                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-12-2003

USA v. Phillips
Precedential or Non-Precedential: Precedential

Docket No. 01-3515




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               PRECEDENTIAL

                   Filed November 12, 2003

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT


          No. 01-3515


   UNITED STATES OF AMERICA
              v.
        JAMES PHILLIPS,
                Appellant


          No. 01-3523


   UNITED STATES OF AMERICA
              v.
        OTTO BARBOUR,
                Appellant


          No. 01-3823


   UNITED STATES OF AMERICA
              v.
       DENNIS JENKINS,
                Appellant
                         2




                   No. 02-1500


           UNITED STATES OF AMERICA
                         v.
               JEFFREY JOHNSON,
                         Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT
  FOR THE EASTERN DISTRICT OF PENNSYLVANIA
  (D.C. Criminal Nos. 00-cr-00419-8, 00-cr-00419-7,
             00-cr-00419-4, 00-cr-00419-3)
  District Judge: The Honorable Eduardo C. Robreno

            Argued: September 11, 2003
  Before: ALITO, BARRY, and AMBRO, Circuit Judges

         (Opinion Filed November 12, 2003)

                  Christopher G. Furlong, Esq.
                  22 East Third Street
                  Media, PA 19063
                  Attorney for Appellant James Phillips
                  Mark S. Greenberg, Esq.
                  LaCheen, Dixon, Wittels &
                   Greenberg
                  1515 Locust Street, Suite 900
                  Philadelphia, PA 19102
                  Attorney for Appellant Otto Barbour
                                   3


                          Del Atwell, Esq.
                          P.O. Box 2516
                          Montauk, NY 11954
                          Attorney for Appellant Dennis
                          Jenkins
                          Jerry S. Goldman, Esq. (Argued)
                          Jerry S. Goldman & Associates
                          1601 Market Street, Suite 2330
                          Philadelphia, PA 19103
                          Attorney for Appellant Jeffrey
                          Johnson
                          Robert A. Zauzmer, Esq. (Argued)
                          Frank R. Costello, Jr., Esq.
                          Office of the United States Attorney
                          615 Chestnut Street
                          Suite 1250
                          Philadelphia, PA 19106
                          Attorneys for Appellee

                    OPINION OF THE COURT

BARRY, Circuit Judge:
  On July 18, 2000, appellants James Phillips, Jeffrey
Johnson, Dennis Jenkins, and Otto Barbour were indicted
for conspiracy to distribute over 50 grams of cocaine base
— hereinafter “crack” or “crack cocaine”; distribution of
crack cocaine; and distribution of crack cocaine within
1,000 feet of a public housing project, in violation of 21
U.S.C. §§ 841, 846 & 860. The government subsequently
dismissed the substantive counts against Johnson. On
December 20, 2000, following a jury trial in the United
States District Court for the Eastern District of
Pennsylvania, appellants were convicted on all remaining
counts.1 The jury also returned a supplemental verdict

1. Specifically, Phillips, Jenkins and Barbour were convicted of
conspiracy to distribute more than 50 grams of crack, in violation of 21
U.S.C. § 846; distribution of crack, in violation of 21 U.S.C. § 841; and
distribution of crack within 1,000 feet of a public housing project, in
violation of 21 U.S.C. § 860. Johnson was convicted only on the
conspiracy count.
                                    4


finding that the conspiracy involved 50 or more grams of
crack cocaine.
   The District Court granted Barbour’s post-trial motion for
a judgment of acquittal on the conspiracy count, and
denied all other post-trial motions. As relevant here,
Phillips and Johnson were sentenced to 360-month terms
of imprisonment, Barbour to 235 months, and Jenkins to
262 months. We have jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742. We will affirm in part and
reverse in part, remanding for reconsideration of the
sentence imposed on Jenkins.

                                    I.
  The primary issue before us is whether, pursuant to
Apprendi v. New Jersey, 530 U.S. 466 (2000), a jury in a
multi-defendant drug conspiracy case must determine the
amount of drugs attributable to each defendant, or only the
amount involved in the conspiracy as a whole. This issue,
one of first impression for us, is an issue over which we
exercise plenary review. United States v. Barbosa, 271 F.3d
438, 452 (3d Cir. 2001).
   The District Court denied the requests of Phillips and
Johnson for a determination by the jury of the quantity of
crack attributable to each of them individually. Instead, the
Court instructed the jury to decide, beyond a reasonable
doubt, only the amount of crack involved in the conspiracy
itself. The jury found, beyond a reasonable doubt, that the
amount of crack attributable to the conspiracy was 50 or
more grams, an amount which triggered the statutory
maximum of life imprisonment under 21 U.S.C.
§ 841(b)(1)(A).2

2. 21 U.S.C. § 841(b) delineates different penalty provisions based on
drug quantity, drug type, whether serious bodily injury resulted from the
crime, and whether the defendant has a prior felony drug conviction.
Defendants responsible for an unspecified amount of crack face a
maximum sentence of twenty years under § 841(b)(1)(C), or thirty years
with a prior drug conviction; defendants responsible for five or more
grams of crack face a five to forty year sentence under § 841(b)(1)(B), or
ten years to life with a prior drug conviction; and defendants, as here,
responsible for at least fifty grams of crack face ten years to life under
§ 841(b)(1)(A), or twenty years to life with a prior drug conviction.
                                    5


