United States Court of Appeals FOR THE EIGHTH CIRCUIT _______________
NO. 00-2818EM _______________
United States, * * Appellee, * Appeal from the United States * District Court for the v. * Eastern District of Missouri * Charles Franklin, * [PUBLISHED] * Appellant. * *
_______________
Submitted: May 17, 2001
Filed: May 22, 2001 _______________
Before WOLLMAN, Chief Judge, MURPHY, Circuit Judge, and CARMAN, Judge.1
CARMAN, Judge:
In August 1999, Charles Franklin (Appellant) was indicted and
charged with three counts of violating 21 U.S.C. §841(a)(1). Specifically,
Mr. Franklin was indicted for: (1) knowingly and intentionally possessing
1 The Honorable Gregory W. Carman, Chief Judge of the United States Court of International Trade, sitting by designation. with the intent to distribute over 50 grams of cocaine base; (2) knowingly
and intentionally possessing with the intent to distribute an unspecified
amount of heroin; and (3) knowingly and intentionally possessing with the
intent to distribute an unspecified amount of cocaine powder. In July
2000, Mr. Franklin was tried and convicted on all three counts. The
United States District Court for the Eastern District of Missouri (Jackson,
J.) sentenced Mr. Franklin to 240 months on each count to be served
concurrently. Mr. Franklin appealed, raising a number of evidentiary and
constitutional issues. We affirm.
I. BACKGROUND
In December 1997, St. Louis Police Department officers Brian
Dolan and Charles Johnson were conducting surveillance in the 4700
block of Northland Avenue, St. Louis. The officers were assigned to
this location because a string of armed robberies had occurred in the
neighborhood. While on surveillance, Officer Dolan and Officer
Johnson witnessed a man cross in front of the residence at 4753
Northland Avenue (the “residence”). As the officers approached the
man, he discarded a vial containing what was later determined to be
crack cocaine. The officers apprehended the man who identified
-2- himself as Kerry Dillon. Unable to produce verification of his identity,
Mr. Dillon explained that several persons located inside the residence
could confirm his identity.
As the officers escorted Mr. Dillon through a gangway leading to
the back of the residence, they encountered Appellant. Appellant, upon
being confronted, threw down a bag he was carrying, shouted “it’s the
police,” and ran across the gangway toward the back of the residence.
Officer Dolan chased Appellant and apprehended him as he was
attempting to enter the back of the residence. Officer Dolan arrested
Appellant and recovered a .38 caliber pistol from Appellant’s waistband.
Additionally, Officer Dolan recovered $1040.00 from Appellant’s
pockets.
Officers Dolan and Johnson took Appellant into the residence,
secured the eight occupants inside the house and called for assistance.
Upon the arrival of additional officers, Officer Dolan opened the bag
Appellant had thrown down and discovered “a large amount of narcotics,
as well as a scale, and a video camera and a Polaroid camera.”
-3- Appellant was tried and the jury returned guilty verdicts on each
count. Appellant raises six2 issues on appeal: (1) the district court erred
in admitting evidence of Appellant’s prior arrest and conviction for drug
possession; (2) the district court erred in overruling Appellant’s objection
to certain comments made by the United States during the government’s
rebuttal portion of closing arguments; (3) the district court erred in
overruling Appellant’s objection to the United States’ description of a
pistol witnessed in the residence and to the United States’
mischaracterization of a defense witness’ prior criminal history; (4) the
district court violated Appellant’s due process rights when it failed to
instruct the jury on every element of the offenses charged and to further
instruct the jury that each element of the offense must be proven beyond
a reasonable doubt; (5) the district court violated Appellant’s due process
rights when it inappropriately applied the penalty provisions in 21 U.S.C.
§841(b) to Count II and Count III of the indictment; and (6) the district
court erred in imposing enhanced sentences based upon a prior drug
conviction because no judgment had become final as to Appellant’s
earlier state court conviction.
2 Although Appellant’s brief enumerates seven issues, the legal bases underlying two of these issues are identical and, therefore, can be combined.
