          Case: 10-13702   Date Filed: 09/25/2013   Page: 1 of 4




                                                        [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 10-13702
                     ________________________

              D.C. Docket No. 1:08-cr-00371-ODE-AJB-2



UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

versus

STEVEN BERNARD JORDAN,
a.k.a. Steven Dodson,
a.k.a. Ladarius Timmons,

                   Defendant - Appellant.


                     ________________________

                           No. 10-13703
                     ________________________

              D.C. Docket No. 1:08-cr-00371-ODE-AJB-4



UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,
                 Case: 10-13702      Date Filed: 09/25/2013       Page: 2 of 4




versus

BENJAMIN D. SMARR,

                             Defendant - Appellant.

                               ________________________

                      Appeals from the United States District Court
                          for the Northern District of Georgia
                             ________________________

                                    (September 25, 2013)

             ON REMAND FROM THE UNITED STATES SUPREME COURT

Before WILSON and EDMONDSON, Circuit Judges, and VINSON, * District
Judge.

PER CURIAM:

         This case is before us on remand from the Supreme Court for consideration

in light of Alleyne v. United States, — U.S. —, 133 S. Ct. 2151 (2013). Following

a jury trial, Steven Bernard Jordan and Benjamin D. Smarr were found guilty of

both conspiracy and possession with intent to distribute cocaine, in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii)(II), and 846. In a special verdict form, the

jury found Jordan and Smarr responsible for 500 grams or more of cocaine but

declined to find them responsible for the greater amount of five kilograms or




         *
          Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
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more. 1 Nonetheless, the district judge found at sentencing that the government had

established by a preponderance of the evidence that (contrary to what the jury had

found) the defendants were responsible for five kilograms or more of cocaine. The

district court accordingly sentenced Jordan to the statutory minimum sentence of

240 months’ incarceration. Smarr, who had no criminal record at the time, was

sentenced to the statutory mandatory minimum of 10 years’ imprisonment.

       Jordan and Smarr appealed, arguing, inter alia, that “the quantity of cocaine

that was attributed to them at sentencing” was “contrary to the jury verdict.”

United States v. Jordan, 488 F. App’x 358, 365 n.9 (11th Cir. 2012) (per curiam),

vacated, 133 S. Ct. 2852 (2013). We affirmed, finding that this particular

argument merited no discussion because it was “foreclosed by binding circuit

precedent.” Id.; see Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348,

2362–63 (2000) (holding 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”); Spero v.

United States, 375 F.3d 1285, 1286 (11th Cir. 2004) (per curiam) (stating that “the

Apprendi rule does not apply in minimum mandatory circumstances where the




       1
         The special verdict form permitted the jury to find the defendants responsible for
cocaine (1) weighing less than 500 grams, (2) weighing 500 grams or more, or (3) weighing 5
kilograms or more.
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enhanced minimum mandatory sentence does not exceed the non-enhanced

maximum sentence”).

      The Supreme Court then decided Alleyne, in which it overruled its previous

decision in Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406 (2002), and

concluded that:

      [a]ny fact that, by law, increases the penalty for a crime is an
      “element” that must be submitted to the jury and found beyond a
      reasonable doubt. Mandatory minimum sentences increase the
      penalty for a crime. It follows, then, that any fact that increases the
      mandatory minimum is an “element” that must be submitted to the
      jury.

133 S. Ct. at 2155 (citation omitted). Alleyne compels that we vacate Jordan and

Smarr’s sentences and remand this case to the district court so that they may be

resentenced. At trial, the jury found that Jordan and Smarr were responsible for

500 grams or more of cocaine, but expressly declined to attribute five or more

kilograms of cocaine to these defendants. The district judge, however, found by a

preponderance of the evidence that Jordan and Smarr were responsible for five or

more kilograms of cocaine, and used that amount to increase the mandatory

minimum sentence applicable to them. Their sentences thus run afoul of Alleyne’s

command. Accordingly, we VACATE the sentences of Jordan and Smarr and

REMAND so that the district court can resentence them in accordance with

Alleyne.

      VACATED AND REMANDED.
                                          4
