                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

            ______________

              No. 00-1264
            ______________


United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
Keith Maynie, Jr.,                    *
                                      *
            Appellant.                *

            ______________                    Appeals from the United States
                                              District Court for the
              No. 00-1269                     Southern District of Iowa.
            ______________

United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
Dietrick Lavon Banks,                 *
                                      *
            Appellant.                *
             ______________

               No. 00-1271
             ______________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *
      v.                                  *
                                          *
Lenora Logan,                             *
                                          *
             Appellant.                   *

                                 ________________

                                 Submitted: November 30, 20001
                                     Filed: July 30, 2001
                                 ________________

Before HANSEN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

                                 ________________

HANSEN, Circuit Judge.

      Defendants Keith Maynie, Dietrick Banks, and Lenora Logan were each
convicted of conspiracy to distribute and possess with the intent to distribute cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (1994). The district court sentenced


      1
       This case was initially heard on October 18, 2000. Following oral argument,
the court requested supplemental briefing on the effect and impact of Apprendi v. New
Jersey, 530 U.S. 466 (2000), on defendants' appeals. Supplemental briefing was
complete on November 30, 2000, and the case is deemed submitted on that date.
                                          2
each defendant to life in prison. On appeal, defendants challenge both their convictions
and sentences. We affirm all three defendants' convictions, but because drug quantity
was not alleged in the indictment and the juries did not make a quantity finding
sufficient to authorize a life sentence, see Apprendi v. New Jersey, 530 U.S. 466
(2000), we reverse the district court's judgment as to the sentences imposed and remand
for resentencing of each defendant.

                                    I. Background

       Stuart Stewart, Dietrick Banks, and Lenora Logan decided that Davenport, Iowa,
would be a promising market in which to sell crack cocaine. Both Stewart and Dietrick
Banks resided in Harvey, Illinois. Logan informed the two that she had several family
members in Davenport who could be enlisted to help the trio break into the local drug
market. The three made their first trip to Davenport for purposes of selling crack
cocaine in December 1997, bringing with them a total of two ounces of the drug. After
a few days, Logan arranged for the three to stay at Rosie Butler's apartment on State
Street, which became the group's initial venue for selling crack cocaine. Logan and
Butler are cousins.

       The group was successful in selling crack cocaine out of Ms. Butler's apartment,
and Banks and Stewart made several return trips to Harvey to replenish their inventory
of crack cocaine. On their third trip in late December 1997, Tyrone Banks, Dietrick
Banks' cousin, returned to assist with the drug-sales operation in Davenport. At some
point, a decision was made that more money could be made if the group expanded its
operation by selling drugs at an apartment building on Harrison Street. Logan's brother,
Edward Green (E.G.) Harrison, who resided at the Harrison Street apartment, spear-
headed the sale of crack cocaine (and later the conversion of cocaine powder into crack
cocaine) at the Harrison Street building.




                                           3
       In March 1998, a dispute arose between Dietrick Banks and Stewart over who
was entitled to certain proceeds from the drug sales. Stewart left Davenport and
returned to Harvey, taking with him $10,000. Dietrick Banks believed that at least part
of the $10,000 belonged to him. Sometime later in Harvey, a car driven by Maynie
pulled alongside Stewart's automobile, and Dietrick Banks began firing at Stewart from
the rear seat of Maynie’s vehicle. At least one round struck Stewart's car, but he was
not injured in the incident.

       Maynie, who was also a Harvey native, joined Dietrick Banks in Davenport
sometime after Stewart's departure from the operation. Around the same time, the
Quad-City Metropolitan Enforcement Group ("MEG") initiated a series of controlled
buys of crack cocaine from various individuals at the Harrison Street building. MEG
officers purchased crack cocaine on seven occasions from March 5 through June 9, and
the investigation culminated in a raid of the building on June 10, 1998. Officers seized
cash, crack cocaine, scales, drug notes and various other drug paraphernalia. Maynie
was present at the time of the raid, but the officers found no drugs or money on him.



       Following the raid, E.G. Harrison and others who resided at the Harrison Street
building were evicted, and they moved to another Davenport apartment building at 620
Perry Street where they resumed trafficking crack cocaine. The Perry Street building
was eventually raided on July 14, 1998, and E.G. Harrison and three females, including
Ms. Butler, were arrested for selling crack cocaine. Maynie was not present at the time
of the raid, but officers seized a keyless remote to Maynie's vehicle, and found his
vehicle parked outside the building at the time of the raid. According to those involved
in the distribution, Dietrick Banks, Tyrone Banks, and Maynie supplied the cocaine
sold at the Harrison Street and Perry Street apartments.