-4- II. Discussion
A. The Admission of Appellant’s Prior Arrest and Conviction for Drug Possession for the Purpose of Demonstrating Knowledge and Intent
At trial, the United States sought to enter evidence of Appellant’s
prior arrest and guilty plea for possession of cocaine base to establish in
the present case Appellant’s knowledge that he possessed narcotics and
his intention to distribute those narcotics. Appellant objected to the
admission of this evidence on the grounds that it did not meet the
requirements of Fed. R. Evid. 404(b) and that its prejudicial effect
significantly outweighed its probative value under Fed. R. Evid. 403.
The district court overruled Appellant’s objection and the evidence was
admitted.
The United States presented testimony from the officer who
arrested Appellant in 1992. The officer stated that Appellant was one of
seven people arrested in a raid on a suspected drug house. Prior to the
raid, undercover police officers purchased drugs from the home. The
transaction occurred through a mail slot in the home’s front door,
-5- preventing the police from identifying the individual who sold the drugs.
However, upon entering the house police found Appellant exiting a
bathroom that contained a plate, razor blades, and quantities of crack
cocaine, and money used by the police to purchase drugs. Appellant was
arrested and charged with possession with the intent to distribute. The
United States presented additional expert testimony from an officer who
established that razor blades and plates are paraphernalia ordinarily
associated with drug distribution. Finally, the United States presented a
valid copy of Appellant’s judgment of conviction in which he pled guilty
to possession of cocaine base.
It is well settled that the prosecution may not introduce evidence
of prior criminal conduct to establish a defendant’s character in an attempt
to prove conformity therewith. See Fed. R. Evid. 404(b). Federal Rule
of Evidence 404(b),3 however, creates several exceptions to this broad
prohibition, including the admission of prior criminal conduct to
demonstrate a defendant’s knowledge and intent. This Court has stated
that evidence of other crimes is admissible under Rule 404(b) if it is: (i)
3 FRE 404(b): Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial….
-6- relevant to a material issue; (ii) proved by a preponderance of the
evidence; (iii) higher in probative value than in prejudicial effect; and (iv)
similar in kind and close in time to the crime charged. See, e.g., United
States v. Rush, 240 F.3d 729, 731 (8th Cir. 2001). An appellate court
reviews the admission of evidence under FRE 404(b) for abuse of
discretion, and will disturb a district court’s decision “only when such
evidence clearly had no bearing on the case and was introduced solely to
prove the defendant’s propensity to commit criminal acts.” United States
v. Howard, 235 F.3d 366, 372 (8th Cir. 2000), quoting, United States v.
Brown, 148 F.3d 1003, 1009 (8th Cir. 1998), cert. denied, 525 U.S. 1169,
119 S.Ct. 1092, 143 L.Ed.2d 92 (1999). The evidence admitted by the
District Court clearly had a direct bearing on the crimes charged, was
properly admitted for purposes other than to establish a defendant’s
propensity to commit criminal acts, and, for the reasons stated below,
satisfied the four-prong test adopted by this Circuit.
First, this Circuit has frequently held that “evidence of prior
possession of drugs, even in an amount consistent only with personal use,
is admissible to show such things as knowledge and intent of a defendant
charged with a crime in which intent to distribute drugs is an element.”
United States v. Hardy, 224 F.3d 752, 757 (8th Cir. 2000), quoting,
-7- United States v. Logan, 121 F.3d 1172, 1178 (8th Cir. 1997); see also
United States v. Oates, 173 F.3d 651, 659-60 (8th Cir. 1999) (rejecting
defendant's argument that a prior conviction involving 4.4 grams of crack
cocaine was irrelevant to offenses at issue, which involved 53.1grams of
crack cocaine); United States v. Wiley, 29 F.3d 345, 351 (8th Cir. 1994)
(evidence of prior possession of cocaine base admissible in prosecution
for possession of cocaine base with intent to distribute), cert. denied, 513
U.S. 1005, 115 S.Ct. 522, 130 L.Ed.2d 427 (1994); United States v. Wint,
974 F.2d 961, 967 (8th Cir. 1992) (finding that evidence of prior
possession of a distributable amount is relevant to a defendant’s intent to
distribute drugs.) The admitted evidence was, therefore, relevant to a
material issue.
