                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 ______________

                                  No. 02-4099EA
                                 ______________

United States of America,               *
                                        *
             Appellee,                  *
                                        * On Appeal from the United
      v.                                * States District Court
                                        * for the Eastern District
                                        * of Arkansas.
Maurice Jerome McDonald,                *
                                        *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: April 17, 2003
                                Filed: July 18, 2003
                                 ___________

Before BOWMAN, RICHARD S. ARNOLD, and BYE, Circuit Judges.
                          ___________

RICHARD S. ARNOLD, Circuit Judge.


       Maurice McDonald received three life sentences for his role as a significant
figure in a drug-distribution ring. On appeal, two of his life sentences were remanded
for resentencing, and one was affirmed. After resentencing, the defendant filed this
appeal contesting both the sentence we affirmed on his first appeal and a sentence that
was remanded. The District Court1 committed no error, and we affirm its decision.

                                          I.

       The circumstances surrounding Mr. McDonald’s first appeal are detailed in
United States v. Nicholson, 231 F.3d 445 (8th Cir. 2000). To summarize, Mr.
McDonald was one of fifty-four people indicted for being a member of a large drug
ring in Arkansas. He was convicted by a jury on four charges: (1) Count 1 –
conspiracy to distribute cocaine, cocaine base, marijuana, and PCP, 21 U.S.C. §§ 841,
846; (2) Count 39 – distribution of two ounces of cocaine base (i.e., crack), 21 U.S.C.
§ 841; (3) Count 46 – distribution of fifteen ounces of cocaine base, 21 U.S.C. § 841;
and (4) Count 67 – being a felon in possession of a firearm, 18 U.S.C. § 922(g). On
appeal, we specifically considered and rejected a challenge to Mr. McDonald’s life
sentence imposed for Count 39. Id. at 453. However, we remanded his case for
resentencing on Counts 1, 46, and 67.2 In this appeal, the Defendant asserts that the
District Court committed error in sentencing on two convictions: Counts 1 and 39.
We disagree.

        The first question in this appeal involves Mr. McDonald’s sentence on Count
1, his conspiracy charge, which we remanded for reconsideration in light of Apprendi
v. New Jersey, 530 U.S. 466 (2000). The jury convicted the defendant on a general
conspiracy charge. At sentencing the District Court made the determination that Mr.


      1
       The Hon. Stephen M. Reasoner, United States District Judge for the Eastern
District of Arkansas.
      2
       On resentencing, Mr. McDonald’s sentence for possessing a firearm was
reduced from twenty years to ten years. The sentence on his second distribution-of-
cocaine charge, Count 46, was reduced from life to five years. Our concerns with
these sentences are explained in our prior opinion. Nicholson, 231 F.3d at 453.

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McDonald was responsible for 150 kilograms of cocaine. Our concern was that
Apprendi required that the jury, rather than the judge, make the findings regarding the
quantity of cocaine involved in the conspiracy since that finding changed the
defendant’s statutory maximum. Nicholson, 231 F.3d at 453. The District Court
accordingly resentenced the defendant to twenty years for being involved in a
conspiracy to distribute an unspecified amount of cocaine.

       On appeal, the defendant suggests that his sentence still suffers from an
Apprendi problem. He was convicted of “conspiracy to distribute and possess with
intent to distribute cocaine and cocaine base, marijuana, and PCP.” He notes that the
jury did not make a specific finding as to what type of drug he was guilty of
conspiring to distribute. This is significant, he claims, because conspiracy to
distribute an unspecified amount of marijuana carries a smaller statutory maximum
sentence than conspiracy to distribute cocaine base. Compare 21 U.S.C.
§ 841(b)(1)(D) (imposing a maximum five-year sentence for conspiracy to distribute
an unspecified amount of marijuana), with 21 U.S.C. § 841(b)(1)(C) (imposing a
maximum twenty-year sentence for conspiracy to distribute an unspecified amount
of cocaine base).

       The defendant argues that his situation is analogous to that of another member
of the conspiracy, Jamo Jenkins, who had his sentences significantly reduced on his
first appeal. Nicholson, 231 F.3d at 454. Like Mr. McDonald, Mr. Jenkins was
convicted on Count 1, the general conspiracy charge, which alleged the defendants
to be in a conspiracy to distribute cocaine, cocaine base, marijuana, and PCP.
However, unlike the present defendant, the evidence used against Mr. Jenkins was
equally consistent with cocaine distribution or with marijuana distribution, but not
both. Id. In Mr. Jenkins’s case, we could not tell whether the jury found him guilty
of being involved in cocaine or marijuana distribution because there was testimony
that the illicit substance in question could have been either. We said that our holding
in United States v. Nattier, 127 F.3d 655, 661 (8th Cir. 1997), required us to assume

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that Mr. Jenkins was convicted for distributing marijuana, a charge which carried a
lesser statutory maximum than distributing cocaine. Nicholson, 231 F.3d at 454-55.
Mr. McDonald argues that he too sold marijuana, as his conviction on Count 46
demonstrates,3 and thus should have had his cocaine-conspiracy conviction reduced
to a marijuana-conspiracy conviction because the jury could have convicted him of
conspiracy to distribute marijuana.

