274 F.3d 655 (2nd Cir. 2001), 98-1051, United States v Thomas

Docket Nº:98-1051
Citation:274 F.3d 655
Party Name:UNITED STATES OF AMERICA, Appellee, v. RAMSE THOMAS, Defendant-Appellant.
Case Date:December 12, 2001
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 655

274 F.3d 655 (2nd Cir. 2001)

UNITED STATES OF AMERICA, Appellee,

v.

RAMSE THOMAS, Defendant-Appellant.

No. 98-1051

United States Court of Appeals, Second Circuit

December 12, 2001

        On remand from the Supreme Court: January 8, 2001.

        Argued: June 27, 2001

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        MICHAEL R. DREEBEN, Deputy Solicitor General, Department of Justice (Barbara D. Underwood, Office of the Solicitor General, Department of Justice; Barbara D. Cottrell, Assistant United States Attorney, Northern District of New York; Christine H. Chung, Barush Weiss, Assistant United States Attorneys, Southern District of New York; Peter A. Norling, Assistant United States Attorney, Eastern District of New York; Nina Goodman, United States Department of Justice; Joseph A. Pavone, United States Attorney, Northern District of New York; Mary Jo White, United States Attorney, Southern District of New York; Alan Vinegrad, United States Attorney, Eastern District of New York; Kathleen Mehltretter, United States Attorney, Western District of New York; John A. Danaher III, United States Attorney, District of Connecticut; David V. Kirby, United States Attorney, District of Vermont, on the brief), for Appellee.

        L. JOHN VAN NORDEN, Schenectady, NY, for Defendant-Appellant.

        COLLEEN P. CASSIDY, Leonard F. Joy, Legal Aid Society, Federal Defender Division, New York, NY; Thomas G. Dennis, Federal Public Defender, District of Connecticut; William G. Clauss, Federal Public Defender, Western District of New York; Alexander Bunin, Federal Public Defender, Northern District of New York and Vermont, for Amicus Curiae Federal Public Defenders.

        John P. Cooney, Jr., Joseph F. Warganz, Jr., Lorilee A. Vaughan, Jill S. Mahonchak, Davis Polk & Wardwell, New York, NY; Thomas E. Engel, Engel & McCarney, New York, NY; Mark F. Pomerantz, Paul, Weiss, Rifkind, Wharton & Garrison, New York, NY, for Amicus Curiae Federal Bar Council.

        Peter Goldberger, Ardmore, PA; Clayton A. Sweeney, Jr., Philadelphia, PA; Joshua L. Dratel, New York, NY; Mary Price, FAMM Foundation, Washington,

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DC; Roger L. Stavis, Stavis & Kornfeld, New York, NY, for Amici Curiae National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, New York Criminal Bar Association, and Families Against Mandatory Minimums Foundation.

        John K. Carroll, Laura M. Bergamini, Clifford Chance Rogers & Wells LLP, New York, NY; Richard A. Greenberg, Karl E. Pflanz, Newman & Greenberg, New York, NY; Victor J. Rocco, New York, NY, for Amicus Curiae New York Council of Defense Lawyers.

        Roy S. Ward, Philip Russell, P.C., Greenwich, CT; Conrad Seifert, Seifert & Hogan, Old Lyme, CT, for Amicus Curiae The Connecticut Criminal Defense Lawyers Association.

        Before: WALKER, Chief Judge, KEARSE, JACOBS, LEVAL, CALABRESI, CABRANES, F. I. PARKER, STRAUB, POOLER, SACK, SOTOMAYOR, and KATZMANN, Circuit Judges.

        JOSE A. CABRANES, Circuit Judge:

         The question presented is whether, in light of the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed. 2d 435, 120 S.Ct. 2348 (2000), and our Circuit's decision in United States v. Tran, 234 F.3d 798 (2d Cir. 2000), the District Judge was empowered to impose on defendant Ramse Thomas a sentence beyond the otherwise applicable statutory maximum based on his findings, under a preponderance of the evidence standard, concerning the quantity of drugs involved in Thomas's offense when the indictment made no mention of quantity and the question of quantity was not presented to the jury.

