United States v. Brown

Panel rehearing granted and

en banc rehearing denied by

opinion filed 8/1/02

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-4943

PATRICK FURMAN BROWN,

Defendant-Appellant.

On Remand from the United States Supreme Court.

(S. Ct. No. 00-6846)

Submitted: November 14, 2001

Decided: April 24, 2002

Before WIDENER, WILKINS, and TRAXLER, Circuit Judges.

____________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

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COUNSEL

Andrew D. Grimes, Summerville, South Carolina, for Appellant.

Scott N. Schools, United States Attorney, William K. Witherspoon,

Assistant United States Attorney, Ann Agnew Cupp, OFFICE OF

THE UNITED STATES ATTORNEY, Columbia, South Carolina, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

OPINION

PER CURIAM:

Brown was convicted in a trial by jury of conspiracy to distribute

and possession with intent to distribute crack cocaine in violation of

21 U.S.C. § 846 (Count 1); three counts of distribution and possession

with intent to distribute crack cocaine in violation of 21 U.S.C. § 841

(Counts 2, 4, and 5); and using and carrying a firearm during and in

relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)

(Count 3). The indictment did not charge, and the jury was not

instructed, as to specific drug quantities in Counts 1, 2, 4 or 5. On

December 23, 1999, Brown was sentenced to life imprisonment on

the conspiracy count (Count 1); to three concurrent 480 month terms

on the distribution counts (Counts 2, 4, and 5); and a consecutive 60

month term on the firearms count (Count 3). The sentencing order

was silent as to the guideline application but the transcript of the sen-

tencing hearing indicates that the life sentence on the conspiracy

count was arrived at by the cross-reference in Sentencing Guideline

§ 2D1.1(d)(1) to the first degree murder guideline in Guideline

§ 2A1.1, reasoning that the murder occurred during the course of a

drug trafficking conspiracy and fell within 18 U.S.C. § 1111. On

appeal to this court, the only question in the brief was this:

WHETHER THE DISTRICT COURT ABUSED ITS DIS-

CRETION IN APPLYING THE CROSS-REFERENCE IN

FINDING PATRICK FURMAN BROWN COMMITTED

FIRST DEGREE MURDER.

a. GUIDELINES, CROSS-REFERENCE

AND FEDERAL MURDER STATUTES.

b. FIRST DEGREE MURDER REQUIRE-

MENTS.

c. DISCUSSION OF ISSUES.

Brief, p. 2.

2

Under the discussion of issues section, the brief describes Brown's

position as follows:

The sole issue Mr. Brown is raising on appeal is whether

there is sufficient evidence of premeditation to support the

lower court's finding that a first degree murder occurred in

order to apply the cross reference.

Brief, p. 9.

On July 27, 2000, we affirmed in an unpublished opinion, United

States v. Brown, No. 99-4943, 225 F.3d 655 (table), and decided only

the issue of the imposition of the life sentence.1 Brown's petition for

certiorari to the Supreme Court raised two issues:

Whether in light of Apprendi vs. New Jersey, 530 U.S.

___, No. 99-478, 2000 W.L. 807189 (June 26, 2000) the

United States District Court for the District of South Caro-

lina erred in holding that drug amounts set forth in 21

U.S.C. 841(b) are a sentencing factor rather than an element

of the offense.

Whether in light of Apprendi vs. New Jersey, 530 U.S.

___, No. 99-478, 2000 W.L. 807189 (June 26, 2000) the

United States District Court for the District of South Caro-

lina erred in finding that Patrick Furman Brown committed

first degree murder and that the murder was related to the

drug conspiracy in applying the cross-reference.

The Supreme Court then, in the case at hand, entered its order of

February 20, 2001, 531 U.S. 1136, as follows:

No. 00-6846. Brown v. United States. C.A. 4th Cir.

Motion of petitioner for leave to proceed in forma pauperis

granted. Certiorari granted, judgment vacated, and case

remanded for further consideration in light of Apprendi v.

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1

Apprendi v. New Jersey was decided on June 26, 2000. 530 U.S. 466

(2000).

3

New Jersey, 530 U.S. 466 (2000). Reported below: 225 F.3d

655.