      Dietrick Banks and Maynie were initially charged in an indictment in August
1998 with conspiracy to distribute crack cocaine. The government filed a superceding

                                           4
indictment in April 1999, adding Logan as a defendant and naming E.G. Harrison and
Tyrone Banks as coconspirators. The defendants were tried jointly in Des Moines,
Iowa, beginning in late June 1999. On July 7, the jury found Dietrick Banks and
Maynie guilty of conspiracy but was unable to reach a verdict as to Logan. Logan was
retried in September 1999 and found guilty of conspiracy to distribute crack cocaine.
The district court determined that Maynie and Banks faced a Guidelines sentence of life
imprisonment and that Logan’s Guidelines sentencing range was 360 months to life.2
The district court, however, sentenced all three to mandatory life sentences under 21
U.S.C. § 841(b)(1)(A)(iii), based on its finding that each defendant was responsible for
50 grams or more of a mixture or substance containing crack cocaine and its finding
that each had two prior drug felony convictions. See USSG § 5G1.1(c)(2) (prohibiting
sentence less than the statutorily required minimum sentence). Section 841(b)(1)(A)
requires a mandatory life sentence when a defendant has "two or more prior convictions
for a felony drug offense" and is also accountable for 50 grams or more of crack
cocaine in the instant offense.

       On appeal, defendants raise a number of independent and interrelated arguments.
Maynie argues his conviction should be set aside because the government violated the
Speedy Trial Act, the district court should have transferred his trial, the district court
erred in admitting Stewart's testimony concerning the shooting incident in Harvey, and
the evidence was insufficient to support his conviction. Dietrick Banks joins Maynie’s

      2
        The district court found that all three defendants were responsible for more than
1.5 kilograms of crack cocaine, supporting a base offense level 38. See USSG §
2D1.1(c). The district court enhanced Maynie’s sentence two levels for possession of
a dangerous weapon, USSG § 2D1.1(b)(1), three levels for his role as a manager or
supervisor, USSG § 3B1.1(b), and determined his criminal history category as V. The
district court also enhanced Dietrick Banks' sentence two levels for possession of a
weapon, four levels for his role as a leader or organizer, USSG § 3B1.1(a), and
determined his criminal history category as IV. The court enhanced Logan's sentence
two levels for her use of a minor in the commission of a crime, USSG § 3B1.4, and
concluded that her criminal history category was VI.
                                            5
argument that the district court abused its discretion in admitting Stewart's testimony.
Logan argues the evidence presented at her trial was insufficient to support her
conviction. All three defendants argue in the alternative that their sentences must be
set aside in light of Apprendi.

                                   II. Pretrial Matters

                                  A. Speedy Trial Act

         Maynie claims on appeal that his rights under the Speedy Trial Act, 18 U.S.C.
§§ 3161-74 (1994), were violated in two respects. He first complains that he was
detained for an excessive period of time prior to his trial. As a general rule, a defendant
must be tried upon an indictment within 70 days from the date of his initial appearance,
see id. § 3161(d)(2), yet delay caused by certain statutorily-enumerated events are
excluded from the 70-day period, see id. § 3161(h). Maynie was initially arraigned on
September 15, 1998, and tried over nine months later. He also complains that through
oversight he was not arraigned on the superceding indictment until the morning of his
trial, thus violating § 3161(c)(2)'s requirement that a defendant be arraigned more than
30 days prior to trial.3

       Maynie was originally scheduled to be tried in November 1998 but his attorney
filed a motion for a competency evaluation and a motion to withdraw. The district
court continued the trial, ordered the medical examination, and permitted Maynie's
attorney to withdraw. The evaluation was completed in December 1998. Maynie was
determined competent to stand trial, and the district court, through a series of four


      3
       18 U.S.C. § 3161(c)(2) provides: "Unless the defendant consents in writing to
the contrary, the trial shall not commence less than thirty days from the date on which
the defendant first appears through counsel or expressly waives counsel and elects to
proceed pro se."
                                            6
requested continuances by Maynie's newly-appointed counsel, ultimately set a May
1999 trial date. On April 22, 1999, the district court granted Maynie's request that his
second attorney be permitted to withdraw, and Maynie's present counsel was appointed
on May 11, 1999. The district court ultimately set the trial for June 28, 1999.

