                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-3537
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the Eastern
                                         * District of Arkansas.
Harold D. Ray,                           *
                                         *
             Appellant.                  *
                                    ___________

                             Submitted: April 16, 2002
                                 Filed: May 29, 2002
                                  ___________

Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
                          ___________

MURPHY, Circuit Judge.

      This case returns after a remand to the district court for resentencing on two of
the counts on which Harold D. Ray was convicted. Ray originally received 97 month
concurrent sentences for conspiracy to distribute marijuana, for aiding and abetting
marijuana distribution, and for witness tampering. We affirmed his convictions, but
remanded for resentencing on the two drug counts because of an error under
Apprendi v. New Jersey, 530 U.S. 466 (2000). See United States v. Ray (Ray I), 250
F.3d 596, 603 (8th Cir. 2001), cert. denied, 122 S. Ct. 1459 (2002).1 On remand the
district court sentenced Ray to 60 months on each of the drug counts, to be served
concurrently with his 97 month sentence for witness tampering. Ray again appeals,
and we affirm.

       Ray was involved in a drug trafficking operation that regularly transported
marijuana from Texas to Arkansas and Tennessee in a chartered airplane. He was
charged and convicted on three counts: conspiracy to possess with intent to distribute
marijuana in violation of 21 U.S.C. §§ 841 and 846, aiding and abetting the
possession with intent to distribute approximately 34 pounds of marijuana in violation
of 18 U.S.C. § 2 and 21 U.S.C. § 841, and attempted witness tampering in violation
of 18 U.S.C. § 1512(b)(1). The issue of drug quantity was not submitted to the jury
but was decided by the district court, which found that Ray was responsible for
between 60 and 80 kilograms of marijuana. Ray's base offense level was calculated
at 22 and his total offense level at 28 after two types of enhancements were applied:
a mandatory increase to level 26 for using an aircraft to transport controlled
substances and a two level increase for witness tampering. United States Sentencing
Commission, Guidelines Manual, §§2D1.1(a)(3), (b)(2), (c)(9), 3C1.1 (Nov. 2000).
Ray's total offense level combined with his criminal history category of III resulted
in a guidelines range of 97 - 121 months. USSG §5A. The district court sentenced
Ray to 97 months on each of the three counts, to be served concurrently.

       Ray raised a number of issues on his first appeal, only one of which had
success. We affirmed his convictions but remanded under Apprendi "for resentencing
on the drug counts," 250 F.3d at 603, because the issue of drug quantity had not been
submitted to the jury and the 97 month sentences on those convictions exceeded the
60 month statutory maximum for possession with intent to distribute less than 50


      1
        Ray's petition for certiorari addressed only one of the issues decided by
this court on his earlier appeal – double jeopardy.

                                         -2-
kilograms of marijuana. See 21 U.S.C. § 841(b)(1)(D). Ray's 97 month sentence on
his witness tampering conviction did not exceed the 120 month statutory maximum
for that crime, see 18 U.S.C. 1512(b), and the remand did not include resentencing
on that count. On remand the district court imposed 60 month sentences on the two
drug counts, to be served concurrently with the 97 month sentence previously
imposed for witness tampering, and Ray appeals.

        Ray claims that the sentence imposed on remand was improper under Apprendi
and the sentencing guidelines. He now argues that the 97 month sentence previously
imposed for witness tampering violates Apprendi because it exceeds the 60 month
statutory maximum applicable to the two drug counts. He contends that his sentence
for witness tampering should have been no more than 24 to 30 months. He arrives
at this guideline range by considering the witness tampering offense in isolation and
starting with a base offense level of 12, then adding a three level enhancement for
substantial interference with the administration of justice. He then arrives at a total
offense level of 15. USSG §§2J1.2(a), (b)(2).

      The government responds that Ray cannot appeal his 97 month sentence for
witness tampering because it has become the law of the case and that the court
determined in Ray I that his total offense level would not be impacted if a quantity
of marijuana below the statutory maximum were used in the calculation. Ray I, 250
F.3d at 602-03. The government states there was no Apprendi error on resentencing
because none of the three sentences exceeds the applicable statutory maximum and
concurrent sentences were appropriate to achieve total punishment under USSG
§5G1.2(c).

