United States Court of Appeals
             for the Fifth Circuit
                                                              United States Court of Appeals
                                                                       Fifth Circuit

                                     FILED
                                                               October 9, 2020
                              No. 19-40498                      Lyle W. Cayce
                                                                     Clerk

United States of America,

                                                       Plaintiff—Appellee,

                                  versus

John D. Leontaritis,

                                                    Defendant—Appellant.


               Appeal from the United States District Court
                    for the Eastern District of Texas
                         USDC No. 1:18-CR-23-1


Before Higginbotham, Elrod, and Haynes, Circuit Judges.
Catharina Haynes, Circuit Judge:
      John D. Leontaritis was charged with one count of conspiracy to
possess with the intent to distribute and distribute 500 grams or more of a
mixture containing methamphetamine and one count of conspiracy to
commit money laundering. The jury found Leontaritis guilty on both counts.
The jury also returned a special verdict finding beyond a reasonable doubt
that the conspiracy involved 500 grams or more of a mixture containing
methamphetamine. On the question of Leontaritis’s accountability, the jury
did not find that he was accountable for more than 50 grams. The district
court, concluding that a preponderance of the evidence showed that it was
                                  No. 19-40498



reasonably foreseeable that Leontaritis was responsible for 176 kilograms of
methamphetamine, sentenced Leontaritis to concurrent terms of 240
months of imprisonment, to be followed by a total of three years of supervised
release.
       Leontaritis appeals, arguing that the district court erred in finding that
the amount of drugs reasonably foreseeable to him within the scope of the
conspiracy was 176 kilograms. Citing Apprendi v. New Jersey, 

(2000), and Alleyne v. United States, 

(2013), he contends that the
district court was bound by the jury’s finding that he was accountable for less
than 50 grams of methamphetamine and that the district court’s alleged
disregard of this finding violated the Fifth and Sixth Amendments. We
review Leontaritis’s properly preserved constitutional challenge to his
sentence de novo. See United States v. King, 

, 52 (5th Cir. 2014).
       The pertinent jury question and answer are as follows:
       You must next determine the quantity of methamphetamine
       for which the defendant was accountable. Indicate below your
       unanimous finding beyond a reasonable doubt of the quantity
       of methamphetamine, if any, attributable to the defendant. The
       defendant is accountable only for the quantity of
       methamphetamine with which he was directly involved and all
       reasonably foreseeable quantities of methamphetamine within
       the scope of the conspiracy reasonably foreseeable to him.
       ____ 500 grams or more of a mixture or substance containing
       detectable amount of methamphetamine.
       ____ 50 grams or more but less than 500 grams of a mixture
       or substance containing a detectable amount of
       methamphetamine.
         X Less than 50 grams of a mixture or substance containing
       a detectable amount of methamphetamine.



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                                  No. 19-40498



The general instructions required proof by the Government beyond a
reasonable doubt. Leontaritis argues that the jury found beyond a reasonable
doubt that he was accountable for less than 50 grams. We read it the other
way: that the Government failed to prove 50 or more grams beyond a
reasonable doubt. In so doing, our opinion is consistent with the vast majority
of circuits that have considered this issue. See United States v. Lopez-
Esmurria, 714 F. App’x 125, 127 (3d Cir. 2017) (unpublished); United States
v. Webb, 

, 678 (8th Cir. 2008); United States v. Florez, 

, 156 (2d Cir. 2006); United States v. Magallanez, 

, 684–85
(10th Cir. 2005); United States v. Goodine, 

, 33–34 (1st Cir. 2003);
United States v. Smith, 

, 744–45 (7th Cir. 2002). Only the Ninth
Circuit came out the way Leontaritis requests. United States v. Pimentel-
Lopez, 

, 1140 (9th Cir. 2017).
       But, either way, Leontaritis’s argument fails to recognize the
difference between Apprendi and Alleyne, on the one hand, and United States
v. Booker, 

(2005), on the other hand. The former cases deal
with statutory minimums and maximums. See United States v. Stanford, 

, 570 (5th Cir. 2015). As to those findings, the jury verdict is binding.