       The district court addressed the numerous delays and the Speedy Trial Act issues
in a hearing on the first day of trial. Both Maynie and his first attorney presented
testimony. Maynie complained that he had not approved his attorney's request for a
continuance and competency evaluation, and that the trial delay prejudiced him because
the government secured additional witnesses who would not have testified had the trial
been conducted in November 1998. The district court ruled that the delay was caused
by Maynie's numerous motions (which the court found were filed with Maynie's
consent and approval) and that the time was excluded under the Speedy Trial Act.

       We agree that Maynie's speedy trial rights were not violated. As the district
court noted, the continuances were precipitated primarily by Maynie's disruptive
conduct and his inability to sustain representation. Maynie's first attorney indicated
during testimony that he felt a competency exam was required based on his
observations of Maynie's conduct in jail. The attorney testified that Maynie smeared
his own feces on jail walls and appeared unable to comprehend and defend against the
charges against him. As for his allegation that he was unaware of the motion for the
competency evaluation, Maynie suggests no authority in support of his assertion that
the time to conduct the evaluation should be charged against the government if his
counsel acted without his approval in seeking the evaluation. Even if that were the
case, we conclude the district court's finding that Maynie approved of his counsel's
actions was not clearly erroneous. See United States v. Van Someren, 118 F.3d 1214,
1216 (8th Cir. 1997) ("In the context of the Speedy Trial Act, we review the district
court's findings of fact for clear error . . . ."). The district court thus properly excluded
the time necessary to conduct the competency examination. See 18 U.S.C. §


                                             7
3161(h)(1)(A) (permitting exclusion of time for any examination to determine mental
competency).

       The additional delay caused by Maynie's numerous other motions to continue
was also properly excluded. Maynie initially signed a plea agreement in October 1998,
leaving the government and the district court with the impression that there would be
no trial. During his April 1999 change of plea hearing, however, Maynie informed the
court that he was not going to plead guilty and that he wanted new counsel. Trial delay
caused by a defendant's vacillation after informing the government or the court that he
would plead guilty is properly charged to the defendant and excluded from the 70-day
period. See United States v. Mentz, 840 F.3d 315, 330 (6th Cir. 1988). The remaining
delay from April until the time of trial was properly excluded as time necessary to
appoint Maynie's third counsel and to permit his counsel to prepare for trial. See 18
U.S.C. § 3161(h)(8)(A); United States v. Cheek, 3 F.3d 1057, 1066 (7th Cir. 1993)
(stating that continuance permitting defendant time to secure new counsel is excluded
under § 3161(h)(8)), cert. denied, 510 U.S. 1112 (1994).

      As for Maynie's argument that the district court erred in proceeding to trial on
the same day he was arraigned on the superceding indictment, our circuit rejects the
proposition that § 3161(c)(2) requires an automatic 30-day extension whenever a
defendant is arraigned on a superceding indictment.4 See United States v. Vaughn, 111
F.3d 610, 613 (8th Cir. 1997); United States v. Punelli, 892 F.2d 1364, 1369 (8th Cir.
1990). We have said instead that a district court has "broad discretion" to grant a
continuance under such circumstances and should do so when the "ends of justice" so
require. Punelli, 892 F.2d at 1369 (quoting § 3161(h)(8)). A district court should


      4
        Maynie also asserts that the government unnecessarily delayed in bringing
before the grand jury the charges contained in the superceding indictment. See Fed. R.
Crim. P. 48(b) (permitting the district court to dismiss an indictment for excessive
delay). Maynie has provided no factual or legal basis supporting his assertion.
                                          8
consider whether "the defendant would be prejudiced by a lack of time to prepare to
meet the new charges in the superceding indictment" in deciding whether to grant the
continuance. See Vaughn, 111 F.3d at 613.

        The district court did not abuse its discretion in proceeding to trial immediately
following the arraignment. Neither Maynie nor his counsel complained prior to trial,
nor do they now, that the last minute arraignment prejudiced Maynie's defense in any
manner. In fact, the district court offered to continue the trial after finding out that
Maynie had not been arraigned, but Maynie informed the court that he wanted to
withdraw his motion to continue the trial and proceed to trial because he disliked the
jail at which the United States Marshal had arranged for him to be held. Furthermore,
the record establishes that Maynie's counsel was adequately prepared for trial, and the
district court offered to accommodate Maynie's counsel in the event he later determined
he was unprepared for one of the government's witnesses. There is no indication any
such accommodations were needed.

