In the United States Court of Appeals For the Seventh Circuit ____________
No. 02-3971 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.
JAMES E. JOHNSON, Defendant-Appellant. ____________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 97 CR 211—Charles N. Clevert, Jr., Judge. ____________ ARGUED JUNE 11, 2003—DECIDED JULY 9, 2003 ____________
Before POSNER, COFFEY and RIPPLE, Circuit Judges. PER CURIAM. A jury found James Johnson guilty of conspiracy to distribute more than five kilograms of co- caine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. His first sentence was vacated and, at resentencing, the dis- trict court imposed a term of 210 months’ imprisonment and five years’ supervised release. Mr. Johnson now ap- peals this sentence. He argues that the district court en- hanced the sentence in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), when it calculated the drug quantity involved in the offense without submitting that issue to a jury. Mr. Johnson acknowledges our precedent holding that Apprendi does not affect the application of the Sen- 2 No. 02-3971
tencing Guidelines as long as the sentence is within the statutory maximum. Nevertheless, he requests that we reconsider this issue in light of the Supreme Court’s deci- sion in Ring v. Arizona, 536 U.S. 584 (2002). For the rea- sons set forth in the following opinion, we affirm the judgment of the district court.
I BACKGROUND The facts in this case are not at issue; we set forth a plenary rendition in our earlier decision in United States v. Johnson, 200 F.3d 529, 531-32 (7th Cir. 2000). We shall summarize here. Mr. Johnson distributed cocaine for many years, begin- ning around 1979. From 1995 until his arrest in November 1997, he obtained cocaine from Michael Blake and Gordon Hagenkord, both of whom had received the cocaine from Candelario Nevarez-Diaz. When cocaine was available, Blake and Hagenkord delivered it to Mr. Johnson; on those occasions (every few weeks), Mr. Johnson paid them for previous deliveries. Most deliveries involved between one and four kilograms of cocaine. Although Blake was arrested in July 1997, Mr. Johnson continued thereafter to obtain cocaine from Hagenkord and another associate. After his arrest, Blake agreed to cooperate with the government and record several conversations with Mr. Johnson about buying cocaine. At one meeting, Mr. Johnson provided Blake $5,000 toward the purchase of a kilogram or more of cocaine. Through Blake’s cooperation, Mr. Johnson was arrested in November 1997 in connection with the drug conspiracy. At his trial in October 1998, Mr. Johnson testified that he was not involved in the conspiracy. Blake, however, testi- No. 02-3971 3
fied as the government’s primary witness, and audio tapes of his conversations with Mr. Johnson were admit- ted into evidence. Id. These conversations corroborated Blake’s testimony that he fronted cocaine to Mr. Johnson and that Mr. Johnson willingly participated in the conspir- acy. Blake specifically testified that he supplied Mr. John- son with between three and four kilograms of cocaine every ten to twelve days from 1995 until his arrest and that Mr. Johnson sold the cocaine on credit for approxi- mately $27,000 per kilogram. Blake estimated that between January 1, 1996 and July 24, 1997, he supplied Mr. Johnson with between thirty-five and forty-five kilograms of co- caine. Id. Similarly, the government estimated, based on the recollection of witnesses at trial, that Mr. Johnson distributed approximately two kilograms of cocaine a month for twenty-one months, a total of forty-two kilo- grams. At the conclusion of the trial, the jury returned a verdict of guilty on one count of conspiracy to dis- tribute and possession with intent to distribute cocaine. Mr. Johnson was sentenced originally in 1999. The dis- trict court determined that he was responsible for 42 kilograms of cocaine. After finding that Mr. Johnson had been convicted of at least three controlled substance offenses in the past, the court applied the Armed Career Criminal Act. The court sentenced him to 360 months’ imprisonment. We affirmed that judgment. See Johnson, 200 F.3d at 531. One of Mr. Johnson’s prior convictions was later vacated, however, and Mr. Johnson filed a motion under 28 U.S.C. § 2255 seeking resentencing because the Armed Career Criminal Act no longer applied. At resentencing in October 2002, the district court calculated an offense level of 34, a criminal history category of IV, and a guideline imprisonment range of 210 to 262 months. The court then sentenced him to 210 months’ im- prisonment and five years’ supervised release. 4 No. 02-3971
