                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0653n.06
                                                                                             FILED
                                            No. 08-5009
                                                                                        Sep 06, 2011
                            UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )
       Plaintiff-Appellee                                  )        ON APPEAL FROM THE
                                                           )        UNITED STATES DISTRICT
               v.                                          )        COURT FOR THE WESTERN
                                                           )        DISTRICT OF TENNESSEE
RONALD JONES,                                              )
                                                           )
       Defendant-Appellant.                                )
                                                           )



BEFORE: GIBBONS, ROGERS, COOK, Circuit Judges.

       ROGERS, Circuit Judge. Defendant Ronald Jones appeals the district court’s imposition of

a mandatory life sentence for possession with intent to distribute 108 grams of a mixture or

substance containing a detectable amount of methamphetamine. Jones argues that the jury made no

findings of fact as to the quantity of controlled substances involved, and that thus the district court

erred in concluding that he was required to serve a life sentence pursuant to 21 U.S.C. §

841(b)(1)(A). He also contends that the district court erred in making findings as to the existence

of prior convictions necessary for the imposition of a mandatory life sentence under § 841(b)(1)(A).

The Government concedes its error on Jones’ first argument. However, Jones’ second argument is

clearly precluded by Supreme Court precedent. We accordingly vacate Jones’ sentence and remand

for resentencing.
No. 08-5009
United States v. Jones


        In 2003, Memphis police officers began investigating a methamphetamine distribution ring,

and their interviews with persons involved in the enterprise led them to Jones. [PSR at 3-4.]

Officers eventually discovered quantities of methamphetamine, along with digital scales, at a hotel

where Jones was renting a room. Jones admitted to officers that the drugs belonged to him. [PSR

at 4-5.] The drugs weighed in at 108 grams. [PSR at 5.] A grand jury first charged Jones with

various violations of the Controlled Substances Act on December 16, 2004. [DE 1.] On June 21,

2005, a superseding indictment was filed, charging Jones with (1) conspiracy to possess with the

intent to distribute in excess of 500 grams of a mixture and substance containing a detectable amount

of methamphetamine, and (2) possession with intent to distribute approximately 108 grams of a

mixture and substance containing a detectable amount of methamphetamine, both in violation of 21

U.S.C. § 841(a)(1). [DE 42.] The Government filed an information pursuant to 21 U.S.C. § 851(a)

on July 6, 2007, noting its intent to seek a life sentence, should Jones be convicted, because of his

two prior convictions for violations of the Controlled Substances Act. [DE 136.] On July 13, 2007,

a federal jury found Jones guilty of the second count, but a mistrial was declared as to the first.1 [DE

146; DE 148.]

        In regard to the quantity of methamphetamine involved, the only evidence presented at trial

was the testimony of the Government’s drug chemistry expert. This expert testified that she had

calculated the weight of the methamphetamine mixture as 99 grams. [DE 181 at 100.] She also

explained that she had conducted a purity analysis of a sample of the methamphetamine mixture


        1
            The court later granted the Government’s motion to dismiss the first count.

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No. 08-5009
United States v. Jones


from which she concluded that 73 percent of the mixture was methamphetamine; thus, she opined

that the amount of “pure meth” recovered was approximately 72 grams. [DE 181 at 100.] Despite

the testimony in regard to quantity and the indictment’s notation of quantity as to both counts, when

instructing the jury as to the second count, the district court stated as follows: “In the indictment,

particular amounts or quantities of methamphetamine are alleged. The evidence in the case need not

establish the amount or quantity of methamphetamine alleged in the indictment, but only that a

measurable amount of methamphetamine was in fact the subject of the acts charged in the

indictment.” [DE 179 at 18.] Accordingly, the jury was asked solely to answer whether Jones was

guilty or not guilty as to each count and was not required to make a finding as to the particular

quantity of methamphetamine involved.

       The court held a sentencing hearing on December 11, 2007. In conjunction with sentencing,

the Government presented testimony to prove Jones’ two prior convictions for purposes of the

mandatory life sentence in § 841(b)(1)(A), and the district court noted that it would decide the

existence of these convictions. [See DE 183 at 27.] The district court did just that, reviewing the

evidence submitted by the Government as to the existence of these convictions and finding that “the

government ha[d] met its burden of proof beyond a reasonable doubt on those issues of fact” and that

“these are valid convictions” for purposes of § 841. [DE 184 at 25.] The district court then went

on to sentence Jones to life in prison pursuant to § 841(b)(1)(A). Jones now appeals this sentence.