Second, the prior criminal conduct was proved by more than a
preponderance of the evidence. As stated, the United States offered the
testimony of both the 1992 arresting officer and an expert on drug
paraphernalia. In addition, the United States admitted a copy of
Appellant’s 1992 judgment of conviction. Although Appellant argues the
testimony of the two officers establishes little more than Appellant’s
proximity to drugs in the 1992 case, the Court is persuaded that this
-8- testimony is sufficient to demonstrate some evidence of knowledge and
intent.
Third, although admitting evidence of prior criminal conduct has
some prejudicial effect on the defendant, whether this effect substantially
outweighs the evidence’s probative value is left to the discretion of the
trial court. See United States v. Valencia, 61 F.3d 616, 618 (8th Cir.
1995). Because the trial court must balance the amount of prejudice
against the probative value of the evidence, this Circuit will normally
defer to that court’s judgment. See id. Moreover, the presence of a
limiting instruction diminishes the danger of any unfair prejudice arising
from the admission of other acts. See United States v. Gustafson, 728
F.2d 1078, 1084 (8th Cir. 1984). The District Court explicitly instructed
the jury that:
You may not use [the evidence of prior criminal conduct] to decide whether the defendant carried out the acts involved in the crimes that are charged in the present indictment… Remember, even if you find that the Defendant committed a similar act in the past, this is not evidence that he committed such an act in this case. You may not convict a person simply because you think or believe that he may have committed similar acts in the past… you may consider evidence of prior acts only on the issues of knowledge and intent.
-9- This instruction sufficiently diminished the prejudicial effect of the
contested evidence so as to permit its admission under Fed. R. Evid.
404(b). Similarly, this instruction was sufficient to allow for admission
under the balancing test of Fed. R. Evid. 403.
Fourth, the prior conduct admitted by the United States occurred
in 1992. In the present case, Appellant was indicted for conduct that
occurred in 1997. The length of time between incidents clearly affects the
relevance of the offered evidence, but “there is no specific number of
years beyond which prior bad acts are no longer relevant to the issue of
intent.” United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995),
quoting, United States v. Burkett, 821 F.2d 1306, 1309-10 (8th Cir. 1987).
The closer in time to the crime charged, the more likely the evidence is to
be admissible; but we have approved the admission of other crimes’
evidence for acts committed up to 13 years before the crime charged. See
id., citing, United States v. Engleman, 648 F.2d 473, 479 (8th Cir. 1981).
To determine if evidence is too remote, “the court applies a
reasonableness standard and examines the facts and circumstances of
each case.” Shoffner, 71 F.3d at 1432.. In other drug cases, we have
held that a lapse of time comparable to that present here was sufficiently
close in time to render the other crimes or bad acts evidence admissible.
-10- See, e.g., Wint, 974 F.2d at 967 (five-year lapse is reasonably close in
time).
Additionally, the two incidents are sufficiently similar in kind to
warrant admission. As we have held, “when admitted for the purpose of
showing intent, the prior acts need not be duplicates, but must be
sufficiently similar to support an inference of criminal intent.” Shoffner,
71 F.3d at 1432, quoting, United States v. Burkett, 821 F.2d at 1309. In
1992, Appellant was arrested inside a known drug-house, in proximity to
cocaine base, plates and razor blades. In the present case, Appellant was
arrested outside, in possession of cocaine base, cocaine powder, heroin,
and several forms of drug paraphernalia. Although the details surrounding
the prior incidents are not identical, they are sufficiently similar to
demonstrate knowledge and intent. Accordingly, the record clearly
demonstrates that the district court did not abuse its discretion in
admitting evidence of Appellant’s prior criminal conduct for the purpose
of establishing knowledge and intent.
B. The Allowance of Certain Comments Made by the United States During Closing Arguments
In its case-in-chief, the United States provided testimony from
Officer Dolan regarding the circumstances surrounding Appellant’s arrest.
-11- Officer Johnson testified that he ran down the gangway adjacent to 4723
Northland Avenue, rounded the rear corner of the building and witnessed
Officer Dolan apprehend Appellant as he was about to enter the rear door
of the residence.
