                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-2781
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * Western District of Missouri.
                                        *      [PUBLISHED]
Darrell B. Caldwell,                    *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: February 5, 2001

                                  Filed: July 6, 2001
                                   ___________

Before WOLLMAN, Chief Judge, HEANEY, and BRIGHT, Circuit Judges.
                             ___________

PER CURIAM.

       On remand from the Supreme Court, Darrell Caldwell challenges the district
court’s resentencing following our decision in United States v. Caldwell, 88 F.3d 522,
524-27 (8th Cir.), cert. denied, 519 U.S. 1048 (1996), appeal after remand, 211 F.3d
1344 (8th Cir.) (table), vacated and cert. granted, 121 S.Ct. 651 (2000). We affirm.

       In 1995, a jury convicted Caldwell of conspiracy to manufacture and distribute
marijuana and manufacturing and possessing marijuana with intent to distribute in
violation of 21 U.S.C. §§ 841(a)(1) and 846. On appeal, we concluded that the district
court’s sentencing determination of relevant drug quantities was erroneous, and we
remanded the case with instructions for resentencing. Caldwell, 88 F.3d at 57.

       Consistent with our instructions, on resentencing the district court held Caldwell
responsible for 756.55 kilograms of marijuana and resentenced Caldwell to three
concurrent 160-month terms of imprisonment. We affirmed, and the Supreme Court
granted certiorari and vacated our judgment, remanding the case for reconsideration in
light of its intervening decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). On
remand, we conclude that Apprendi does not require vacation of Caldwell’s sentence,
and we once again affirm the district court’s decision on resentencing.

       Under Apprendi, a criminal defendant has a due process right to have a jury
make any finding of fact that increases the statutory maximum sentence available for
his offense. 120 S. Ct. 2362-63. The use of a judicially determined drug quantity as
a basis for sentencing is permissible, however, so long as the defendant’s sentence does
not exceed the statutory maximum sentence available for an indeterminate amount of
the drug. United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.), cert.
denied, 121 S. Ct. 600 (2000).

       We review the district court’s resentencing for plain error, because no Apprendi
issue was raised before the district court. United States v. Poulack, 236 F.3d 932, 937-
38 (8th Cir. 2001). Thus, Caldwell is entitled to resentencing under Apprendi only if
he can show that the district court made a sentencing error that was erroneous, plain,
and seriously affected the fairness, integrity, or public reputation of the sentencing
proceeding. Poulack, 236 F.3d at 937.

      The statutory maximum sentence for an indeterminate amount of marijuana is 60
months. 21 U.S.C. § 841(b)(1)(D). Because Caldwell’s 160-month sentences exceed
that maximum and were based on drug quantities not submitted to a jury, they were
erroneous in light of Apprendi. See, e.g., United States v. Sturgis, 238 F.3d 956, 960

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(8th Cir. 2001). When a defendant is convicted of multiple counts, however, a
sentence assessed in violation of Apprendi does not necessarily constitute plain error
because “[t]he [Federal Sentencing] Guidelines require a district court to run sentences
from multiple counts consecutively, rather than concurrently, if the Guideline sentence
exceeds the statutory maximum sentence for each count.” Sturgis, 238 F.3d at 960; see
U.S.S.G. § 5G1.2(d). We are not unmindful of the concerns resulting from affirming
sentences that would otherwise be Apprendi-barred on the assumption that consecutive
sentences would have been imposed in their stead. See United States v. Alvarez, No.
00-2748NE, 2001 WL 694527 at *2 (8th Cir. June 21, 2001); United States v.
Bradford, 246 F.3d 1107, 1115 (8th Cir. 2001). We are bound, however, by our
holding in Sturgis that, where a defendant’s sentence could be reformed under §
5G1.2(d) to avoid an Apprendi error, there is no plain error in his sentence. See
Sturgis, 238 F.3d at 961.

       In this case, applying § 5G1.2(d), the district court could have determined that
Caldwell’s 60-month sentences for each count should run consecutively, thus
incarcerating him for 180 months, 20 months longer than he will be incarcerated under
his current sentence. See Sturgis, 238 F.3d at 960-61. Therefore, because Caldwell
could have received a lengthier sentence under the guidelines even if he had been
sentenced under the statutory minimums for an indeterminate drug quantity, his
concurrent 160-month sentences do not amount to plain error.

