                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
           ___________

           No. 01-1861
           ___________

United States of America,              *
                                       *
              Appellee,                *
                                       *
      v.                               *
                                       *
Steven Tyrone Miller, also known as    *
Maurice Frazier,                       *
                                       *
              Appellant.               *

           ___________                     Appeals from the United State
                                           District Court for the
           No. 01-2525                     Eastern District of Arkansas.
           ___________

United States of America,            *
                                     *
           Appellee,                 *
                                     *
      v.                             *
                                     *
Jamo Jenkins, also known as Jaymo    *
Jenkins,                             *
                                     *
           Appellant.                *
                                ___________

                             Submitted: November 13, 2001

                                 Filed: July 8, 2002
                                  ___________
Before WOLLMAN,1 Chief Judge, BOWMAN, and STAHL,2 Circuit Judges.
                             ___________

WOLLMAN, Chief Judge.

      Steven Miller and Jamo Jenkins appeal their sentences for their roles in a drug
conspiracy. We affirm the district court’s3 rulings as to both defendants.

                                          I.

       The defendants Miller and Jenkins were indicted, along with 52 cohorts, on
June 23, 1998, on 67 counts, including conspiracy to distribute and possess with
intent to distribute cocaine, cocaine base, marijuana, and PCP; substantive drug
counts; and a forfeiture count for a nightclub in Little Rock, Arkansas. Pursuant to
a plea agreement under which he agreed to cooperate with the government, Miller
pled guilty to the conspiracy count and was sentenced to 420 months’ imprisonment.
At a Rule 35 hearing at which the government recommended a downward departure
for Miller’s assistance, the district court reduced the sentence to 204 months.

       Jenkins was tried by a jury, which convicted him of conspiracy to possess and
possession of a controlled substance with intent to distribute. At sentencing, the
district court found that Jenkins had possessed cocaine and sentenced him to 330


      1
       The Honorable Roger L. Wollman stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on January 31,
2002. He has been succeeded by the Honorable David R. Hansen.
      2
       The Honorable Norman H. Stahl, United States Circuit Judge for the First
Circuit, sitting by designation.
      3
       The Honorable Stephen M. Reasoner, United States District Judge for the
Eastern District of Arkansas.

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months in prison. In his appeal from that conviction, we noted that the verdict did not
specify which substance the jury found that Jenkins had possessed. We held that
Jenkins was entitled to the assumption that the jury found him guilty of the least
serious offense, possession of marijuana, and we remanded for resentencing. United
States v. Nicholson, 231 F.3d 445, 454-55 (8th Cir. 2000). On remand, the district
court imposed the maximum sentence of 60 months on each count of conviction. The
district court renewed its finding that Jenkins was involved in the distribution of
cocaine. Under this finding, the base offense level available under the sentencing
guidelines--324 to 405 months--exceeded the 10 to 16 month range that would have
been applicable had the court found that Jenkins had possessed only marijuana.
Moreover, because the sentencing range exceeded the statutory maximum, the district
court, as mandated by U.S.S.G. § 5G1.2, ordered that the sentences run consecutively
rather than concurrently.

                                          II.

      Miller’s sole argument on appeal concerns an oral agreement that he alleges
was made during plea negotiations but not recorded in the written plea agreement that
he signed. He alleges that the government promised him a departure greater than the
17-year minimum set forth in the plea agreement. The government denies that this
promise was made.

       “Issues concerning the interpretation and enforcement of the plea agreement
are issues of law reviewed de novo.” United States v. Thournout, 100 F.3d 590, 594
(8th Cir. 1996) (citing United States v. Coleman, 895 F.2d 501, 505 n.8 (8th Cir.
1990)). “A plea agreement is contractual in nature and generally governed by
ordinary contract principles.” Thournout, 100 F.3d at 594 (quoting United States v.
Britt, 917 F.2d 353, 359 (8th Cir. 1990)). The terms of Miller’s plea agreement are
not ambiguous. The agreement expressly states that it “completely reflects all



                                         -3-
promises, agreements, and conditions made between the parties.” United States v.
Miller, No. LR-CR-98-91 (D. Ark. Aug. 26, 1998).

