U.S. v. Outen

Decision Date12 April 2002
Docket NumberDocket No. 97-1103.
Citation286 F.3d 622
PartiesUNITED STATES of America, Appellee, v. Leroy S. OUTEN; Rodney D. Smith; Sheldon Wilford; Donald Gordon; Euton Christian; Tyrone McFadden, Defendants, Herbie Noel, aka "Wayne", Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

David I. Schoen, Montgomery, AL, for the appellant.

Susan Corkery, Assistant United States Attorney, Brooklyn, NY (David C. James, Stephen C. King, Assistant United States Attorneys, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, for the appellee.

Before: McLAUGHLIN and SOTOMAYOR, Circuit Judges, and BERTELSMAN, District Judge.*

SOTOMAYOR, Circuit Judge.

Defendant Herbie Noel appeals from a judgment of conviction entered by the United States District Court for the Eastern District of New York (Frederic Block, Judge) on two counts of possession of marijuana with intent to distribute, for each of which defendant was principally sentenced to 60 months' imprisonment, and one count of conspiracy to possess with intent to distribute marijuana, for which he was sentenced principally to 110 months' imprisonment, all sentences to run concurrently. The indictment did not charge, nor did the jury find, either the quantity of marijuana involved in any of the counts or whether the defendant received any remuneration in connection therewith. Defendant's appeal presents two important questions arising from the Supreme Court's landmark decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and this circuit's application of that decision to the principal federal narcotics statute, 21 U.S.C. § 841. First, defendant lodges a facial challenge to the constitutionality of § 841 on the ground that the statute impermissibly (in light of Apprendi) removes findings of drug quantity from juries and that there is no permissible saving construction of the statute. Second, defendant argues that, even if constitutional, the "default" provision for marijuana possession — i.e., the statutory provision which sets the maximum term of imprisonment to which a defendant may be sentenced absent an indictment and jury finding as to quantity — is the one-year maximum term found in 21 U.S.C. § 841(b)(4), not the five-year term prescribed in § 841(b)(1)(d). We reject defendant's challenge to § 841's constitutionality and find that the "default" provision for marijuana is the five-year term of § 841(b)(1)(d). We further agree with the government that any resulting error in the 110 month sentence for the conspiracy count did not affect defendant's substantial rights because it did not affect his overall term of imprisonment. We therefore affirm the judgment of the district court.


Defendant Noel was an employee of the Port Authority of New York and New Jersey (the "Port Authority"), which has primary responsibility for the operation of the three major airports serving New York City, including John F. Kennedy Airport ("JFK"). Defendant worked for the Port Authority at JFK, and by virtue of his position with the Port Authority he had access to certain restricted areas of the airport, including areas from which luggage arriving on international flights could be retrieved without subjecting it to scrutiny by the United States Customs Service. The government alleged that defendant used this position to smuggle shipments of narcotics into the United States.

Defendant was prosecuted pursuant to a superseding indictment, dated September 11, 1995, which charged him with six counts, to all of which he pled not guilty: one count of conspiracy to distribute and to possess with intent to distribute cocaine; two counts of attempting to possess with intent to distribute cocaine; one count of conspiracy to distribute and to possess with intent to distribute marijuana; and two counts of distribution and possession with intent to distribute marijuana. Defendant was acquitted after a jury trial on the three cocaine-related counts; this appeal concerns, and reference will be made, only to the remaining three marijuana-related counts. None of the counts alleged any quantity of marijuana involved in the offenses nor any fact related to remuneration. However, the parenthetical statutory references following each count referenced specific penalty provisions: on the conspiracy count, § 841(b)(1)(B)(vii) (the five-to-forty-year provision for offenses involving 100 kilograms or more of marijuana), and on the two distribution/possession counts, § 841(b)(1)(D) (the five-year maximum provision for less than 50 kilograms of marijuana).

