USA. v. Angle, 96-4662

• Decision Date: 27 February 2001
• Docket Number: No. 99-4187,No. 96-4662,No. 96-4672,96-4662,96-4672,99-4187
• Citation: 254 F.3d 514
• Parties: (4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. COREY ANGLE, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES EDWARD PHIFER, a/k/a Rick Daye, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES EDWARD PHIFER, a/k/a Rick Daye, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 514

254 F.3d 514 (4th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. COREY ANGLE, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES EDWARD PHIFER, a/k/a Rick Daye, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES EDWARD PHIFER, a/k/a Rick Daye, Defendant-Appellant.

No. 96-4662 No. 96-4672 No. 99-4187

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: February 27, 2001

Decided: June 29, 2001

Appeals from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (CR-94-41-V) COUNSEL ARGUED: Thomas Franklin Loflin, III, LOFLIN & LOFLIN, Durham, North Carolina, for Appellant Angle; Robert Adams Blake, Jr., LAW OFFICES OF JAMES F. WYATT, III, Charlotte, North Carolina, for Appellant Phifer. Nina Swift Goodman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: James F. Wyatt, III, LAW OFFICES OF JAMES F. WYATT, III, Charlotte, North Carolina, for Appellant Phifer. Mark T. Calloway, United States Attorney, Frank D. Whitney, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

Before WILKINSON, Chief Judge, and WIDENER, WILKINS, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, KING, and GREGORY, Circuit Judges.

Affirmed in part and vacated and remanded in part by published opinion. Judge Wilkins wrote the opinion, in which Judges Widener, Williams, Michael, Motz, Traxler, and King joined. Chief Judge Wilkinson wrote an opinion concurring in part and concurring in the judgment. Judge Niemeyer wrote an opinion concurring in the judgment, in which Judge Gregory joined. Judge Luttig wrote an opinion concurring in the judgment.

OPINION

WILKINS, Circuit Judge:

We are convened en banc to consider challenges by Corey Angle and James Edward Phifer (collectively, "Appellants") to their sentences pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000). For the reasons set forth below, we conclude that neither Appellant has demonstrated plain error with respect to his Apprendi challenge.

I.

Evidence at trial established that Appellants supplied various drug dealers in the area of Statesville, North Carolina, with cocaine and cocaine base. Phifer supplied dealers with varying amounts of narcotics, ranging from a few ounces to several kilograms. Angle operated on a more limited scale, providing dealers with only a few ounces at a time. Based upon the evidence presented at trial, Appellants were convicted of conspiracy to possess with the intent to distribute and to distribute cocaine and cocaine base, see 21 U.S.C.A. S 846 (West 1999); Phifer was additionally convicted of two counts of money laundering, see 18 U.S.C.A. S 1956(a)(1)(B)(i) (West 2000). The drug trafficking count of the indictment did not allege a specific quantity of narcotics, and the jury was not instructed to make a finding regarding the quantity of drugs involved in the conspiracy.

Appellants were sentenced as follows. In calculating Angle's sentencing range pursuant to the U.S. Sentencing Guidelines Manual (1995), the district court did not make specific findings regarding the amount of narcotics attributable to Angle. Rather, the court simply stated that "[o]n examination of the evidence and the preponderance thereof, the Court finds the amount of drugs attributable to [Angle] in this matter would give him a [base offense] Level 34." J.A. 456; see U.S.S.G. S 2D1.1(c)(3). Additional calculations resulted in a guideline range of 210-262 months imprisonment. The district court imposed a sentence of 210 months.

The district court determined that Phifer was responsible for at least 29 kilograms of cocaine and 3 kilograms of cocaine base, resulting in a base offense level of 38 for the drug trafficking conviction. See U.S.S.G. S 2D1.1(c)(1). Further guideline calculations resulted in a guideline range of 292-365 months imprisonment. The district court imposed a sentence of 292 months on the drug trafficking conviction and concurrent sentences of 240 months on each of the money laundering convictions.