II DISCUSSION The Supreme Court’s decision in Apprendi establishes the general rule that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a rea- sonable doubt.” 530 U.S. at 490. However, a particular sentence does not implicate Apprendi “unless it exceeds a default statutory maximum.” United States v. Knox, 301 F.3d 616, 620 (7th Cir. 2002). The maximum sentence permitted for distributing more than five grams of cocaine is life in prison. 21 U.S.C. § 841(b)(1)(A). Because Mr. Johnson’s sentence—210 months’ imprisonment and five years’ supervised release—is less than the statutory maxi- mum prescribed by the statute of conviction, Apprendi does not apply. United States v. De La Torre, 327 F.3d 605, 611 (7th Cir. 2003); United States v. Holman, 314 F.3d 837, 846 (7th Cir. 2002), cert. denied, 123 S. Ct. 2238 (2003); United States v. Brumfield, 301 F.3d 724, 734-35 (7th Cir.), cert. denied, 123 S. Ct. 681 (2002). Mr. Johnson nevertheless argues that his sentence vio- lates Apprendi because the district court rather than a jury determined the quantity of cocaine and that determina- tion increased his recommended sentence under the Sen- tencing Guidelines. Mr. Johnson concedes that we have rejected this argument before but submits that the Su- preme Court’s recent decision in Ring requires us to re- consider that position. In Ring, the Court held that, under Apprendi, additional facts increasing a statutory maximum punishment from life imprisonment to death must be submitted to the jury and proven beyond a reasonable doubt. 536 U.S. at 609. Mr. Johnson does not argue that Ring’s precise holding requires us to reconsider our ap- plication of Apprendi; rather, he contends that the Court’s No. 02-3971 5
discussion of the Sentencing Guidelines took a “functional approach” and analyzed the guidelines as “ ‘laws’ that prescribe the maximum authorized sentence within the meaning of Apprendi, even though those adjustments are not expressed as elements of the criminal offense.” Appel- lant’s Br. at 11. He thus contends that the guidelines are sentencing laws that “must be viewed as setting the maximum prescribed sentence for purposes of the con- stitutional principle in Apprendi.” Id. at 14. Accordingly, Mr.
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In the United States Court of Appeals For the Seventh Circuit ____________
No. 02-3971 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.
JAMES E. JOHNSON, Defendant-Appellant. ____________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 97 CR 211—Charles N. Clevert, Jr., Judge. ____________ ARGUED JUNE 11, 2003—DECIDED JULY 9, 2003 ____________
Before POSNER, COFFEY and RIPPLE, Circuit Judges. PER CURIAM. A jury found James Johnson guilty of conspiracy to distribute more than five kilograms of co- caine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. His first sentence was vacated and, at resentencing, the dis- trict court imposed a term of 210 months’ imprisonment and five years’ supervised release. Mr. Johnson now ap- peals this sentence. He argues that the district court en- hanced the sentence in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), when it calculated the drug quantity involved in the offense without submitting that issue to a jury. Mr. Johnson acknowledges our precedent holding that Apprendi does not affect the application of the Sen- 2 No. 02-3971
tencing Guidelines as long as the sentence is within the statutory maximum. Nevertheless, he requests that we reconsider this issue in light of the Supreme Court’s deci- sion in Ring v. Arizona, 536 U.S. 584 (2002). For the rea- sons set forth in the following opinion, we affirm the judgment of the district court.
