In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2531

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TORREY D. JONES,

Defendant-Appellant.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 99 CR 40037--J. Phil Gilbert, Judge.


Argued November 30, 2000--Decided March 28, 2001



  Before Ripple, Manion, and Kanne, Circuit Judges.

  Kanne, Circuit Judge. Defendant-appellant,
Torrey Jones, pleaded guilty to one felony drug
count in violation of 21 U.S.C. sec. 841(a)(1),
and a jury found him guilty of two additional
felony drug counts for violating 21 U.S.C.
sec.sec. 841(a)(1) and 846. Jones was
subsequently sentenced by the district court to
a prison term of 312 months for each count, with
the terms to be served concurrently. Jones now
appeals. Jones challenges his conviction with
regard to the two counts for which the jury found
him guilty, arguing that the district court
failed to properly instruct the jury as to the
government’s burden to prove both the type and
quantity of the controlled substances alleged in
the indictment. Jones also contests his sentence
with regard to all three counts, alleging that
the district court failed to properly make
certain findings in formulating his sentence.
Because Jones’ sentence was below the statutory
maximum penalty prescribed by 21 U.S.C. sec.
841(b)(1)(C) for a Schedule II drug offense
committed by an individual with a prior felony
drug conviction, regardless of the quantity of
drugs involved, we affirm both Jones’ conviction
and his sentence.

I.   History

  Jones was arrested on October 29, 1998 after
officers from the Mt. Vernon, Illinois, Police
Department’s Narcotics Unit and the Jefferson
County, Illinois, Sheriff’s Department executed
a search warrant on Jones’ mother’s house, where
he resided. The officers recovered slightly less
than five grams of crack cocaine along with
packaging materials and other drug paraphernalia.
This arrest marked the end of a two-year period
dating back to October 1996, during which time
Jones both manufactured and sold crack cocaine.
Jones’ drug-related activities were well
documented by law enforcement officers who
observed or participated in multiple controlled
drug purchases involving Jones, by individuals
who had themselves purchased crack cocaine from
Jones, including Louise Monroe, Jones’ co-
defendant, and by Jones himself, who, after being
taken into custody and advised of his rights,
gave written and verbal statements in which he
admitted to receiving substantial quantities of
powder cocaine on a regular basis and cooking at
least a portion of that powder into crack
cocaine.

  Jones and Monroe were indicted by a grand jury
on May 7, 1999, and charged with one count of
conspiracy to possess cocaine base, commonly
known as "crack cocaine," with the intent to
distribute, in violation of 21 U.S.C. sec.sec.
841(a)(1) and 846. A superseding indictment was
returned by the grand jury on August 4, 1999,
specifying that Jones and Monroe conspired to
distribute more than fifty grams of a mixture and
substance containing cocaine and a mixture and
substance containing cocaine base commonly known
as crack cocaine in violation of 21 U.S.C.
sec.sec. 841(a)(1), 841(b)(1)(A)(iii), and 846.
A second superseding indictment was returned by
the grand jury on November 3, 1999. This
indictment was more expansive than the previous
two indictments. In addition to count one, the
sole count of the first two indictments, this
second superseding indictment included five
additional counts, two of which charged Jones
individually, and three other counts against only
Monroe. Count two charged Jones with distribution
and possession with the intent to distribute less
than five grams of crack cocaine on or about
October 18, 1996, in violation of 21 U.S.C. sec.
841(a)(1). Count five charged Jones with
committing the same offense charged in count two
on or about October 29, 1998.

  Prior to the grand jury’s return of the second
superseding indictment, the government filed an
information on August 31, 1999, pursuant to 21
U.S.C. sec. 851(a)(1), to establish Jones’ 1998
state court conviction for the unlawful delivery
of a controlled substance. Shortly before his
arrest for the offenses at issue in this appeal,
Jones pleaded guilty to delivering less than one
gram of a substance containing cocaine to a
confidential source of the Mt. Vernon Police
Department on February 17, 1997. This was a
violation of the Illinois Controlled Substance
Act, 720 Ill. Comp. Stat. 570/401, and a Class Two
felony in the State of Illinois. Id. at
570/401(d). As a result of his guilty plea,
Jones received thirty months probation. The
information filed by the government expressed the
government’s intent to rely upon this prior
conviction, which is a felony drug offense as
referred to in 21 U.S.C. sec. 841(b), for the
purpose of enhancing Jones’ statutory penalty.
The defendant did not contest the existence of
this prior felony.

