U.S. v. Wims, 98-3684

• Decision Date: 28 March 2001
• Docket Number: No. 98-3684,Docket No. 91-01032-1-CR-MMP,98-3684
• Citation: 245 F.3d 1269
• Parties: (11th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN COLLIER WIMS, Defendant-Appellant. Non-Argument Calendar D.C
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1269

245 F.3d 1269 (11th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN COLLIER WIMS, Defendant-Appellant.

No. 98-3684

Non-Argument Calendar

D.C. Docket No. 91-01032-1-CR-MMP

UNITED STATES COURT OF APPEALS ELEVENTH CIRCUIT

March 28, 2001

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

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before TJOFLAT, EDMONDSON and HULL, Circuit Judges.

PER CURIAM:

This case is before the court for consideration in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

I.

John Collier Wims was indicted by a Northern District of Florida grand jury on December 10, 1991.¹ Wims was charged in seven of the eleven counts. Count One charged Wims and six others with conspiracy to distribute cocaine and cocaine base (crack cocaine) in violation of 21 U.S.C. 846 (by virtue of violating 21 U.S.C. 841(a) and 841(b)(1)(A)); Counts Two through Six charged Wims with five separate instances (from January to August 1989) of possession of, with the intent to distribute, a mixture containing cocaine, all in violation of 21 U.S.C. 841(a) and 841(b)(1)(A) and 18 U.S.C. 2. Count Eleven was a forfeiture count for drug proceeds, pursuant to 21 U.S.C. 853(a)(1).

Wims went to trial with four co-defendants; the other two co- defendants testified for the Government at the trial. A jury found Wims guilty as charged on March 9, 1992. On May 22, 1992, the district court sentenced Wims to life imprisonment on Counts One and Two, and to forty years' imprisonment on each of Counts Three through Six.² All sentences were to be served concurrently.

Wims appealed, but his appeal was dismissed for want of prosecution. On November 5, 1998, the district court, in a proceeding brought under 28 U.S.C. 2255, granted Wims leave to prosecute an out-of-time appeal. We affirmed the convictions and sentences. United States v. Wims, 207 F.3d 661 (11th Cir. Jan. 4, 2000) (per curiam) (unpublished table decision). The United States Supreme Court granted Wims's petition for a writ of certiorari, vacated our judgment, and remanded for further consideration in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Wims v. United States, ___ U.S. ___, 121 S. Ct. 32, 148 L. Ed. 2d 3 (Oct. 2, 2000) (mem.).

II.

The only issue before us on remand is whether Wims's sentences should be set aside because they violate the constitutional principle that every element of a crime must be proven to a jury beyond a reasonable doubt.³ Because the defendant did not raise a constitutional objection at or before sentencing, we review this case for plain error.⁴ See United States v. Candelario, 240 F.3d 1300 (11th Cir. 2001). Before we may correct an error that was not timely raised, all four prongs of plain error review must be satisfied: "[T]here 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 affect[s] the fairness, integrity, or public reputation of judicial proceedings." Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549, 137 L. Ed. 2d 718 (1997) (internal quotations and citation omitted) (alteration in original); see also Fed. R. Crim. P. 52(b).

The first prong of plain error review requires that there must be error. Wims alleges that there is error insofar as his sentences exceed the twenty year maximum penalty prescribed in 21 U.S.C. 841(b)(1)(C) for convictions of cocaine possession (or conspiracy) without reference to quantity.⁵ We agree that there is error. In Apprendi, the Supreme Court established, as a constitutional matter, 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." Apprendi, 120 S.Ct. at 2362-63; see also Jones v. United States, 526 U.S. 227, 243 n.6, 119 S. Ct. 1215, 1224 n.6, 143 L. Ed. 2d 311 (1999) (stating that "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt"). In light of Apprendi, we have held that "drug quantity in [21 U.S.C. ] 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." United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir. 2000). There is error if the defendant's sentence exceeds the maximum sentence allowed by statute without regard to quantity. Id. at 1328; United States v. Nealy, 232 F.3d 825, 829 (11th Cir. 2000). In the instant case, Wims's sentences of life imprisonment (Counts One and Two) and forty years' imprisonment (Counts Three through Six) exceed the twenty year maximum prescribed in section 841(b)(1)(C).⁶ Wims thus satisfies the first prong of plain error review.

