                                                                                   [PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                                                                            FILED
                             ________________________               U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                           09/26/00
                                   No. 99-12242                        THOMAS K. KAHN
                             ________________________                       CLERK

                       D.C. Docket No. 98-00058-CR-1-MMP



UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

     versus


DERRICK DONTEA WALKER,
                                                                   Defendant-Appellant.


                            __________________________

                Appeal from the United States District Court for the
                           Northern District of Florida
                          _________________________
                              (September 26, 2000)


Before COX, WILSON, and GIBSON*, Circuit Judges.




     *
      Honorable John R. Gibson, U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
PER CURIAM:

      The issue presented in this appeal is whether the mandatory life sentence

provided in 21 U.S.C. § 841(b)(1)(A) applies to a conviction for violating 21

U.S.C. § 846 by conspiring to commit a substantive drug crime that would itself be

covered by 21 U.S.C. § 841 (a)(1). Joining the position taken by the other three

circuits that have addressed the issue, we hold that it does.

                                  BACKGROUND

      Derrick Walker was indicted on one count each of conspiracy to possess

with intent to distribute cocaine base (crack) in violation of 21 U.S.C. § 846, and

possession with intent to distribute cocaine base in violation of 21 U.S.C. §

841(a)(1). Pursuant to a plea bargain, Walker pled guilty to the § 846 conspiracy

count, while the government dismissed § 841(a)(1), the substantive possession

count. The presentence report attributed two-and-a-half kilograms of cocaine base

and 300 grams of powder cocaine to Walker.

      At sentencing, Walker objected to the application of 21 U.S.C.

§ 841(b)(1)(A), which provides in relevant that: “If any person commits a violation

of this subparagraph or of section 849, 859, 860, or 861 of this title after two or

more prior convictions for a felony drug offense have become final, such person

shall be sentenced to a mandatory term of life imprisonment without release.”

Although Walker conceded that he had two prior felony drug convictions, he


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contended that § 841(b)(1)(A) did not apply because his present conviction was

based upon a conspiracy charge under § 846, which is not one of the sections listed

in § 841(b)(1)(A). The district court overruled the objection and applied the

provision, sentencing Walker to the mandatory sentence of life imprisonment

under it. He appeals.

                                   DISCUSSION

      We review the district court’s interpretation and application of the

aforementioned statutes under the standard of de novo review as applied to all

statutory interpretation involving sentencing. See United States v. Head, 178 F.3d

1205, 1206 (11th Cir. 1999), cert. denied, __ U.S. __, 120 S.Ct. 833 (2000).

      Walker’s principal argument is that the plain language of § 841(b)(1)(A)

rules out applying it to a § 846 conviction, because § 846 is not one of the sections

listed in the statutory provision. See United States v. Koonce, 991 F.2d 693, 698

(11th Cir. 1993) (“The canon of statutory construction that the inclusion of one

implies the exclusion of others is well-established.”). Walker is correct that the

plain language of the statute involved resolves the issue before us, but the language

directs us to a result opposite to the one advanced.

      Section 846 itself provides: “Any person who attempts or conspires to

commit any offense defined in this subchapter shall be subject to the same

penalties as those prescribed for the offense, the commission of which was the


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object of the attempt or conspiracy.” 21 U.S.C. § 846 (emphasis added). The

reference to “this subchapter” is to subchapter I of Chapter 13 of Title 21, and

“any offense defined in this subchapter” includes the offenses defined in 21 U.S.C.

§§ 841 - 863. Thus Walker’s sentencing under 21 U.S.C. § 841 (b)(1)(A) is

covered by section 846.

       Walker was convicted of conspiring to commit one of those offenses

described in subchapter I, specifically § 841(a)(1). By virtue of the plain language

of § 846, Walker is subject to the same penalties for conspiring to commit the §

841(a)(1) offense as he would be for actually committing that offense. Because

possessing 50 or more grams of cocaine base is “a violation of this subparagraph”

as described in § 841(b)(1)(A) and Walker had two prior felony drug convictions,

a mandatory life sentence applies for conspiring to commit a section 841(a)(1)

offense.

      This is the same reasoning three other circuits have relied upon in holding §

841(b)(1)(A) applicable to § 846 conspiracy convictions. See United States v.

O’Brien, 52 F.3d 277, 278-79 (9th Cir. 1995); United States v. Gaviria, 116 F.3d

1498, 1534 (D.C. Cir. 1997) (per curiam), cert. denied sub nom. Naranjo v. United

States, 522 U.S. 1082, 118 S.Ct. 865 (1998); United States v. Wessels, 12 F.3d 746,

752 (8th Cir. 1993). No circuit has held to the contrary.




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        It should further be noted that Walker’s reliance on United States v. Winston,

37 F.3d 235 (6th Cir. 1994), is misplaced. In Winston, the Sixth Circuit held that

drug quantities from two separate transactions could not be aggregated to reach the

quantity threshold required for application of § 841(b)(1)(A). See Winston, 37

F.3d at 240-41. Winston would be relevant if Walker was arguing that the district

court erred in attributing more than 50 grams of cocaine base to him (the threshold

amount application of § 841(b)(1)(A)). But Walker did not raise any objections to

the PSI finding that he was responsible for two and one-half kilograms of cocaine

base and 300 grams of powder cocaine for this single offense. The district court

did not plainly err by using the quantity of drugs specified in the PSI as a basis for

sentencing Walker. See United States v. Hedges, 175 F.3d 1312, 1315-16 (11th

Cir. 1999) (holding that the district court did not err in relying on statements in

presentence investigative report where the statements were undisputed by the

defendant), cert. denied, __ U.S. __, 120 S. Ct. 265 (1999).1 Therefore, the district

court’s imposed sentence of life imprisonment stands.

                                           CONCLUSION




        1
          This case is also clearly distinguishable from Apprendi v. New Jersey, submitted by Walker as
supplemental authority supporting his case. __ U.S. __, 120 S.Ct. 2348 (2000). In Apprendi, the Supreme
Court required that during a jury trial, the government must be made to prove and the jury convict on the
factual evidence necessary for a sentence enhancement beyond the statutory maximum. As Walker pled guilty
in this case and accepted the contents of the PSI, he lost any right to appeal on the basis of this argument.

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          We conclude that the district court properly applied 21 U.S.C. §

841(b)(1)(A) in sentencing Walker, as the plain language of the statute dictates the

result.

          AFFIRMED.




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