                                                                  [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                       ________________________               MAR 14 2001
                                                           THOMAS K. KAHN
                             No. 00-14200                       CLERK
                       ________________________

               D. C. Docket No. 99-00042-CR-01-02-4-RLV


UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellant,

                                   versus


BRENT HARRIS,
STANLEY HARRIS,

                                                         Defendants-Appellees.

                       ________________________

                Appeals from the United States District Court
                    for the Northern District of Georgia
                      _________________________
                             (March 14, 2001)




Before BARKETT, HILL and KRAVITCH, Circuit Judges.

BARKETT, Circuit Judge:
      The Government appeals the sentence imposed on William Brent Harris and

Stanley Bernard Harris for their convictions, pursuant to guilty pleas, for

distribution of illegal narcotics in violation of 21 U.S.C. § 841. On appeal, the

Government argues that the district court erred in holding that Apprendi v. New

Jersey, 120 S.Ct. 2348 (2000) precludes its consideration of the Harrises’ relevant

conduct under U.S.S.G. § 1B1.3 in determining their sentences and that the

sentences should be vacated and remanded for resentencing.

                                    Background

       Brent Harris pled guilty to two counts of a 12-count indictment for

violations of 21 U.S.C. § 841 and other drug related offenses. It is uncontested

that the amount of cocaine hydrochloride involved in the count to which Brent

Harris pled guilty was 17.8 grams. The Sentencing Guidelines provide that the

base offense level for an offense involving less than 25 grams of cocaine is 12.

U.S.S.G. § 2D1.1(c)(14). However, the probation officer prepared Brent Harris’s

presentence report based on the total amount of cocaine base, cocaine powder, and

cocaine hydrochloride attributable to Brent Harris through all of the transactions

alleged in the indictment and calculated his base offense level as 32 pursuant to

U.S.S.G. § 2D1.1(c)(4) and his corresponding sentencing range as 168 to 210

months imprisonment. Because the district court ruled that Apprendi prohibited


                                          2
the court from considering drug quantities other than those involved in the counts

of conviction, the district court calculated his offense level as 12 based on the

quantity of 17.8 grams of cocaine hydrochloride involved in the two counts to

which he pled guilty, resulting in a sentencing range of 15-21 months

imprisonment.

       Stanley Harris was also named in the indictment. He pled guilty to only one

count of possessing and distributing cocaine base. Stanley Harris does not contest

that this count involved the possession and distribution of 13.2 grams of cocaine

base. The sentencing guidelines provide that the base offense level for an offense

involving between 5 and 20 grams of cocaine base is 26. U.S.S.G. § 2D1.1(c)(7).

His presentence report found that based on the total amount of cocaine attributable

to him through the transactions alleged in the indictment, his base offense level

was 36 pursuant to U.S.S.G. § 2D1.1(c)(2) resulting in a guideline range of 188 to

235 months.1 Based solely on the quantity relating to the count of conviction,

without considering the amount included in the relevant conduct, the court

determined that Stanley Harris’s base offense level was 26 resulting in a sentencing

range of 78 to 97 months imprisonment.

                                   Standard of Review

       1
       Stanley Harris’s base offense level of 36 was calculated including a two level
enhancement for possession of a dangerous weapon pursuant to U.S.S.G. § 2D1.1(b)(1).

                                              3
       The applicability of Apprendi v. New Jersey is a pure question of law that

we review de novo. See Doe v. Chiles, 136 F.3d 709, 713 (11th Cir.1998).

                                          Discussion

       The narrow question before us is whether Apprendi applies to the relevant

conduct provision of the Sentencing Guidelines.2 We recently decided this issue in

United States v. Maldenaldo Sanchez, Nos. 00-13347, 00-13447 (11th Cir. Feb. 26,

2001). In that case, the defendants were convicted of one count of conspiracy to

distribute and possess with the intent to distribute methamphetamine and

amphetamine in violation of 21 U.S.C. §§ 841, 846. The defendants argued that in

light of Apprendi, the district court erred in enhancing their sentences for

possession of a firearm in connection with a drug transaction pursuant to U.S.S.G.

§ 2D1.1 because that fact had not been proven beyond a reasonable doubt. We

held that Apprendi does not apply to the Sentencing Guidelines. See also,United

States v. Nealy, 232 F.3d 825, 829 n.3 (11th Cir. 2000). We explained in

Maldenaldo Sanchez that



       2
          The Guidelines provide that in arriving at the base offense level with respect to a
conviction for distribution of cocaine, see U.S.S.G. § 2D1.1(a)(3), the trial court may consider
"quantities of drugs not specified in the count of conviction." Id. application note 12. Under
U.S.S.G. § 1B1.3(a)(2), the base offense level is to be determined based on acts “that were part
of the same course of conduct or common scheme or plan as the offense of conviction.”



                                                4
       Because a finding under the Sentencing Guidelines determines the sentence
       within the statutory range rather than outside it, the decision in Apprendi,
       which addresses any increase in penalty for a crime outside the statutory
       maximum, has no application to the Guidelines.

Id.

       The maximum sentence authorized for a non-quantity conviction pursuant to

21 U.S.C. § 841(a) is twenty years imprisonment. 21 U.S.C. § 841(a)(1)(C).

Based on the amount of drugs that was attributable to the Harrises, it would not be

possible for the district court to sentence either of them to a sentence exceeding 20

years under the Sentencing Guidelines. Thus, while considering the relevant

conduct in this case would have increased the Harrises’sentencing ranges under the

Sentencing Guidelines, those ranges would not exceed the statutory maximum, and

therefore we find that Apprendi does not require the district court to disregard

relevant conduct in this case.3 See also, United States v. Garcia, (2nd Cir. 2001);

United States v. Heckard, 238 F.3d 1222 (10th Cir. 2001); United States v.

Williams, 235 F.3d 858, 863 (3rd Cir. 2000); United States v. Kinter, 235 F.3d

192, 201 (4th Cir.2000); United States v. Keith, 230 F.3d 784, 786-87 (5th Cir.

2000); Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir.2000).

        We therefore vacate the sentence and remand for the district court to make

       3
         It will always be the case that the sentencing range identified by the Guidelines will not
exceed the statutory maximum, as the Sentencing Guidelines require that the Guidelines cannot
be used to increase the penalty beyond the statutory maximum. U.S.S.G. § 5G1.1.

                                                5
specific factual findings regarding the amount of drugs properly attributable to the

defendants. We express no opinion as to whether the evidence supports a finding

that the Harrises were responsible for the amount of drugs attributed to them by the

presentence reports, holding only that the district court erred in finding that it was

prohibited from considering drug quantities relating to relevant conduct under the

Sentencing Guidelines.

      VACATED AND REMANDED.




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