The second prong of plain error review requires that an error must be plain. An error is "plain" if it is "obvious" or "clear under current law." United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508 (1993). A sentence that exceeds the statutory maximum without regard to quantity is clear error under current law. See Rogers, 228 F.3d at 1328. This is sufficient for the error to be considered "plain" even though the law was different at the time of Wims's conviction and sentencing. See Johnson, 520 U.S. at 468, 117 S. Ct. at 1549 (holding that "where the law at the time of trial was settled and clearly contrary to the law at the time of appeal - it is enough that an error be `plain' at the time of appellate consideration").

Although Wims shows that there was plain error in his sentences, he is unable to satisfy the third prong of the plain error review: Wims fails to show that the error affected his substantial rights. Counts Three through Six of the indictment charged Wims and Pablo Cruz with possession of cocaine, with intent to distribute, on four separate occasions in 1989. Cruz entered into a plea bargain; Wims was convicted and sentenced to forty years' imprisonment on each count.⁷ At trial, Cruz testified for the prosecution that he delivered two- kilogram quantities of cocaine to Wims in four successive months in 1989; that is, Cruz made four two-kilogram deliveries to Wims.⁸ Wims did not contest, either at trial or sentencing, the amounts of the drugs about which Cruz testified.⁹ Because the amount of drugs was uncontested on Counts Three through Six, the jury must have found that Wims possessed "500 grams or more of a mixture or substance containing a detectable amount of" cocaine. 21 U.S.C. 841(b)(1)(B). Because conviction for a violation of section 841(b)(1)(B) carries a term of imprisonment between five and forty years, Wims's forty year sentences do not exceed the "prescribed statutory maximum" sentence in violation of Apprendi, 530 U.S. 466, 120 S. Ct. 2348. Wims's substantial rights were therefore not affected by receiving forty year sentences on Counts Three through Six. See Candelario, 240 F.3d at 1311-12.

Count Two of the indictment charged Wims with possession of cocaine, with intent to distribute, on January 18, 1989, in violation of 21 U.S.C. 841(a) and 841(b)(1)(A). Wims was convicted and sentenced to life imprisonment on this count. The undisputed testimony at trial was that the amount of cocaine purchased on January 18, 1989, was six one-kilogram packages;¹⁰ the only issue was whether the drugs from this transaction belonged to the defendant. The jury's guilty verdict reveals that they did attribute the drugs to Wims, which necessarily means they attributed six kilograms of cocaine to Wims. Wims failed to object, either at the sentencing hearing or in his written objections to the PSI, to the quantity of drugs from this transaction as six kilograms, providing further support for the proposition that the amount was not at issue.

For Wims to be sentenced to life imprisonment on Count Two after Apprendi, we must find that the jury, as a necessary part of its guilty verdict, determined possession of at least five kilograms of cocaine. See 21 U.S.C. 841(b)(1)(A) (prescribing a sentence of between ten years and life imprisonment for possession of at least five kilograms of cocaine); cf. Candelario, 240 F.3d at 1312 (holding that a finding of at least five grams of cocaine base exposed the defendant to the penalties prescribed in section 841(b)(1)(B)). Because the jury necessarily determined that Wims possessed six kilograms of cocaine when it convicted him on Count Two, Wims's substantial rights were not affected by a sentence of life imprisonment, as authorized by section 841(b)(1)(A).

Count One of the indictment charged Wims (and six others) with conspiracy to distribute cocaine and crack cocaine in violation of 21 U.S.C. 841(a) and 841(b)(1)(A), all in violation of 21 U.S.C. 846. Wims was convicted and sentenced to life imprisonment on this count. A finding of at least five kilograms of cocaine is required to authorize a life sentence for Wims, pursuant to 21 U.S.C. 841(b)(1)(A). The jury's convictions on Counts Two through Six demonstrate that the jury necessarily found at least five kilograms of cocaine, as the substantive offenses in those counts all formed part of the conspiracy.¹¹ Wims's sentence of life imprisonment on Count One did not, therefore, affect his substantial rights.

The fourth prong of plain error review is an inquiry whether the error "seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings." Johnson, 520 U.S. at 467, 117 S. Ct. at 1549 (internal quotations omitted). Because Wims fails to satisfy the third...