; 

. On the other hand, here,
the question relates to the calculation and application of the Sentencing
Guidelines, which is within the judge’s duty, not the jury’s. 

. The Supreme Court made this clear in United States v. Watts, which
it has not overruled. 

, 156–57 (1997) (holding that a district judge
may rely on conduct proven by a preponderance of the evidence even if the
jury did not find the same conduct proven beyond a reasonable doubt at trial).
Indeed, we have consistently explained:
       [T[he Alleyne opinion did not imply that the traditional fact-
       finding on relevant conduct, to the extent it increases the



                                       3
                                        No. 19-40498



        discretionary sentencing range for a district judge under the
        Guidelines, must now be made by jurors. . . . The Court did not
        suggest that the setting of Sentencing Guidelines ranges in a
        PSR, which structure but do not control district judge
        discretion, were subject to the same requirement.
United States v. Hinojosa, 

, 412–13 (5th Cir. 2014); see also

(holding that “[n]either Apprendi nor Alleyne
applies to sentencing guidelines” and that a district court may “adjudge[] a
sentence within the statutorily authorized range”); United States v. Romans,

, 316–17 (5th Cir. 2016) (holding the same). 1
        Even if the charge in this case suggested some intent to bind the
district judge’s sentencing discretion, mistakes in jury charges do not change
the way a jury’s role is assessed. See Musacchio v. United States, 

, 715 (2016) (holding that where the jury question erroneously added an
extra element to a charge, the analysis of sufficiency of the evidence should
not include that added element). “We have never doubted the authority of a
judge to exercise broad discretion in imposing a sentence within a statutory
range.” 

. Indeed, because mandatory guidelines
impinged on the judge’s role, Booker severed that part of the Guidelines
statute.

We are therefore left with a clean division of labor: absent
waiver of a jury trial, statutory findings (whether the defendant is guilty or
not guilty and whether his conduct meets the test for a statutory minimum or
maximum) are for jurors to decide, while sentencing within the statutory
minimums and maximums following a guilty verdict and applying the


        1
           In addition to conflicting with the law of six other circuits, the Ninth Circuit’s
ruling in Pimentel-Lopez is unpersuasive for the additional reason that it is inconsistent with
our case law. We are bound by our precedent unless the Supreme Court or our en banc
court has changed the relevant law. Jacobs v. Nat’l Drug Intelligence Ctr., 

, 378
(5th Cir. 2008).



                                              4
                                      No. 19-40498



Sentencing Guidelines is for the district judge to decide. 2 Accordingly, we
conclude that the district court did not err in making its decision about drug
quantity for purposes of determining the applicable Sentencing Guidelines
range.
         Leontaritis also challenges the district court’s application of a two-
level enhancement under § 3B1.3 of the Sentencing Guidelines based on a
finding that he abused a position of trust or used a special skill to significantly
facilitate the commission or concealment of the offense. The district court
found that he possessed a state-issued license for his car dealership and that
he used the license to facilitate and conceal the offense. Leontaritis argues
that he held no position of trust. He also asserts that the evidence at trial did
not support the district court’s conclusion that a co-conspirator purchased
multiple cars from Leontaritis. The Government responds that, even if the
court erred in this regard, the error is harmless.
         We review the district court’s interpretation or application of the
Sentencing Guidelines de novo and its factual findings for clear error. United
States v. Cisneros-Gutierrez, 

, 764 (5th Cir. 2008). A finding of
fact is not clearly erroneous if it is plausible in light of the entire record.

during sentencing is harmless if the error did not
affect the district court’s selection of the sentence imposed.” United States
v. Delgado-Martinez, 

, 753 (5th Cir. 2009) (internal quotation
marks and citations omitted).            An error in calculating the Sentencing
Guidelines is harmless if the district court considered the correct advisory
guidelines range in its analysis and stated that it would impose the same


         2
          We note one exception to this clear division of labor, that is, a sentencing court
may “increase[] the penalty for a crime beyond the prescribed statutory maximum” upon
finding that the defendant had a prior conviction. 

