U.S. v. Rogers

• Decision Date: 29 September 2000
• Docket Number: No. 99-15150,Docket No. 99-14031-CR-KMM,99-15150
• Citation: 228 F.3d 1318
• Parties: (11th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AARON LAMAR ROGERS, Defendant-Appellant. D.C
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1318

228 F.3d 1318 (11th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AARON LAMAR ROGERS, Defendant-Appellant.

No. 99-15150

D.C. Docket No. 99-14031-CR-KMM

UNITED STATES COURT OF APPEALS ELEVENTH CIRCUIT

Sep. 29, 2000

Oct. 3, 2000.

Appeal from the United States District Court for the Southern District of Florida

Before TJOFLAT, HILL and POLITZ^*, Circuit Judges.

TJOFLAT, Circuit Judge:

Aaron Lamar Rogers appeals his sentence of 360 months' imprisonment and 5 years' supervised release for a drug conviction under 21 U.S.C. 841. Because of the rule announced in Apprendi v. New Jersey, that any fact (other than prior conviction) that increases the penalty for a crime beyond the prescribed statutory maximum must be presented to a jury and proven beyond a reasonable doubt, we vacate Rogers's sentence and remand to the district court for resentencing.

I.

Aaron Lamar Rogers was arrested on June 11, 1999, in Stuart, Florida. Police found 1 gram of cocaine base (crack cocaine) in Rogers's pocket and two cocaine cookies, which totaled 40 grams, in the van Rogers had been driving.

Rogers was indicted by a Southern District of Florida grand jury for possession of cocaine base (crack cocaine) with intent to distribute in violation of 21 U.S.C. 841(a)(1).¹ He was tried before a jury on August 26, 1999, and was found guilty. Prior to trial, on August 11, 1999, the Government filed a Previous Conviction Information, pursuant to 21 U.S.C. 851, notifying Rogers that the Government intended to rely on three prior felony drug convictions to seek an enhanced penalty.

Following Rogers's conviction, a Pre-Sentence Investigation Report ("PSI") was prepared by a United States Probation Officer. The PSI was made available for disclosure on October 18, 1999. The PSI noted that Rogers was convicted under section 841(a)(1) and that the Government filed an Information pursuant to section 851. Although the Information never stated the statutory section the Government would rely upon for sentence enhancement, the PSI claimed that the Government intended to rely on the Information "to seek the enhanced penalty pursuant to 21 U.S.C. 841(b)(1)(A)." The PSI calculated Rogers's base offense level under the United States Sentencing Guidelines Manual ("U.S.S.G." or "the Guidelines") 1B1.3 as 30, because Rogers possessed 41 grams of cocaine base "crack cocaine."² See U.S.S.G. 2D1.1(c)(5) (establishing base offense level at 30 if the offense involved at least 35 grams but less than 50 grams of cocaine base). Pursuant to U.S.S.G. 4B1.1, the PSI also determined that Rogers was a "career offender." The PSI ascertained the statutory maximum penalty under section 841(b)(1)(A) as life imprisonment, which gave Rogers an offense level of 37 based on his career offender status. There were no adjustments for acceptance of responsibility. The PSI thus recommended sentencing Rogers at offense level 37 based on his career offender status.

The PSI also calculated the criminal history category for Rogers as category VI, based on an accumulation of 14 points. (Twelve points were criminal history points and two points were added because the instant offense was committed less than two years after imprisonment on a sentence counted in U.S.S.G. 4A1.1(b). See U.S.S.G. 4A1.1(e).)

The PSI listed the relevant statutory provision as 21 U.S.C. 841(b)(1)(A), and claimed the possible term of imprisonment as ten years to life, consistent with section 841(b)(1)(A). The PSI made no further mention of the section 851 enhancement sought by the Government, which would have enhanced Rogers's sentence under section 841(b)(1)(A) to twenty years to life. Based on an offense level of 37 and a criminal history category of VI, the PSI then turned to the Guideline table and determined the imprisonment range to be 360 months to life imprisonment.³

On November 9, 1999, more than two weeks before sentencing, Rogers objected to the PSI in that it determined a quantity of drugs against him in an amount not set forth in the indictment nor determined by a jury; he alleged that this violated the requirements of Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999).⁴ Rogers challenged the use of his prior convictions to enhance his sentence pursuant to section 851. He further objected to the PSI's reliance upon those prior convictions, which Rogers claimed involved ineffective assistance of counsel. Finally, Rogers moved for a downward departure under the Guidelines, asserting that the career offender offense level of 37 over-represented the seriousness of his criminal history.