  Phillips and Johnson argue on appeal that Apprendi was
violated because the District Court asked the jury to decide
only the quantity involved in the conspiracy and not the
quantity attributable to each of them individually. The
government, in response, contends that there was no
Apprendi violation. We agree with the government.3
   In Apprendi, the Supreme Court held 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.” 530 U.S. at 490. There can be no
dispute that Apprendi recognized a new constitutional right,
and dramatically changed what had gone before in terms of
federal sentencing law and procedure. Neither can it be
disputed that, post-Apprendi, district courts and courts of
appeals have struggled with the various permutations and
combinations in which Apprendi is, or can be, or is not,
implicated. It is clear, however, that while, after Apprendi,
drug type and quantity remain sentencing issues, both the
burden of proof and the fact-finder have changed.
Consistent with Apprendi, therefore, we held in United
States v. Vazquez, 271 F.3d 93, 98 (3d Cir. 2001), and our
sister courts of appeals have held, that an Apprendi
violation occurs if drug type and quantity are not found by
a jury beyond a reasonable doubt and the defendant’s

3. We also agree with the government that Apprendi was not implicated
in this case by virtue of any interplay between Apprendi and the
calculations made under the career offender guideline, U.S.S.G. § 4B1.1.
Phillips and Johnson argue that an Apprendi violation occurred because,
as career offenders, the weight of the crack determined the statutory
maximum penalty, which directly impacted on their sentences. It did
not. As career offenders, Phillips’ and Johnson’s offense level was 37,
their criminal history category was VI, and their guideline imprisonment
range was 360 months to life imprisonment. Absent career offender
status, the offense statutory maximum was also life imprisonment
because the jury found that in excess of 50 grams of crack was involved.
This case, then, is unlike United States v. Gilliam, 255 F.3d 428 (7th Cir.
2001), and United States v. Saya, 247 F.3d 929 (9th Cir. 2001), in which
the calculations under § 4B1.1 implicated Apprendi, although in neither
case did the sentence imposed “seriously affect[] the fairness, integrity,
or public reputation of judicial proceedings.” Johnson v. United States,
520 U.S. 461, 467 (1997) (internal quotations and citations omitted).
                             6


sentence exceeds the prescribed statutory maximum to
which he or she is exposed under 21 U.S.C. § 841 by virtue
of the jury’s verdict. We have not yet had occasion to
address the issue of whether Apprendi requires that a jury
make a defendant-specific finding of drug type and quantity
where there is a conspiracy. Other courts of appeals,
however, have done so, and we do so now.
   The First Circuit, in Derman v. United States, 298 F.3d
34 (1st Cir. 2002), cert. denied, 537 U.S. 1048 (2002), held
that the government need only prove to the jury the facts
necessary to increase the statutory sentencing maximum
for the conspiracy as a whole, and not for each defendant.
Id. at 43. The Derman Court relied on Edwards v. United
States, 523 U.S. 511 (1998), in which the Supreme Court
held, pre-Apprendi, that as long as the jury determines that
a defendant participated in the conspiracy, and his or her
sentence does not exceed the statutory maximum
applicable to that conspiracy, the court may determine both
the quantity and type of drugs attributable to the defendant
and impose sentence accordingly. Finding that Edwards
was not overruled by Apprendi, the First Circuit reconciled
what Edwards had to say with what the Court in Apprendi
later had to say:
    [T]he two decisions are easily harmonized: in a drug
    conspiracy case, the jury should determine the
    existence vel non of the conspiracy as well as any facts
    about the conspiracy that will increase the possible
    penalty for the crime of conviction beyond the default
    statutory maximum; and the judge should determine,
    at    sentencing,   the   particulars    regarding   the
    involvement of each participant in the conspiracy. This
    means that once the jury has determined that the
    conspiracy involved a type and quantity of drugs
    sufficient to justify a sentence above the default
    statutory maximum and has found a particular
    defendant guilty of participation in the conspiracy, the
    judge lawfully may determine the drug quantity
    attributable to that defendant and sentence him
    accordingly (so long as the sentence falls within the
    statutory maximum made applicable by the jury’s
    conspiracy-wide drug quantity determination).
                                   7