I BACKGROUND The facts in this case are not at issue; we set forth a plenary rendition in our earlier decision in United States v. Johnson, 200 F.3d 529, 531-32 (7th Cir. 2000). We shall summarize here. Mr. Johnson distributed cocaine for many years, begin- ning around 1979. From 1995 until his arrest in November 1997, he obtained cocaine from Michael Blake and Gordon Hagenkord, both of whom had received the cocaine from Candelario Nevarez-Diaz. When cocaine was available, Blake and Hagenkord delivered it to Mr. Johnson; on those occasions (every few weeks), Mr. Johnson paid them for previous deliveries. Most deliveries involved between one and four kilograms of cocaine. Although Blake was arrested in July 1997, Mr. Johnson continued thereafter to obtain cocaine from Hagenkord and another associate. After his arrest, Blake agreed to cooperate with the government and record several conversations with Mr. Johnson about buying cocaine. At one meeting, Mr. Johnson provided Blake $5,000 toward the purchase of a kilogram or more of cocaine. Through Blake’s cooperation, Mr. Johnson was arrested in November 1997 in connection with the drug conspiracy. At his trial in October 1998, Mr. Johnson testified that he was not involved in the conspiracy. Blake, however, testi- No. 02-3971 3
fied as the government’s primary witness, and audio tapes of his conversations with Mr. Johnson were admit- ted into evidence. Id. These conversations corroborated Blake’s testimony that he fronted cocaine to Mr. Johnson and that Mr. Johnson willingly participated in the conspir- acy. Blake specifically testified that he supplied Mr. John- son with between three and four kilograms of cocaine every ten to twelve days from 1995 until his arrest and that Mr. Johnson sold the cocaine on credit for approxi- mately $27,000 per kilogram. Blake estimated that between January 1, 1996 and July 24, 1997, he supplied Mr. Johnson with between thirty-five and forty-five kilograms of co- caine. Id. Similarly, the government estimated, based on the recollection of witnesses at trial, that Mr. Johnson distributed approximately two kilograms of cocaine a month for twenty-one months, a total of forty-two kilo- grams. At the conclusion of the trial, the jury returned a verdict of guilty on one count of conspiracy to dis- tribute and possession with intent to distribute cocaine. Mr. Johnson was sentenced originally in 1999. The dis- trict court determined that he was responsible for 42 kilograms of cocaine. After finding that Mr. Johnson had been convicted of at least three controlled substance offenses in the past, the court applied the Armed Career Criminal Act. The court sentenced him to 360 months’ imprisonment. We affirmed that judgment. See Johnson, 200 F.3d at 531. One of Mr. Johnson’s prior convictions was later vacated, however, and Mr. Johnson filed a motion under 28 U.S.C. § 2255 seeking resentencing because the Armed Career Criminal Act no longer applied. At resentencing in October 2002, the district court calculated an offense level of 34, a criminal history category of IV, and a guideline imprisonment range of 210 to 262 months. The court then sentenced him to 210 months’ im- prisonment and five years’ supervised release. 4 No. 02-3971
II DISCUSSION The Supreme Court’s decision in Apprendi establishes the general rule that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a rea- sonable doubt.” 530 U.S. at 490. However, a particular sentence does not implicate Apprendi “unless it exceeds a default statutory maximum.” United States v. Knox, 301 F.3d 616, 620 (7th Cir. 2002). The maximum sentence permitted for distributing more than five grams of cocaine is life in prison. 21 U.S.C. § 841(b)(1)(A). Because Mr. Johnson’s sentence—210 months’ imprisonment and five years’ supervised release—is less than the statutory maxi- mum prescribed by the statute of conviction, Apprendi does not apply. United States v. De La Torre, 327 F.3d 605, 611 (7th Cir. 2003); United States v. Holman, 314 F.3d 837, 846 (7th Cir. 2002), cert. denied, 123 S. Ct. 2238 (2003); United States v. Brumfield, 301 F.3d 724, 734-35 (7th Cir.), cert. denied, 123 S. Ct. 681 (2002). Mr. Johnson nevertheless argues that his sentence vio- lates Apprendi because the district court rather than a jury determined the quantity of cocaine and that determina- tion increased his recommended sentence under the Sen- tencing Guidelines. Mr. Johnson concedes that we have rejected this argument before but submits that the Su- preme Court’s recent decision in Ring requires us to re- consider that position. In Ring, the Court held that, under Apprendi, additional facts increasing a statutory maximum punishment from life imprisonment to death must be submitted to the jury and proven beyond a reasonable doubt. 536 U.S. at 609. Mr. Johnson does not argue that Ring’s precise holding requires us to reconsider our ap- plication of Apprendi; rather, he contends that the Court’s No. 02-3971 5