       We discussed the application of the guidelines to Ray and his convictions in
Ray I and that analysis remains the law of the case. United States v. Behler, 187 F.3d
772, 776 (8th Cir. 1999). In Ray I we stated that "the jury found Ray responsible for
an offense involving an unspecified amount of marijuana, which is sufficient to

                                         -3-
support a sentence of up to 60 months under § 841(b)(1)(D)." 250 F.3d at 603. We
also pointed out that even if Ray's argument were accepted that he was responsible
for only 19 kilograms of marijuana, his guideline sentencing range would remain
unaffected because his use of a chartered airplane to transport drugs must increase his
offense level to 26 even with the lower drug quantity, USSG §2D1.1(b)(2), and he
was subject to a two level enhancement for the witness tampering conviction under
USSG §3C1.1. Id. at 602. His total offense level for all three counts would thus still
be 28 which, combined with criminal history category III, produces a 97 - 121 month
sentencing range. USSG §5A. While it is true that under Apprendi the statutory
maximum of 60 months for each drug conviction could not have been exceeded based
on quantity because that issue had not been submitted to the jury, Ray's guideline
range would not have been affected. Id.

      Under the guideline system, the total punishment for multiple offenses is to be
determined by the adjusted offense level and "[t]o the extent possible, the total
punishment is to be imposed on each count." USSG §5G1.2, comment. (n.1). Ray
I remanded for resentencing on the drug counts, but not on the witness tampering
count. Ray's 97 month sentence for witness tampering reflected the total appropriate
punishment as determined by his adjusted offense level.

      On resentencing the district court corrected any infirmity under Apprendi and
sentenced Ray to 60 months on each of the two drug counts, making them concurrent
to each other and to the 97 month sentence for witness tampering. This was
consistent with USSG §5G1.2(c), which provides that sentences are to be run
concurrently if the sentence imposed on the count carrying the highest statutory
maximum is adequate to achieve total punishment. After Ray I the witness tampering
conviction carried the highest statutory maximum (120 months), and the previously
imposed 97 month sentence on that count was adequate to achieve total punishment.
Even if we had remanded for resentencing on all three counts, however, Ray would
not have been entitled to the 24 - 30 month range he claims, because his guideline

                                         -4-
range remained 97 - 121 months and his sentences would have been run consecutively
under USSG §5G1.2(d) to achieve total punishment consistent with that range.

       Ray's current Apprendi claim is without merit. Apprendi requires that any fact
other than a prior conviction "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. The statutory maximum for each of Ray's drug
convictions is 60 months, 21 U.S.C. § 841(b)(1)(D), and the statutory maximum for
the witness tampering conviction is 120 months. 18 U.S.C. § 1512(b). Ray's
argument that his 97 month sentence for witness tampering violates Apprendi because
it exceeds the 60 month statutory maximum on the two drug counts is foreclosed by
United States v. Nicholson, 231 F.3d 445, 453 (8th Cir. 2000). In Nicholson, we
remanded for resentencing on two counts that exceeded the statutory maximum, but
we affirmed the defendant's conviction and sentence on the third count because the
sentence was within the statutory sentencing range. Id. The sentence for each count
must appropriately "stand[] on its own" after full consideration of the Apprendi issue.
Id. Here, the district court eliminated the Apprendi problem by resentencing Ray to
60 months on each drug count. The sentence on each count can appropriately stand
on its own. No Apprendi violation remained because the concurrent 97 month
sentence on the witness tampering count was below the 120 month statutory
maximum, and Apprendi was not implicated by the use of relevant conduct
underlying Ray's drug convictions to enhance his witness tampering sentence. See,
e.g., United States v. Feola, 275 F.3d 216 (2d Cir. 2001) (per curiam).

      For these reasons, we affirm the judgment of the district court.

      A true copy.

             ATTEST:

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

                                         -5-