On cross-examination, Appellant’s Trial Counsel (“Trial Counsel”)
made a sustained attack on Officer Johnson in an attempt to elicit
inconsistent statements and to diminish the impact of his testimony. In
this attack, Trial Counsel repeatedly questioned Officer Dolan as to
whether he could see the residence’s rear door from the corner of the
building. Officer Johnson conceded that it was not possible to see the
rear door while standing immediately adjacent to the building’s corner,
but consistently stated that he witnessed Appellant’s arrest as he “came
around” the rear of the house. Officer Johnson explained that he was able
to see the arrest because, as he rounded the corner, he came into the rear
of the residence. In essence, Officer Johnson refuted Trial Counsel’s
attempts to place him at the literal rear corner of the building and
established his position further toward the rear of the residence.
Throughout cross-examination and during closing arguments, Trial
Counsel made several attacks on the propriety of the police action on the
night in question, the competency of the officers involved in Appellant’s
-12- arrest, and the perceived state of corruption within law enforcement in
general. In response, the Assistant United States Attorney (the
“Prosecutor”) prosecuting the case made several comments during his
closing argument that related to Trial Counsel’s attempts to “trick”
Officer Johnson. Trial Counsel objected to these references and
characterized them as a personal attack. The district court overruled Trial
Counsel’s objection and the Prosecutor continued with his references.
Appellant argues the district court abused its discretion when it
overruled Trial Counsel’s objection. In support of his argument,
Appellant cites United States v. Nelson, 988 F.2d 798, 807 (8th Cir. 1993)
in which this Court stated that “Prosecutors should refrain from personal
attacks on defense counsel.” Appellant fails to note, however, that “[t]he
trial court has broad discretion in controlling closing arguments and
without a clear showing of abuse, that discretion will not be overturned.”
Id., quoting, United States v. Wesley, 798 F.2d 1155, 1156 (8th Cir.
1986). Further, “[i]nappropriate prosecutorial comments, standing alone,
[do] not justify a reviewing court to reverse a criminal conviction obtained
in an otherwise fair proceeding. Instead, ... the remarks must be
examined within the context of the trial to determine whether the
Prosecutor’s behavior amounted to prejudicial error.” Id., at 807,
-13- quoting, United States v. Young, 470 U.S. 1, 11-12, 105 S.Ct. 1038,
1044, 84 L.Ed.2d 1 (1985). Thus, the district court must determine
whether the challenged comments were actually improper and, if so,
whether the defendant was prejudiced by such remarks.
It is unclear whether the district court found these comments to be
proper or concluded that prejudice simply did not attach. Irrespective of
the court’s reasoning, the context in which the challenged comments were
made indicates that any inappropriateness of the word “trick” did not
translate into prejudice against the Appellant. As stated, Trial Counsel
repeatedly attacked Officer Johnson’s credibility and the integrity of law
enforcement in general. In this Circuit, “[w]here the Prosecutor, his
witnesses, or the work of the government agents is attacked [by defense
counsel], the District Attorney is entitled to make a fair response and
rebuttal.” United States v. Williams, 97 F.3d 240, 246 (8th Cir. 1996),
quoting, United States v. Lee, 743 F.2d 1240, 1253 (8th Cir. 1984).
Similarly, the Supreme Court has stated that, when attacked, a
prosecuting attorney may “respond substantially in order to ‘right the
scale.’” United States v. Young, 470 U.S. 1, 12-13, 105 S.Ct. 1038
(1985). In the present case, the Prosecutor’s comments were calculated
to rebut allegations made by Trial Counsel. Although counsel would be
-14- well-served in the future to be circumspect in his remarks, it is evident
nothing unfairly prejudiced the defendant in the prosecutor’s rebuttal.
Additionally, prior to and subsequent to the presentation of evidence, the
district court instructed the jury that closing arguments did not constitute
evidence. For these reasons, the Court finds that the challenged
comments were not prejudicial. Accordingly, the district court did not
abuse its discretion by denying Trial Counsel’s objection.
C. Admission of Statements Regarding a Witness’s Prior Criminal Conduct and the Description of a Trial Exhibit
Appellant challenges the district court’s decision to allow two
separate comments made by the Prosecutor during the course of the trial.
Because Appellant challenges the district court’s rulings on objections to
remarks made by counsel, we apply an abuse of discretion standard. For
the reasons stated below, the Court finds Appellant’s challenges to be
without merit and the district court did not abuse its discretion.
