State v. Nance, Sr.

• Decision Date: 24 January 2001
• Docket Number: No. 00-1836,00-1836
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Wendell Nance, Sr., Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 820

236 F.3d 820 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Wendell Nance, Sr., Defendant-Appellant.

No. 00-1836

In the United States Court of Appeals For the Seventh Circuit

Argued September 28, 2000

Decided December 29, 2000

Rehearing and Rehearing En Banc

Denied Jan. 24, 2001

Appeal from the United States District Court for the Southern District of Illinois. No. 4:98CR40057-001--J. Phil Gilbert, Judge.

Before Manion, Rovner, and Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge.

Wendell Nance, Sr., and his son Wendell Nance, Jr. (nicknamed "Ardell"), were charged and convicted for conspiring to distribute crack cocaine, in violation of 21 U.S.C. sec.sec. 846 and 841(a)(1). Ardell chose to plead guilty, but Wendell's case went to trial before a jury. Only Wendell has appealed. Initially, he challenged only two aspects of his sentence, but with the permission of this court, he added an argument that his sentence of 262 months was unlawful under the Supreme Court's recent decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). We agree that in principle his sentence of more than 240 months (or 20 years) cannot be reconciled with Apprendi.¹ Nevertheless, we conclude that Wendell's failure to raise this point before the trial court means that our review is for plain error only, and on the record of this case there is none. As there is no merit in his two challenges to his sentence, we therefore affirm both the conviction and the sentence.

I

The underlying facts are typical of the many cocaine conspiracy cases that reach this court. The two Nances moved to DuQuoin, Illinois, a small town north of Carbondale, in late February 1998. Over the next month, they participated with several others in a cocaine distribution operation. Wendell, along with Ardell and co- conspirators David Jones and Dexter Dunklin, made a number of trips to St. Louis, Missouri, to purchase crack cocaine for redistribution in DuQuoin. On two such trips, Ardell and Jones obtained money from Wendell for the purchases, and upon their return they gave Wendell his share of the drugs. Jones testified that Ardell purchased between 1/8 ounce (3.5 grams) and 1/4 ounce (7 grams) on each trip. After Ardell's arrest on March 25, 1998, Jones and Wendell made two more trips to St. Louis to purchase more crack cocaine. Other evidence suggested that the total number of trips was at least seven, and apparently many more than that.

While in DuQuoin, Wendell lived in Gynelle Ledbetter's apartment. Not only did he also store his crack there, but he also made no secret of that fact. Ledbetter testified that on one occasion, he was in her residence with two large rocks of crack cocaine. She described one of them as approximately the size of a golf ball, and the other as slightly smaller. Wendell cut the smaller rock into 27 resale portions. Another witness, Shirley Horner (Ledbetter's sister), also testified that she saw Wendell with a golf ball-sized chunk of crack cocaine at Ledbetter's apartment.

At the trial, Ardell testified that in late March Wendell told him to go to his grandmother's house in Kansas to retrieve an SKS assault rifle. He explained that Wendell was concerned that the success of his new crack business might attract the attention of thieves. On his way back from Kansas, with the rifle in his possession, Ardell stopped in St. Louis to buy more cocaine for himself and Wendell. Once back in DuQuoin, Ardell stored the rifle at Phyllis Woody's trailer, which was just a block from Ledbetter's apartment. Wendell demonstrated that he knew where the rifle was located when, a short time later, he went to retrieve it and took it back to the Ledbetter apartment to break up an argument between David and Diane Jones. His methods were not too subtle: he pointed the rifle at the two troublemakers and threatened to shoot them, and he then threatened to shoot everyone. No one was shot, however, and afterwards Ledbetter and David Jones took the rifle and hid it in a storage locker in town.

Eventually Ardell was arrested, and then the conspiracy unraveled as far as Wendell was concerned. The two were charged under a simple indictment that read as follows:

THE GRAND JURY CHARGES:

From on or about March 1, 1998, to on or about April 7, 1998, in Perry County, within the Southern District of Illinois,

WENDELL NANCE, SR., a/k/a Wendell Simmons, and WENDELL NANCE, JR.,

defendants herein, did conspire and agree with each other and with others known and unknown to the Grand Jury, to knowingly and intentionally distribute a mixture and substance containing cocaine base, commonly known as crack cocaine, a Schedule II, narcotic controlled substance, in violation of Title 21, United States Code, Sections 846 and 841(a)(1).

