In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1030

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LEANDER RODGERS,

Defendant-Appellant.



Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 97 CR 108--John Daniel Tinder, Judge.


Argued January 12, 2001--Decided April 5, 2001



  Before RIPPLE, ROVNER, and EVANS, Circuit Judges.

  ROVNER, Circuit Judge. A jury convicted Leander
Rodgers of conspiring to possess cocaine and
cocaine base with the intent to distribute these
narcotics, in violation of 21 U.S.C. sec.sec.
841(a)(1) and 846. At sentencing, Judge Tinder
found by a preponderance of the evidence that
Rodgers was responsible for the distribution of
250 grams of crack cocaine and 349 grams of
powder cocaine. The quantity of crack cocaine
that the judge attributed to Rodgers had the
effect of triggering a mandatory minimum prison
term of ten years. See 21 U.S.C. sec. 841(b)(1)
(A)(iii). Based on the Supreme Court’s recent
opinion in Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348 (2000), Rodgers maintains that
the drug quantity, because it had the effect of
imposing a floor on the length of time he would
spend in prison, constituted an element of his
offense that the government was required to
prove, and the jury was required to find, beyond
a reasonable doubt. He secondarily contends that
the district judge erred in holding him to
account for 250 grams of cocaine base, because
that finding was based on uncorroborated and (in
his view) unreliable testimony.

I.

  Along with his two cousins, Dexter and
Demetrius Erby, as well as a number of other
individuals, Rodgers participated in a drug
trafficking operation that imported powder and
crack cocaine to the Muncie, Indiana area from
New York State. At first, individual co-
conspirators would either drive or fly to New
York in order to obtain the cocaine from Dexter
Erby; on other occasions, the cocaine was sent to
Indiana via Federal Express. Later, after Rodgers
had begun to work for Federal Express in Muncie
and one of the co-conspirators had been stopped
while carrying $9,000 in drug purchase money, the
conspiracy began to use Western Union as the
primary means of transmitting money to New York
and Federal Express as the principal means of
shipping the cocaine to Indiana. Typically, the
shipper of cocaine (Dexter Erby, who used a
series of fictitious names) would execute a
release on the Federal Express air bill form so
that the package could simply be left at the
receiving address without any person being there
to sign for it. Often, the package was directed
to a vacant residence where the Muncie-based
members of the conspiracy could pick it up. By
virtue of his position, Rodgers was able to
provide his fellow conspirators with information
as to how Federal Express handled packages and to
track shipments (on one occasion, he was able to
determine that a delayed package had been
intercepted by a Muncie police officer). He also
provided the addresses of some vacant houses for
use as delivery locations. On several occasions,
cocaine was shipped to Rodgers’ home; on two
other occasions, Rodgers delivered cocaine for
Demetrius Erby. He also picked up a delivered
package himself on one occasion, and in a second
instance he helped another conspirator do the
same. Ultimately, Dexter Erby sent some ten to
fifteen kilograms of cocaine to the Muncie area
through Federal Express, three to five kilograms
of which was in the form of crack.

  Eventually, the authorities were led to Rodgers
and his co-conspirators when Rodgers’ co-workers
at Federal Express began to notice a series of
suspicious packages with handwritten air bills
being shipped from New York to vacant residences
in the Muncie area. In early September 1994, the
Muncie Delaware County Drug Task Force
intercepted one of the packages and ascertained
that it contained some 177.6 grams of powder
cocaine. In mid-November, task force members
seized another of the packages and discovered
some 54.7 grams of powder cocaine inside. In
early December, they effected a controlled
delivery of yet another package to a vacant
residence and left the package on the front door.
Hours later, two of the conspirators arrived at
the house and picked up the package. They were
followed and arrested a short time later at a
Dairy Queen. The first members of the conspiracy
to be indicted chose to plead guilty and
cooperate with the authorities by providing the
information that led to the indictment of Rodgers
and others.