1. Alleged Improper Admission of Comments Regarding a Trial Exhibit Appellant contends the district court erred by allowing the
Prosecutor to make a reference during his closing argument that the gun
-15- viewed inside the residence at 4753 Northland Avenue “looks a lot like”
the derringer that had been used in a robbery committed earlier that night.
Appellant argues this comment improperly justified the actions of Officers
Dolan and Johnson on the night Appellant was arrested, and that the
statement constitutes an extrajudicial fact that should have been excluded.
At trial, Appellant’s counsel objected to the comment but was overruled
by the district court.
Counsel may not intimate information outside the scope of the trial.
See, e.g., Williams, 97 F.3d at 245. Where such a statement is made, the
district court must determine whether the statement was improper and, if
so, whether that statement prejudiced the opposing party. Id. at 245-46.
The statement at issue is, “Officer Johnson saw a silver gun. He had a
description of a robber that had a silver gun – a Derringer. A Derringer
looks a lot like the gun that’s in evidence.” There was nothing in
evidence to substantiate the Prosecutor’s claim that a Derringer is similar
in appearance to the gun seized by the police. This remark clearly
stemmed from the Prosecutor’s personal knowledge and, therefore, was
improper. See United States v. Grunberger, 431 F.2d 1062, 1068 (8th
Cir. 1970) (noting that statements based upon a Prosecutor’s personal
knowledge are improper).
-16- A mere finding of impropriety does not establish that the district
court abused its discretion in admitting the challenged comments. Once
a statement is determined to be improper, the Court must consider
whether the opposing party has suffered any prejudice. Whether
improper remarks have caused prejudice depends upon three factors: (1)
the strength of the properly admitted evidence; (2) the curative actions
taken by the trial court; and (3) the cumulative effect of the misconduct.
See United States v. Benitez-Meraz, 161 F.3d 1163, 1166 (8th Cir. 1998).
First, despite Appellant’s contentions otherwise, the evidence
submitted by the United States was sufficiently strong to warrant
conviction. The United States submitted as evidence the drugs and drug
paraphernalia seized from Appellant at the time of his arrest, testimony
from two officers establishing the facts and circumstances of Appellant’s
arrest, and testimony concerning his 1992 arrest and conviction for drug
possession. Although Appellant produced two witnesses who gave
different accounts of what occurred on the night Appellant was arrested,
this does not so diminish the weight of the United States’ evidence.
Indeed, when contrasted with the United States’ overwhelming evidence
the improper prosecutorial statement pales to insignificance. Second, as
-17- stated, the challenged comment occurred during the United States’ closing
argument. On several occasions, the district court instructed the jury that
counsel’s arguments did not constitute evidence and that they were to
base their judgment only upon properly admitted evidence. These
instructions were sufficient to negate any prejudice that may have
attached to the Assistant United States Attorney’s improper remarks.
Third, the Court cannot find any cumulative effect of the alleged
misconduct. The improper statement was an isolated event and isolated
incidents of improper argument will not warrant reversal unless egregious.
See United States v. Johnson, 968 F.2d 768, 771 (8th Cir. 1992). Here,
the statement was clearly not egregious. Accordingly, we find that the
district court did not abuse its discretion in overruling Appellant’s
objection.
2. Alleged Improper Comments Regarding a Defense Witness’ Criminal History
In his defense, Appellant’s Trial Counsel placed Kerry Dillon on
the witness stand. During the course of direct examination, Trial Counsel
established that Mr. Dillon had been convicted for three assault
misdemeanors. On cross-examination, the Prosecutor asked Mr. Dillon
-18- to restate the number of assaults for which he had been convicted. In
response, Mr. Dillon stated “I don’t know. Probably about one.” The
Prosecutor then responded and asked a question which the trial transcript
reflects as: “Well, when [Trial Counsel] was asking you some questions,
did you say you had been convicted of twenty-three assaults.” Trial
Counsel began to address the court, but the Prosecutor withdrew the
question and moved on to a different topic.