Although the only question raised on appeal to us was whether or

not there was sufficient evidence of premeditation to support the find-

ing of the district court that a first degree murder had occurred in

order to apply the cross-reference to first degree murder under the

Sentencing Guidelines, we are of opinion that on the facts of this case

as related above, Apprendi having been decided on June 26, 2000 and

the Apprendi mandate having issued on July 26, 2000, between the

sentencing by the district court on December 23, 1999, and our deci-

sion on July 27, 2000, the case should have been remanded by us for

resentencing in the light of Apprendi under such decisions as United

States v. Johnson, 457 U.S. 537, 562 (1982), which held that the law

in effect at the time of a decision by an appellate court is the law

which should be applied by that court in a criminal case on direct

appeal.

We required supplemental briefing in view of Apprendi, which

raised the issues discussed below. Apprendi held 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." After reviewing

Brown's convictions and sentences for plain error in light of

Apprendi, we affirm in part, vacate in part, and remand for resentenc-

ing. See United States v. Promise, 255 F.3d 150, 154 (4th Cir. 2001)

(en banc) (discussing plain error standard of review), petition for cert.

filed, Sept. 20, 2001 (No. 01-6398).

Brown argues four issues on remand. First, Brown argues on

remand that § 841 is unconstitutional after Apprendi. The case on

which he relies for support was vacated and the Ninth Circuit, sitting

en banc, concluded that § 841 was not facially unconstitutional. See

United States v. Buckland, 259 F.3d 1157 (9th Cir.), reh'g en banc

granted, 265 F.3d 1085 (9th Cir. 2001), en banc, 277 F.3d 1173 (9th

Cir. 2002). Moreover, we recently held that #7F8E # 841 is not facially

unconstitutional." United States v. McAllister, 272 F.3d 228, 232 (4th

Cir. 2001). We hold that Brown is not entitled to relief on this claim.

Second, Brown challenges the district court's jurisdiction as to

Counts 2, 4, and 5. He contends that, in light of Apprendi, the indict-

4

ment is defective because it failed to charge the quantity of crack

cocaine as an element of the offense in Counts 2, 4, and 5, thereby

depriving the district court of jurisdiction. We hold that the indict-

ment properly charged the offenses for which Brown was convicted.

See Promise, 255 F.3d at 160 (finding indictment sufficient where it

charged defendant with conspiracy to possess with intent to distribute

"a quantity of cocaine and cocaine base"). There is no constitutional

or like rule forbidding Congress from making unlawful the possession

or distribution of a controlled substance without reference to quantity.

Third, he contends that his life and concurrent forty-year sentences

are invalid after Apprendi.2 In Promise, we applied Apprendito drug

offenses in §§ 841 and 846 and held that "the specific threshold

[drug] quantity must be treated as an element of an aggravated drug

trafficking offense, i.e., charged in the indictment and proved to the

jury beyond a reasonable doubt." Id. at 156-57 (footnotes omitted).

Here, drug quantity was not charged in the indictment or submitted

to the jury.

Brown received a life sentence on Count 1. The district court

applied the murder cross-reference under USSG § 2A1.1, which sets

a base offense level of 43, resulting in a presumptive life sentence in

all cases.3 The court then sentenced Brown to three 480-month con-

current sentences for Counts 2, 4, and 5. Brown also received a con-

secutive five-year sentence on Count 3.

Because the murder occurred during the course of the conspiracy,

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2

Brown urges us to reconsider our decision in United States v. Kinter,

235 F.3d 192 (4th Cir. 2000) (holding that Apprendi does not apply to

judge's exercise of sentencing discretion within statutory range, so long

as defendant's sentence is not set beyond maximum term specified in

substantive statute), cert. denied, 121 S. Ct. 1393 (2001). We decline to

do so because "a panel of this court cannot overrule, explicitly or implic-

itly, the precedent set by a prior panel of this court[;] [o]nly the Supreme

Court or this court sitting en banc can do that." Mentavlos v. Anderson,

249 F.3d 301, 312 n.4 (4th Cir.), cert. denied, 122 S. Ct. 349 (2001).

3

The sentencing guideline sentencing table provides that a base level

offense of 43 carries life imprisonment. USSG Ch. 5, Pt. A (sentencing

table).