Angle and Phifer subsequently appealed, raising numerous challenges to their convictions and sentences. While the appeal was pending, the Supreme Court issued its decision in Apprendi. Based on Apprendi, Appellants argued for the first time on appeal that the district court erred in failing to treat as an element the specific quantity of narcotics involved in the offense. A panel of this court agreed, holding that because a specific quantity of narcotics was not charged in the indictment, Appellants were subject to a maximum penalty of 20 years imprisonment pursuant to 21 U.S.C.A. S 841(b)(1)(C) (West Supp. 2001). See United States v. Angle, 230 F.3d 113, 123 (4th Cir. 2000). The panel determined that Phifer's sentence of 292 months exceeded this maximum and was therefore erroneous under Apprendi; accordingly, the panel vacated Phifer's sentence and remanded for resentencing to no more than 20 years imprisonment. See id. at 124. Because Angle's sentence of 210 months was less than the applicable maximum penalty, the panel found no error under Apprendi. See id. at 123. The panel nevertheless vacated Angle's sentence and remanded for more specific fact finding regarding the quantity of narcotics attributable to him. See id. at 124-25. The panel rejected the remainder of Appellants' challenges.

We subsequently voted to vacate the panel decision and rehear the appeal en banc along with the appeal in United States v. Promise, No. 99-4737, also decided today. For the reasons set forth below, we hold that neither Appellant has demonstrated plain error with respect to his challenge under Apprendi. We adopt the opinion of the panel regarding all other issues. Accordingly, we affirm Appellants' convictions and Phifer's sentence; however, we vacate Angle's sentence and remand for more specific fact finding regarding the amount of drugs attributable to him for sentencing purposes.

II.

Because neither Angle nor Phifer objected at trial to the failure of the district court to treat specific threshold drug quantities as elements of aggravated drug trafficking offenses,¹ our review is for plain error.

See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). In order to demonstrate plain error, Appellants must show that an error occurred, that the error was plain, and that the error affected their substantial rights. See Olano, 507 U.S. at 732; United States v. Jackson, 124 F.3d 607, 614 (4th Cir. 1997). Even if Appellants can satisfy these requirements, correction of the error remains within our discretion, which we "should not exercise . . . unless the error `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Olano, 507 U.S. at 732 (second alteration in original) (quoting United States v. Young, 470 U.S. 1, 15 (1985)).

Before turning to our consideration of whether Appellants can satisfy the requirements of plain error analysis, we pause to reiterate the relevant conclusions reached in Promise. In Promise, we held that Apprendi mandates that specific threshold drug quantities be treated as elements of aggravated drug trafficking offenses. See United States v. Promise, (4th Cir. June 29, 2001). We further held that the district court plainly erred in failing to do so. See id. at .

A.

Turning first to Angle's challenge, we conclude that he cannot demonstrate any Apprendi error committed by the district court. Angle was charged with conspiring to possess with the intent to distribute and to distribute "a quantity of cocaine and cocaine base," J.A. 52, and he does not dispute that the jury was properly charged as to the elements of this offense. Accordingly, Angle was charged with, and convicted of, conspiring to commit an offense involving an unspecified quantity of drugs. Because Angle's sentence of 210 months is less than the maximum penalty authorized by the facts found by the jury (240 months, see 21 U.S.C.A. S 841(b)(1)(C)), there was no error.

B.

We next consider Phifer's claim. Phifer was charged in the same indictment as Angle with conspiring to traffic in an unspecified quantity of drugs. Unlike Angle, however, Phifer was sentenced by the district court to a term of imprisonment greater than the 20-yearmaximum penalty authorized by the facts found by the jury. As we held in Promise, the district court thus committed plain error.

We hold, however, that Phifer cannot demonstrate that the error affected his substantial rights. See Olano, 507 U.S. at 734. In order to make such a showing, Phifer must demonstrate that the error was prejudicial, i.e., that it "actually affected the outcome of the proceedings." United States v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998). Thus, Phifer must establish that his 292-month sentence was longer than that to which he would otherwise be subject.

Phifer does not posit any way in which the error here, unlike a similar error in Promise, affected his substantial rights, and we can see none.² This is so because the grand jury indicted, and the petit jury convicted, Phifer of three crimes, exposing him to a total statutory maximum prison term of 60 years. In the case of multiple counts of conviction, the sentencing guidelines instruct that if the total punishment mandated by the guidelines exceeds the statutory maximum of the most serious offense of conviction, the district court must impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment. See U.S.S.G. S 5G1.2(d). For example, suppose a defendant is convicted of three offenses, each with a statutory maximum term of five years (60 months) imprisonment. If the district court determines that the appropriate sentence under the guidelines is 156 months, S 5G1.2(d) requires the imposition of consecutive terms on each count of conviction until the guideline punishment...