  A grand jury indicted Rodgers for conspiring to
possess cocaine and cocaine base with the intent
to distribute, and he was tried twice on that
charge. The jury that heard the first trial could
not agree on a verdict as to Rodgers and co-
defendant Gary Mason. The government then dropped
its case against Mason, and Rodgers was tried a
second time alone. Following three days of
testimony and argument, the jury found him
guilty.

  Judge Tinder’s determination at sentencing that
Rodgers was responsible for 250 grams of crack
cocaine and 349 grams of powder cocaine resulted
in a base offense level of 34. Finding that
Rodgers was a minimal participant in the
conspiracy, the judge granted him a four-level
reduction pursuant to Guidelines section
3B1.2(a). The final, adjusted offense level of
30, coupled with Rodgers’ lack of a criminal
history, yielded a sentencing range of 97 to 121
months. However, as we have noted, the
attribution of 250 grams of crack cocaine to
Rodgers triggered the minimum prison term of ten
years mandated by 21 U.S.C. sec.
841(b)(1)(A)(iii) for drug offenses involving 50
or more grams of cocaine base. Judge Tinder
imposed the minimum prison term of 120 months, to
be followed by a five-year period of supervised
release.

  The total of 250 grams of crack cocaine that
the district judge attributed to Rodgers was
based on two separate transactions testified to
by Dexter Erby. The first occurred around the
Easter holiday in 1994. Dexter Erby had brought
125 grams of crack from New York to Muncie for
his cousin Demetrius Erby to distribute. At
Rodgers’ home, in the presence of Rodgers and
Demetrius, Dexter weighed and separated the
cocaine into five packages that each contained
about 25 grams. While Dexter was performing that
task, Demetrius and Rodgers discussed to whom
they would sell the crack. Tr. 174-77; see also
Sentencing Tr. 36. One to two weeks later, Dexter
was preparing to ship another quantity of crack
cocaine (between 125 and 150 grams) from New York
to Muncie. Rodgers and Demetrius, both of whom
were in New York, discussed that shipment with
Dexter at his mother’s home. Federal Express was
used as the means for conveying this cocaine, and
in fact it was shortly after this shipment that
Dexter Erby began to use Federal Express as the
exclusive means of delivering the cocaine to
Muncie. Tr. 179-82.
  Rodgers, who testified in his own defense at
trial, denied any involvement in the conspiracy.
He specifically denied any knowledge of or
involvement with these two transactions. However,
Judge Tinder, who noted that Rodgers’ exculpatory
testimony conflicted with that of a number of
other witnesses, Sentencing Tr. 41, found Dexter
Erby’s testimony to be credible, id. at 36.

II.
A.

  The mandatory ten-year prison term called for
by section 841(b)(1)(A)(iii) was triggered by the
finding that Rodgers was responsible for at least
250 grams of crack cocaine. That finding, as we
have explained, was rendered by the district
judge at sentencing, based on a preponderance of
the evidence. The indictment against Rodgers did
not allege that he was responsible for any
particular amount of a controlled substance, and
the jury that convicted him was not instructed to
decide whether the amount of crack cocaine
reached the threshold of 50 or more grams of
cocaine base specified in section 841(b)(1)
(A)(iii). Rodgers contends that the application
of the ten-year mandatory minimum based on a key
fact--the relevant drug quantity--that the jury
did not find beyond a reasonable doubt cannot be
squared with the Supreme Court’s decision in
Apprendi.

