USA. v. Promise

• Decision Date: 27 February 2001
• Docket Number: No. 99-4737,99-4737
• Citation: 255 F.3d 150
• Parties: (4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARION PROMISE, a/k/a Mario,Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 150

255 F.3d 150 (4th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARION PROMISE, a/k/a Mario,Defendant-Appellant.

No. 99-4737

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: February 27, 2001

Decided: June 29, 2001

Amended July 17, 2001

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Chief District Judge. (CR-98-7-MU) COUNSEL ARGUED: Noell Peter Tin, Charlotte, North Carolina, for Appellant. Nina Swift Goodman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Mark T. Calloway, United States Attorney, Gretchen C.F. Shappert, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before WILKINSON, Chief Judge, and WIDENER, WILKINS, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, KING, and GREGORY, Circuit Judge.

Affirmed by published opinion. Judge Wilkins announced the judgment of the court and delivered the opinion of the court with respect to Parts I and II A-C, in which Judges Widener, Williams, Michael, Motz, Traxler, and King joined, and an opinion with respect to Part IID, in which Chief Judge Wilkinson and Judges Williams and Traxler joined. Chief Judge Wilkinson wrote an opinion concurring in part and concurring in the judgment. Judge Niemeyer wrote an opinion concurring in the judgment, in which Judge Gregory joined. Judge Luttig wrote an opinion concurring in the judgment, in which Chief Judge Wilkinson and Judges Niemeyer and Gregory joined as to Parts I, II, and III. Judge Motz wrote an opinion concurring in part, dissenting in part, and dissenting in the judgment, in which Judge Widener joined as to Parts I, II, III, and V and Judge Michael and Judge King joined in its entirety.

WILKINS, Circuit Judge:

Appellant Marion Promise was charged in a single-count indictment with conspiring to possess with the intent to distribute "a quantity of cocaine and cocaine base," J.A. 33, and was convicted by a jury. Promise was sentenced to 360 months imprisonment based upon a determination by the district court that he should be held accountable for more than 1.5 kilograms of cocaine base. Promise maintains that in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), the district court committed plain error in failing to treat the specific amount of cocaine base attributed to him as an element of the offense.

For the reasons set forth below, we conclude that under Apprendi, in order to authorize the imposition of a sentence exceeding the maximum allowable without a jury finding of a specific threshold drug quantity, such drug quantities must be treated as elements of aggravated drug trafficking offenses under 21 U.S.C.A.S 841 (West 1999 & Supp. 2001), i.e., charged in the indictment and proved to the jury beyond a reasonable doubt.¹ We further conclude that because the indictment that charged Promise did not allege a specific threshold quantity of cocaine or cocaine base and the jury did not make a finding regarding whether the offense involved such a quantity, Promise's conviction subjected him to a maximum penalty of 20 years imprisonment. His sentence of 30 years was therefore erroneous. Although this error was plain and affected Promise's substantial rights, we decline to exercise our discretion to notice the error. Accordingly, we affirm.

I.

Evidence presented at trial established that Promise supplied cocaine base to a drug distribution ring operated by William Moore, Jr. in Gastonia, North Carolina. Moore testified that Promise supplied him with up to two kilograms of cocaine base every other week during the course of their involvement. Promise also provided substantial quantities of cocaine and cocaine base to several of Moore's cohorts. Based upon this evidence, Promise was convicted of conspiracy to possess with the intent to distribute cocaine and cocaine base, see 21 U.S.C.A. S 846 (West 1999). The indictment did not allege a specific quantity of cocaine base, and the jury was not instructed to make a finding regarding the quantity of cocaine base attributable to Promise.²

At sentencing, the district court determined by a preponderance of the evidence that Promise should be held accountable for more than 1.5 kilograms of cocaine base and, after further determinations, concluded that Promise's sentencing range under the United States Sentencing Guidelines was 360 months to life imprisonment. The court sentenced Promise to 360 months imprisonment. Promise subsequently appealed, arguing for the first time that the district court had erred in treating the quantity of drugs as a sentencing factor rather than as an element of the offense, thereby violating his right to due process. Promise based his argument on Jones v. United States, 526 U.S. 227 (1999), in which the Supreme Court had held that serious bodily injury was an element of an aggravated offense under the federal carjacking statute rather than a sentencing factor. See Jones, 526 U.S. at 251-52.