                                 B. Motion to Transfer

       Maynie also challenges the district court's denial of his motion pursuant to Fed.
R. Crim. P. 21(b) to retransfer venue to Davenport where the trial had originally been
scheduled. Maynie filed the motion on Friday, and the district court denied it on the
following Monday during the pretrial hearing held on the first day of trial. We review
a district court's refusal to transfer venue for an abuse of discretion. United States v.
Blom, 242 F.3d 799, 803 (8th Cir. 2001). Here, the district court was unquestionably
within its discretion. Maynie filed the motion essentially on the eve of trial, and the
United States Marshal had already transported, or was prepared to transport, trial
witnesses to the Des Moines area. Moreover, the trial was apparently transferred to
Des Moines in the first place because the Marshal was unable to find any jail facility
near Davenport willing to house Maynie after his earlier disruptive conduct.


                                            9
                                III. Evidentiary Ruling

       Maynie and Banks attempted both prior to and during their trial to prohibit the
government from offering Stewart's testimony concerning the Harvey shooting incident.
Both argued that the government sought to offer the evidence to show their propensity
for criminal conduct in violation of Fed. R. Evid. 404(b). Accepting the government's
argument that the testimony was actually direct evidence of a conspiracy, the district
court ruled the testimony admissible as "probative of . . . a conspiracy to engage in drug
trafficking." (Tr. at 75.) We conclude the district court's admission of the evidence did
not amount to an abuse of discretion. See United States v. O'Dell, 204 F.3d 829, 833
(8th Cir. 2000) ("We review a district court's decision to admit evidence for an abuse
of discretion.").

       Evidence that a coconspirator participated in acts which furthered the conspiracy
constitutes substantive evidence of the conspiracy's existence. See id. at 833-34. Such
evidence is probative of the crime charged and does not fall within Rule 404(b)'s
exclusion of "other crimes, wrongs, or acts." See United States v. Dierling, 131 F.3d
722, 732 (8th Cir. 1997), cert. denied, 523 U.S. 1054 (1998). Our circuit has
previously recognized that evidence of violent acts committed by conspirators during
and in relation to the conspiracy are direct evidence of the conspiracy and are therefore
admissible. See, e.g., id. (concluding evidence of slaying and shooting committed
during a drug conspiracy was not subject to Rule 404(b) exclusion); United States v.
Grajales-Montoya, 117 F.3d 356, 363-64 (8th Cir.) (stating evidence that drug
conspirators kidnaped, interrogated, and arranged for their maid to be killed was
admissible as direct evidence of a conspiracy), cert. denied, 522 U.S. 983 (1997).

      Evidence of Maynie and Banks' attempt to shoot Stewart is similarly admissible
as substantive evidence. The shooting incident occurred during the time period in
which the government charged that the conspiracy was ongoing. According to
Stewart's testimony, a rift occurred between himself and Dietrick Banks because Banks

                                           10
believed Stewart was taking more than his share of the drug proceeds. He further
testified that he saw Maynie pass the gun to Banks as he pulled alongside him and that
Banks fired at him. The testimony tended to establish the sale of crack cocaine by
members of the conspiracy, the existence of an agreement to share in the proceeds, and
the extent to which Maynie and Banks would protect their stake in the operation. The
evidence also explained Maynie's entrance into the operation and the extent of his
involvement. Because Stewart's testimony was relevant to the existence of an
agreement and demonstrated acts committed by Banks and Maynie in furtherance of
the conspiracy, it was properly admitted as substantive evidence of the conspiracy
itself.

        We reject Maynie and Banks' argument that evidence of the shooting was
unfairly prejudicial. See Fed. R. Evid. 403. Although relevant to the existence of a
conspiracy, violent acts may be excluded if their probative value is substantially
outweighed by their prejudicial effect. See O'Dell, 204 F.3d at 834. Here, the
probative value of the evidence was substantial and far outweighed any prejudicial
effect.