  The Court in Apprendi reaffirmed the view it
had expressed just one year earlier in Jones v.
United States, 526 U.S. 227, 119 S. Ct. 1215
(1999), 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." 120 S. Ct. at 2362-
63; see Jones, 526 U.S. at 243 n.6, 119 S. Ct. at
1224 n.6. At issue in Apprendi was New Jersey’s
hate crimes law, which provided for an enhanced
sentence when the sentencing judge found, by a
preponderance of the evidence, that the defendant
committed a crime with a purpose to intimidate a
person or group because of race, color, gender,
handicap, religion, sexual orientation, or
ethnicity. Mr. Apprendi was arrested after he
fired several shots into the home of an African-
American family that had moved into a formerly
all-white neighborhood. He eventually pleaded
guilty to, inter alia, possessing a firearm with
an unlawful purpose, an offense that carried a
prison term of five to 10 years. At sentencing,
however, the trial judge found that Apprendi’s
crime was motivated by racial bias. Pursuant to
the State’s hate crime statute, that
determination had the effect of increasing the
applicable prison term to a range of 10 to 20
years. Because the finding that the defendant
committed a crime with an intent to intimidate
raised the maximum sentence to which he was
subject, the Supreme Court concluded that the
defendant’s purpose in committing a crime was an
essential element of the hate crimes offense, and
as such must be submitted to the jury and proven
beyond a reasonable doubt. See id. at 2363-67.

  In the wake of Apprendi, it is clear that any
finding as to a drug quantity that has the effect
of increasing the statutory maximum prison term
to which the defendant is subject must be charged
and submitted to the jury. See, e.g., United
States v. Nance, 236 F.3d 820, 825 (7th Cir.
2000). The default maximum prison term under
section 841(b) for Schedules I and II controlled
substances (cocaine is a Schedule II controlled
substance, see 21 U.S.C. sec. 812(c)) is 20
years. See 21 U.S.C. sec. 841(b)(1)(C).
Therefore, because the jury in Rodgers’ case was
never asked to find him responsible for any
particular drug amount, that is the maximum
prison term to which he could be sentenced.

  But what of minimum prison terms? For persons
without a criminal history including specified
offenses, there is no default minimum period of
incarceration specified by section 841(b). Thus,
insofar as the statute is concerned, if the
quantity of controlled substance for which the
defendant is found responsible is small enough,
he or she could be sentenced to no prison time at
all. See sec. 841(b)(1)(C) (specifying a default
maximum term of 20 years, but no minimum). The
drug quantity ascertained by the district judge
in this case increased the minimum term that
Rodgers must serve to 10 years. Consequently, in
terms of the punishment that the statute
requires, the quantity finding had a dramatic
impact on Rodgers’ sentence. One can certainly
argue, as Rodgers does, that a sentencing
determination that increases the minimum prison
term in this way ought to be treated as an
essential element of the offense, to be assessed
by the jury, in the same way that findings which
affect the maximum term are under Apprendi. See
120 S. Ct. at 2379-80 (Thomas, J., concurring);
id. at 2385-86 (O’Connor, J., dissenting).

  But here Rodgers’ argument runs headlong into
McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct.
2411 (1986), which the Court in Apprendi
expressly declined to overrule. McMillan
sustained a state sentencing statute which
mandated a minimum prison term of five years for
someone convicted of one of a number of specified
felonies when the sentencing judge determined, by
a preponderance of the evidence, that the
defendant had "visibly possessed a firearm" in
the course of the offense. The petitioners in
that case argued that because the possession of
a firearm exposed them to a lengthier minimum
prison term, it was an essential element of the
offense that must be submitted to the jury and
proved beyond a reasonable doubt. The Supreme
Court disagreed, reasoning principally that the
finding as to a defendant’s possession of a gun
had the effect of limiting the sentencing court’s
discretion to impose a sentence within the range
of available choices. Id. at 87-88, 106 S. Ct. at
2417. In other words, a court’s finding as to gun
possession did not increase the maximum sentence
to which the defendant was exposed, it simply
narrowed the range of permissible sentences at or
below that maximum. Ibid. The Court in Apprendi
thus saw no need to disturb McMillan: "We do not
overrule McMillan. We limit its holding to cases
that do not involve the imposition of a sentence
more severe than the statutory maximum for the
offense established by the jury’s verdict--a
limitation identified in the McMillan opinion
itself." Id. at 2361 n.13.

