U.S.A. v. Jordan, 052202 FED9, 00-10233

Docket Nº:00-10233
Party Name:U.S.A. v. Jordan
Case Date:July 13, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ALLEN RAY JORDAN, Defendant-Appellant.

No. 00-10233

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted July 13, 2001-San Francisco, California

Submission withdrawn September 13, 2001

Resubmitted May 22, 2002

Appeal from the United States District Court for the Eastern District of California Frank C. Damrell, Jr., District Judge, Presiding

William S. Wong, Assistant United States Attorney, Sacramento, California, for the plaintiff-appellee.

Jeffrey L. Staniels, Assistant Federal Public Defender, Sacramento, California, for the defendant-appellant.

Before: William C. Canby, Jr., Michael Daly Hawkins, and Ronald M. Gould, Circuit Judges.

GOULD, Circuit Judge:

Allen Ray Jordan was convicted by a jury on three counts of offenses involving the illegal manufacture of methamphetamine. Jordan appeals, arguing that the district court erred when it: (1) imposed life sentences on two counts in violation of Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed. 2d 435, 120 S.Ct. 2348 (2000); (2) enhanced his sentence under U.S.S.G. § 3B1.1(a) for his leadership role in the offense; (3) denied his motion to suppress; and (4) rejected his motion to reopen the motion to suppress.

We hold that Jordan's life sentence was imposed in violation ofApprendi. We also hold that the leadership role enhancement was clearly erroneous. We affirm denial of Jordan's motions seeking to suppress key evidence. We affirm Jordan's conviction, vacate Jordan's sentence, and remand to the district court for resentencing.

I.

This tale of criminal mischief begins in August 1996, when Paula Bolton, a confidential informant seeking the government's favor in another criminal case, gave information to California law enforcement about a methamphetamine laboratory located on a rural property leased to Jordan. Soon thereafter, a search warrant was issued for Jordan's property based on Bolton's statements, information given by two other confidential informants, and Jordan's criminal history. During the search, amid the rural farm setting, police found a methamphetamine laboratory and 349.9 grams of methamphetamine contained in mixtures. Jordan was arrested, and police then searched his apartment pursuant to a warrant.

Jordan was charged with conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), attempt to manufacture methamphetamine, in violation of 21 U.S.C. §§ 846,841(a)(1), and maintaining a place for the manufacture of methamphetamine, in violation of 21 U.S.C. § 856. Drug quantity was not alleged in the indictment.(FN1)

Jordan filed a motion to suppress the evidence gathered from the searches. He claimed that the police detective made material misstatements and omissions in the first search warrant affidavit. The district court held an evidentiary hearing and denied the motion.

A jury convicted Jordan on all three counts. Before sentencing, Jordan filed a motion to reopen his failed motion to suppress. Jordan argued that Bolton's trial testimony was inconsistent with her prior statements, showed that she was acting as a government agent and showed she had made a trespassory search of Jordan's property. The district court denied Jordan's motion.

Jordan next challenged the presentence report (PSR), alleging, inter alia,(1) that the PSR's statements that Jordan exercised a leadership role were not supported by the evidence; and (2) that under Jones v. United States, 526 U.S. 227, 143 L.Ed. 2d 311, 119 S.Ct. 1215 (1999), the government must allege in the indictment and must prove to a jury beyond a reasonable doubt that the drug quantity was greater than fifty grams to make Jordan eligible for the elevated maximum sentence of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A)(viii).

The district court rejected Jordan's challenge to the PSR, finding that the role enhancement was proper on grounds that there were five participants in the criminal operation and that Jordan exercised a leadership role over his nephew Taylor Jordan. The district court, whose ruling predated Apprendi, also concluded that Jones did not mandate that the drug quantity be included in the indictment and proved to a jury beyond a reasonable doubt.

Jordan was sentenced to concurrent terms of life imprisonment on Counts One and Two and twenty years imprisonment on Count Three.

II.

A. Apprendi Claim

Jordan claims the district court erred by sentencing him under21 U.S.C. § 841(b)(1)(A)(viii), for a crime involving more than 50 grams of methamphetamine, because drug quantity was not charged in the indictment. Jordan claims he should be resentenced under 21 U.S.C. § 841(b)(1)(C), for a crime involving an indeterminate amount of drugs, with a maximum sentence of 20 years for each count, rather than the maximum sentence of life imprisonment under § 841(b)(1)(A)(viii). Because of the Supreme Court's shift of direction in Apprendi, and our subsequent precedent, we agree that Jordan is entitled to relief.

