U.S. v. Camacho, No. 99-14833

• Decision Date: 23 April 2001
• Docket Number: No. 99-14833
• Citation: 248 F.3d 1286
• Parties: (11th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MIGUEL CAMACHO, Defendant-Appellant. Non-Argument Calendar
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1286

248 F.3d 1286 (11th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MIGUEL CAMACHO, Defendant-Appellant.

No. 99-14833

Non-Argument Calendar

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

April 23, 2001

Appeal from the United States District Court for the Southern District of Florida.

ON PETITION FOR REHEARING

Before TJOFLAT, BARKETT and HILL, Circuit Judges.

TJOFLAT, Circuit Judge:

Appellant Miguel Camacho filed a petition for rehearing in this case, arguing that under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), this court should reconsider its opinion affirming his conviction and either grant him a new trial or vacate his sentence and remand his case for re-sentencing. Both Camacho and the Government were instructed to file supplemental briefings on the Apprendi issue. We have reheard the case insofar as that issue is involved.

Camacho was convicted of possession with the intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. At trial, Camacho stipulated that the seized cocaine was 89% pure and in total weighed 39.77 kilograms. Camacho objected at sentencing (and in supplemental objections to the Pre-Sentence Investigation Report ("PSI")) that the quantity of drugs attributable to him was an element of the offense, relying upon Jones v. United States 526 U.S. 227, 243 n.6, 119 S. Ct. 1215, 1224 n.6, 143 L. Ed. 2d 311 (1999). The district court found Jones to be inapplicable and sentenced Camacho under the mandatory minimum sentence provisions of 21 U.S.C. 841(b)(1)(A)¹ to 120 months' imprisonment. Because Camacho raised a constitutional objection in a timely fashion, he preserved the Apprendi issue for appeal and thus receives the benefit of preserved error review. See United States v. Candelario, 240 F.3d 1300, 1306 (11th Cir. 2001). Preserved error review under Apprendi looks first to whether there was error and, if so, undertakes a harmless error analysis. Id. at 1307.

In his petition for rehearing, Camacho argues that, under Apprendi, because there was no jury determination of drug quantity and because the indictment simply charged him with possession of a "detectable amount" of cocaine, he could not be convicted and sentenced pursuant to the provisions of section 841(b)(1)(A) - which was applied by the district court. Rather, Camacho contends that 21 U.S.C. 841(b)(1)(C),² which provides the maximum sentence established for possession with intent to distribute any discernable amount of cocaine, regardless of quantity, is the only possible section under which he could be sentenced.³

In Apprendi, the Supreme Court 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 be submitted to a jury, and proved beyond a reasonable doubt." 120 S. Ct. at 2362-63. As the indictment in this case failed to allege drug quantity, Camacho's sentence would be proper only if it met the requirements of section 841(b)(1)(C). Normally, a defendant may obtain re-sentencing under Apprendi only if the sentence he actually receives exceeds the maximum allowable sentence he should have received under section 841(b)(1)(C), i.e., twenty years' imprisonment, without regard to quantity. United States v. Gerrow, 232 F.3d 831, 834 (11th Cir. 2000) ("There is no error, plain or otherwise, under Apprendi where the term of imprisonment is within the statutory maximum set forth in 841(b)(1)(C) for a cocaine offense without regard to drug quantity."). The reason that Gerrow states that there is "no error . . . under Apprendi" for sentences less than twenty years' imprisonment is because we construe the sentence as a section 841(b)(1)(C) sentence (notwithstanding what the district court may have called it). Because Camacho's sentence of 120 months' imprisonment was less than the twenty year maximum prescribed by section 841(b)(1)(C),⁴ there is arguably no Apprendi error, even though the court utilized a mandatory minimum when sentencing Camacho.⁵

Regardless of whether there is Apprendi error, there is error in Camacho's sentence under United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir. 2000). Rogers, decided prior to Gerrow, went beyond Apprendi to hold that "drug quantity in section 841(b)(1)(A) and section 841(b)(1)(B) cases must be charged in the indictment and proven to a jury beyond a reasonable doubt." This principle of Rogers is violated by Camacho's sentence in a way that Gerrow does not contemplate. By sentencing Camacho to the mandatory minimum sentence (through narrowing the Guideline range),⁶ the district court necessarily used section 841(b)(1)(A) for sentencing; we cannot employ any legal fiction to think otherwise. Rather, we must say that there is no doubt that the district court applied the regime of section 841(b)(1)(A) when sentencing Camacho. This is error under this circuit's precedent in Rogers, because quantity was not charged in the indictment and proven to the jury.