       This issue was not within the scope of our remand for resentencing, so we
could review it, at most, for plain error only. United States v. Frazier, 280 F.3d 835,
853-54 (8th Cir. 2002). Assuming that the defendant can demonstrate that a plain
error affected a substantial right, we have authority to correct the problem only if it
seriously affects the fairness, integrity, or public reputation of our proceedings.
Johnson v. United States, 520 U.S. 461, 467 (1997). If we assume that an error
occurred and that it substantially affected the defendant’s rights, the question
becomes whether the error undermined the fairness of the proceedings. “[T]he
outcome of our review for plain error therefore depends on the nature of the evidence
presented at trial.” Frazier, 280 F.3d at 855. There is no reversible error in this case,
because the evidence overwhelmingly implicates the defendant in a conspiracy to
distribute cocaine, not marijuana.

       Members of the drug ring testified that they received cocaine from California
and delivered it to Mr. McDonald. Other members of the conspiracy admitted to
making cocaine base with Mr. McDonald, and some crack dealers testified that they
received cocaine base from Mr. McDonald. Mr. McDonald was convicted for selling
marijuana on one occasion, but we can give him the benefit of a doubt only when
there is some doubt extant. The evidence leaves no question that he was seriously


      3
       Count 46 charged Mr. McDonald with distributing fifteen ounces of cocaine
base. The government conceded that the indictment was wrong, and that it intended
to charge the defendant with distributing marijuana, not cocaine base.

                                          -4-
involved in a large conspiracy to distribute cocaine, and we cannot say that his
conviction on Count 1 was reversible error.

       Mr. McDonald’s second argument relates to Count 39, his conviction for
distributing two ounces of cocaine base. The jury found him “guilty of Count 39,
distribution of cocaine base on or about August 18, 1997” (verdict form). Initially,
we must reject appellant’s challenge to this conviction because there is nothing left
to challenge. This conviction was affirmed on the first appeal. Neither the conviction
nor the sentence was remanded for any further action. The District Court had nothing
to do on remand with respect to this count. The conviction is final, and no longer
open to challenge on direct review.

       In addition, no injustice has occurred here. Mr. McDonald notes that this
verdict does not specify the amount of cocaine base that the jury convicted him of
distributing. Because different statutory maximums apply depending on the amount
of cocaine base involved, Apprendi requires that the fact-finder determine the
quantity beyond a reasonable doubt. 530 U.S. at 490. The statutory maximum for
conviction of distributing more than fifty grams (two ounces is more than fifty grams)
of cocaine base is a life sentence, 21 U.S.C. § 841(b)(1)(A), what Mr. McDonald
received, while the statutory maximum for distributing an unspecified amount of
cocaine base is twenty years, what he seeks. 21 U.S.C. § 841(b)(1)(C).

      Our analysis of this issue is well established: to satisfy Apprendi, the drug
quantity must be charged in the indictment and found by the jury. United States v.
Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000). The drug quantity was charged
in this case, so this requirement of Aguayo-Delgado is satisfied. The other
requirement is that the jury find the quantity alleged (two ounces). In finding
defendant guilty on this count, the jury necessarily found the quantity alleged in the
indictment. Even if we assume that the jury did not make an express finding of drug
quantity, that does not mean that reversal is required, “because Apprendi ‘did not

                                         -5-
recognize or create a structural error that would require per se reversal.’ ” United
States v. Anderson, 236 F.3d 427, 429 (8th Cir. 2001), quoting United States v.
Nealy, 232 F.3d 825, 829 (11th Cir. 2000). At best, defendant could receive only
plain-error review. So he still must show that this error seriously affected the
fairness, integrity, or public reputation of judicial proceedings. United States v.
Butler, 238 F.3d 1001, 1005 (8th Cir. 2001). This was, and still is, the problem with
Mr. McDonald’s argument.

       His situation is different from cases where we have found Apprendi errors that
justified reversal of the district courts’ sentences. In those cases, we found reversible
error when the government did not allege a specific quantity of drugs and the jury did
not return a verdict finding a specific amount. See, e.g., United States v. Maynie, 257
F.3d 908, 920 (8th Cir. 2001) (reversing because no drug quantity was alleged in the
indictment or submitted to the jury); United States v. Bradford, 246 F.3d 1107, 1112-
13 (8th Cir. 2001) (reversing as to some defendants because the indictment alleged
no drug quantity and none was found by the jury); Butler, 238 F.3d at 1005 (reversing
because no drug quantity was alleged in the indictment and no specific amount was
found by the jury). In these cases, we recognized the unfairness of depriving a
defendant of the protections provided by a grand jury and charging the defendant in
a vague manner that makes it difficult for the defendant to analyze the strength of the
case against him. However, that is not the case here.

       This case is akin to United States v. Frazier and United States v. Anderson,
supra, cases in which, despite no specific findings of drug quantity by the jury, the
defendants’ sentences were affirmed because specific drug quantities were alleged in
the indictments, and it was clear from the evidence that the juries could not have
reasonably found otherwise. Frazier, 280 F.3d at 855-56, Anderson, 236 F.3d at 430.
In this case, the grand jury returned an indictment that gave the defendant notice that
the government was going to prove to the jury that he committed a specific act – the
sale of two ounces of cocaine base to Edwin Ray on August 18, 1997. Mr. Ray

                                          -6-
testified that he bought two ounces of cocaine base from the defendant that day. The
United States introduced wiretapped conversations that substantiated this allegation.
We note that during closing arguments the defendant never contested the amount of
crack involved. The evidence as to quantity was overwhelming

       Under these facts, the failure to get a special verdict from the jury with an
explicit finding of quantity did not impugn the integrity of or raise doubt about the
fairness of these proceedings.

      We believe both of defendant’s arguments in this appeal are without merit.
Therefore, the judgment of the District Court is affirmed in all respects.

      A true copy.

             Attest:

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




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