  In view of the Court’s unwillingness to
overrule McMillan, Apprendi’s holding can be
understood to impose a limit only on those
factual determinations that potentially will
increase the statutory maximum sentence to which
the defendant is subject. Indeed, we made
precisely this observation in Nance: "the
Apprendi rule applies only to drug quantities
that permit a sentence in excess of the default
statutory maximum of twenty years." 236 F.3d at
825; see also United States v. Huerta, 239 F.3d
865, 876 (7th Cir. 2001); United States v.
Williams, 238 F.3d 871, 877 (7th Cir. 2001);
Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir.
2000).

  Nonetheless, Rodgers insists that one aspect of
Apprendi’s rationale leaves the door open to
sentencing relief in his case. As he points out,
a circumstance that the Supreme Court found
worthy of mention in Apprendi was that the
increase in the maximum prison term pursuant to
New Jersey’s hate crimes statute had the effect
of transforming a second-degree offense into a
first-degree offense under the State’s criminal
code. 120 S. Ct. at 2365. That consequence was
more than nominal, in the Court’s view:

The degree of criminal culpability the
legislature chooses to associate with particular,
factually distinct conduct has significant
implications both for a defendant’s very liberty,
and for the heightened stigma associated with an
offense the legislature has selected as worthy of
greater punishment.
. . . Both in terms of absolute years behind
bars, and because of the more severe stigma
attached, the differential here is unquestionably
of constitutional significance.

Id. In this case, Rodgers argues, the default
statutory sentencing range of 0 to 20 years set
forth in section 841(b)(1)(C) corresponds to a
class C felony, while the range of 10 years to
life set forth in section 841(b) (1)(A)--
triggered by, inter alia, a finding that the
defendant was responsible for 50 or more grams of
cocaine base--corresponds to a class A felony.
See 18 U.S.C. sec. 3559(a). Thus, as he sees it,
the drug quantity finding in his case has
rendered his offense more serious in degree and
stigma just as was true in Apprendi,
notwithstanding the fact that it was the minimum
prison term that came into play here, rather than
the maximum.

  Yet, it is the maximum prison term to which the
defendant is subject that matters in terms of
categorizing the gravity of the offense. The very
classification statute to which Rodgers points,
18 U.S.C. sec. 3559(a), defines each class of
felony with reference to the maximum term rather
than the minimum. It is true that the provisions
of section 841(b)(1)(A), which were triggered by
the district court’s finding, specify a maximum
term of life, and that maximum corresponds to a
Class A felony. See 18 U.S.C. sec. 3559(a)(1).
Yet, Apprendi and its progeny make clear that in
the absence of an appropriate drug-quantity
determination by the jury, Rodgers could not have
been sentenced in excess of the maximum prison
term of 20 years specified by section
841(b)(1)(C). That default maximum, as we have
noted, corresponds to a Class C felony. See 18
U.S.C. sec. 3559(a)(3). In effect, then, the
district judge’s drug quantity finding narrowed
the statutory sentencing range for Rodgers from
a period of 0 to 20 years to a period of 10 to 20
years. Because it is the maximum term that
matters in terms of the categorization of federal
offenses, the triggering of the 10-year minimum
here did not have the effect of transforming
Rodgers’ offense into one more serious in degree
as was true in Apprendi. See Williams, 238 F.3d
at 877.

  We of course appreciate the very real impact
that the district court’s quantity determination
had upon Rodgers’ sentence. Absent the statutory
minimum triggered by that finding, Rodgers could
have been sentenced to a term as short as 97
months under the Sentencing Guidelines. Once
section 841(b)(1)(A) came into play, however, a
sentence of at least 120 months--nearly two years
greater than the low end of the Guidelines range-
-was compulsory. Yet, essentially the same
situation was presented to the Supreme Court in
McMillan, and the Court’s opinion in Apprendi
leaves no doubt that McMillan remains good law
insofar as mandatory minimum terms are concerned.
Indeed, since Apprendi was decided, we have
specifically rejected the notion that a factual
determination which has the effect of triggering
a mandatory minimum sentence constitutes an
element of the offense that must be submitted to
the jury. See United States v. Sandoval, 241 F.3d
549, 550-51 (7th Cir. 2001); Williams, 238 F.3d at
877; United States v. Smith, 223 F.3d 554, 565-66
(7th Cir. 2000), petitions for cert. filed, (U.S.
Nov. 14, 2000) (No. 00-7070), (Nov. 15, 2000)
(No. 00-7021), (Nov. 15, 2000) (No. 00-7085),
(Jan. 16, 2001) (No. 00-8082). Williams decided
this issue on facts similar to those presented
here.