At sentencing on November 22, 1999, the district court entertained Rogers's Jones objection that the quantity of cocaine should have been determined by the jury beyond a reasonable doubt. The district court overruled this objection and then determined by a preponderance of the evidence that Rogers had possessed 41 grams of crack cocaine. The district court further entertained Rogers's alternate argument for a downward departure, in which Rogers effectively contended that he should be sentenced under section 841(b)(1)(B) rather than section 841(b)(1)(A), based upon the quantity of cocaine at issue. The district court also rejected this argument. The district court then adopted the findings of fact and the statutory and Guideline applications contained in the PSI and sentenced Rogers under section 841(b)(1)(A) at a base level of 37 and a criminal history category of VI. The district court did not rule on the section 851 enhancement. Rogers was then sentenced to 360 months' imprisonment, 5 years' supervised release, and a $100 special assessment.⁵ After pronouncing the sentence, the district court asked if there were any objections.

Rogers renewed his previous objections. The Government did not object. Rogers now appeals his sentence. The Government has not cross-appealed.

II.

This case is before us to review an allegedly illegal sentence. We review a district court's interpretation of the Sentencing Guidelines de novo. See United States v. Jamieson, 202 F.3d 1293, 1295 (11th Cir. 2000) ("This court reviews the district court's findings of fact for clear error and its application of the sentencing guidelines to those facts de novo."). We are also called upon to determine the applicability of Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (

1999), and Apprendi v. New Jersey, ___ U.S. ___, 120 S. Ct. 2348, 147 L.Ed.2d 435(June 26, 2000), to this case. This is a pure question of law that we review de novo. See Doe v. Chiles, 136 F.3d 709, 713 (11th Cir. 1998).

III.

A.

Under the interpretation of the law before Apprendi, 120 S.Ct. at 2362-63, Rogers should have been sentenced under section 841(b)(1)(B) rather than under section 841(b)(1)(A) because the quantity of crack cocaine he possessed (41 grams)⁶ placed him within the purview of section 841(b)(1)(B).⁷ Because Rogers was sentenced improperly, this alone is reason for us to vacate and remand the sentence. See, e.g., United States v. Rhodes, 177 F.3d 963, 967-68 (11th Cir. 1999) (vacating the supervised release portion of a sentence when the district court sentenced the defendant above the maximum allowed by statute).

Were we to follow this route, the district court would have to sentence Rogers within the five to forty year range required by section 841(b)(1)(B); the ten years to life provision would be inapplicable because the court did not use the section 851 enhancement.⁸ Applying the five to forty year range would not alter the base offense level of 30, which under the Guidelines is derived from drug quantity, but the "career offender" provision, under which Rogers was actually sentenced, would have to be re-evaluated because of the forty year maximum sentence. The Guidelines provide that if the maximum sentence is life, then the defendant's offense level under the career offender provision shall be 37. See U.S.S.G. 4B1.1(A). However, if the offense statutory maximum is twenty-five years or more, as it would be under section 841(b)(1)(B) without a section 851 enhancement, then the career offender offense level is 34. See U.S.S.G. 4B1.1(B). This would change the possible range of imprisonment from 360 months-life (under category VI, level 37) to 262-327 months (under category VI, level 34).

However, we must decide this case in light of the Supreme Court's recent holding in Apprendi, 120 S. Ct. at 2362-63. This means that our analysis must move beyond merely looking to whether Rogers should have been sentenced under section 841(b)(1)(B) rather than section 841(b)(1)(A), and instead focus on whether Rogers was properly sentenced in view of the fact that his sentence was determined, in part, by drug quantity -- which was neither charged in the indictment nor proven beyond a reasonable doubt to the jury.

B.

Precedent in this circuit dictates, even after Jones, 526 U.S. 227, 119 S. Ct. 1215, that drug quantity need not be charged in the indictment or proven to a jury beyond a reasonable doubt. See United States v. Hester, 199 F.3d 1287, 1292 (11th Cir. 2000), cert. Granted, judgment vacated and remanded, 2000 WL 797322 (2000). A central question is whether Hester continues to be good law in light of Apprendi.

1.

The government must prove every fact of a crime before a defendant may be convicted of that crime. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368 (1970) ("Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."); see also Mullaney v. Wilbur, 421 U.S. 684, 703-04, 95 S. Ct. 1881, 1892, 44 L. Ed. 2d 508 (1975) (interpreting the Due Process Clause and Winship as requiring that the prosecution must prove...