     Case: 10-30299 Document: 00511476904 Page: 1 Date Filed: 05/13/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 13, 2011
                                     No. 10-30299
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

KENNETH GARY WASHINGTON, also known as Kenny Washington,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                            USDC No. 2:05-CR-20084-12


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Kenneth Gary Washington appeals the life sentence
imposed following his jury trial conviction for Count One of a multi-count
indictment that charged him with a drug trafficking conspiracy involving more
than “5 kilograms [of] cocaine and marijuana” in violation of 21 U.S.C. §§ 846(a)
and 841(b)(1)(A). Specifically, he argues that the jury verdict was ambiguous
with respect to how much of either drug the jury found to be involved in the
conspiracy and that his sentence for that offense therefore could not exceed the

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
     Case: 10-30299 Document: 00511476904 Page: 2 Date Filed: 05/13/2011

                                   No. 10-30299

lowest of the potentially applicable statutory maximums. He contends that,
because the verdict is ambiguous, it could be interpreted to mean that the jury
convicted him of conspiring to distribute 50 kilograms or less of marijuana and
no amount of cocaine.
      As Washington concedes, because the argument he raises on appeal was
not raised before the district court, our review is for plain error. See United
States v. Arnold, 416 F.3d 349, 357 (5th Cir. 2005).         To show plain error,
Washington must show that the error was clear or obvious and affects his
substantial rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
If he makes such a showing, we have the discretion to correct the error but only
if it “‘seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.’” Id.
      Generally, “[a] jury verdict in a criminal case is ambiguous if the
defendant is charged with a multiple-drug conspiracy and the jury verdict does
not specify whether the jury found the defendant guilty with respect to some or
all of the drugs.” United States v. Carbajal, 290 F.3d 277, 288 (5th Cir. 2003)
(citing United States v. Cooper, 966 F.2d 936, 940 (5th Cir. 1992)). In that
situation, the sentencing court “is limited to imposing a sentence that does not
exceed the maximum penalty under the statute providing the least severe
punishment.” Cooper, 966 F.2d at 940. In United States v. Green, 180 F.3d 216,
225 (5th Cir. 1999), we clarified, however, that a general verdict for a conspiracy
with more than one object-offense is not “ambiguous ipso facto.” Thus, “even
where there is a conspiracy general verdict, the sentencing court can still
conclude that the jury found, beyond a reasonable doubt, guilt for more than just
one object-offense.” Id. at 226.
      Relatedly, drug types and quantities that the government intends to rely
on to seek penalty enhancements under § 841(b)(1)(A) or (B) must be charged in
the indictment, submitted to the jury, and proved beyond a reasonable doubt.
See United States v. Slaughter, 238 F.3d 580, 582-83 (5th Cir. 2000). In the

                                         2
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                                 No. 10-30299

context of a drug trafficking conspiracy, the government must prove the drug
types and quantities involved with the conspiracy as a whole. See United States
v. Turner, 319 F.3d 716, 722 (5th Cir. 2003).
      There was overwhelming and uncontroverted evidence before the jury that
the charged conspiracy distributed both cocaine and marijuana and that it
involved more than five kilograms of cocaine.      Accordingly, there was no
reversible plain error with respect to the district court’s finding that the
statutory maximum term of imprisonment for Count One of Washington’s
indictment was life in prison. See United States v. Cotton, 535 U.S. 625, 633
(2002); Green, 180 F.3d at 227; § 841(b)(1)(A). The district court’s judgment is
AFFIRMED.




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