U.S. v. Doggett

• Decision Date: 06 October 2000
• Docket Number: No. 99-50380,99-50380
• Citation: 230 F.3d 160
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RODNEY SLOAN DOGGETT; DUNOIS "DEE" T. BEMAN, Defendants-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 160

230 F.3d 160 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RODNEY SLOAN DOGGETT; DUNOIS "DEE" T. BEMAN, Defendants-Appellants.

No. 99-50380

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

October 6, 2000

[Copyrighted Material Omitted] Appeal from the United States District Court for the Western District of Texas

Before WIENER, BENAVIDES and PARKER, Circuit Judges.

BENAVIDES, Circuit Judge:

Defendants Rodney Sloan Doggett and Dunois "Dee" T. Beman challenge their convictions and sentences for possession of methamphetamine with intent to distribute and conspiracy, in particular the constitutionality of treating drug quantities as a sentencing factor rather than an element of the underlying crime. Their appeal requires us to apply the Supreme Court's recent decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). Apprendi held that "[o]ther 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." Id. at 262-63. We hold, consistent with our sister circuits that have considered the issue, that for purposes of § 841(b)(1), the quantity of drugs is such a fact.¹ Accordingly, Beman's sentence is vacated and his case is remanded to the district court for further proceedings. Since Doggett's sentence was not impermissibly enhanced by the court's finding of the quantity of drugs, his sentence, with the modified term of supervised release, is affirmed.

I. Facts and Procedural History

Rodney Sloan Doggett and Dunois "Dee" T. Beman were indicted for conspiracy to manufacture an unspecified quantity of methamphetamine in violation of 18 U.S.C. §§ 841(a) and 846 (Count 1), and for aiding and abetting the manufacture of methamphetamine in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2 (Count 2). The Government notified both Doggett and Beman of its intent to seek an enhanced penalty against them based on the quantity of drugs, and against Beman based on his two prior felony drug convictions for possession with intent to distribute methamphetamine.

At trial, Doggett's defense concentrated on the theory that the person who had tipped off the police to the methamphetamine laboratory in Doggett's garage was actually responsible for the drugs. In November 1998, a jury convicted Doggett and Beman on both counts. At sentencing, Doggett and Beman filed a joint objection to the presentence report ("PSR"), arguing in pertinent part that the Supreme Court's recent holding in Jones v. United States, 526 U.S. 227 (1999), 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) indicated that the amount of drugs was an element of the offense which must be presented to the jury and not merely a sentencing factor. The district court overruled the objection.

The district court sentenced Doggett to 235 months' imprisonment on each count, followed by five years' supervised release on each count, with the sentences to run concurrently. The court sentenced Beman to life imprisonment on each count, followed by eight years' supervised release, with the sentences to run concurrently. Both defendants filed timely notices of appeal. Following briefing and oral argument in this case, the Supreme Court issued its opinion Apprendi v. New Jersey, 120 S.Ct. 2348 (2000).

II. Analysis

Doggett and Beman contest the constitutionality of their sentences, arguing that the amount of drugs in question should have been proven to the jury beyond a reasonable doubt. They also challenge the district court's decision to exclude the testimony of a defense witness, its admission of Beman's prior convictions for possession of methamphetamine with intent to distribute, and its calculation of the amount of methamphetamine attributable to the conspiracy.

A. Constitutional Challenge

1. Review of Supreme Court Precedent

Prior to Apprendi, the Supreme Court's most recent decision in this area was Jones v. United States, 526 U.S. 227 (1999). In Jones, the Court considered a challenge to a conviction under the federal car jacking statute (18 U.S.C. § 2119). The Court determined that, given the structural uncertainty as to whether the injury or death of a victim was a sentencing factor or an element of an independent crime, the doctrine of constitutional doubt required that the courts interpret the provisions as establishing separate crimes, all elements of which had to be proven to a jury beyond a reasonable doubt. Similarly, in Castillo v. United States, 120 S.Ct. 2090 (2000), the Court construed an ambiguous statute as setting out separate offenses rather than a single offense with sentencing factors. The Court's analysis in these cases looks to the structure of the statute in issue, the legislative history, and whether courts historically considered a particular fact during the sentencing phase. Compare Almendarez-Torres v. United States, 523 U.S. 224, 230 (1998) (finding that recidivism's typical status as a sentencing factor weighed against construing statute provision as creating a separate element of the crime rather than a sentencing factor) and Castillo v. United States, 120 S.Ct. at 2093-94 (use of a machine gun not a typical sentencing factor).