Notably, although this particular indictment did identify the type of drug the defendants were accused of conspiring to distribute, it said nothing about the drug quantity.

At the sentencing stage, the two principal issues concerned the proper calculation of the quantity of crack cocaine for which Wendell was to be held responsible, see U.S.S.G. sec. 1B1.3 and Application Note 2, para. 6, and the question whether the 2-level offense level increase for possession of a dangerous weapon should be imposed, see U.S.S.G. sec. 2D1.1(b)(1). The court concluded that the amount fell between 50 grams and 150 grams of crack, which gave a starting offense level of 32 under sec. 2D1.1 (c)(4). In doing so, it relied principally on a proffer statement that Ardell gave that estimated the total quantity as somewhere between 50 and 150 grams--an estimate that the presentence report also relied upon. The court also found, based on the testimony about the SKS rifle, that the 2- level enhancement was indeed called for, which gave a final offense level of 34. Wendell's criminal history category was VI; the prescribed Sentencing Guidelines range was therefore 262-327 months; and his final sentence as noted was 262 months to be followed by five years of supervised release.

II

The most important question now before us concerns the effect of Apprendi on Wendell's conviction and sentence. We therefore address it first, and then we turn to the points he has raised concerning only his sentence.

The issue that the Court addressed in Apprendi- -whether a particular fact should be regarded as an element of the offense (and hence as something that must be charged in the indictment, submitted to the jury, and proven by the government beyond a reasonable doubt), or merely as a sentencing factor--was not a new one for the Court, even though it expressed the governing principles in Apprendi with greater clarity and more unequivocally than it had done in prior cases. We reviewed the line of cases that had led up to Apprendi in United States v. Smith, 223 F.3d 554, 563-66 (7th Cir. 2000). Perhaps the most important pre-Apprendi decision for our purposes was Jones v. United States, 526 U.S. 227 (1999), in which the Court held that 18 U.S.C. sec. 2119, the federal carjacking statute, created three separate offenses, not just three sentencing levels for one offense, depending on the harm that the offender inflicted during the course of the crime. Jones was handed down on March 24, 1999; Wendell's trial began on May 3, 1999. Thus, in addition to the earlier decisions from the Supreme Court that were mentioned in Smith, it was clear at the time of Wendell's trial that serious questions could be raised about the proper characterization of aggravating factors under many statutes.

Indeed, as far back as 1997 defendants were arguing to this court that the type of drug that they were charged with distributing in violation of 21 U.S.C. sec. 841 was an element of the offense that had to be proven to the jury beyond a reasonable doubt. In United States v. Edwards, 105 F.3d 1179 (7th Cir. 1997), affirmed, 523 U.S. 511 (1998), we rejected that claim, finding that under the Sentencing Guidelines drug type was a sentencing factor that could be determined by the sentencing judge and needed only to be proven by a preponderance of the evidence. Id. at 1180-81. To similar effect, the defendants in United States v. Jackson, 207 F.3d 910 (7th Cir. 2000), argued that Jones required us to overrule cases like Edwards and to recognize that drug quantities and drug types were both elements of the offense created by 21 U.S.C. sec. 841. See id. at 920-21. We rejected that argument too, but the fact that it was made and that we considered it shows that it was a theory available to defendants even before Apprendi. Wendell, however, did not raise the point in the district court, and this court's decision in Jackson was still practically a year in the future. (Even if Jackson had already been decided, a responsible lawyer could have preserved the right to argue on appeal that Jackson was inconsistent with Jones by raising the issue with the district court.)

Under the circumstances, we conclude that Wendell forfeited his right to argue that the quantity of drugs involved should have been charged in the indictment and proved beyond a reasonable doubt. Our review at this stage is therefore only for plain error. Under Johnson v. United States, 520 U.S. 461 (1997), we must decide (1) whether there was an error at all, (2) whether it was plain, (3) whether it affected the defendant's substantial rights, and (4) whether (if the first three factors are present) it seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Id. at 466-67.

Although we have found it unnecessary in a number of cases to decide whether Apprendi effectively overruled our holding in Jackson that drug type and quantity are sentencing factors, see, e.g., United States v. Cavender, 228 F.3d 792 (7th Cir. 2000); Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000), the question is squarely presented here because Wendell's sentence exceeded the statutory maximum of 20...