                            IV. Sufficiency of the Evidence

      Maynie and Logan argue the evidence presented at their trials was insufficient
to support that they were members of a conspiracy to distribute crack cocaine. In
determining whether the evidence was sufficient to support a conviction, we view the
evidence in a light most favorable to the verdict, giving it the benefit of all reasonable
inferences. United States v. Calderin-Rodriguez, 244 F.3d 977, 983 (8th Cir. 2001).
Reversal is required only where no reasonable jury could have found a defendant guilty
beyond a reasonable doubt. Id. "[T]he standard to be applied to determine the
sufficiency of the evidence is a strict one, and the finding of guilt should not be
overturned lightly." Hill v. Norris, 96 F.3d 1085, 1088 (8th Cir. 1996) (quoting United
States v. Brown, 921 F.2d 785, 791 (8th Cir. 1990)). To support a conviction for

                                           11
conspiracy, the evidence must show: "1) the existence of a conspiracy with an illegal
purpose, 2) that the defendant was aware of the conspiracy, and 3) that the defendant
knowingly became a part of the conspiracy." United States v. Ray, 250 F.3d 596, 600
(8th Cir. 2001).

                                       A. Maynie

       Maynie directs his challenge at the third showing. He contends the evidence
showed, at best, that he was aware of the conspiracy and that he was present when
drug sales were made but that he was not actively involved. We conclude, however,
that there was an abundant amount of evidence presented showing that Maynie was
actively involved in the distribution of crack cocaine and that he undertook numerous
other acts in furtherance of the conspiracy, which supports a finding that he was a
knowing participant.

       Tyrone Banks testified to much of Maynie's involvement in the conspiracy.
According to his testimony, Maynie first appeared in Davenport after Stewart and
Dietrick Banks had their disagreement, and Maynie and Dietrick Banks then "went
together on everything." (Tr. at 131.) Tyrone Banks testified that part of his role in the
operation was to store crack cocaine at a different location until the drug was needed
and that Maynie would drop off crack cocaine to him and pick it up later when there
was need for it. He also testified that either Maynie or Dietrick Banks called him to
inform him when Maynie would be by to pick up the drug.

       There was also other evidence of Maynie's involvement in the operation's
distribution of crack cocaine. One individual testified that Maynie, E.G. Harrison, and
others traveled to Chicago three to four times per month to replenish their supply of
crack cocaine. Rosie Butler also testified that she saw Maynie drop off drugs and pick
up money at both the Harrison Street and Perry Street apartments. She also testified
that she observed Maynie selling crack cocaine at the Harrison Street apartment on the

                                           12
day officers raided the building and that she purchased crack cocaine from him on that
day.

       Evidence of Maynie's involvement extended beyond the mere logistics of
distributing the crack cocaine. Three witnesses testified that they were present at the
Harrison Street apartment when Dietrick Banks and Maynie beat an individual with a
board because he had stolen crack cocaine from them. Tyrone Banks also testified that
Dietrick Banks became suspicious after Stewart's departure and believed that he had
also stolen drug money. He testified that Maynie, at Dietrick Banks' direction, later
placed a gun to his head and robbed him of his clothing and drug money that was in his
possession. Finally, Stewart testified that Maynie was an accomplice in the shooting
incident, which, as we have already discussed, was highly probative of Maynie's
involvement.

       We reject Maynie's assertion that this evidence merely established that he was
present when drugs were being sold. Once the existence of a conspiracy is established,
"only slight evidence is required to link a defendant to the conspiracy." United States
v. Jiminez-Perez, 238 F.3d 970, 973 (8th Cir. 2001). Evidence of Maynie's knowing
participation was far greater than "slight," and we accordingly conclude that the
evidence supports his conviction.

                                      B. Logan

       Logan also contends there was insufficient evidence to support her conviction,
although she herself identifies numerous instances in which nine witnesses,
coconspirators, and others somehow connected to the operation, gave testimony
directly implicating her knowledge of the conspiracy and her active participation in it.
In light of Logan's candid and forthright admission, we do not need to discuss the
evidence in detail. Needless to say, we have reviewed the record and conclude that
there was adequate evidence presented to support her conviction. The evidence

                                          13
showed that she initiated the drug operation by suggesting that Davenport would be a
good place to sell crack cocaine. It also showed that she was instrumental in finding
a location in Davenport from which drugs could be sold, that she sold drugs herself,
and that she regularly supplied her brother, E.G. Harrison, with crack cocaine to sell.

