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               IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                        ________________________              MAR 28, 2001
                                                           THOMAS K. KAHN
                                                                CLERK
                               No. 98-3684
                         Non-Argument Calendar
                       ________________________
                   D.C. Docket No. 91-01032-1-CR-MMP


UNITED STATES OF AMERICA,

                                                                Plaintiff-
Appellee,

      versus


JOHN COLLIER WIMS,


                                                          Defendant-Appellant.

                      __________________________

                 Appeal from the United States District Court
                     for the Northern District of Florida
                       _________________________
                              (March 28, 2001)

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before TJOFLAT, EDMONDSON and HULL, Circuit Judges.
PER CURIAM:

       This case is before the court for consideration in light of Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).



                                             I.

       John Collier Wims was indicted by a Northern District of Florida grand jury

on December 10, 1991.1 Wims was charged in seven of the eleven counts. Count

One charged Wims and six others with conspiracy to distribute cocaine and

cocaine base (crack cocaine) in violation of 21 U.S.C. § 846 (by virtue of violating

21 U.S.C. §§ 841(a) and 841(b)(1)(A)); Counts Two through Six charged Wims

with five separate instances (from January to August 1989) of possession of, with

the intent to distribute, a mixture containing cocaine, all in violation of 21 U.S.C.

§§ 841(a) and 841(b)(1)(A) and 18 U.S.C. § 2. Count Eleven was a forfeiture

count for drug proceeds, pursuant to 21 U.S.C. § 853(a)(1).

       Wims went to trial with four co-defendants; the other two co-defendants

testified for the Government at the trial. A jury found Wims guilty as charged on

March 9, 1992. On May 22, 1992, the district court sentenced Wims to life



       1
       This indictment superseded a previous indictment, issued September 10, 1991, against
Wims and two others. We refer to this superseding indictment simply as “the indictment.”

                                             2
imprisonment on Counts One and Two, and to forty years’ imprisonment on each

of Counts Three through Six.2 All sentences were to be served concurrently.

       Wims appealed, but his appeal was dismissed for want of prosecution. On

November 5, 1998, the district court, in a proceeding brought under 28 U.S.C. §

2255, granted Wims leave to prosecute an out-of-time appeal. We affirmed the

convictions and sentences. United States v. Wims, 207 F.3d 661 (11th Cir. Jan. 4,

2000) (per curiam) (unpublished table decision). The United States Supreme Court

granted Wims’s petition for a writ of certiorari, vacated our judgment, and

remanded for further consideration in light of Apprendi v. New Jersey, 530 U.S.

466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Wims v. United States, ___ U.S.

___, 121 S. Ct. 32, 148 L. Ed. 2d 3 (Oct. 2, 2000) (mem.).



                                                II.

       The only issue before us on remand is whether Wims’s sentences should be

set aside because they violate the constitutional principle that every element of a

crime must be proven to a jury beyond a reasonable doubt.3 Because the defendant


       2
           The forfeiture count was dismissed on motion of the Government.
       3
         Wims also alleges that there was insufficient evidence to prove a conspiracy, that
unreliable hearsay formed the basis for attributing drug quantity to him, and that the prosecutor’s
closing argument to the jury was impermissible. We adhere to our previous disposition of these
issues. United States v. Wims, 207 F.3d 661 (11th Cir. Jan. 4, 2000) (per curiam) (unpublished

                                                 3
did not raise a constitutional objection at or before sentencing, we review this case

for plain error.4 See United States v. Candelario, 240 F.3d 1300 (11th Cir. 2001).

Before we may correct an error that was not timely raised, all four prongs of plain

error review must be satisfied: “[T]here must be (1) error, (2) that is plain, and (3)

that affect[s] substantial rights. . . . If all three conditions are met, an appellate

court may then exercise its discretion to notice a forfeited error, but only if (4) the

error seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549,

137 L. Ed. 2d 718 (1997) (internal quotations and citation omitted) (alteration in

original); see also Fed. R. Crim. P. 52(b).