Because Camacho objected to the imposition of a sentence based upon section 841(b)(1)(A), he preserved the error for our review. See Candelario, 240 F.3d at 1306. This means that, under Candelario and Fed. R. Crim. P. 52(a), we must determine whether the error was harmless. An error is harmless unless the record "contains evidence that could rationally lead to a contrary finding." Candelario, 240 F.3d at 1308 (quoting Neder v United States, 527 U.S. 1, 18-19, 119 S. Ct. 1827, 1838-39, 144 L. Ed. 2d 35 (1999)). For example, in United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000), we held that a preserved Apprendi error was harmless where the evidence about drug quantity was "undisputed," such that "no reasonable jury could have rationally concluded that Defendant was guilty of the substantive offense . . . but that the amount of [crack] cocaine possessed" was less than the five grams necessary for sentencing under section 841(b)(1)(B). See also United States v. Gallego, 247 F.3d 191, No. 97-5293 (11th Cir. 2001) (finding, on plain error review, no effect on substantial rights because of overwhelming evidence about drug quantity); United States v. Wims, 245 F.3d 1269, No. 98-3684 (11th Cir. 2001) (same); Candelario, 240 F.3d at 1311-1312 (same); United States v. Pease, 240 F.3d 938 (11th Cir. 2001) (same); United States v. Swatzie, 228 F.3d 1278 (11th Cir. 2000) (same).

Based on this reasoning that says that an Apprendi error is harmless (or has no effect on substantial rights) when there is undisputed testimony about drug quantity, it necessarily follows that a Rogers error⁷ is harmless in a case where the defendant stipulated to drug quantity. At trial, Camacho stipulated to the quantity of drugs involved in his crime - 39.77 kilograms.⁸ The stipulation took the issue away from the jury, and the jury's guilty verdict on the substantive offense rested upon the quantity to which Camacho stipulated. The stipulation thus acts as the equivalent of a jury finding on drug quantity. Therefore, due to the effect of the stipulation, the imposition of Camacho's sentence under section 841(b)(1)(A) was error - but harmless error. See United States v. Jackson, 240 F.3d 1245, 1249 (10th Cir. 2001) ("Having been read the stipulation . . . no reasonable jury could have rationally concluded [the defendant] was guilty of the charged offenses . . . but that the amount of cocaine possessed was less than [that required for an increased sentence]."); United States v. White, 240 F.3d 127, 134 (2d Cir. 2001) (holding that a stipulation as to drug quantity, combined with a failure to object at trial to the court's failure to submit quantity to the jury, is harmless error); United States v. Champion, 234 F.3d 106, 110 (2d Cir. 2000) ("Even if the district court erred by arrogating to itself the quantity-determining function [rather than submitting the issue to the jury], any such error was surely harmless [as,] under the stipulation, a jury could not have found differently."); cf. United States v. Poulack, 236 F.3d 932, 938 (8th Cir. 2001) (holding that a stipulation waives a right to a jury determination on drug quantity, but stating that even if it was error it would not have affected the defendant's substantial rights because the jury would have found the stipulated amount).

Based on the foregoing, the court adheres to our original judgment. Camacho's conviction and sentence are

AFFIRMED.

HILL, Circuit Judge, concurring specially:

I concur in the judgment; the conviction and sentence are affirmed.

As I see it, there was no error under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and I conclude that there is, in any case, no institutional reason for the court to devote its time and talent to find out if there was error.

I acknowledge that the indictment did not charge a quantity of drugs sufficient to the provisions of 21 U.S.C. 841(b)(1)(A). But it did not make a contrary charge. As was the practice before Apprendi, it charged merely the violation of 841(a)(1), without specifying one of the subparagraphs (A), (B), or (C), of 841(b)(1). Therefore, at trial before the jury, Camacho could have - successfully, I apprehend - objected to an attempt by the prosecutor to prove any quantity beyond a "detectable amount." Large quantity would have been immaterial and obviously prejudicial.

But Camacho did not object. Indeed, he assisted the government by entering into - and consenting to the publication to the jury of - a stipulation that the quantity of cocaine involved was large - 39.77 kilograms. This stipulation was not entered into at sentencing, after conviction, and presented to the judge. It was entered into during trial, when the jury was present to determine facts. In short it was put to the jury by agreement. When the jury convicted Camacho, they convicted him of violating 841(a)(1), and of unlawful conduct involving the...