Trial commenced on November 7, 1995. The government's case was based largely on the testimony of two cooperating defendants, Rodney Smith and Donald Gordon, both of whom were baggage handlers employed by Triangle Aviation Services. Both men testified to several occasions between 1990 and their arrest in 1994 when allegedly they retrieved suitcases full of marijuana at JFK, bypassed Customs, and delivered the suitcases to Noel in exchange for payment. The government introduced corroborating evidence in the form of phone and pager records detailing various phone calls and pages among the defendants. Smith and Gordon were arrested after an undercover agent arranged with them to recover shipments of cocaine at JFK in a like manner, and they implicated Noel in both the cocaine and marijuana shipments.

The jury returned verdicts of guilty on the marijuana counts on November 22, 1995. The defendant did not request, and the jury was not charged, to determine the amount of marijuana involved in any of the offenses.

Prior to sentencing, defendant expressed his dissatisfaction with his trial attorney and acquired new counsel. At sentencing on January 10, 1997, defendant contested not only the evidence of the quantity of marijuana involved in the conspiracy but also the standard to be applied, arguing that at least as to uncharged conduct the court should apply a higher standard than preponderance of the evidence given the significant effect it could have on the overall sentence. (Sent. Tr. 5-6.) Although the district court (and, indeed, defense counsel) recognized that this argument had largely been rejected by this circuit,1 the district court erred on the side of caution and found beyond a reasonable doubt that the conspiracy involved at least 189.6 kilograms of marijuana, resulting in a base offense level of 26 under U.S.S.G. § 2D1.1. (Sent. Tr. 28-29.) (The district court found the two substantive counts involved 25.8 and 20 kilograms, respectively.) Applying a four-level enhancement for the defendant's supervisory role under U.S.S.G. § 3B1.1(a), the district court sentenced the defendant principally to 110 months' imprisonment — slightly above the midpoint of the applicable Guideline range.2 The district court also imposed a $60,000 fine. Judgment was entered on February 19, 1997, and defendant filed a notice of appeal that same day.

On April 8, 1997, defense counsel filed a motion in this Court requesting a 60-day extension of time in which to file defendant's initial brief (which was due on April 17). The moving papers stated the reason for seeking the extension as the difficulty appellate counsel had in obtaining the case file from trial counsel, but also stated as follows:

Additionally, the Appellant anticipates filing a motion in the District Court pursuant to 28 U.S.C. Sec. 2255 within the next few weeks. Granting the requested enlargement of time would enable us to determine whether this case can be resolved through such a motion in the District Court. In the event the Sec. 2255 motion is denied, a consolidated appeal would be the most expeditious manner in which to resolve all issues in this case. That would be possible by granting the requested 60 day enlargement of time.

The supporting affidavit of appellate counsel stated further that

[i]t is our view that, in the event we are not successful in the trial court on the § 2255 petition, the most efficient and expeditious course of action in this case would be a consolidation of the direct appeal with the appeal from a denial of the § 2255 petition, thereby enabling all issues to be resolved one way or the other in one forum at one time. Obviously, if we are successful with the § 2255 motion, we would move to dismiss the appeal and we would not need to burden this Court.

We plan to file Mr. Noel's § 2255 petition within the next four weeks. The issues involved are not complex and we should be able to arrive at a resolution of the issues within a short time frame. Indeed, it is our hope that we can resolve those issues within a time frame that would enable us to meet the briefing schedule as extended pursuant to this motion. In the event we are not successful with the § 2255 petition, we would immediately move to consolidate the appeal.

This Court granted defendant a 30-day extension on April 11, 1997. The order granting the extension contained a handwritten notation by a staff attorney of the Court that "[p]arties could stipulate to withdraw appeal pending resolution of sec. 2255 motion."

On May 14, 1997, the Court received from defendant a stipulation which stated that the appeal would be "removed from the docket." On May 28, defendant's counsel wrote to the Court to "confirm" a telephone conversation he had apparently had with a representative of the Clerk of the Court. According to defense counsel's letter, the Clerk's office had informed him that the stipulation needed to state that the appeal was being "withdrawn," and that the stipulation required the defendant's signature authorizing the withdrawal. In the letter, counsel authorized the Court to alter the stipulation to read "withdrawn," assured the Court that a statement of authorization from defendant would be forthcoming shortly, and also stated...

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