5

the district court properly included the murder as relevant conduct.

Relying on drug quantity in the pre-sentence report, the district court,

however, improperly assumed that the maximum sentence under

§ 846 was life imprisonment. Under Apprendi, since drug quantity

was not included in the indictment, the maximum sentence for Count

1 is 20 years.4 Imposing a life sentence by using the murder cross-

reference violated the guidelines, which state: "Where the statutorily

authorized maximum sentence is less than the minimum of the appli-

cable guideline range, the statutorily authorized maximum sentence

shall be the guideline range." USSG § 5G1.1(a).5 We therefore find

that there is error and that the error is plain. Promise, 255 F.3d at 156-

57, 160.

As to Counts 2, 4, and 5, the district court sentenced Brown to

three 40 year sentences, running concurrently with his life sentence.

No drug quantity was charged, therefore, the maximum sentence for

Counts 2, 4, and 5, like Count 1, is 20 years. 21 U.S.C.

§ 841(b)(1)(C). United States v. Angle, 254 F.3d 514 (4th Cir. 2000)

(en banc), cert. denied, 122 S.Ct. 309 (2001). Since drug quantity was

not charged in the indictment, the maximum prison term for his multi-

ple convictions is 85 years. Count 1, 2, 4, and 5 each carry a 20-year

sentence. Count 3 carries a five-year term. USSG§5G1.2(d) states:

"If the sentence imposed on the count carrying the highest statutory

maximum is less than the total punishment, then the sentence imposed

on one or more of the other counts shall run consecutively, but only

to the extent necessary to produce a combined sentence equal to the

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4

21 U.S.C. § 846 requires the same penalty as that prescribed for the

underlying offense, the commission of which was the object of the con-

spiracy. Since no drug amount was alleged in the indictment or presented

to the jury for any count, the maximum allowable sentence is 20 years.

5

We agree with the Seventh Circuit which recently addressed this

guideline provision in United States v. Westmoreland, 240 F.3d 618, 636

(7th Cir. 2001). The court stated, "it is not possible to apply the cross-

reference in a manner that produces a sentence greater than the statutory

maximum applicable to the charged crime . . . . Therefore, even though

the murder cross-reference will always allow for a life sentence, the

Guidelines require that the cross-reference only increase the defendant's

sentence at most to the statutory maximum associated with the charge on

which the defendant was convicted." 240 F.3d at 636.

6

total punishment." Under the sentencing guidelines, the four 20-year

terms and one five-year must be imposed consecutively for a total of

85 years.

Because Brown's life sentence exceeds the total statutory maxi-

mum prison term of 85 years for multiple convictions involving an

unspecified amount of drugs, we hold that the error in Brown's life

sentence affects his substantial rights. United States v. Angle, 254

F.3d 514, 518-19 (4th Cir.) (en banc), cert. denied, 122 S. Ct. 309

(2001); United States v. White, 238 F.3d 537, 542-43 (4th Cir.), cert.

denied, 121 S. Ct. 2235 (2001). Thus, Brown "can demonstrate that

[his] sentence is `longer than that to which he would otherwise be

subject.'" United States v. Cotton, 261 F.3d 397, 403 (4th Cir. 2001)

(quoting Angle, 254 F.3d at 518), petition for cert. filed, Oct. 31,

2001; cf. United States v. Roberts, 262 F.3d 286, 292 (4th Cir. 2001)

(holding that defendants' substantial rights not affected where sen-

tencing guidelines stacking rules required imposition of consecutive

sentences totaling 240 years for one defendant and 380 years for the

other).

Having concluded that there is plain error affecting Brown's sub-

stantial rights, we exercise our discretion to notice the error. Cotton,

261 F.3d at 404-05.

Accordingly, we vacate Brown's life sentence and remand for

resentencing consistent with USSG §§ 5G1.1(a), 5G1.2(d) and White,

238 F.3d at 543. We affirm the judgment of conviction in all other

respects. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court,

and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED

7