  While Jones originally pleaded not guilty to
all three counts of the second superseding
indictment, he changed his plea with regard to
count two by entering a plea of guilty on the
morning of the first day of trial. Judge Gilbert
questioned Jones extensively as to this decision,
and during this process Jones definitively agreed
to the accuracy of the factual allegations
presented by the government implicating him in
the distribution of crack cocaine. Jones’ trial
then commenced on counts one and five. Two days
later, the jury returned a verdict of guilty on
both counts. Jones was sentenced to 312 months
for each count, with the sentences to run
concurrently.

II. Analysis
A. The Jury Instructions for Counts One and Five

  Jones first attacks his conviction on counts
one and five, contending that the instructions
submitted to the jury constituted reversible
error. Relying on the Supreme Court’s decision in
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000), Jones argues that
the instructions for counts one and five
constituted reversible error because they failed
to direct the jury that it must find that the
government had met its burden to prove the
quantity of controlled substances alleged for
these counts in the indictment. Additionally,
Jones argues that the instructions pertaining to
count one failed to require the jury to find that
the government had met its burden of proving the
type of controlled substances alleged in the
portion of the indictment relating to that count.
Jones acknowledges that, because he did not
preserve his objection as to whether the quantity
or type of drugs alleged in the indictment were
improperly missing from the jury instructions, we
review his claim for plain error. See United
States v. Nance, 236 F.3d 820, 824 (7th Cir.
2001).
  In Apprendi, the Supreme Court held that "any
fact other than the fact of a prior conviction
that increases the penalty for an offense beyond
the statutory maximum penalty for that offense is
an element of the crime and so must be submitted
to the jury and proved beyond a reasonable
doubt." United States v. Jackson, 236 F.3d 886,
887 (7th Cir. 2001) (citing Apprendi, 120 S. Ct.
at 2362-63). In cases involving drugs and alleged
violations of 21 U.S.C. sec.sec. 841 and 846,
like the one now before us, we have held that
"before a defendant can be sentenced to a term of
imprisonment above the default statutory maximum
provided in sec. 841(b)(1)(C) or D, Apprendi
requires that a drug type and amount sufficient
to trigger the higher statutory maximums of sec.
841(b)(1)(A) or (B) be charged in the indictment
and found by the jury." United States v. Mietus,
237 F.3d 866, 874 (7th Cir. 2001). When a drug
amount is not charged in an indictment or
included in instructions submitted to a jury, the
statutory maximum under sec. 841(b) is to be
determined without making any reference to drug
amount. See United States v. Westmoreland, 240
F.3d 618, 632 (7th Cir. 2001).

1.   Count One

  Count one of the indictment clearly explained
that Jones and Monroe were charged with
conspiring to distribute, and possession with the
intent to distribute, more than fifty grams of a
mixture and substance containing cocaine and more
than fifty grams of a mixture and substance
containing cocaine base, a Schedule II controlled
substance in violation of 21 U.S.C. sec.sec.
841(a)(1), 841(b)(1) (A)(iii), and 846./1 The
instructions submitted to the jury on this count,
however, were not as specific as the indictment.
While we find sufficient language in the
instructions directing the jury to determine
whether the government had proven the type of
controlled substances alleged in count one of the
indictment, these instructions made no mention of
the quantity of the controlled substances. The
government argues that the jury was properly
instructed as to the quantity of controlled
substances alleged in count one. In support of
this assertion the government offers several
facts: the district court read the indictment to
the jury at the outset of voir dire; the jury
received a copy of the indictment when it
deliberated; and, with regard to count one, the
jury was instructed to consider whether the
transactions involved large quantities of cocaine
and cocaine base. These facts do not alleviate
the absence of direction in the jury instructions
to find that Jones possessed more than fifty
grams of cocaine and more than fifty grams of
crack cocaine.

