U.S. v. Keith, 99-50692

• Decision Date: 17 October 2000
• Docket Number: No. 99-50692,99-50692
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LAMONT E. KEITH, Defendant-Appellant. Summary Calendar
• Court: U.S. Court of Appeals — Fifth Circuit

Page 784

230 F.3d 784 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LAMONT E. KEITH, Defendant-Appellant.

No. 99-50692

Summary Calendar

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

October 17, 2000

Appeal from the United States District Court for the Western District of Texas

Before POLITZ, HIGGINBOTHAM, and WIENER, Circuit Judges.

PER CURIAM:

Defendant-Appellant Lamont E. Keith appealed his conviction and sentence for possession of cocaine base (crack) with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We affirmed Keith's conviction, rejecting his claims of evidentiary insufficiency and failure to give a requested instruction on nervousness. United States v. Keith, 99-50692 (5th Cir. Mar. 9, 2000) (unpublished). Reviewing for plain error, we also rejected Keith's argument that drug quantity is an element of the offense and must be alleged in the indictment and proved to the jury beyond a reasonable doubt. Id. Keith petitioned for rehearing, urging inter alia that he had preserved error on the question of drug quantity, making plain error review inappropriate. Concluding that Keith did preserve error on that issue, we now grant his petition for panel rehearing, withdraw the final paragraph of our prior unpublished opinion, in which paragraph we addressed the issue of drug quantity, substitute in its place the discussion below, and affirm his conviction and sentence. We do not disturb our analysis of Keith's "sufficiency of the evidence" or jury instruction claims.

Following Keith's conviction by a jury, the district court sentenced him to the twenty-year minimum sentence mandated by subsection (A) of 21 U.S.C. § 841(a)(1). The court did so based on its finding, by a preponderance of the evidence, that Keith's offense involved more than fifty grams of cocaine base. Initially Keith argued on appeal that, pursuant to Jones v. United States, 526 U.S. 227 (1999), drug quantity must be alleged in the indictment and proved to a jury beyond a reasonable doubt because drug quantity is an element of the offense charged.

Jones dealt with a conviction under the federal carjacking statute, 18 U.S.C. § 2119, which provides that anyone who possesses a firearm while taking or attempting to take a motor vehicle by force shall "(1) be fined under this title or imprisoned not more than 15 years, or both, (2) if serious bodily injury . . . results, be fined under this title or imprisoned not more than 25 years, or both, and (3) if death results, be fined under this title or imprisoned for any number of years up to life, or both." Id. at 230. Neither the indictment nor the jury instructions made reference to any bodily injury. Id. At sentencing, the district court found by a preponderance of the evidence that serious bodily injury had resulted, then imposed a sentence of twenty-five years, rejecting the defendant's contention that because bodily injury had neither been alleged nor proved to the jury, it could not support the sentence. Id.

In Jones, the Supreme Court expressed "constitutional doubt" as to whether a judge could determine by a preponderance of the evidence facts that increase the penalty for a "variant of a given crime." Id. Accordingly, the Court determined that reading the statute to create three separate offenses would eliminate any constitutional due process concerns raised by reading the statute as merely setting out one offense with three different penalties. Id. The Court concluded that, as punishment turns on the type of injury to the victim, injury forms an element of the offense and thus is required to be alleged in the indictment and proved to the jury beyond a reasonable doubt. Id. at 252.

In seeking this rehearing initially, Keith argued that the Jones rationale should be extended to offenses under subsection (A) of § 841(b)(1); that if drug quantity is to be used to determine a sentence under that subsection, it must be alleged in the indictment and proved to a jury beyond a reasonable doubt. As this was not done, contended Keith, his sentence must be determined not under subsection (A) of § 841(b)(1) but under subsection (C), which contains no reference to drug quantity. Because of his prior felony conviction, Keith's maximum sentence under subsection (C) would be thirty years. Subsection (C) of § 841(b)(1) does not, however, prescribe a minimum sentence that would apply to Keith.

Prior to Jones, we consistently held that drug quantity is a sentencing factor and not an element of a drug offense. See, e.g., United States v. Deisch, 20 F.3d 139, 146 (5th Cir. 1994); United States v. Valencia, 957 F.2d 1189, 1197 (5th Cir. 1992). Earlier this year, in United States v. Rios-Quintero, 204 F.3d 214, 217-19 (5th Cir. 2000), we addressed the issue whether Jones overruled our pre-Jones jurisprudence. Inasmuch as our review in Rios-Quintero was for plain error, and considering the lack of certainty regarding Jones's constitutional scope, we held that Jones constituted "too thin a reed upon which to hang a wholesale abandonment" of our pre-Jones jurisprudence. Id.

While Keith's petition for rehearing was pending, the Supreme Court, during its last term, decided Apprendi v. United States, 120 S. Ct. 2348 (2000), expanding on the constitutional concerns voiced in Jones. Keith now urges us to consider his petition in light of this new precedent. Apprendi involved a state "hate crime" law which allowed a judge to determine by a preponderance of the evidence that a second-degree offense was motivated by bias and consequently impose punishment equal to that for a first-degree offense. Id. at 2363. After examining Jones and the historical treatment of sentencing issues, the Court determined that, with the exception of recidivism, 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.'" Id. (quoting Jones, 526 U.S. at 252-53 (Stevens, J., concurring)). The Court then 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 2362-63.

Earlier this month we squarely held that Apprendi overruled our pre-Jones jurisprudence that treated drug quantity as a sentencing factor rather than as an element of the offense under § 841. See United States v. Doggett, 230 F.3d 160, ___ (5th Cir. 2000). Consequently, to the extent that drug quantity increases a sentence beyond the statutory maximum, it must be alleged in the indictment and proved to the jury beyond a reasonable doubt. Id. The defendant in Doggett insisted that Apprendi...