U.S. v. Swatzie

• Decision Date: 27 September 2000
• Docket Number: No. 00-10729,Docket No. 99-00062-CR-RH-4,00-10729
• Citation: 228 F.3d 1278
• Parties: (11th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTHONY SWATZIE, Defendant-Appellant. D. C
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1278

228 F.3d 1278 (11th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTHONY SWATZIE, Defendant-Appellant.

No. 00-10729

D. C. Docket No. 99-00062-CR-RH-4

UNITED STATES COURT OF APPEALS ELEVENTH CIRCUIT

Sep. 27, 2000

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

Before COX, WILSON and GIBSON^*., Circuit Judges.

COX, Circuit Judge:

Anthony Swatzie appeals his conviction and sentence for possession of cocaine base and cocaine with intent to distribute, in violation of 21 U.S.C. 841(a). His appeal presents the issue whether, in light of Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000), it was plain error for the district court to sentence Swatzie according to its finding, by a preponderance of the evidence, that Swatzie possessed the right kind and sufficient amount of drugs to subject him to an heightened statutory maximum sentence. We affirm.

I. Facts and Procedural History

According to the trial evidence - which was uncontradicted, because the defense offered no evidence - Swatzie, who served as a confidential informant to the Florida Department of Law Enforcement, was also selling powder and crack cocaine on a regular basis from at least Thanksgiving 1998 to the time of his arrest in July 1999. Swatzie came to the authorities' attention by selling powder cocaine to another confidential informant, David Lowe. Upon Swatzie's arrest at his home, Swatzie permitted law enforcement officers to search his house. Swatzie offered to cooperate, directed officers to drugs and currency in his bedroom, and denied that his wife (the other resident of the house) was involved in drug dealing. Among the drugs found in the bedroom were 21.1 gm of cocaine base and 135.9 gm of cocaine powder. Swatzie confessed to buying powder cocaine from South Florida and then cooking some of it into crack cookies for a regular customer.

The indictment charged that Swatzie "did knowingly and intentionally possess with intent to distribute cocaine base, commonly known as `crack cocaine,' and cocaine hydrochloride, controlled substances, in violation of Title 21, United States Code, Sections 841(a) and (b)(1)(B)." (R.1-1 at 1.) The jury was instructed that it could find Swatzie guilty of the charged offense if "the Defendant knowingly and willfully possessed cocaine base or cocaine hydrochloride as charged" and "the Defendant possessed the substance with the intent to distribute it." (R.1-17 at 10.) The jury was not told what 21 U.S.C. 841(b)(1)(B) was (it is the section imposing enhanced statutory sentencing ranges for certain kinds and quantities of drugs possessed), and the court did not ask the jury to find either what kind of cocaine Swatzie possessed or how much. Swatzie did not object to the indictment or the jury charge, agreeing with the Government that the jury charge was (except in respects not relevant here) "fine." (R.3 at 4.) Nor did Swatzie ask for a special verdict of any kind.

Swatzie did, however, put the amount of and form of cocaine at issue by objecting to the presentence report's findings as to these two facts. But at sentencing Swatzie's counsel characterized this objection only "as a matter of preserving that issue, if Mr. Swatzie takes an appeal," and offered no evidence or argument except to say that "Mr. Swatzie has always maintained that he didn't make those statements," probably referring to Swatzie's statement to authorities that he had cooked up the crack found in his house for a habitual customer. (R.4 at 3.) The district court overruled Swatzie's objection and found, by a preponderance of the evidence offered at trial and in reliance on the presentence investigation report, that Swatzie was responsible for 1330 gm of cocaine powder and 136 gm of crack. This amount included estimates of amounts involved in prior deals described by witnesses, as well as the amounts found in Swatzie's house.

The district court adopted the presentence report's calculation of Swatzie's sentence, which was as follows: Swatzie-who has many prior felony drug convictions-is a "career offender," and as such his offense level is based on the statutory maximum sentence for his offense. U.S.S.G. 4B1.1. The crack amount found by the district court alone largely exceeds the floor necessary under 21 U.S.C. 841(b)(1)(B) to make Swatzie eligible for a statutory maximum sentence of life in prison. Because the statutory maximum here is life, the career-offender guideline gives Swatzie an offense level of 37. See id. 4B1.1(A). An offense level of 37 and Swatzie's criminal history category of VI yield a sentencing range of 360 months to life. The district court sentenced Swatzie to life in prison. Swatzie appeals his conviction and sentence.