In a footnote to Jones, the Court foreshadowed its eventual holding in Apprendi by noting that "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt." Jones, 526 U.S. at 227 n.6. The Supreme Court, however, then explicitly stated that its opinion "does not announce any new principle of constitutional law, but merely interprets a particular federal statute in light of a set of constitutional concerns that have emerged through a series of our decisions over the past quarter century." Jones, 526 U.S. at 252 n.11. Given the clear congressional intent in § 841 and the uncertain mandate of Jones, we would have been hesitant to overturn our well-established precedent that the quantity of drugs is a sentencing factor and not an element of the offense. See United States v. Hare, 150 F.3d 419, 428 n.2 (5th Cir. 1998); United States v. Ruiz, 43 F.3d 985, 989 (5th Cir. 1995). Apprendi compels us to take this step.

In Apprendi, the Supreme Court overturned a sentencing scheme that allowed a state judge, by a preponderance of the evidence, to enhance a defendant's penalty beyond the prescribed statutory maximum. Apprendi had been indicted on 23 counts, relating to four separate shootings and the unlawful possession of various firearms. As part of a plea agreement, Apprendi pled guilty to two counts of unlawful possession in the second degree (Counts 3 and 18) and one count of unlawful possession in the third degree (Count 22). Under New Jersey law, a conviction for a second degree crime carries a penalty of 5-10 years.

The state moved to enhance Apprendi's sentence on Count 18 under New Jersey's "hate crime" statute. The trial judge, by a preponderance of the evidence, found Apprendi had "acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation, or ethnicity," Apprendi, 120 S.Ct. at 2351 (quoting N.J.S.A. § 2C:44-3(e)), a finding which enhanced his sentence to 10-20 years. Apprendi was then sentenced to twelve years on Count 18 with the sentences on the other two counts to run concurrently. The Supreme Court of New Jersey affirmed Apprendi's sentence. The Supreme Court reversed, holding that "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." Id. at 2363-64.

2. 21 U.S.C. Section 841

This case presents the question recently left unanswered in United States v. Meshack, 2000 WL 1218437 (5th Cir. 2000), whether drug quantities under § 841(b) are sentencing factors or elements of the offense. We conclude that there is no reasonable construction of § 841 that would allow us to avoid the broad constitutional rule of Apprendi. Notwithstanding prior precedent of this circuit and the Supreme Court that Congress did not intend drug quantity to be an element of the crime under 21 U.S.C. §§ 841 and 846, we are constrained by Apprendi to find in the opposite. In a departure from its previous analysis, the Apprendi Court, quoting Jones, 526 U.S. at 252-53 (STEVENS, J. concurring), held that "it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed." Appendi, 120 S.Ct. at 2363. The relevant inquiry is now whether a factual determination is involved,and whether that determination increases the sentence beyond the maximum statutory penalty.

The drug quantity determination is critical to the statutory sentencing provisions in 21 U.S.C. § 841. Section 841 consists of two relevant subsections. Section 841(a) makes it unlawful for any person to manufacture or distribute a controlled substance. Section 841(b) defines the applicable penalties for violations of § 841(a) based on the type and quantity of drug, previous convictions, and whether death or serious bodily injury resulted from use of the drug. The structure of § 841 is similar to that described by Justice Thomas in his concurrence to Apprendi, "if the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact--of whatever sort--the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravating crime." Apprendi, 120 S.Ct. at 2368.

Section 841 clearly calls for a...