U.S. v. Shepard, 00-10653
Decision Date | 14 December 2000 |
Docket Number | No. 00-10653,00-10653 |
Citation | 235 F.3d 1295 |
Parties | (11th Cir. 2000) UNITED STATES of America, Plaintiff-Appellee, v. Alphonso SHEPARD, Defendant-Appellant. |
Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Southern District of Florida, (No. 99-06159-CR-KLR), Kenneth L. Ryskamp, Judge.
Before BARKETT and WILSON, Circuit Judges, and GEORGE*, District Judge.
Alphonso Shepard appeals his sentence of 188 months imprisonment after pleading guilty to knowingly and intentionally possessing crack cocaine with the intent to distribute in violation of 21 U.S.C. 841(a)(1). Shepard seeks reversal of his sentence arguing that because drug quantity was not alleged in the indictment his sentence violated the rule announced in Apprendi v. New Jersey, U.S. , 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Notwithstanding that the indictment did not allege drug quantity, because we do not find that this error prejudiced Shepard, we affirm.
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). Because Shepard objected at sentencing to the enhancement of his sentence on the basis of drug quantity, which was not contained in the indictment, the issue is properly before this Court on review. United States v. Rogers, 228 F.3d 1318 (11th Cir.2000).
The indictment in this case charged Shepard with violating 21 U.S .C. 841(a)(1) by knowingly and intentionally possessing an unspecified amount of crack cocaine. While section 841(b)(1)(C) defines penalties for violations of section 841(a) when no drug quantities are specified, section 841(b)(1)(A) and (B) establish penalties for violations of section 841(a) depending upon drug quantity and drug type (among other factors which are not relevant to this case). Section 841(b)(1)(A) provides for a sentence of imprisonment ranging from not less than ten years and not more than life. Section 841(b)(1)(B) provides for a sentence between not less than five years and not more than forty years. Section 841(b)(1)(C) provides for a sentence between zero and not more than 20 years.
Based on the Presentence Investigation Report (PSI) finding Shepard responsible for at least 50 grams of cocaine base, the district court considered and sentenced Shepard under section 841(b)(1)(B). Shepard objected at sentencing on the ground that the indictment failed to allege the requisite quantity of cocaine to fall within 841(b)(1)(B)'s sentencing range of 5 to 40 years. Therefore, he argued that his sentence was controlled by 841(b)(1)(C) which contains no mandatory minimum and a maximum term of 20 years.
We agree with Shepard that Apprendi dictates, as we stated in United States v. Rogers, 228 F.3d 1318 (11th Cir.2000), that "drug quantity in section 841(b)(1)(A) and section 841(b)(1)(B) cases must be charged in the indictment and proven to a jury beyond a reasonable doubt ...." Id. at 1324. As the Court in Apprendi noted: "Put simply, facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition 'elements' of a separate legal offense." Apprendi, 120 S.Ct. at 2359, n. 10. As an element of the offense, drug quantity must be charged in the indictment. See Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) ( )(citations omitted); United States v. Gayle, 967 F.2d 483, 485(11th Cir.) (). As we explained in Gayle, Id., 967 F.2d at 485. Because the indictment failed to allege drug quantity, Shepard's sentence was controlled by section 841(b)(1)(C) and the district court's application of section 841(b)(1)(B) violates Apprendi.
Nonetheless, we affirm Shepard's sentence and find no need to remand because the district court sentenced Shepard below the twenty year maximum provided by section 841(b)(1)(C). It is arguable that under Apprendi, a remand is mandated. Apprendi does note that although the actual sentence imposed in the Apprendi case was within the range authorized by the indictment, a reversal was warranted. The Court first noted that:
the State has argued that even without the trial judge's finding of racial bias, the judge could have imposed consecutive sentences on counts 3 and 18 that would have...
To continue reading
Request your trial-
U.S. v. Wilkes
...conspiracy if the government seeks an enhanced sentence under § 841(b)(1) on the basis of that fact.2 United States v. Shepard, 235 F.3d 1295, 1297 (11th Cir. 2000) [hereinafter "Shepard"]; United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir.2000) [hereinafter "Doggett"]. Since the gove......
-
Poole v. State
...must object in the trial court." 846 So.2d at 381. 16. The Pearson harmless error analysis was based on two cases—United States v. Shepard, 235 F.3d 1295 (11th Cir.2000), and United States v. Gerrow, 232 F.3d 831 (11th Cir. 2000). However, neither Shepard nor Gerrow involved the kind of man......
-
U.S. v. Sanchez
...(11th Cir. 2001); United States v. Candelario, 240 F.3d 1300 (11th Cir.), cert. denied, 121 S. Ct. 2535 (2001); United States v. Shepard, 235 F.3d 1295 (11th Cir. 2000), cert. denied, ___ S. Ct. ___, No. 00-10410 (Oct. 1, 2001). Rogers was correct in some aspects of its analysis but wrong i......
-
McCoy v. U.S.
...v. Pease, 240 F.3d 938, 943-44 (11th Cir. 2001); United States v. Gerrow, 232 F.3d 831, 834 (11th Cir. 2000); United States v. Shepard, 235 F.3d 1295, 1297 (11th Cir. 2000); United States v. Swatzie, 228 F.3d 1278, 1282-84 (11th Cir. 2000); see also United States v. Nealy, 232 F.3d 825, 830......
-
Constitutional Criminal Procedure - James P. Fleissner, Sarah B. Mabery, and Jeanne L. Wiggins
...States, 527 U.S. 1, 18 (1999)). 442. Id. at 830. 443. Id. 444. 232 F.3d 831 (11th Cir. 2000). 445. Id. at 833. 446. Id. at 834. 447. 235 F.3d 1295 (11th Cir. 2000). 448. Id. at 1297. 449. 228 F.3d 1278 (11th Cir. 2000). 450. Id. at 1281. 451. Id. 452. Id. (quoting Johnson v. United States, ......
-
Apprendi v. New Jersey: Should Any Factual Determination Authorizing an Increase in a Criminal Defendant's Sentence Be Proven to a Jury Beyond a Reasonable Doubt - Jason Ferguson
...authorizes punishment beyond the statutory maximum range the amount of drugs possessed by the defendant). 143. United States v. Shepard, 235 F.3d 1295 (11th Cir. 2000) (holding that a defendant's sentence did not violate Apprendi when a trial judge increased a defendant's sentence based on ......