       Logan suggests instead that the evidence of her involvement was insufficient
because the nine witnesses were incredible. She essentially argues that the jury was
not entitled to believe their testimony because most of the witnesses admitted personal
drug use and because all nine were seeking leniency, in some respect, from either the
state or federal government for their involvement in the conspiracy. Memory and bias
are matters implicating a witness's credibility and the weight to be given the testimony.
They are within the province of the jury, and we are prohibited from evaluating them
when reviewing the sufficiency of the evidence. See United States v. Stroh, 176 F.3d
439, 440 (8th Cir. 1999).

                                     V. Apprendi

        Between the time of defendants' trials and when we heard their appeals, the
Supreme Court announced its decision in Apprendi v. New Jersey. The Court held in
Apprendi that any fact (other than a prior conviction) which increases the penalty for
a crime beyond the maximum statutory penalty authorized must be submitted to a jury
and proved beyond a reasonable doubt. 530 U.S. at 488-90. We subsequently held in
United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.), cert. denied, 121
S. Ct. 600 (2000), that the government is prohibited from seeking a penalty in excess
of those provided in § 841(b)(1)(C) unless drug quantity is alleged in the indictment
and submitted to the jury. The Apprendi issue was raised for the first time in this case
during oral argument, and we asked for supplemental briefing on the issue. Defendants
argue in their supplemental briefs that the district court erred in imposing mandatory
life sentences under § 841(b)(1)(A)(iii) because their prior drug felony convictions and
drug quantity were not alleged in the superceding indictment or found by a jury.

                                           14
       Although the Supreme Court explicitly excluded prior convictions from those
facts which constitute an element of the offense, defendants argue the Court was
prepared to overrule its holding in Almendarez-Torres v. United States, 523 U.S. 224
(1998), and ask us to advance Apprendi that additional step. We decline. See United
States v. Rush, 240 F.3d 729, 731 (8th Cir. 2001) (rejecting argument that prior
conviction must be found by a jury because Apprendi expressly excluded prior
convictions from its holding). We are obligated to follow what the Supreme Court has
said, not guess what it might say in the future. See Agostini v. Felton, 521 U.S. 203,
237 (1997) (stating that a court of appeals should follow controlling Supreme Court
precedent even though it may have been called into question indirectly).

       The second prong of defendants' Apprendi argument, that their sentences were
unlawfully imposed because drug quantity was not alleged in the indictment or
submitted to the jury, was not raised below and is therefore subject to plain error
review. See Fed. R. Crim. P. 52(b); United States v. Butler, 238 F.3d 1001, 1005 (8th
Cir. 2001). Before we may grant relief on plain error review, defendants must establish
(1) error, (2) that the error was plain, and (3) that the error affected their substantial
rights. Butler, 238 F.3d at 1005. If defendants can establish these three requirements,
we may notice the error but only if it "seriously affects the fairness, integrity, or public
reputation of judicial proceedings." Johnson v. United States, 520 U.S. 461, 467
(1997) (internal quotations and alterations omitted). The government concedes
defendants were erroneously sentenced because their sentences exceed the penalty
authorized under § 841(b)(1)(C). It also concedes the error was plain but argues
defendants cannot make the substantial rights showing or establish that the judicial
proceedings are affected by the error.

      Whether the error is cognizable under plain error review has substantial
consequences to defendants. Because all three have at least one prior drug felony
conviction, the maximum sentence the district court could have imposed without


                                            15
violating Apprendi was 30 years.5 See United States v. Arias, No. 00-3032, 2001 WL
630608, at *4 (8th Cir. June 8, 2001) (recognizing that defendant with prior conviction
may be sentenced to 30-year sentence under § 841(b)(1)(C) without offending
Apprendi). Defendants instead each received a life sentence.

        A defendant's rights are substantially affected when the error "prejudicially
influenced the outcome of the district court proceedings." Butler, 238 F.3d at 1005
(quoting United States v. Poulack, 236 F.3d 932, 938 (8th Cir. 2001)). In previous
cases where a sentence has been challenged on a previously unraised ground, we have
found a defendant's substantial rights were affected where correction of the error would
result in a lesser term of imprisonment. See United States v. Kroeger, 229 F.3d 700,
702 (8th Cir. 2000) (holding that error causing sentence to exceed authorized Guideline
sentence by 30 months affects substantial rights); United States v. Comstock, 154 F.3d
845, 850 (8th Cir. 1998) (recognizing that substantial rights were affected where
defendant would serve 17 months less if the error had not occurred); see also United