II. Issues and Standard of Review

Swatzie presents two issues that warrant discussion.¹. First, he contends that the district court erred in sentencing him to life when the jury's verdict was ambiguous as to what form of cocaine he possessed with intent to distribute. The jury could have found, Swatzie argues, that he possessed only the cocaine powder that he sold to David Lowe, and not the crack that authorities found in Swatzie's residence. Were that the case, according to Swatzie, his statutory maximum sentence would have been only 30 years.². This issue Swatzie points out, is one flagged in Edwards v. United States, 118 S. Ct. 1475, 1477 (1998), but not decided. See id. ("Of course, petitioners' statutory and constitutional claims would make a difference if it were possible to argue, say, that the sentences imposed exceeded the maximum that the statutes permit for a cocaine-only conspiracy.")

Swatzie's second contention is closely related to the first. He argues that the quantity of drugs found by the district court permitted the court to impose a sentence above the lowest statutory maximum for possession with intent to distribute. According to Swatzie, these facts were therefore elements of the crime, and they should thus have appeared in the indictment and been addressed by a jury instruction requiring the jury to find how much of which drugs Swatzie possessed.

Swatzie's issues are so closely intertwined as to be inseparable. Both are about the proper procedure for establishing facts that permit the imposition of a sentence under 21 U.S.C. 841(b) that exceeds the lowest statutory maximum for possession of drugs with intent to distribute; the only distinction between the issues is that the facts - type of drugs and quantity of drugs - are different. We therefore treat Swatzie's two issues together as a single issue: Whether the kind of drugs that Swatzie possessed with intent to distribute, and the quantities of those drugs that he possessed, may properly be omitted from the indictment and found by the court by a preponderance of the evidence.

Our resolution of Swatzie's case, however, has another overlay of analysis. Swatzie did not timely object to the indictment or the jury instructions, nor did he request a special verdict. As he admits, Fed. R. Crim. P. 52(b) thus limits our review to one for plain error only. See United Stated v. Pielago, 135 F.3d 703, 708 (11th Cir. 1998).

III. Discussion

"Before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affect[s] substantial rights. . . . If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1548-49 (1997). We consider each element of this test seriatim and conclude that we must affirm.

A. Was there error, and was it plain?

Swatzie tackles the first elements of the plain-error test mostly in reliance on the recent case of Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000), which issued after the district court had sentenced Swatzie, and which according to Swatzie plainly makes drug quantity and type elements of the crime that must be alleged in the indictment, submitted to the jury, and found beyond a reasonable doubt. Apprendi was convicted in a New Jersey court on a plea of guilty to possession of a firearm for an unlawful purpose. The statutory sentencing range for that offense is five to ten years, but New Jersey has a separate "hate crime" statute that, upon a finding of a purpose of discriminatory intimidation in committing the crime, imposes a sentencing range of ten to twenty years. The New Jersey court held a post-plea evidentiary hearing and found that Apprendi's conduct - firing into a black family's house - was, by a preponderance of the evidence, for the purpose of racist intimidation. It accordingly sentenced Apprendi to 12 years in prison. See id. at 2352. The Supreme Court declared this procedure to be in violation of the Sixth and Fourteenth Amendments because it removed an element of the enhanced- sentence crime from the jury's consideration. The rule that the Sixth and Fourteenth Amendments impose, the Court held, is 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. Apprendi did not argue that his indictment unconstitutionally omitted the sentence- enhancing intent, and the Supreme Court "thus [did] not address the indictment question separately." Id. at 2356 n.3.

The Government's initial brief merely "[a]ssum[ed] arguendo" that Apprendi's rule applied to enhanced drug sentences imposed under 21 U.S.C. 841(b)(1)(B). (Gov't Br. at 7.) But under intervening Department of Justice instructions, the Government filed a "Notice of Change of Position," announcing that it conceded that Apprendi applied to sentences imposed under 841, and acknowledged at oral argument that "it was hard...