  Notwithstanding this omission in the
instructions, the defendant was found guilty on
this count and he was subsequently sentenced to
312 months for this offense. Because no drug
amounts were included in the jury instructions
for this count, Apprendi requires the statutory
maximum for this offense to be determined without
reference to any quantity of controlled
substance. While sec. 841(b)(1)(C) explains that
the statutory maximum for the offense charged in
count one, without mention of any specific
quantity of drugs, is twenty years, or 240
months, it also explains that when "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." Thus,
because of Jones’ prior state felony drug
conviction, the statutory maximum for his offense
under sec. 841(b)(1)(C) is thirty years, or 360
months. This enhancement was the result of Jones’
prior conviction, a fact explicitly excluded from
the requirements of Apprendi by the Supreme
Court. See Apprendi 120 S. Ct. at 2362-63.
Furthermore, we have repeatedly held that "when
a defendant is sentenced to a term of
imprisonment within the statutory maximum for the
crime of which he was convicted, ’Apprendi is
beside the point.’" United States v. Williams,
No. 00-1129, 2001 WL 65719, *4 (7th Cir. Jan. 26,
2001) (quoting Talbott v. Indiana, 226 F.3d 866,
869 (7th Cir. 2000)). Thus, because Jones’
sentence was forty-eight months below the
statutory maximum for a defendant who has a prior
felony drug conviction, Apprendi is inapplicable,
and the conviction for count one will be
affirmed.

2.   Count Five

  Count five of the indictment stated that Jones
knowingly and intentionally possessed, with the
intent to distribute, less than five grams of a
mixture and substance containing a cocaine base,
in violation of 21 U.S.C sec. 841(a)(1). While
the instructions submitted to the jury for this
count, like those for count one, did not direct
the jury to determine whether the government had
proven a quantity of crack cocaine, the
conviction on this charge is upheld for the
reasons explained above. Without any reference to
drug quantity, the statutory maximum for a
defendant who has a prior drug felony conviction
and commits the offense charged in count five is
thirty years, or 360 months. See 21 U.S.C. sec.
841(b)(1)(C). Jones, however, received a sentence
of 312 months, forty-eight months below the
statutory maximum for this offense. Again,
Apprendi does not apply, and the conviction for
count five must be affirmed.

B. The Sufficiency of the District Court’s
Findings in Sentencing Jones

  In his appeal, Jones also challenges the
sufficiency of the findings made by the district
court in calculating his sentence. Jones argues
that Apprendi requires all sentencing factors
considered by a district court in formulating a
defendant’s sentence, including those which
determine the defendant’s relevant conduct and
criminal history category, to be found beyond a
reasonable doubt by the trier of fact.
Specifically, Jones alleges that the district
court improperly used a preponderance of the
evidence standard to determine the quantity of
crack cocaine that was a part of his relevant
conduct. Jones concludes that, because the
district court’s findings exposed him to the
possibility of receiving a sentence that exceeded
the statutory maximum penalty for the crimes for
which he was convicted, the court’s use of a
preponderance of the evidence standard to make
these findings violated Apprendi and constituted
reversible error. Additionally, Jones argues that
the existence of his prior felony drug conviction
should have been found beyond a reasonable doubt
by the trier of fact in the context of each
count: by the jury for counts one and five, and
by the court for count two. We review this claim
for plain error because Jones did not properly
preserve his objections in the court below. See
United States v. Westmoreland, 240 F.3d 618, 632
(7th Cir. 2001).

  At the sentencing hearing in this case, the
court determined Jones’ base level offense by
calculating the quantity of crack cocaine that
was not included in the counts for which Jones
was convicted, but that should be included in
Jones’ relevant conduct, pursuant to the United
States Sentencing Guidelines (U.S.S.G.) sec.
1B1.3(a)(2), because it was a "part of the same
course of conduct or common scheme or plan as the
offense[s]" for which Jones was convicted. U.S.
Sentencing Guidelines Manual sec. 1B1.3 (a)(2) (1998). The
court found, by a preponderance of the evidence,
that Jones’ relevant conduct included over 1.5
kilograms of crack cocaine. This determination
put Jones’ base level offense at 38 under
U.S.S.G. sec. 2D1.1(C). See id. at sec. 2D1.1(c).
Additionally, the court found Jones’ criminal
history to fall within category III. These
findings led the court to conclude that the
appropriate sentence range for Jones was 292 to
365 months for count one, and 292 to 360 months
for counts two and five. Jones was subsequently
sentenced to 312 months for each count, with the
sentences to run concurrently