       The first prong of plain error review requires that there must be error. Wims

alleges that there is error insofar as his sentences exceed the twenty year maximum

penalty prescribed in 21 U.S.C. § 841(b)(1)(C) for convictions of cocaine

possession (or conspiracy) without reference to quantity.5 We agree that there is


table decision).
       4
          We will consider the Apprendi issue because Wims, in his initial brief on appeal, raised
the constitutional issue that drug quantity should have been determined by the jury. Cf. United
States v. Ardley, ___ F.3d ___, No. 98-7033 (11th Cir. Feb. 20, 2001) (holding, in a case on
remand from the Supreme Court for reconsideration in light of Apprendi, that the defendant
abandoned the Apprendi issue because he failed to raise it in his initial brief, his reply brief, or in
his suggestion for rehearing en banc).
       5
        21 U.S.C. § 841(b)(1)(C) reads, in pertinent part:
       In the case of a controlled substance in schedule I or II, except as provided in

                                                  4
error. In Apprendi, the Supreme Court established, as a constitutional matter, 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.” Apprendi, 530 U.S. at ___, 120 S. Ct. at

2362-63; see also Jones v. United States, 526 U.S. 227, 243 n.6, 119 S. Ct. 1215,

1224 n.6, 143 L. Ed. 2d 311 (1999) (stating that “under the Due Process Clause of

the Fifth Amendment and the notice and jury trial guarantees of the Sixth

Amendment, any fact (other than prior conviction) that increases the maximum

penalty for a crime must be charged in the indictment, submitted to a jury, and

proven beyond a reasonable doubt”). In light of Apprendi, we have held that “drug

quantity in [21 U.S.C. §] 841(b)(1)(A) and section 841(b)(1)(B) cases must be

charged in the indictment and proven to a jury beyond a reasonable doubt.” United

States v. Rogers, 228 F.3d 1318, 1327 (11th Cir. 2000). There is error if the

defendant’s sentence exceeds the maximum sentence allowed by statute without

regard to quantity. Id. at 1328; United States v. Nealy, 232 F.3d 825, 829 (11th

Cir. 2000). In the instant case, Wims’s sentences of life imprisonment (Counts



      subparagraphs (A), (B), and (D), such person shall be sentenced to a term of
      imprisonment of not more than 20 years . . . [and if] any person commits such a violation
      after a prior conviction for a felony drug offense has become final, such person shall be
      sentenced to a term of imprisonment of not more than 30 years . . . .
Cocaine is a schedule II drug. 21 U.S.C. § 812, Schedule II.

                                               5
One and Two) and forty years’ imprisonment (Counts Three through Six) exceed

the twenty year maximum prescribed in section 841(b)(1)(C).6 Wims thus satisfies

the first prong of plain error review.

       The second prong of plain error review requires that an error must be plain.

An error is “plain” if it is “obvious” or “clear under current law.” United States v.

Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508 (1993). A

sentence that exceeds the statutory maximum without regard to quantity is clear

error under current law. See Rogers, 228 F.3d at 1328. This is sufficient for the

error to be considered “plain” even though the law was different at the time of

Wims’s conviction and sentencing. See Johnson, 520 U.S. at 468, 117 S. Ct. at

1549 (holding that “where the law at the time of trial was settled and clearly

contrary to the law at the time of appeal – it is enough that an error be ‘plain’ at the

time of appellate consideration”).

       Although Wims shows that there was plain error in his sentences, he is

unable to satisfy the third prong of the plain error review: Wims fails to show that



       6
         We note in passing that even though the indictment did not specify drug quantities, as
required by Rogers, 228 F.3d at 1327, it charged Wims with crimes by alleging violations of
section 841(a) and put Wims on notice that he was subject to potential life imprisonment by
claiming that his actions violated section 841(b)(1)(A). (In fact, by alleging violations of section
841(b)(1)(A), the indictment served Wims with notice that the Government was charging him
with possessing (or conspiring to possess) at least five kilograms of a mixture containing a
detectable amount of cocaine or at least fifty grams of a mixture containing cocaine base.)