Following the trial, Appellant alleged that the Prosecutor’s
statement constituted Prosecutorial misconduct. The United States
claimed that the trial transcript did not accurately reflect the question that
had been asked and then withdrawn and moved the district court for a
hearing to correct the trial transcript. The district court granted the United
States’ motion and conducted an evidentiary hearing. During the course
of the hearing, the trial judge noted that she did not possess independent
recollection of the question asked. Several witnesses were examined,
including the court reporter and two witnesses called by Appellant who
testified that the record accurately reflected the question asked. After
hearing the testimony, the district court rejected the testimony of
Appellant’s two witnesses and stated that “we have to sort of try to make
sense of what likely happened… based on the context and based on what
-19- we would normally expect people to say and do under these
circumstances.”
After reviewing the evidence, the district court concluded “the
transcript does not accurately reflect the question that was asked.” This
conclusion was based on the court’s belief that an attorney of Appellant’s
Trial Counsel’s stature would not allow such a statement to be made
without objection or without taking some other corrective measure during
the course of the trial – i.e., asking for a mistrial, seeking an order
correcting the record. Moreover, the district court relied upon testimony
from the court reporter that she could have entered the number
incorrectly. However, because it was not possible to ascertain the exact
words used in the question, the district court concluded that the transcript
could not be amended.
Appellant now contends that pursuant to Fed. R. App. P. 10(e), the
district court’s conclusion is not adequate to serve as the certified
correction of a purported misstatement in the trial transcript. Rule
10(e)(2) states that a material misstatement in the trial record “may be
corrected and a supplemental record may be certified and forwarded… by
the district court.” Appellate courts will “of course give great deference
to the district court’s view and must accept the [district] court’s
-20- reconstruction of the record under Federal Rule of Appellate Procedure
10[e] unless it was intentionally falsified or plainly unreasonable.” United
States v. Zichettello, 208 F.3d 72, 93, (2nd Cir. 2000), quoting, United
States v. Keskey, 863 F.2d 474, 478 (7th Cir.1988) (internal quotations
omitted). Appellant has not demonstrated that the district court falsified
the record, nor that the district court’s interpretation was plainly
unreasonable. The district court properly exercised its discretion in
disregarding the testimony of Appellant’s witnesses, each of whom
possessed significant bias for Appellant. Based on the court’s knowledge
of Appellant’s Trial Counsel and the impartial testimony of the court
reporter, the district court reached a reasoned and reasonable conclusion.
Accordingly, we find that the district court did not abuse its discretion in
its treatment of the record.
D. Apprendi and Due Process Issues
The jury found Appellant guilty on all three indicted counts.
Appellant challenges the jury’s verdicts on the grounds that the district
court violated his due process rights as interpreted by the Supreme Court
in Apprendi v. New Jersey, 530 U.S. 466 (2000) by failing to instruct the
jury that (a) the amount of narcotics and (b) Appellant’s prior drug
-21- conviction were elements of the indicted crimes that must be proven
beyond a reasonable doubt.
1. Failure to Instruct on the Amount of Drugs Possessed
The Court rejects Appellant’s arguments. In Apprendi, 120 S.Ct.
at 2362-63, the Supreme Court stated that the Constitution requires any
fact other than a prior conviction that increases the penalty for a crime
beyond the prescribed statutory maximum be submitted to a jury and
proved beyond a reasonable doubt. (emphasis added). This Circuit has
had the opportunity to interpret the Supreme Court’s decision and has
held that Apprendi does not apply when a specific factual finding “only
narrows the sentencing judge’s discretion within the range already
authorized by the offense of conviction.” United States v. Aguayo-
Delgado, 220 F.3d 926, 933-34 (8th Cir. 2000). See also, United States
v. Robinson, 241 F.3d 115, 121 (1st Cir. 2001) (“[S]entence-enhancing
facts may may be found by the judge under a preponderance-of-the-
evidence standard as long as those facts do not result in a sentence that
exceeds the original statutory maximum.”). Franklin was charged with
three violations of 42 U.S.C. §841(a)(1) for possession with the intent to
distribute cocaine base, powder cocaine, and heroin. Without considering
his prior drug conviction, the maximum sentence that Franklin faced on
-22- each count was 20 years regardless of drug quantity. See 42 U.S.C.