Promise's appeal was consolidated with that of a codefendant, William Patrick Miller. In June 2000, a panel of this court affirmed as to both Promise and Miller. See United States v. Miller, 217 F.3d 842, 2000 WL 774804 (4th Cir.) (per curiam) (unpublished table decision), cert. denied, 121 S. Ct. 410 (2000) (denying Miller's petition for writ of certiorari). With respect to Promise's due process challenge, the panel concluded that Promise could not demonstrate plain error because "[n]o circuit to address this question has extended Jones to" 21 U.S.C.A. S 841.³ Id. , 2000 WL 774804, at **1 (citing cases). Promise petitioned for panel and en banc rehearing, arguing that the recent decision of the Supreme Court in Apprendi required this court to reconsider its refusal to extend Jones toS 841. The panel granted panel rehearing and directed the parties to file supplemental briefs. Before the panel issued a decision, we voted to rehear Promise's appeal en banc along with the appeals in United States v. Angle, No. 96-4662, also decided today.

II.

Promise argues that his conviction, or at least his sentence, is invalid because a specific threshold drug quantity was not alleged in the indictment and the jury was not required to make a finding regarding specific threshold drug quantity beyond a reasonable doubt. Promise failed to make this argument before the district court and thus forfeited the asserted error. See Yakus v. United States, 321 U.S. 414, 444 (1944) ("No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it."). Our authority to correct forfeited errors is granted by Federal Rule of Criminal Procedure 52(b), which provides that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." See United States v. Olano, 507 U.S. 725, 731-32 (1993) (interpreting Rule 52(b)); see also United States v. Young, 470 U.S. 1, 15 (1985) (explaining that "[t]he plain-error doctrine of Federal Rule of Criminal Procedure 52(b) tempers the blow of a rigid application of the contemporaneous-objection requirement" by authorizing correction of "particularly egregious" forfeited errors (internal quotation marks omitted) (footnote omitted)). As the Court explained in Olano, in order to establish our authority to notice an error not preserved by timely objection, Promise must demonstrate that an error occurred, that the error was plain, and that the error affected his substantial rights. See Olano, 507 U.S. at 732. Even if Promise can satisfy these requirements, correction of the error remains within our discretion, which we "should not exercise . . . unless the error `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Id. (second alteration in original) (quoting Young, 470 U.S. at 15).

A.

Our first inquiry, of course, is whether an error occurred. Before turning to the substance of Promise's argument, we examine the cases on which he relies, Jones and Apprendi .

1.

Jones concerned the federal carjacking statute, 18 U.S.C. S 2119, which at the time provided as follows:

"Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall-"

(1) be fined under this title or imprisoned not more than 15 years, or both,

"(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and

"(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both."

Jones, 526 U.S. at 230 (quoting 18 U.S.C. S 2119 (Supp. V 1994)). Nathaniel Jones was charged with violating S 2119 in an indictment that did not mention serious bodily injury or death, and the jury that convicted Jones was not instructed to make findings regarding whether serious bodily injury or death resulted from his actions. See id. at 230-31. At sentencing, however, the district court determined by a preponderance of the evidence that one of the victims had suffered serious bodily injury; accordingly, the court sentenced Jones to 25 years imprisonment. See id. at 231.

The Supreme Court reversed, determining that subsections (2) and (3) of S 2119 set forth elements of aggravated offenses, not sentencing factors relevant to punishment for a single offense defined in the principal paragraph of the statute. Although the Court concluded as a matter of statutory construction that "the fairest reading of S 2119 treats the fact of serious bodily harm as an element," it acknowledged "the...