                                                 6
the error affected his substantial rights. Counts Three through Six of the

indictment charged Wims and Pablo Cruz with possession of cocaine, with intent

to distribute, on four separate occasions in 1989. Cruz entered into a plea bargain;

Wims was convicted and sentenced to forty years’ imprisonment on each count.7

At trial, Cruz testified for the prosecution that he delivered two-kilogram quantities

of cocaine to Wims in four successive months in 1989; that is, Cruz made four

two-kilogram deliveries to Wims.8 Wims did not contest, either at trial or

sentencing, the amounts of the drugs about which Cruz testified.9 Because the

       7
          We note that, under the Sentencing Guidelines, Wims could have been sentenced to
more than forty years’ imprisonment on Counts Three through Six based on relevant conduct,
despite the asserted cap in the Pre-Sentence Investigation Report (“PSI”) of forty years, pursuant
to 21 U.S.C. § 841(b)(1)(B). (The indictment, in fact, charged Wims with violating 21 U.S.C. §§
841(a) and 841(b)(1)(A).) Because the Government has not cross-appealed the error of the
district court in adopting the PSI’s stated maximum imprisonment of forty years, we do not
address the error.
       8
          The defendant’s brother (Willie Wims, Sr.), nephews (Willie Wims, Jr., and Otis
Wims), and niece (Velinda Wims) also testified regarding Counts Three through Six. The only
substantial variance from Cruz’s testimony was that the amount of drugs in two of the four
transactions may have been slightly higher or lower than two kilograms. Willie Wims, Jr.,
testified that one of the purchases (June 1989) involved a sale of 2.5 kilograms from Cruz to the
defendant, but the defendant only kept two kilograms, giving half a kilogram to Willie Wims, Jr.
Velinda Wims testified that another of the purchases (July 1989) involved one kilogram and two
ounces, rather than two kilograms. (Velinda also testified that this purchase was made for the
defendant from Cruz’s twin brother rather than from Cruz; this does not change our analysis.)
These minor variances regarding quantity, even if true, do not alter the outcome of this case.
       9
          In fact, Wims’s only unsuccessful objection at sentencing regarding drug quantity was
that the PSI improperly attributed 196 kilograms of cocaine to him in relation to the conspiracy
in Count One. A ruling in Wims’s favor would have altered the amount of drugs attributable to
him from 270 kilograms to 74 kilograms. This would have changed Wims’s base offense level
under the Sentencing Guidelines from 44 to 42. (The offense level based on drugs would have
decreased from 38 (150 or more kilograms of cocaine) to 36 (at least 50 but less than 150

                                                7
amount of drugs was uncontested on Counts Three through Six, the jury must have

found that Wims possessed “500 grams or more of a mixture or substance

containing a detectable amount of” cocaine. 21 U.S.C. § 841(b)(1)(B). Because

conviction for a violation of section 841(b)(1)(B) carries a term of imprisonment

between five and forty years, Wims’s forty year sentences do not exceed the

“prescribed statutory maximum” sentence in violation of Apprendi, 530 U.S. 466,

120 S. Ct. 2348. Wims’s substantial rights were therefore not affected by receiving

forty year sentences on Counts Three through Six. See Candelario, 240 F.3d at

1311-12.