       The district court found that the written plea agreement reflected the totality of
the parties’ understanding of what information Miller had agreed to provide and what
the government had agreed to recommend in terms of a sentence reduction. Our
reading of the transcript of the Rule 35 hearing satisfies us that the district court did
not err in so ruling. Indeed, the record indicates that in light of Miller’s less-than-
cooperative behavior, the government had serious reservations about recommending
a reduction in the sentence to 204 months. Likewise, the district court stated that it
“was sorely tempted to make that reduction down only to 20 years” because of
Miller’s lack of cooperation and his manner of testifying, which the district court
found was designed to make Miller look unbelievable before the jury.

      Accordingly, we affirm the sentence imposed at the Rule 35 hearing.

                                          III.

       As indicated earlier, in Jenkins’s first appeal we ordered that the district court
sentence Jenkins within the statutory maximum sentence for marijuana distribution,
holding that such a result was mandated by the Supreme Court ruling in Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000), which states that “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” See also United States v. Nattier, 127 F.3d 655, 661 (8th Cir. 1997) (holding
that when a jury issues a general verdict “the district court should sentence the
defendant on the alternative that yields a lower sentencing range”). On remand, the
district court sentenced Jenkins to the statutory maximum of 60 months on each count
and ordered that the sentence run consecutively.



                                          -4-
        Jenkins contends that the district court erred in considering as relevant conduct
its finding that Jenkins was involved in the distribution of cocaine. Had the district
court considered only the marijuana offenses, Jenkins would have been facing a
maximum sentence of 16 months under the sentencing guidelines. Jenkins argues that
just as the ambiguous jury verdict limited the maximum sentence to that applicable
to the marijuana offense, so also it should limit the district court to imposing the
minimum possible sentencing range. We do not agree. Apprendi applies only if the
defendant is sentenced beyond the statutory maximum. 530 U.S. at 490. It is for the
district court to determine the type and amount of drugs involved when determining
the applicable sentencing range under the guidelines, so long as the sentence imposed
does not exceed that applicable to the offense found by the jury, in this case one
based upon marijuana possession and distribution. Edwards v. United States, 523
U.S. 511, 513-14 (1998). In addition, as we stated in Jenkins’s first appeal, the ruling
in Edwards precludes the applicability of Nattier in cases in which the ambiguity in
the jury verdict affects only the judge’s application of the sentencing guidelines.
Nicholson, 231 F.3d at 455. The determination of the statutory maximum sentence
is not affected by the judge’s determination of the applicable sentencing range, and
therefore Nattier is of no help to Jenkins. Accordingly, the district court did not err
in utilizing the guidelines range resulting from its finding that Jenkins was involved
in a conspiracy to distribute cocaine.

      Likewise, the district court did not err in ordering the sentences to run
consecutively, as that result is mandated by the guidelines. U.S.S.G. § 5G1.2(d);4
United States v. Sturgis, 238 F.3d 956, 960-61 (8th Cir. 2001).


      4
          U.S.S.G. § 5G1.2(d) states in part:

      If the sentence imposed on the count carrying the highest statutory
      maximum is less than the total punishment, then the sentence imposed
      on one or more of the other counts shall run consecutively, but only to
      the extent necessary to produce a combined sentence equal to the total
      punishment.

                                           -5-
       Contrary to Jenkins’s contention, the district court did not disregard the
grouping provisions set forth in § 3D1.2. The guidelines provide that Jenkins’s
convictions be grouped for the purposes of determining his base offense level. §
3D1.2(d). This grouping was performed on the basis of the district court’s finding
that Jenkins was involved in the distribution of cocaine, and the resulting offense
level reflects that grouping. Once the offense level has been determined, § 3D1.5
directs that it be used to determine the appropriate sentence in accordance with the
provisions of Chapter 5 of the United States Sentencing Guidelines Manual. See
United States v. Buckland, 289 F.3d 558, 570 (9th Cir. 2002) (en banc). Because the
resulting sentencing range exceeds the statutory maximum for marijuana distribution,
§ 5G1.2 mandates consecutive sentences despite the grouping.

                                        IV.

      The judgments are affirmed.

      A true copy.

            Attest:

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




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