U.S. v. Candelario, No. 99-11443

• Decision Date: 05 February 2001
• Docket Number: No. 99-11443
• Citation: 240 F.3d 1300
• Parties: (11th Cir. 2001) UNITED STATES of America, Plaintiff-Appellee, v. Jose Manuel CANDELARIO, Defendant-Appellant. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1300

240 F.3d 1300 (11th Cir. 2001)

UNITED STATES of America, Plaintiff-Appellee, v. Jose Manuel CANDELARIO, Defendant-Appellant.

No. 99-11443

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

Feb. 5, 2001.

Feb. 15, 2001.

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Southern District of Alabama. (No. 98-00190-CR-1), Charles R. Butler, Jr., Chief Judge.

ON PETITION FOR REHEARING

Before ANDERSON, Chief Judge, and TJOFLAT and DUBINA, Circuit Judges.

TJOFLAT, Circuit Judge:

The issue we must resolve on rehearing¹ is whether Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), requires the vacation of appellant's sentences and a remand for re-sentencing. Applying the plain error standard of review, we affirm.

I.

From 1992 to mid-1993, defendant Jose Manuel Candelario was a partner in a conspiracy to sell cocaine with Theodore Cochran, Jr. Cochran and Candelario obtained powder cocaine from Miami and other locations and brought it to Mobile, Alabama. They usually converted the powder cocaine into crack cocaine in Mobile, although the conversion sometimes occurred elsewhere. The crack cocaine was then distributed from the Equalizer Club in Prichard, Alabama (in the Mobile area). Candelario and Cochran shared the proceeds from the sale of the crack cocaine, usually on an equal basis. They did not sell the cocaine themselves, choosing instead to make arrangements for others to sell it.

On August 20, 1993, a Southern District of Alabama grand jury returned an eleven count indictment against Candelario, Cochran, and fourteen others. Candelario was charged in the first two counts. Count One alleged a conspiracy to traffic four kilograms of a mixture containing crack cocaine. Count Two charged Candelario, Cochran, and another person with possession of, with intent to distribute, nine ounces of crack cocaine. Cochran and some other defendants plead guilty, and Candelario stood trial. Cochran and two other co-conspirators testified for the prosecution. Among other things, Cochran stated that on one occasion, in December 1992 or January 1993, as part of the conspiracy, Candelario sold Cochran nine ounces of crack cocaine for $4,500. After hearing one day of testimony, the jury found Candelario guilty as charged on both counts. For these crimes, the district court sentence Candelario, on April 21, 1994, to concurrent terms of life imprisonment without parole.

Candelario appealed his convictions and sentences, but his appeal was dismissed for want of prosecution. On May 17, 1999, the district court, in a proceeding brought under 28 U.S.C. 2255, granted Candelario leave to prosecute the instant appeal out-of-time. At the same time, applying a retroactive amendment of the Sentencing Guidelines to each count, the court reduced Candelario's concurrent life sentences to concurrent terms of 360 months' imprisonment.

II.

The Supreme Court established in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), that "any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Candelario's claim that his sentences violate this central principle of Apprendi is reviewable under a plain error standard. Candelario must therefore satisfy the four prongs of the plain error test, as set forth in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), and Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).² See United States v. Pease, --- F.3d ----, No. 99-2301 (11th Cir.2001) (applying plain error review to a case involving Apprendi issues); United States v. Smith, --- F.3d ---- , No. 99-11377 (11th Cir.2001) (same); United States v. Gerrow, 232 F.3d 831, 835 (11th Cir.2000) (same); United States v. Swatzie, 228 F.3d 1278, 1281 (11th Cir.2000) (same). In this case, we clarify when a defendant's claim that his sentence violates Apprendi will receive plain error review and when such a claim will receive preserved error review.³

A.

1.

In cases raising Apprendi concerns, the first question a reviewing court must ask is: Did the defendant make a constitutional objection? The second and related question is: Was the objection timely?