       Count Two of the indictment charged Wims with possession of cocaine,

with intent to distribute, on January 18, 1989, in violation of 21 U.S.C. §§ 841(a)

and 841(b)(1)(A). Wims was convicted and sentenced to life imprisonment on this

count. The undisputed testimony at trial was that the amount of cocaine purchased

on January 18, 1989, was six one-kilogram packages;10 the only issue was whether


kilograms of cocaine); the 4 level increase for role in the offense and the 2 level increase for use
of a firearm during the offense would not have changed.) Based on Wims’s criminal history
category of I, an offense level of 44 carries a mandatory term of life imprisonment; an offense
level of 42 carries a range of 360 months to life imprisonment. The district court could have
sentenced Wims to the same terms of imprisonment under either offense level.
       10
         The testimony regarding the January 18, 1989, possession showed that six kilograms
were confiscated by police in a traffic stop of Willie Wims, Sr. (the defendant’s brother), who
was traveling as the lead car (the “mule” car) in a two-car caravan from Miami to New York; the
defendant was in the second car (the “point” car) of this caravan. The testimony came from
Willie Wims, Sr. (the driver of the first car), the passenger in the first car, the defendant’s

                                                 8
the drugs from this transaction belonged to the defendant. The jury’s guilty verdict

reveals that they did attribute the drugs to Wims, which necessarily means they

attributed six kilograms of cocaine to Wims. Wims failed to object, either at the

sentencing hearing or in his written objections to the PSI, to the quantity of drugs

from this transaction as six kilograms, providing further support for the proposition

that the amount was not at issue.

       For Wims to be sentenced to life imprisonment on Count Two after

Apprendi, we must find that the jury, as a necessary part of its guilty verdict,

determined possession of at least five kilograms of cocaine. See 21 U.S.C. §

841(b)(1)(A) (prescribing a sentence of between ten years and life imprisonment

for possession of at least five kilograms of cocaine); cf. Candelario, 240 F.3d at

1312 (holding that a finding of at least five grams of cocaine base exposed the

defendant to the penalties prescribed in section 841(b)(1)(B)). Because the jury

necessarily determined that Wims possessed six kilograms of cocaine when it

convicted him on Count Two, Wims’s substantial rights were not affected by a

sentence of life imprisonment, as authorized by section 841(b)(1)(A).




nephew (to whom the defendant later talked about the stop), the police officer who stopped the
first car, the police officer who searched the first car and subsequently stopped the second car,
and the lab technician who tested and quantified the cocaine. There was no testimony about an
amount other than six kilograms.

                                                9
       Count One of the indictment charged Wims (and six others) with conspiracy

to distribute cocaine and crack cocaine in violation of 21 U.S.C. §§ 841(a) and

841(b)(1)(A), all in violation of 21 U.S.C. § 846. Wims was convicted and

sentenced to life imprisonment on this count. A finding of at least five kilograms

of cocaine is required to authorize a life sentence for Wims, pursuant to 21 U.S.C.

§ 841(b)(1)(A). The jury’s convictions on Counts Two through Six demonstrate

that the jury necessarily found at least five kilograms of cocaine, as the substantive

offenses in those counts all formed part of the conspiracy.11 Wims’s sentence of

life imprisonment on Count One did not, therefore, affect his substantial rights.

       The fourth prong of plain error review is an inquiry whether the error

“seriously affect[ed] the fairness, integrity, or public reputation of judicial

proceedings.” Johnson, 520 U.S. at 467, 117 S. Ct. at 1549 (internal quotations

omitted). Because Wims fails to satisfy the third prong of plain error review, we

need not address this fourth prong. See Candelario, 240 F.3d at 1312.




       11
           At a minimum, the jury found at least five kilograms of cocaine on Count Two alone.
Moreover, the jury found at least 500 grams of cocaine on each of Counts Three through Six. (In
fact, we believe that the jury found six kilograms (more than five kilograms) on Count Two and
two kilograms (more than 500 grams) on each of Counts Three through Six, but we need not
conclusively determine these greater amounts to dispose of this appeal.) It is clear, therefore,
that the jury found at least seven kilograms of cocaine to convict Wims of all six counts. The
fact that a higher amount of drugs was attributed to Wims at sentencing, as relevant conduct, is
irrelevant for Apprendi purposes.

                                              10
      Although there was error in Wims’s sentencing, his substantial rights were

not affected by the error. Therefore, Wims’s convictions and sentences are

      AFFIRMED.




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