nor can it be said that

the District Court, on its own and also impermissibly, “increase[ed] the prescribed range

of penalties to which [he] [wa]s exposed” in violation of Apprendi, 530 U.S. at 490. 4

       Nor is the second aspect of Whitted’s Collins-premised argument persuasive, i.e.,

concerning the need for a defendant-specific, foreseeable quantity determination by the



   4
     The District Court noted, at Whitted’s sentencing, that his “Apprendi argument” was
unavailing because the jury was properly instructed. We agree: the Court instructed the
jury at length about the burden of proof, explained the essentials of conspiracy law, and
disaggregated the elements of conspiracy per se from the specific quantity determination.
See Revised Appendix at 97-161. Whitted particularly objects to the instruction that the
jury “consider all of the drugs which members of the conspiracy actually distributed
and/or intended to distribute,” id. at 136, but in so doing elides the basics of conspiracy
law, not to mention the fact that, immediately prior, the Court instructed that the jury must
decide “whether or not you unanimously agree by proof beyond a reasonable doubt that
the quantity of cocaine in which defendant[] James Whitted . . . conspired to distribute
was at least 5 kilograms or more.” Id. It also explained, in response to questions from
                                               5
jury (and/or of error under Gall premised on the Court’s reliance, for sentencing, on a

deficient factual finding). 5 Even aside from the fact that Collins does not bind us, we

have expressly rejected, as a minority view inconsistent with Apprendi, requiring a further

quantity-foreseeability analysis in drug conspiracies. See United States v. Phillips, 349

F.3d 138, 141-42 (3d Cir. 2003) (citing, with approval, First, Fifth, and Seventh Circuit

cases), vacated and remanded on other grounds sub nom. Barbour v. United States, 543

U.S. 1102 (2005). Specifically, Phillips held that

       [i]n drug conspiracy cases, Apprendi requires the jury to find only the drug
       type and quantity element as to the conspiracy as a whole, and not the drug
       type and quantity attributable to each co-conspirator. The finding of drug
       quantity for purposes of determining the statutory maximum is, in other
       words, to be an offense-specific, not a defendant-specific, determination.
       The jury must find, beyond a reasonable doubt, the existence of a
       conspiracy, the defendant’s involvement in it, and the requisite drug type
       and quantity involved in the conspiracy as a whole.

349 F.3d at 142-43. Accordingly, not only were the jury instructions here not defective,

but our precedent suggests no reason to require under Apprendi, as Whitted would have

us require, a defendant-specific determination of drug quantity for purposes of triggering

a mandatory minimum, when we have concluded, per Phillips, that Apprendi does not


the jury, that the jury could “find any defendant guilty of conspiracy, but answer no as to
the amount.” Id. at 191.
    5
      Whitted also, but unpersuasively, relies on a pre-Apprendi case of this Court, United
States v. Collado, 975 F.2d 985, 992 (3d Cir. 1992), which held that, for purposes of the
Sentencing Guidelines – which are not at issue here, given the mandatory minimum –
“whether a particular defendant may be held accountable for amounts of drugs involved
in transactions conducted by a co-conspirator depends upon the degree of the defendant’s
involvement in the conspiracy and, of course, reasonable foreseeability with respect to the
conduct of others within the conspiracy.”
                                              6
require it for purposes of determining the applicability of a statutory maximum.

                                     III. Conclusion

       Whitted’s sentence is not inconsistent with Apprendi (1) given the overwhelming

evidence, (2) our review of those jury instructions that were pertinent to weighing the

evidence vis-à-vis the elements of the charged conspiracy, and (3) in light of Phillips.

Finding Whitted’s remaining arguments to be without merit, we will affirm the judgment

of sentence.




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