U.S. v. Harrish, 00-14200

• Citation: 244 F.3d 828
• Decision Date: 14 March 2001
• Docket Number: No. 00-14200,00-14200
• Parties: (11th Cir. 2001) UNITED STATES of America, Plaintiff-Appellant, v. Brent HARRIS, Stanley Harris, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 828

244 F.3d 828 (11th Cir. 2001)

UNITED STATES of America, Plaintiff-Appellant, v. Brent HARRIS, Stanley Harris, Defendants-Appellees.

No. 00-14200.

United States Court of Appeals, Eleventh Circuit.

March 14, 2001.

March 27, 2001.

Appeals from the United States District Court for the Northern District of Georgia.(No. 99-00042-CR-01-02-4-RLV), Robert L. Vining, Jr., Judge.

Before BARKETT, HILL and KRAVITCH, Circuit Judges.

BARKETT, Circuit Judge:

The Government appeals the sentence imposed on William Brent Harris and Stanley Bernard Harris for their convictions, pursuant to guilty pleas, for distribution of illegal narcotics in violation of 21 U.S.C. 841. On appeal, the Government argues that the district court erred in holding that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) precludes its consideration of the Harrises' relevant conduct under U.S.S.G. 1B1.3 in determining their sentences and that the sentences should be vacated and remanded for resentencing.

Background

Brent Harris pled guilty to two counts of a 12-count indictment for violations of 21 U.S.C. 841 and other drug related offenses. It is uncontested that the amount of cocaine hydrochloride involved in the count to which Brent Harris pled guilty was 17.8 grams. The Sentencing Guidelines provide that the base offense level for an offense involving less than 25 grams of cocaine is 12. U.S.S.G. 2D1.1(c)(14). However, the probation officer prepared Brent Harris's presentence report based on the total amount of cocaine base, cocaine powder, and cocaine hydrochloride attributable to Brent Harris through all of the transactions alleged in the indictment and calculated his base offense level as 32 pursuant to U.S.S.G. 2D1.1(c)(4) and his corresponding sentencing range as 168 to 210 months imprisonment. Because the district court ruled that Apprendi prohibited the court from considering drug quantities other than those involved in the counts of conviction, the district court calculated his offense level as 12 based on the quantity of 17.8 grams of cocaine hydrochloride involved in the two counts to which he pled guilty, resulting in a sentencing range of 15-21 months imprisonment.

Stanley Harris was also named in the indictment. He pled guilty to only one count of possessing and distributing cocaine base. Stanley Harris does not contest that this count involved the possession and distribution of 13.2 grams of cocaine base. The sentencing guidelines provide that the base offense level for an offense involving between 5 and 20 grams of cocaine base is 26. U.S.S.G. 2D1.1(c)(7). His presentence report found that based on the total amount of cocaine attributable to him through the transactions alleged in the indictment, his base offense level was 36 pursuant to U.S.S.G. 2D1.1(c)(2) resulting in a guideline range of 188 to 235 months.¹ Based solely on the quantity relating to the count of conviction, without considering the amount included in the relevant conduct, the court determined that Stanley Harris's base offense level was 26 resulting in a sentencing range of 78 to 97 months imprisonment.

Standard of Review

The applicability of Apprendi v. New Jersey is a pure question of law that we review de novo. See Doe v. Chiles, 136 F.3d 709, 713 (11th Cir.1998).

Discussion

The narrow question before us is whether Apprendi applies to the relevant conduct provision of the Sentencing Guidelines.² We recently decided this issue in United States v. Maldenaldo Sanchez, 242 F.3d 1294, Nos. 00-13347, 00-13447 (11th Cir. Feb. 26, 2001). In that case, the defendants were convicted of one count of conspiracy to distribute and possess with the intent to distribute methamphetamine and amphetamine in violation of 21 U.S.C. 841, 846. The defendants argued that in light of Apprendi, the district court erred in enhancing their sentences for possession of a firearm in connection with a drug transaction pursuant to U.S.S.G. 2D1.1 because that fact had not been proven beyond a reasonable doubt. We held that Apprendi does not apply to the Sentencing Guidelines. See also, United States v. Nealy, 232 F.3d 825, 829 n. 3 (11th Cir.2000). We explained in Maldenaldo Sanchez that

Because a finding under the Sentencing Guidelines determines the sentence within the statutory range rather than outside it, the decision in Apprendi, which addresses any increase in penalty for a crime outside the statutory maximum, has no application to the Guidelines.

Id.

The maximum sentence authorized for a non-quantity conviction pursuant to 21 U.S.C. 841(a) is twenty years imprisonment. 21 U.S.C. 841(a)(1)(C). Based on the amount of drugs that was attributable to the Harrises, it would not be possible for the district court to sentence either of them to a sentence exceeding 20 years...