Under Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L.Ed. 2d 435, 120 S.Ct. 2348 (2000), the Supreme Court firmly established a striking rule: "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." Apprendi expressly left open whether such a fact must also be charged in the indictment, see 530 U.S. at 477 n.3, an issue that Jordan presents today.

The Supreme Court's rationale explained that the Apprendi rulewas foreshadowed by its decision in Jones v. United States, 526 U.S. 227, 243 n.6, 143 L.Ed. 2d 311, 119 S.Ct. 1215 (1999), which had held that "any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt."(FN2) See Apprendi, 530 U.S. at 476. In United States v. Buckland, 2002 WL 857751, *6 (9th Cir. 2002) (en banc), we expressly held that, in the light of Apprendi, drug quantity was a material fact of a drug offense, and that due process requires that drug quantity "must be charged in the indictment." Buckland answered for our circuit the question left open by the Supreme Court in Apprendi, by holding that any fact other than a prior conviction that increases the maximum penalty for a federal crime must also be charged in an indictment. See id.(FN3) This rule, announced after Jordan's conviction, was offended by Jordan's prosecution, and he may benefit from the rule because he is on direct appeal. See Griffith v. Kentucky, 479 U.S. 314, 328, 93 L.Ed. 2d 649, 107 S.Ct. 708 (1987).

Drug quantity was neither charged in the indictment, nor submitted to the jury and proved beyond a reasonable doubt. The district court therefore erred when it sentenced Jordan above the default maximum sentence for a crime involving an indeterminatequantity (twenty years per count), sentencing him instead to the maximum sentence for a crime involving 50 grams or more of methamphetamine (life imprisonment).

Jordan was prescient enough to preserve his claim that drug quantity should have been included in the indictment and submitted to the jury.(FN4) This case is unlike most Apprendi cases, for here we do not review the district court's sentence for plain error, but instead for harmless error. See United States v. Garcia-Guizar, 234 F.3d 483, 488 (9th Cir. 2000). Jordan's sentence "cannot stand unless the district court's constitutional Apprendi error was harmless beyond a reasonable doubt." Id. (citing Chapman v. California, 386 U.S. 18, 24, 17 L.Ed. 2d 705, 87 S.Ct. 824 (1967)).

As there is little judicial experience on this issue, it is not perfectly clear how to analyze whether Apprendi error is harmless. See United States v. Nordby, 225 F.3d 1053, 1060 (9th Cir. 2000) (overturned on other grounds) (discussing how to analyze under plain error whether Apprendi error affects substantial rights). We see two analytical options: One is that we might look only at the sentence received to see if it is greater than the maximum sentence the defendant should have faced. The other is that, instead, we might canvass the record to see whether, had the defendant been properly indicted and the jury properly instructed, we could say beyond any reasonable doubt that the defendant would have been found guilty of the more severely punishable crime. See id.

In Buckland, as part of plain error review, we analyzed whether the defendant's substantial rights had been affected by Apprendi error. The substantial rights analysis under plain error is similar to a harmless error analysis. The difference is that under plain error, the burden of persuasion is on the defendant to show that the error was prejudicial, and in harmless error analysis,the burden is on the government to show that it was not.(FN5) See United States v. Olano, 507 U.S. 725, 734, 123 L.Ed. 2d 508, 113 S.Ct. 1770 (1993). In Buckland, we looked beyond a simple comparison of the sentence received and the sentence the defendant should have faced; we assessed the record and concluded that any reasonable jury would have found the defendant guilty of a crime involving a certain quantity of drugs, triggering the higher maximum sentence. See Buckland, 2002 WL 857751, at *8.

But in Buckland, drug quantity was charged in the indictment -- the Apprendi error was that quantity was not proved to a jury beyond a reasonable doubt.(FN6) Here, the erroris that quantity was neither alleged in the indictment nor proved to a jury beyond a reasonable doubt. We therefore do not have the ability the Buckland court had simply to determine whether a proper jury instruction would have made any difference.(FN7) Because the indictment did not allege quantity, we would first have to determine whether the grand jury would have indicted the defendant for over 50 grams...

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