      5
        Maynie argues the two convictions relied upon by the district court to enhance
his sentence to life under § 841(b)(1)(A) are not "felony drug offense[s]" within the
meaning of the statute. We need only address one of his prior convictions because one
felony drug offense triggers a maximum 30-year sentence under § 841(b)(1)(C).
Despite his argument, the district court correctly found that his Wisconsin conviction
for possession of a controlled substance constitutes a "felony drug offense." See 21
U.S.C. § 802(44) (Supp. IV 1998) ("The term 'felony drug offense' means an offense
punishable by imprisonment for more than one year . . . ."); United States v. Spikes,
158 F.3d 913, 932 (6th Cir. 1998) (rejecting argument that additional element beyond
mere possession of drugs is necessary to meet the definition of a "felony drug offense"),
cert. denied, 525 U.S. 1086 (1999). We similarly reject Logan's argument that
enhancing her sentence under § 841(b) based on a previous state drug offense, which
in another state would not have subjected her to punishment of more than one year,
violates her right to equal protection. See United States v. Woodall, 120 F.3d 880, 882
(8th Cir. 1997) (recognizing that a federal sentencing scheme influenced by
idiosyncratic state penalty systems does not violate a defendant's right to equal
protection).
                                           16
States v. Robinson, 250 F.3d 527, 529 (7th Cir. 2001) (noting there was "no question"
an Apprendi error affected substantial rights where defendant's sentence exceeded
authorized sentence by 20 years); United States v. Miranda, 248 F.3d 434, 445 (5th
Cir. 2001) (concluding that Apprendi error affects substantial rights); United States v.
Wilson, 244 F.3d 1208, 1220 n.7 (10th Cir. 2001) (recognizing that Apprendi error
where sentence exceeded authorized sentence by 10 years affected a defendant's
substantial rights). Had the district court sentenced defendants under § 841(b)(1)(C),
as we now know was constitutionally required, defendants would be facing 30 years
instead of life in prison. We hold that this greater, and improper, infringement of
defendants' liberty substantially affected their rights.

      Our court held in Poulack that an Apprendi error did not affect the defendant's
substantial rights where the defendant (1) was informed prior to trial of drug quantity
the government intended to prove, (2) had an opportunity to contest the weight of drug
prior to trial, (3) stipulated to drug quantity at trial, and (4) where the defendant's
counsel conceded there was no basis to contest the district court's quantity finding. See
Poulack, 236 F.3d at 937-38. The circumstances are quite different here. The
government has not suggested that defendants were informed prior to trial of the
amount of crack cocaine it sought to prove, nor did defendants stipulate to drug
quantity at trial. See Butler, 238 F.3d at 1005 (distinguishing Poulack where defendant
had not "admit[ted] to the essential element of [drug] quantity at trial"). And, unlike
in Poulack, defendants had grounds for attacking the credibility of the government's
witnesses whose testimony formed the sole basis for the district court's drug quantity
finding.

       The government argues, relying on Johnson v. United States, that we should
nevertheless refuse to recognize the Apprendi error because it does not seriously affect
the fairness, integrity, or public reputation of judicial proceedings. In Johnson, the
defendant was indicted for perjury under 18 U.S.C. § 1623 and found guilty by a jury.
During the trial, the district judge instructed the jury based on then-existing precedent

                                           17
that the issue of whether the defendant's statement was "material" was an issue for the
judge to decide and that he had determined the statement to be material. The Supreme
Court subsequently decided in United States v. Gaudin, 515 U.S. 506 (1995), that
materiality was an issue for the jury, and the Johnson defendant asserted error in her
direct appeal. On plain error review, the Supreme Court held that the failure to submit
the element of materiality to the jury did not seriously affect the fairness, integrity or
public reputation of judicial proceedings because the evidence of the statement's
materiality was "overwhelming." Johnson, 520 U.S. at 469-70.

        The government argues here that the Apprendi error also has no effect on the
judicial proceedings because there was "overwhelming" evidence that the defendants
were responsible for 50 grams or more of crack cocaine. We recognize that there was
a significant amount of testimony presented that, if the juries believed the witnesses,
surely would have resulted in a finding that each defendant was responsible for
substantially more than 50 grams. The Apprendi error in this case, however, unlike the
error in Johnson, involves more than the mere failure to instruct the jury on an element
of the offense; it involves the government's failure to charge an element of the offense
in the indictment, and the district court's imposition of a sentence which both exceeds
the crime charged by the government and exceeds the punishment authorized for the
offense of conviction.