The answer to the first question is critical, for not every objection is a constitutional objection.⁴ A defendant may be deemed to have made a constitutional objection if his objection invokes Apprendi, 120 S.Ct. at 2362-63, or Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 1224 n. 6, 143 L.Ed.2d 311 (1999). See United States v. Rogers, 228 F.3d 1318, 1320-21 (11th Cir.2000) (holding that the defendant, whose sentencing occurred prior to Apprendi, made a valid constitutional objection by relying upon Jones, which he claimed stood for the proposition that drug quantity had to be determined by the jury). The defendant may also be deemed to have made a constitutional objection if he contends that "the issue of drug quantity should go to the jury." United States v. Nealy, 232 F.3d 825, 829 (11th Cir.2000). Other potential constitutional objections include that an element of the offense was not proved, that the judge cannot determine quantity, or that quantity must be proved beyond a reasonable doubt (and not by a preponderance of the evidence). However, a defendant's objection to the quantity of drugs that the Government attributes to him is not, on its own, a constitutional objection. Such an objection is properly characterized as either an evidentiary objection or a sufficiency of the evidence objection. Finally, an objection to the indictment is not a constitutional objection if the indictment properly charges a crime.⁵

If the court determines that the defendant made a constitutional objection, the court must then determine whether the objection was timely. A constitutional objection for Apprendi purposes is timely if a defendant makes the objection at sentencing. See Smith, --- F.3d at ----, No. 99-11377 ("Defendants never objected at their sentencing hearing when the judge determined drug quantity by a preponderance of the evidence; so our review is limited to the stringent plain error standard, an exception to the broad contemporaneous objection rule."); see also United States v. Garcia-Guizar, 234 F.3d 483, 488 (9th Cir.2000) (reviewing the defendant's sentence under preserved error review where the defendant "argued in his sentencing memorandum that the amount of drugs for which he was to be sentenced had to be pleaded [in the indictment] and found by the jury beyond a reasonable doubt"); United States v. Doggett, 230 F.3d 160, 165 (5th Cir.2000) (reviewing the defendants' sentences under preserved error review because the defendants "raised their constitutional objections to their sentences during the sentencing hearing"). Although a defendant's constitutional objection will be timely if made at any time prior to sentencing, it is not necessary that it be made prior to sentencing. The rationale behind this is simple. If the indictment properly charges an offense, it would be unproductive and run contrary to a defendant's interest to require him to object to the indictment's failure to specify a quantity amount. If we insisted on an objection to the indictment, we would effectively be forcing a defendant to claim that the Government has undercharged him. That is, the defendant would basically be forced to assert that the Government could have indicted him for a section 841(b)(1)(A) or section 841(b)(1)(B) offense rather than the section 841(b)(1)(C)⁶ offense the Government is currently charging.⁷ Because it is the Government's duty to ensure that it has charged the proper offense, a defendant has no responsibility to point out that the Government could have charged him with a greater offense. Similarly, it would be fruitless to insist that, at trial, a defendant must request the court to instruct the jury to determine quantity. Section 841(b)(1)(C) permits sentencing without regard to quantity, in which event a jury finding of quantity is unnecessary. Therefore, to preserve his constitutional objection, a defendant need object only at sentencing.

Case law in this circuit demonstrates that we ask these two crucial questions in every case. The answers to these questions dictate the appropriate standard of review. If the defendant makes a constitutional objection that is timely, he receives the benefit of preserved error review. If the defendant either does not raise the constitutional objection or does not raise it in a timely fashion, he is entitled only to plain error review.

2.

Preserved error review in Apprendi cases follows a line of cases stemming from Rogers, 228 F.3d 1318 (11th Cir.2000), and Nealy, 232 F.3d 825 (11th Cir.2000). In Rogers, the defendant clearly raised a timely constitutional objection. Rogers asserted that, under Jones, 526 U.S. at 243 n. 6, 119 S.Ct. at 1224 n. 6, "the quantity of cocaine should have been determined by the jury beyond a reasonable doubt." Rogers, 228 F.3d at 1321. Rogers made this objection three times: (1) in response to the Pre-Sentence Investigation Report ("PSI"), (2) at his sentencing hearing, and (3) shortly after he was sentenced. Id. at 1320-21. Rogers's objection was thus constitutional and timely, and he received the benefit of preserved error review. Id. at 1328.

In Nealy, the defendant similarly raised a timely constitutional objection. Nealy also relied on the footnote in Jones for the proposition that the issue of drug quantity must be submitted to the jury.⁸ Nealy, 232 F.3d at 828. Before his trial, Nealy requested that the jury instructions include an instruction about drug quantity; Nealy renewed his objection at the sentencing hearing. Id. As Nealy's constitutional objection was timely made, he received the benefit of...