291 F.3d 1091 (9th Cir. 2002), 00-10233, U.S. v. Jordan

Docket Nº:00-10233
Citation:291 F.3d 1091
Party Name:U.S. v. Jordan
Case Date:May 30, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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291 F.3d 1091 (9th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee,

v.

Allen Ray JORDAN, Defendant-Appellant.

No. 00-10233.

United States Court of Appeals, Ninth Circuit

May 30, 2002

Argued and Submitted July 13, 2001.

Submission withdrawn Sept. 13, 2001.

Resubmitted May 22, 2002.

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[Copyrighted Material Omitted]

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William S. Wong, Assistant United States Attorney, Sacramento, CA, for the plaintiff-appellee.

Jeffrey L. Staniels, Assistant Federal Public Defender, Sacramento, CA, for the defendant-appellant.

Appeal from the United States District Court for the Eastern District of California; Frank C. Damrell, Jr., District Judge, Presiding. D.C. No. CR-96-00475-FCD.

Before CANBY, HAWKINS, and GOULD, Circuit Judges.

OPINION

GOULD, Circuit Judge.

Allen Ray Jordan was convicted by a jury on three counts of offenses involving the illegal manufacture of methamphetamine. Jordan appeals, arguing that the district court erred when it: (1) imposed life sentences on two counts in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (2) enhanced his sentence under U.S.S.G. § 3B1.1(a) for his leadership role in the offense; (3) denied his motion to suppress; and (4) rejected his motion to reopen the motion to suppress.

We hold that Jordan's life sentence was imposed in violation of Apprendi. We also hold that the leadership role enhancement was clearly erroneous. We affirm denial of Jordan's motions seeking to suppress key evidence. We affirm Jordan's conviction, vacate Jordan's sentence, and remand to the district court for resentencing.

I.

This tale of criminal mischief begins in August 1996, when Paula Bolton, a confidential informant seeking the government's favor in another criminal case, gave information to California law enforcement about a methamphetamine laboratory located on a rural property leased to Jordan. Soon thereafter, a search warrant was issued for Jordan's property based on Bolton's statements, information given by two other confidential informants, and Jordan's criminal history. During the search, amid the rural farm setting, police found a methamphetamine laboratory and 349.9 grams of methamphetamine contained in mixtures. Jordan was arrested, and police then searched his apartment pursuant to a warrant.

Jordan was charged with conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), attempt to manufacture methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and maintaining a place for the manufacture of methamphetamine, in violation of 21 U.S.C. § 856. Drug quantity was not alleged in the indictment.1

Jordan filed a motion to suppress the evidence gathered from the searches. He

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claimed that the police detective made material misstatements and omissions in the first search warrant affidavit. The district court held an evidentiary hearing and denied the motion.

A jury convicted Jordan on all three counts. Before sentencing, Jordan filed a motion to reopen his failed motion to suppress. Jordan argued that Bolton's trial testimony was inconsistent with her prior statements, showed that she was acting as a government agent and showed she had made a trespassory search of Jordan's property. The district court denied Jordan's motion.

Jordan next challenged the presentence report (PSR), alleging, inter alia, (1) that the PSR's statements that Jordan exercised a leadership role were not supported by the evidence; and (2) that under Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the government must allege in the indictment and must prove to a jury beyond a reasonable doubt that the drug quantity was greater than fifty grams to make Jordan eligible for the elevated maximum sentence of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A)(viii).

The district court rejected Jordan's challenge to the PSR, finding that the role enhancement was proper on grounds that there were five participants in the criminal operation and that Jordan exercised a leadership role over his nephew Taylor Jordan. The district court, whose ruling predated Apprendi, also concluded that Jones did not mandate that the drug quantity be included in the indictment and proved to a jury beyond a reasonable doubt.

Jordan was sentenced to concurrent terms of life imprisonment on Counts One and Two and twenty years imprisonment on Count Three.

II.

A. Apprendi Claim

Jordan claims the district court erred by sentencing him under 21 U.S.C. § 841(b)(1)(A)(viii), for a crime involving more than 50 grams of methamphetamine, because drug quantity was not charged in the indictment. Jordan claims he should be resentenced under 21 U.S.C. § 841(b)(1)(C), for a crime involving an indeterminate amount of drugs, with a maximum sentence of 20 years for each count, rather than the maximum sentence of life imprisonment under § 841(b)(1) (A)(viii). Because of the Supreme Court's shift of direction in Apprendi, and our subsequent precedent, we agree that Jordan is entitled to relief.

Under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court firmly established a striking rule: "Other 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." Apprendi expressly left open whether such a fact must also be charged in the indictment, see 530 U.S. at 477 n. 3, 120 S.Ct. 2348, an issue that Jordan presents today.

The Supreme Court's rationale explained that the Apprendi rule was foreshadowed by its decision in Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), which had held that "any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." 2 See Apprendi,

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530 U.S. at 476, 120 S.Ct. 2348. In United States v. Buckland, 289 F.3d 558, 2002 WL 857751, *6 (9th Cir. 2002) (en banc), we expressly held that, in the light of Apprendi, drug quantity was a material fact of a drug offense, and that due process requires that drug quantity "must be charged in the indictment." Buckland answered for our circuit the question left open by the Supreme Court in Apprendi, by holding that any fact other than a prior conviction that increases the maximum penalty for a federal crime must also be charged in an indictment. See id.3 This rule, announced after Jordan's conviction, was offended by Jordan's prosecution, and he may benefit from the rule because he is on direct appeal. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).

Drug quantity was neither charged in the indictment, nor submitted to the jury and proved beyond a reasonable doubt. The district court therefore erred when it sentenced Jordan above the default maximum sentence for a crime involving an indeterminate quantity (twenty years per count), sentencing him instead to the maximum sentence for a crime involving 50 grams or more of methamphetamine (life imprisonment).

Jordan was prescient enough to preserve his claim that drug quantity should have been included in the indictment and submitted to the jury.4 This case is unlike most Apprendi cases, for here we do not review the district court's sentence for plain error, but instead for harmless error. See United States v. Garcia-Guizar, 234 F.3d 483, 488 (9th Cir. 2000). Jordan's sentence "cannot stand unless the district court's...

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