  After Apprendi, "it is now clear that, if drug
quantity is determined by the sentencing judge
rather than by the jury, a defendant’s rights are
violated when the sentence dictated by the drug
quantity is greater than the lowest, unenhanced
statutory maximum prescribed by section 841(b)."
Westmoreland, 2001 WL 125878, at *9. When a
defendant’s sentence does not exceed the lowest,
unenhanced statutory maximum for the crime for
which he was convicted, however, there is no
Apprendi violation. See United States v.
Parolini, 239 F.3d 922, 929 (7th Cir. 2001).
Because of Jones’ prior felony drug conviction,
which despite his insistence to the contrary did
not have to be found beyond a reasonable doubt by
either the district court or the jury, the lowest
unenhanced statutory maximum for all three counts
under sec. 841(b)(1)(C) was thirty years, or 360
months. Thus, Jones’ sentence did not violate
Apprendi because it was below the statutory
maximum for the crimes for which he was
convicted.

  Although we have dealt with Jones’ claim
regarding his sentence, we feel compelled to
briefly address his assertion that Apprendi
requires a district court to find drug quantities
it considers to be a part of a defendant’s
relevant conduct beyond a reasonable doubt.

 Before Apprendi, we held that at the sentencing
phase of a criminal proceeding, the drug
quantities attributable to a defendant’s relevant
conduct need only be found by a preponderance of
the evidence. See United States v. Zehm, 217
F.3d 506, 511 (7th Cir. 2000). Following the
Court’s decision in Apprendi, we have found that
the holding of that case "does not affect
application of the relevant-conduct rules under
the Sentencing Guidelines to sentences that fall
within a statutory gap." Talbott v. Indiana, 226
F.3d 866, 869 (7th Cir. 2000). Thus, pursuant to
the sentencing guidelines, district courts may
still determine a drug offender’s base level
offense by calculating quantities of drugs that
were not specified in the count of conviction but
that the court concludes, by a preponderance of
the evidence, were a part of the defendant’s
relevant conduct, as long as that determination
does not result in the imposition of a sentence
that exceeds the statutory maximum penalty for
that crime. See id. at 869-70 ("Apprendi does not
affect the holding of Edwards v. United States,
523 U.S. 511, 118 S. Ct 1475, 140 L. Ed. 2d 703
(1998), that the judge alone determines drug
types and quantities when imposing sentences
short of the statutory maximum."); see also
Westmoreland, 240 F.3d at 636 ("The only gloss
applied to [our holding in United States v. Dawn,
129 F.3d 878, 884 (7th Cir. 1997), that
’sentencing judges may look to the conduct
surrounding the offense of conviction in
fashioning an appropriate sentence, regardless of
whether the defendant was ever charged with or
convicted of that conduct,’] by Apprendi is the
requirement that facts not set forth in an
indictment and charged to a jury may not be used
to increase a defendant’s sentence beyond the
prescribed statutory maximum.").

III.   Conclusion

  Because Jones’ sentence fell below the statutory
maximum for the offenses for which he was
convicted, we AFFIRM both his conviction and his
sentence.


/1 Section 841(a) states that "it shall be unlawful
for any person knowingly or intentionally--(1) to
manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or
dispense, a controlled substance." 21 U.S.C. sec.
841(a).

  Section 841(b)(1)(A) explains:

In the case of a violation of subsection (a) of
this section involving--(iii) 50 grams or more of
a mixture or substance described in clause (ii)
which contains cocaine base . . . such person
shall be sentenced to a term of imprisonment
which may not be less than 10 years or more than
life . . . . 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 which may
not be less than 20 years and not more than life
imprisonment.

21 U.S.C. sec. 841(b)(1)(A)

  Section 846 states: "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 object of the attempt
or conspiracy." 21 U.S.C. sec. 846.