discussion of the Sentencing Guidelines took a “functional approach” and analyzed the guidelines as “ ‘laws’ that prescribe the maximum authorized sentence within the meaning of Apprendi, even though those adjustments are not expressed as elements of the criminal offense.” Appel- lant’s Br. at 11. He thus contends that the guidelines are sentencing laws that “must be viewed as setting the maximum prescribed sentence for purposes of the con- stitutional principle in Apprendi.” Id. at 14. Accordingly, Mr. Johnson concludes, we should reconsider our applica- tion of Apprendi and determine that “the principle Apprendi established should apply to the Guidelines.” Id. at 15. But as the government notes, both the Supreme Court and our sister circuits have repeatedly affirmed that the Guidelines should be treated as rules rather than as statutes. Consequently, facts affecting sentencing deter- minations need not be determined by a jury as long as the sentence imposed does not exceed the maximum penalty 1 set forth in the statute. Ring does not suggest a contrary
1 See, e.g., Talbott v. State of Indiana, 226 F.3d 866, 869 (7th Cir. 2000); United States v. Davis, 329 F.3d 1250, 1254-55 (11th Cir. 2003); United States v. Goodine, 326 F.3d 26, 32-34 (1st Cir. 2003); United States v. Fields, 325 F.3d 286, 288-89 (D.C. Cir. 2003); United States v. Chorin, 322 F.3d 274, 278-79 (3d Cir. 2003); United States v. Murillo-Iniguez, 318 F.3d 709, 713-14 (6th Cir. 2003); United States v. Piggie, 316 F.3d 789, 791-92 (8th Cir. 2003); United States v. Shwayder, 312 F.3d 1109, 1122 (9th Cir. 2002); United States v. Luciano, 311 F.3d 146, 149-53 (2d Cir. 2002); United States v. Cannady, 283 F.3d 641, 649 (4th Cir.), cert. denied, 123 S. Ct. 38 (2002); United States v. Randle, 304 F.3d 373, 378 (5th Cir. 2002), cert. denied, 123 S. Ct. 1748 (2003); United States v. (continued...) 6 No. 02-3971
conclusion. Indeed, since the Supreme Court’s decision in Ring, we have rejected arguments that facts raising the guidelines maximum should be subject to Apprendi. See, e.g., De La Torre, 327 F.3d at 611 (“Apprendi . . . does not affect the Guideline calculations that determine the . . . total sentence of imprisonment.”); Knox, 301 F.3d at 620 (chang- ing the offense level does not impact the statutory penalty and so does not implicate Apprendi); Brumfield, 301 F.3d at 734-35 (“ ‘Apprendi does not create [for the defendant] a right to jury determination of the drug quan- tity.’ ”) (quoting United States v. Parker, 245 F.3d 974, 977 (7th Cir. 2001)). Because Mr. Johnson’s sentence did not exceed the statutory maximum penalty for his crime, Apprendi does not apply to the district court’s determination of the amount of cocaine he distributed. Accordingly, the district court appropriately determined drug quantity based on a preponderance of the evidence. United States v. Martinez, 301 F.3d 860, 865 (7th Cir. 2002), cert. denied, 123 S. Ct. 923 (2003). Mr. Johnson does not argue that the evidence was insufficient under that standard. See Holman v. Indiana, 211 F.3d 399, 406 (7th Cir. 2000) (arguments not raised on appeal are waived). Indeed, the record supports the district court’s findings. See United States v. Anderson, 259 F.3d 853, 858 (7th Cir. 2001) (district court’s sentencing determinations given great deference).
Conclusion Mr. Johnson’s sentence did not exceed the statutory maximum for his crime, and thus Apprendi does not
1 (...continued) Jackson, 240 F.3d 1245, 1249 (10th Cir.), cert. denied, 534 U.S. 847 (2001). No. 02-3971 7
apply. Mr. Johnson argues to the contrary, but established precedent in this circuit requires affirmance, and Ring does not compel a different result. For the foregoing rea- sons, we affirm the judgment of the district court. AFFIRMED
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_____________________________ Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—7-9-03