       In United States v. Griffin, we recognized that a variance between facts charged
in an indictment and the evidence presented by the government at trial that

      is so fundamental that it permits the jury to convict the defendant of a
      different crime than that charged . . . is a constructive amendment of the
      indictment that – "destroy[s] the defendant's substantial right to be tried
      only on charges presented in an indictment returned by a grand jury.
      Deprivation of such a basic right is far too serious to be treated as nothing
      more than a variance and then dismissed as harmless error."


                                           18
215 F.3d 866, 868 (8th Cir. 2000) (internal quotations omitted) (quoting Stirone v.
United States, 361 U.S. 212, 217 (1960)). The Apprendi error in this case is
analogous. Unless we recognize and correct the error during this direct appeal, we will
have permitted the government to imprison the defendants for a crime for which they
have not received the notice and grand jury protections to which they were entitled
under the Fifth and Sixth Amendments. As the Supreme Court noted in Apprendi itself,
a judge lacks the authority to sentence a defendant to an uncharged crime. See
Apprendi, 530 U.S. at 483 n.10 ("The judge's role in sentencing is constrained at its
outer limits by the facts alleged in the indictment and found by the jury."). We
therefore conclude that the error in this case seriously affects both the fairness and
integrity of these judicial proceedings and falls beyond that category of errors which
are not cognizable on plain error review.6 Cf. United States v. Cernobyl, No. 00-7033,
2001 WL 733406, at *4 (10th Cir. June 29, 2001) (remanding for resentencing because
Apprendi error created doubt about the fairness and integrity of the proceedings);
United States v. Martinez, Nos. 99-2025, 99-2027, 2001 WL 661127, at *3 (6th Cir.
June 14, 2001) (exercising discretion to correct Apprendi error because fairness of
proceeding was undermined); United States v. Villarreal, No. 99-41095, 2001 WL
641519, at *5-6 (5th Cir. June 11, 2001) (holding that Apprendi error affected
proceedings because correcting error would result in a significant reduction in
defendant's sentence); United States v. Fields, Nos. 99-3138, 99-3139, 2001 WL
640631, at *3 (D.C. Cir. June 12, 2001) (concluding that Apprendi error affected
fairness of judicial proceedings); Butler, 238 F.3d at 1005 (concluding the same).



      6
        In United States v. Anderson, 236 F.3d 427, 430 (8th Cir. 2001), the court
found the district court's failure to submit drug quantity to the jury to be harmless error
where no rational jury could have found less than five grams, the quantity sufficient to
trigger § 841(b)(1)(B)'s penalty provisions. There was no indictment problem in
Anderson, however, because the government charged a sufficient drug quantity to
trigger § 841 (b)(1)(A)'s penalties. See id. Anderson involves a situation almost
identical to that addressed in Johnson.
                                            19
        A remand for resentencing is the appropriate relief to cure the Apprendi
violations. See Ray, 250 F.3d at 603. On remand, the district court must resentence
defendants under § 841(b)(1)(C)'s penalty provisions. Although the district court
initially determined that each defendant faced a potentially higher Guideline sentence,
it is required by USSG § 5G1.1(c)(2) to resentence defendants to a 30-year sentence.
We decline to reach Maynie's argument that the district court erred by enhancing his
sentence for possession of a dangerous weapon and for his role as a manager or
supervisor. Even if we determined that both enhancements were improper, Maynie
would still face a Guideline sentencing range of 360 months (30 years) to life based on
an adjusted base offense level 38 and criminal history category V. Thus, the district
court would still be required to resentence Maynie to the same 30-year sentence.7



                                     VI. Conclusion

      For the reasons set forth above, we affirm defendants' convictions, but reverse
defendants' sentences and remand to the district court with directions to resentence
each defendant to a 30-year term of imprisonment. See 18 U.S.C. § 3742(f)(1) (1994).

      A true copy.

             Attest:

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




      7
       We decline to reach the issues raised by Maynie and Dietrick Banks in their
supplemental pro se briefs. See United States v. Peck, 161 F.3d 1171, 1174 n.2 (8th
Cir. 1998) (noting that it is not our circuit's practice to address issues raised pro se by
represented defendants).
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