§841(a)(1)(C). Since Franklin was sentenced to twenty years concurrent
on each count, his sentence was within the statutory maximum and there
was no Apprendi violation. See Aguayo-Delgado, 220 F.3d at 933-34.
When Franklin’s prior drug conviction is considered, the statutory
maximum sentence on each count would have been 30 years, see
§841(a)(1)(C), and a prior drug conviction need not be proven to the jury
beyond a reasonable doubt. See Apprendi, 120 S.Ct. at 2362-63; United
States v. Rush, 240 F.3d 729, 731 (8th Cir. 2001).
E. Alleged Error in Sentencing Appellant to 20 Years on Count II and Count III of the Indictment
Appellant argues the district court erred in sentencing him to prison
terms of 20 years under Count II and Count III of the indictment based on
the court’s belief that Appellant’s prior drug conviction negated any
discretion to impose a shorter sentence. Because Appellant is challenging
the existence of discretion with respect to sentencing, the Court reviews
Appellant’s challenge de novo. See United States v. Whitetail, 956 F.2d
857, 864 (8th Cir. 1992).
-23- Appellant’s argument is based upon a strained interpretation of the
district court’s comment, “if the Court were not so constrained to do so,
I am not sure you would be looking at a sentence of this length.”
Irrespective of any sentencing discretion permitted on Count II and Count
III, the presence of a prior conviction mandated the district court to
sentence Appellant to 20 years for Count I. Nothing in the district court’s
remark suggests the district court believed its discretion to be limited, nor
does the fact that the district court imposed sentences of 20 years on each
count indicate an erroneous belief that the court was without discretion on
Count II and Count III. Accordingly, we find that the district court did
not abuse its discretion by sentencing Appellant to 20 years on each count
for which he was judged guilty.
F. The Presence of a Prior Final Conviction
Appellant argues the district court erred in imposing an enhanced
sentence based upon a prior conviction because his prior conviction
resulted in a suspended sentence and, under Missouri law, a suspended
imposition of sentence is not a final judgment. Appellant is challenging
the district court’s statutory interpretation and, as such, we review the
-24- district court’s ruling de novo. See United States v. Hensley, 36 F.3d 39,
41 (8th Cir. 1994).
Although the Court recognizes that Missouri has chosen not to treat
suspended sentences as final judgments, Missouri law does not control
the question of what constitutes a “conviction” for purposes of 21 U.S.C.
§841. This Circuit has previously stated that “Congress has not…
specified whether state or federal law should be applied to define the term
‘conviction’… [and] ‘in the absence of clear language to the contrary,
federal law governs the application of federal legislation.’” United States
v. Ortega, 150 F.3d 937, 948 (8th Cir. 1998), citing, United States v.
Cisneros, 112 F.3d 1272, 1280 (5th Cir.1997). See Dickerson v. New
Banner Inst., Inc., 460 U.S. 103, 119, 103 S.Ct. 986, 74 L.Ed.2d 845
(1983) (noting that absent a plain indication to the contrary, we assume
"when Congress enacts a statute that it does not intend to make its
application dependent on state law.”) (internal quotations omitted)
(superseded by statute on other grounds). In Ortega, 150 F.3d, at 948,
we adopted the conclusions drawn by several of our sister circuits that
“deferred adjudications or probated sentences constitute convictions in
the context of §841.” See Cisneros, 112 F.3d at 1281; accord, United
States v. Mejias, 47 F.3d 401, 403-04 (11th Cir. 1995); United States v.
-25- Meraz, 998 F.2d 182, 184-85 (3d Cir. 1993); United States v. Campbell,
980 F.2d 245, 250-51 (4th Cir. 1992), cert. denied, 508 U.S. 952, 113
S.Ct. 2446, 124 L.Ed.2d 663 (1993); United States v. McAllister, 29 F.3d
1180, 1184-85 (7th Cir. 1994).
Appellant invites the Court to reconsider the rule set forth in
Ortega. It is well established, however, that one panel of this Court may
not overrule another and so we must decline Appellant’s invitation to
reconsider our prior decision. See, e.g., United States v. Reynolds, 116
F.3d 328, 329 (8th Cir. 1997) (“One panel may not overrule another”).
III. CONCLUSION
For the reasons stated above Appellant’s conviction and sentence
are affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
-26-