  For all of these reasons, we must reject
Rodgers’ contention that the mandatory minimum
prison term imposed by section 841(b)(1)(A)
cannot be imposed in the absence of a jury
determination as to the relevant drug quantity.
We also take the opportunity to point out, as we
did in Williams, that our decision in this
respect is in accord with the holdings of our
sister circuits. See United States v. LaFreniere,
236 F.3d 41, 49-50 (1st Cir. 2001); United States
v. Hishaw, 235 F.3d 565, 577 (10th Cir. 2000);
United States v. Pounds, 230 F.3d 1317, 1319-20
(11th Cir. 2000) (per curiam), petition for cert.
filed, (U.S. March 3, 2001) (No. 00-8876); United
States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000)
(per curiam), cert. denied, 121 S. Ct. 1163
(2001); United States v. Aguayo-Delgado, 220 F.3d
926, 933-34 (8th Cir.), cert. denied, 121 S. Ct.
600 (2000).

B.

  Rodgers also argues that Judge Tinder’s decision
to attribute 250 grams of crack cocaine to him is
flawed, because it necessarily rests wholly on
Dexter Erby’s testimony. That testimony was
uncorroborated and, in Rodgers’ view,
inconsistent with the balance of Dexter’s
testimony as well as the testimony of other
witnesses. For example, although Dexter claimed
that Demetrius and Rodgers were discussing the
distribution of the crack cocaine while he was
separating the cocaine in Rodgers’ bedroom around
the 1994 Easter holiday, see Tr. 174-77, neither
Dexter nor the other members of the conspiracy
who testified identified Rodgers as one of
Dexter’s sellers of cocaine in Muncie. See, e.g.,
Tr. 169-72, 396. Demetrius Erby, in fact,
disclaimed any drug-dealing relationship with
Rodgers, and could not recall Rodgers ever having
been present during the packaging of cocaine and
the like. Tr. 244, 264, 267-68, 275, 276.
Similarly, with respect to the second 125-gram
quantity of crack, although Dexter contended that
Rodgers was present in New York when he discussed
that shipment with Demetrius, Tr. 179-81,
Demetrius himself testified that he had never
gone to New York with Rodgers, Tr. 268. Dexter
Erby received a reduced sentence of 135 months in
exchange for his cooperation with the government,
Rodgers points out, and thus had a motive to
exaggerate Rodgers’ level of involvement in the
conspiracy.

  Having reviewed the relevant testimony, however,
we find nothing which precluded Judge Tinder from
crediting Dexter’s testimony. His testimony was
not self-contradictory in any significant
respect. To the extent it conflicted with the
more exculpatory version of Rodgers’ involvement
offered by Demetrius Erby and by Rodgers himself,
the district judge was free to credit Dexter.
That Dexter was a convicted felon who stood to
gain from his testimony against Rodgers is by no
means a remarkable circumstance. E.g., United
States v. Meyer, 234 F.3d 319, 326 (7th Cir.
2000), petition for cert. filed, (March 2, 2001)
(No. 00-1442). The record reflects that Judge
Tinder carefully and methodically considered the
evidence bearing on the drug amounts for which
Rodgers was responsible. We can find nothing that
would call into question his decision to credit
Dexter Erby’s testimony with respect to the 250
grams of crack cocaine for which Rodgers was held
to account. See, e.g., United States v. White,
240 F.3d 656, 661 (7th Cir. 2001) (sentencing
court’s credibility determinations are entitled
to special deference).


III.

  For all of the reasons discussed above, we AFFIRM
Rodgers’ sentence. We thank Rodgers’ appointed
counsel for his vigorous advocacy on Rodgers’
behalf.