       The district court plainly erred in applying 21 U.S.C. § 841(b)(1)(A) without a jury finding

as to the amount of methamphetamine involved in Jones’ offense. Both parties concede that plain


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No. 08-5009
United States v. Jones


error review applies in this case. Further, the Government concedes that the district court erred in

this respect. Because Jones did not raise an objection to the lack of a finding as to the quantity of

drugs at issue before the district court, we review for plain error. United States v. Page, 232 F.3d

536, 543 (6th Cir. 2000). This requires that (1) there be an error, (2) that is plain or clear, (3) that

affects Jones’ substantial rights, and (4) that “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” United States v. Martinez, 253 F.3d 251, 255 (6th Cir. 2001).

        It is plain that the district court erred in Jones’ sentencing as Apprendi v. New Jersey, 530

U.S. 466, 490 (2000), clearly holds 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.” Section 841(b)(1)(A) provides for a mandatory life

sentence if a person with two prior felony drug convictions commits a violation of § 841(a) involving

“50 grams or more of methamphetamine . . . or 500 grams or more of a mixture or substance

containing a detectable amount of methamphetamine.” However, the maximum sentence for a

person with a similar criminal history who commits a violation of § 841(a) involving an

indeterminate amount of methamphetamine, a schedule II controlled substance, is thirty years. 21

U.S.C. § 841(b)(1)(C). Thus, the amount of methamphetamine involved works to increase the

penalty for a § 841(a) violation, requiring a determination beyond a reasonable doubt by a jury of

this fact.

        This court has recognized Apprendi’s application in sentencing under § 841(b)(1). See, e.g.,

United States v. Wettstain, 618 F.3d 577, 592 (6th Cir. 2010); United States v. Graham, 275 F.3d


                                                 -4-
No. 08-5009
United States v. Jones


490, 521-24 (6th Cir. 2001); Page, 232 F.3d at 542-45. For example, in Graham, the presentence

report noted that the defendant was responsible for one-hundred marijuana plants, which increased

his maximum punishment from five years’ imprisonment to forty years’ imprisonment. 275 F.3d at

521-23. However, the jury did not make any findings as to the amount of marijuana involved. Id.

at 523. We held that Apprendi had been violated, vacated the defendant’s sentence, and remanded

for resentencing. Id. at 524. It is clear that the district court violated Apprendi by sentencing Jones

to life in prison in the absence of a jury finding as to the quantity of methamphetamine involved.

       Having established that the district court clearly violated the principles laid out in Apprendi,

we must next address the remaining requirements for a finding of plain error—whether the error

affected Jones’ substantial rights and whether the error affected the fairness, integrity, or public

reputation of judicial proceedings. Both are met in Jones’ case. In Page, we analyzed these

requirements for plain error in terms of an Apprendi violation:

       An error affects substantial rights when the error was prejudicial, that is, when it
       “affected the outcome of the district court proceedings.” There is no doubt that
       imposing additional years of imprisonment beyond that authorized by a jury’s verdict
       affects a defendant’s substantial rights. Furthermore, a sentencing error seriously
       affects the fairness, integrity, or public reputation of judicial proceedings when a
       court’s error results in imposition of a sentence which is not authorized by law.

232 F.3d at 544 (citations omitted). Here, Jones received a term of imprisonment beyond that

authorized by the jury’s verdict. At most, the jury’s verdict permitted him to be sentenced to thirty

years, but the court imposed a life sentence. This was clear error.

       The district court did not err, however, in finding that Jones had been previously convicted

of felony drug charges. Apprendi explicitly excepts this type of fact finding from its requirement of

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No. 08-5009
United States v. Jones


a jury determination. 530 U.S. at 490; see also United States v. Matthews, 278 F.3d 560, 563 (6th

Cir. 2002). Thus, “a judge is permitted to find, based on the preponderance of the evidence, the fact

of a prior conviction.” United States v. Martin, 526 F.3d 926, 941 (6th Cir. 2008). This precedent

is binding.

       For these reasons, we vacate Jones’ sentence and remand for resentencing.




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