         On remand from the Supreme Court, Thomas v. United States, 531 U.S. 1062, 148 L.Ed. 2d 653, 121 S.Ct. 749 (2001), we consider the appeal of defendant Ramse Thomas from a January 15, 1998, judgment of the United States District Court for the Northern District of New York (Thomas J. McAvoy, then Chief Judge), convicting him, following a jury trial, of conspiring to distribute and possess with intent to distribute cocaine and cocaine base ("crack cocaine") in violation of 21 U.S.C. § 846, and sentencing him pursuant to 21 U.S.C. § 841(b)(1)(A) principally to imprisonment for 292 months. Thomas claims that his enhanced sentence, based on Judge McAvoy's findings that Thomas's crime involved 12 kilograms of cocaine and 1.2 kilograms of crack cocaine, violates the teachings of Apprendi. Thomas also challenges his underlying conviction, arguing that "the entire process by which [he] was charged, twice tried and convicted and twice sentenced is permeated through and through with constitutional error." We find no merit in the unsupported suggestion--and it is only a suggestion--that the verdict returned by the jury on the charge of conspiracy to distribute and possess with intent to distribute an unspecified amount of cocaine and cocaine base (that is, the crime charged in the indictment) was erroneous or based on any error in the prior proceedings. We have reviewed all of Thomas's arguments and find that there is no colorable constitutional basis for the instant appeal other than the effect on Thomas's enhanced sentence of Apprendi, a Supreme Court decision published more than two years after the District Court entered the judgment of conviction.1

         Apprendi held that, "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must

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be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. We conclude, following Apprendi's teachings, that if the type and quantity of drugs involved in a charged crime may be used to impose a sentence above the statutory maximum for an indeterminate quantity of drugs,2 then the type and quantity of drugs is an element of the offense that must be charged in the indictment and submitted to the jury.3 We further conclude, overruling United States v. Tran, 234 F.3d 798, 806 (2d Cir. 2000), that the failure either to charge drug type and quantity in the indictment or to submit the question of drug type and quantity to the jury is subject to plain error review pursuant to Fed. R. Crim. P. 52(b) when the defendant raised no objection before the District Court. Applying plain error review to the particular facts of this case, we conclude that the District Court erred, that the error was plain, that the error affected the defendant's substantial rights, and that the error seriously affected the fairness and the public reputation of judicial proceedings. We therefore vacate Thomas's sentence and remand for further proceedings consistent with this opinion.

         I.

         We have considered the facts underlying this appeal twice before, and we assume familiarity with our prior opinions. See United States v. Thomas, 116 F.3d 606 (2d Cir. 1997) ("Thomas I"); United States v. Thomas, 204 F.3d 381 (2d Cir. 2000) ("Thomas II"). The facts relevant to the instant appeal are as follows: In 1994, a grand jury in the Northern District of New York returned an indictment charging, inter alia, that defendant Ramse Thomas and others "did knowingly, willfully and unlawfully combine, conspire, confederate and agree among themselves and with others, to possess with intent to distribute and to distribute a quantity of cocaine, a Schedule II controlled substance and a quantity of cocaine base, also known as 'crack' cocaine, a Schedule II controlled substance, in violation of Title 21, United States Code, § 841(a)(1). In violation of Title 21, United States Code, § 846."4 Superseding Indictment filed Oct. 14, 1994, at 1-2. Handed down nearly six years before the Supreme Court's decision in Apprendi, the indictment does not allege that the charged crimes involved any particular quantity of drugs.

         Thomas and his co-defendants were convicted, following a jury trial, on February 27, 1995. Thomas I, 116 F.3d at 612. They appealed, and we vacated their convictions and remanded the case for retrial based on the District Court's improper dismissal of a juror. Id. at 625. In January 1998, following a second jury trial, Thomas was again convicted of the conspiracy charge. Thomas II, 204 F.3d at 382.

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         In conformity with standard practices adopted by district courts following the promulgation of the U.S. Sentencing Guidelines, the Presentence Report on Thomas prepared by the United States Probation Office recommended that the sentencing judge enter certain findings regarding the quantities of narcotics attributable to Thomas: 24.479 kilograms of cocaine and 1.826 kilograms of crack cocaine. Having considered the record before him, Judge McAvoy entered findings that held Thomas responsible for considerably smaller quantities than those recommended by the Probation Office--12 kilograms of cocaine and 1.2 kilograms of crack cocaine. Sentences for conspiracy under 21 U.S.C. § 846 are governed by the sentencing provisions of the statute the violation of which is the object of the conspiracy, in this case 21 U.S.C. § 841.5 Under 21 U.S.C. § 841(b)(1)(A), a finding of the involvement of 12 kilograms of cocaine and 1.2 kilograms of crack cocaine in the offense resulted in a sentencing range of imprisonment of ten years to life.6 By contrast, had Judge McAvoy not made findings concerning drug quantity, § 841(b)(1)(C) would have imposed a statutory maximum term of imprisonment of twenty years for an offense involving an unspecified quantity of cocaine or crack cocaine.7 Pursuant to the Sentencing Guidelines, Judge McAvoy identified a sentencing range of imprisonment of 292 to 365 months. On January 15, 1998, he sentenced Thomas principally to imprisonment for 292 months.

         In a second appeal to this Court, Thomas and two of his co-defendants argued, inter alia, that Jones v. United...

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