In the
United States Court of Appeals
For the Seventh Circuit

Nos. 97-3159, 97-3163, 97-3683,
98-1265, 98-1981 & 98-3115

United States of America,

Plaintiff-Appellee,

v.

Andrew ("Bay-Bay") Patterson, Henry Patterson,
Andrew L. ("Maine") Patterson, Tyrone Williams,
Maurice Foster, and Odell Sumrell,

Defendants-Appellants.



On Remand from the Supreme Court of the United States



Submitted January 29, 2001--Decided March 2, 2001



  Before Posner, Easterbrook, and Diane P. Wood, Circuit
Judges.

  Per Curiam. Last year we resolved 15 consolidated
appeals arising from activities of the Traveling
Vice Lords street gang. United States v.
Patterson, 215 F.3d 776 (7th Cir. 2000). Thirteen
convictions and sentences were affirmed, one
conviction was reversed (with a remand for a new
trial at the prosecution’s option), and one
sentence was vacated with instructions to rethink
the possibility of departure from the sentencing
guidelines. After issuing Apprendi v. New Jersey,
120 S. Ct. 2348 (2000), the Supreme Court
instructed us to reconsider sentencing questions
raised by 6 of the 14 defendants whose
convictions had been affirmed. Certiorari was
denied with respect to the other 8. Patterson v.
United States, 121 S. Ct. 621 (2000).

  Relying on United States v. Jackson, 207 F.3d
910 (7th Cir. 2000), our original decision held
that for sentencing purposes the judge alone
determines the kind and quantity of drugs. After
Apprendi we overruled the part of Jackson dealing
with this issue and held that the kind and
quantity of drugs are jury questions, to the
extent they affect the statutory minimum and
maximum punishments. See United States v. Nance,
No. 00-1836 (7th Cir. Dec. 29, 2000). But we also
held that when defendants did not ask the
district judge to instruct the jury on this
question-- and none of the six defendants now
before us made such a request--appellate review
is limited to a search for plain error. The
mistake of withholding this question from the
jury is clear in retrospect, but this is only one
part of the plain-error calculus. See Johnson v.
United States, 520 U.S. 461 (1997); United States
v. Olano, 507 U.S. 725 (1993). When the appellate
standard is plain error (as opposed to harmless
error), even the clearest of blunders never
requires reversal; it just permits reversal. Fed.
R. Crim. P. 52(b); Olano, 507 U.S. at 735-36.
Unless the error also causes a miscarriage of
justice, in the sense of "seriously affecting the
fairness, integrity or public reputation of
judicial proceedings," Olano, 507 U.S. at 736;
Johnson, 520 U.S. at 469, a court of appeals
retains discretion to affirm the judgment.
Johnson held that when the evidence of guilt is
overwhelming a miscarriage of justice is very
hard to demonstrate. So too with overwhelming
evidence that determines the maximum lawful
sentence, we held in Nance and many later cases--
including Jackson itself. See United States v.
Jackson, No. 98-2696 (7th Cir. Jan. 10, 2001).

  Under 21 U.S.C. sec.841(b)(1)(A)(iii), a person
who distributes, or conspires to distribute, a
mixture or substance weighing more than 50 grams
and containing a detectable quantity of cocaine
base ("crack") may be sentenced to life
imprisonment. Thus the central question for us is
whether the extent of the Traveling Vice Lords’
drug activity was so overwhelmingly demonstrated
that any reasonable jury would have been bound to
conclude that the conspiracy encompassed more
than 50 grams of crack. (Focus on the conspiracy
is the right perspective, because each of the six
defendants before us on remand was convicted of
conspiring with the others to distribute drugs,
and as a member of the conspiracy each is
accountable for the acts of all other
conspirators within the scope of that agreement.)
When meting out sentences, the district judge
concluded that the drug quantity exceeded 50
kilograms of crack and could well have exceeded
500 kilograms of crack, plus substantial
quantities of heroin and powder cocaine. In
describing the evidence on direct appeal, we
observed that the organization "lasted at least
a decade and during its best years grossed more
than $40,000 a day in retail sales." 215 F.3d at
777. It is inconceivable that the same jury that
convicted these six defendants of this conspiracy
could have thought that the quantity of crack was
under 50 grams. And for four of our six
defendants even 5 grams would have been enough,
because distributing (or conspiring to
distribute) that quantity authorizes a sentence
up to 40 years (480 months). 21 U.S.C.
sec.841(b)(1)(B)(iii). Only Andrew "Bay-Bay"
Patterson and Tyrone Williams, among the
defendants now under consideration, were
sentenced to life imprisonment. Maurice Foster
and Odell Sumrell were sentenced to 360 months,
Henry Patterson to 340 months, and Andrew "Maine"
Patterson to 310 months.

  Defendants stress that the indictment was silent
on the quantity of drugs the conspirators sold,
but we cannot see why that matters to plain-error
analysis. Our situation is identical to that in
Nance, where the indictment "said nothing about
the drug quantity." Slip op. 4. Because our
review is only for plain error, it is not
necessary to decide whether, on a proper pretrial
motion under Fed. R. Crim. P. 12(b)(2), a
district judge should dismiss an indictment that
is silent about the kind or quantity of drugs.
Because of the limits of plain-error review, and
the strength of the evidence against defendants,
we proceed as if the indictment had alleged and
jury had made the findings that under
sec.841(b)(1) authorize sentences exceeding 20
years. Cf. Fed. R. Crim. P. 12(f). Once the petit
jury finds beyond a reasonable doubt (or, on
plain error review, once the court concludes that
the evidence was so strong that the petit jury
was bound to find) that a particular drug and
quantity was involved, we can be confident in
retrospect that the grand jury (which acts under
a lower burden of persuasion) would have reached
the same conclusion. See United States v.
Mechanik, 475 U.S. 66 (1986). The judge alone
still determines the kind and quantity of drugs
once the jury has made the findings necessary to
establish the statutory maximum sentence, so
there was no need for the indictment to allege,
or the jury to determine, the extent to which
this organization distributed more than 50 grams
of crack. See Edwards v. United States, 523 U.S.
511 (1998); Talbott v. Indiana, 226 F.3d 866 (7th
Cir. 2000).

  The convictions and sentences of Andrew "Bay-
Bay" Patterson, Maurice Foster, Odell Sumrell,
Henry Patterson, and Andrew "Maine" Patterson are
again affirmed. The conviction of Tyrone Williams
is affirmed, and his sentence is vacated, with
instructions to resentence according to our
original opinion. When imposing sentence, the
district judge should treat Williams as eligible
to a term as long as life imprisonment, though
whether he should receive such a sentence depends
on the considerations covered in our original
opinion.