Derman, 298 F.3d at 42-43 (citations and footnote omitted).
   The Fifth and the Seventh Circuit Courts of Appeals
agreed with the First Circuit, and held that Apprendi does
not    require   a     jury  to    make    defendant-specific
determinations of drug type and quantity in conspiracy
cases. See United States v. Turner, 319 F.3d 716, 722-23
(5th Cir. 2003), cert. denied, 123 S.Ct. 1939 (2003); United
States v. Knight, 342 F.3d 697, 710-11(7th Cir. 2003). The
Knight Court also concluded that the Derman Court’s
analysis remained sound despite the Supreme Court’s more
recent decision in Ring v. Arizona, 536 U.S. 584 (2002). In
Ring, the Supreme Court held that Arizona’s capital
sentencing scheme, which allowed the trial judge, by
finding aggravating factors, to raise the maximum sentence
authorized by the jury’s verdict from life in prison to the
death penalty, violated the defendant’s Sixth Amendment
right to a jury trial. Id. at 603-09. Consistent with
Apprendi, the Supreme Court held that capital defendants,
just as noncapital defendants, are entitled to a jury
determination of any fact by which their statutory
maximum punishment is increased, and proof of
aggravating factors would be such a fact.
  The Knight Court found the facts of Ring to be inapposite
to those of drug conspiracy cases: in drug conspiracy cases,
the jury, and not the judge, establishes the statutory
maximum sentence by determining the existence of the
conspiracy, defendants’ participation in it, and the drug
type and quantity attributable to the conspiracy as a whole.
Once that ceiling was established, the judge may determine
the drug quantity attributable to each defendant and
sentence him or her accordingly. The judge’s determination
in this regard does not have the effect of increasing a
defendant’s exposure beyond the statutory maximum
justified by the jury’s verdict of guilt. Knight, 342 F.3d at
711. Thus, Apprendi is not violated as long as the judge
sentences the defendant within the statutory maximum
range after having determined the drug type and quantity
attributable to that defendant. Id.
  We find the analyses of Derman, Turner, and Knight
persuasive.4 In drug conspiracy cases, Apprendi requires

4. Phillips and Johnson cite United States v. Banuelos, 322 F.3d 700 (9th
Cir. 2003), a readily distinguishable and, thus, not persuasive case,
                                    8


the jury to find only the drug type and quantity element as
to the conspiracy as a whole, and not the drug type and
quantity attributable to each co-conspirator. The finding of
drug quantity for purposes of determining the statutory
maximum is, in other words, to be an offense-specific, not
a defendant-specific, determination. The jury must find,
beyond a reasonable doubt, the existence of a conspiracy,
the defendant’s involvement in it, and the requisite drug
type and quantity involved in the conspiracy as a whole.
Once the jury makes these findings, it is for the sentencing
judge to determine by a preponderance of the evidence the
drug quantity attributable to each defendant and sentence
him or her accordingly, provided that the sentence does not
exceed the applicable statutory maximum.
  The jury convicted Phillips and Johnson of their
participation in the conspiracy to distribute crack. The jury
also found, beyond a reasonable doubt, that the amount of
crack attributable to the conspiracy was 50 or more grams,
which triggered the statutory maximum of life in prison.
The District Court sentenced Phillips and Johnson to 360
months imprisonment, which is below the statutory
maximum contemplated by law. There was no Apprendi
violation here.

given the circumstances here. In Banuelos, the Ninth Circuit remanded
for resentencing because, in sentencing the defendant following his
guilty plea, the District Court’s findings exposed him to a higher
statutory maximum than he otherwise would have faced and, thus, it
was a violation of Apprendi to determine the drug quantity attributable
to him by clear and convincing evidence rather than beyond a
reasonable doubt. Id. at 705. The Banuelos Court cited United States v.
Minore, 292 F.3d 1109 (9th Cir. 2002), which held that if drug quantity
exposes a defendant to a higher statutory maximum than he would
otherwise receive, it is the functional equivalent of a critical element of
the offense for Rule 11 purposes and the defendant must be informed
that he is entitled to a jury determination of drug quantity beyond a
reasonable doubt before his guilty plea can be accepted. Banuelos, 322
F.3d at 705 n.3. Without pausing to determine whether we agree with
the Ninth Circuit, those cases are simply not this case. Most likely for
that reason, the Banuelos Court did not cite the earlier-decided Derman
or Turner cases.
                                    9


                                    II.
  Appellant Dennis Jenkins contends that there was
insufficient evidence to support his conviction on Count 1,
the conspiracy count. The government concedes this point.
We agree and, thus, will vacate Jenkins’ conviction on
Count 1 and remand for reconsideration of the sentence
imposed on him.

                                   III.
  We have carefully considered all of the other issues
raised by appellants, and find them to be without merit.5
We will, therefore, affirm the judgments of conviction and
sentence of Phillips, Barbour, and Johnson. With respect to
Jenkins, we will affirm the judgments of conviction except
as to Count 1, and will reverse his conviction on that
Count. We will also vacate the sentence imposed on
Jenkins and remand the matter to the District Court for
reconsideration of that sentence.

A True Copy:
        Teste:

                        Clerk of the United States Court of Appeals
                                    for the Third Circuit




5. Phillips argued that the District Court erred when it did not order a
confidential informant identified and produced; when it denied his
request for a Rule 29 dismissal; and when it failed to perform an in
camera inspection of the personnel files of the arresting officers. Barbour
argued that the District Court erred when it determined that he was
responsible for in excess of 50 grams of crack. Jenkins argued that the
District Court should have sua sponte ordered the appointment of a
psychiatrist and a competency hearing prior to sentencing. Finally,
Johnson argued that the District Court erred when it failed to grant a
new trial based on (1) a constructive amendment to the indictment or an
improper variance; (2) newly discovered evidence; and (3) a Brady
violation; and erred in its computation of the quantity of drugs
attributable to him.