      Accordingly, the judgment is affirmed.

HEANEY, Circuit Judge, concurring.

       I concur in the results of the majority opinion. I write separately to express that
I only concur because our decisions in Sturgis and Bradford require me to.




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       In my view, Sturgis and Bradford were incorrectly decided. I believe that
Apprendi made it quite clear that the stacking argument should not be available, at
least in those cases where the district court did not impose consecutive sentences
originally. In Apprendi, the State argued that although a twelve-year sentence had been
imposed for an offense that carried a maximum sentence of ten years, the twelve-year
sentence was permissible because the judge could have imposed consecutive sentences
for two other counts. The Supreme Court, however, stated that the additional counts
were not relevant and could not ameliorate the constitutional problem. See Apprendi
v. New Jersey, 120 S. Ct. 2348, 2354 (2000).

       I realize that the sentencing guidelines, particularly § 5G1.2(d), permit the use
of consecutive sentences in order to achieve what it calls “the total punishment.” As
I read Apprendi, however, a court of appeals on review cannot justify the sentence
retroactively by stating that the district court should have stacked the sentences
originally. The problem is that the district court reached the original sentence based on
a determination of the quantity of drugs involved when no quantity was charged in the
indictment. This is contrary to the spirit of Apprendi and contrary to the very specific
views of some of the Supreme Court Justices.

       Consecutive sentences in drug cases are extremely rare. Moreover, U.S.S.G. §
5G1.2(d) was used only once in 2000. We had 187 authored opinions with sentencing
issues in the Eighth Circuit in 2000. Of these authored opinions, only seven cases dealt
with consecutive sentences. Only one, United States v. Ervasti, 201 F.3d 1029 (8th
Cir. 2000), a tax evasion case, involved the application of U.S.S.G. § 5G1.2(d). There,
the district court exercised its discretion to impose a consecutive sentence initially.
Three of the other cases involved consecutive sentences for carrying a weapon in
conjunction with a drug offense. See United States v. Bailey, 235 F.3d 1069 (8th Cir.
2000); United States v. Edwards, 225 F.3d 991 (8th Cir. 2000); and United States v.
Goldman, 228 F.3d 942 (8th Cir. 2000). The remaining three cases all involved
nondrug offenses where the district courts originally used their discretion to impose

                                          -4-
consecutive sentences. See United States v. Amsden, 213 F.3d 1014, 1016 (8th Cir.
2000) (remanding for resentencing in mail threats case where district court had imposed
consecutive sentences for extreme conduct under U.S.S.G. § 5K2.8; United States v.
Waugh, 207 F.3d 1098, 1102 (8th Cir. 2000) (holding in assault and involuntary
manslaughter case that district court has discretion to impose concurrent or consecutive
sentences based on finding of whether multiple counts involved the same harm); United
States v. Lewis, 200 F.3d 1177 (8th Cir. 2000) (holding that district court should have
grouped counts of harboring illegal alien as involving substantially the same harm).

       In my view, when the district court has imposed a sentence that exceeds the
statutory maximum because no drug quantities were stated in the indictment, this court
should not affirm the sentence on the theory that the district court could have given
consecutive sentences. This practice will encourage some prosecutors to continue their
current practice of refusing to charge a defendant with the quantity of drugs they seek
to hold a defendant responsible for, particularly when the prosecutor is seeking a
sentence in excess of the twenty-year maximum provided by § 841(b)(1)(C). Other
prosecutors, including some in our circuit, have had a practice of charging drug
amounts in the indictments, and there is no good reason why we should not expect all
prosecutors to do the same.

       There is one additional reason for my view and that is that the statistics indicate
that 95% of defendants plead guilty. There is absolutely no reason why defendants
who agree to plead guilty should not know at the time they plead what the
government’s intentions are with respect to the amount of drugs. The probation officer
who prepares the presentence report receives all the information he or she has from the
records of the prosecutor and law enforcement officials, whether it be a police
department, the FBI, or the DEA.

      For the foregoing reasons, I respectfully concur.


                                           -5-
BRIGHT, Circuit Judge, concurring.

      I concur in the per curiam opinion in this case. I write separately to state my
view that Sturgis was wrongly decided and should be overruled. However, at this time
we are bound by the Sturgis precedent.

      A true copy.

             Attest:

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




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