.



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                                  No. 19-40498



sentence even if that range applied. United States v. Richardson, 

,
511 (5th Cir. 2012). Even when a district court fails to consider the correct
sentencing guideline range, an error may be harmless “if the proponent of
the sentence convincingly demonstrates both (1) that the district court would
have imposed the same sentence had it not made the error, and (2) that it
would have done so for the same reasons it gave at the prior sentencing.”
United States v. Ibarra-Luna, 

, 713–14 (5th Cir. 2010).
       At sentencing, the court gave extensive reasons as to why it imposed
a sentence of 20 years. The court stated that it would have imposed the same
sentence under the factors of 18 U.S.C. § 3553(a) even if the guidelines were
incorrectly calculated and specifically cited the need for the sentence
imposed to serve as just punishment, to promote respect for the law, and to
deter future criminal acts. Additionally, the court imposed the statutory
maximum sentence on each count, opting not to have the sentences run
consecutively to each other, indicating that it had a particular sentence in
mind without reference to the guidelines range. Because the district court’s
statements show that the sentence was not based on the guidelines range and
that the district court would have imposed the same sentence without the
alleged error for the same reasons, any error in imposing the two-level
enhancement for abuse of position of trust is harmless. Cf.

       Finally, Leontaritis contends that the district court erred in failing to
award him a two-level reduction for acceptance of responsibility under
§ 3E1.1 of the Sentencing Guidelines. He contends that such a reduction was
warranted because he admitted to one of the charges against him.
       We “will affirm a sentencing court’s decision not to award a reduction
. . . unless it is without foundation, a standard of review more deferential than
the clearly erroneous standard.” United States v. Juarez-Duarte, 

, 211 (5th Cir. 2008) (per curiam) (internal quotation marks and citation


                                       6
                                No. 19-40498



omitted). The defendant has the burden of proving that the reduction is
warranted. United States v. Medina-Anicacio, 

, 647 (5th Cir.
2003). By his own admission, Leontaritis disputed his conduct on the drug
conspiracy conviction and on aspects of his money laundering conspiracy
conviction. The record shows that he repeatedly argued that he was not
involved in a drug conspiracy and that he lacked the intent to conceal drug
proceeds. Thus, he contested his factual guilt. The district court’s refusal
to award a reduction for acceptance of responsibility is not without
foundation. See 

.
      Accordingly, the judgment of the district court is AFFIRMED.




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                                      No. 19-40498



Jennifer Walker Elrod, Circuit Judge, concurring in part 1 and
dissenting in part:
        This case boils down to what question the special interrogatory asked
the jury. Did it ask the jury to determine, beyond a reasonable doubt, the
actual amount of methamphetamine for which Leontaritis was accountable?
Or did it ask the jury to decide whether the government had met its burden
with respect to different weight ranges? Because the plain language of the
special interrogatory clearly asks the former question, I would reverse and
remand for resentencing consistent with the jury’s special finding.
                                                I.
        In response to a special interrogatory, the jury found that John
Leontaritis was accountable for less than 50 grams of methamphetamine
mixture.      Nevertheless, at sentencing the judge found Leontaritis
accountable for 176 kilograms of methamphetamine mixture: 3,520 times
greater than the upper limit of the jury’s explicit finding.                      These
contradictory factual findings cannot be reconciled on a notion of the
“division of labor” between the judge and the jury. Nor can the jury’s special
finding plausibly be read as simply determining that the government did not
reach its burden as to the higher amounts.
        The special interrogatory instructed the jury to “[i]ndicate below [its]
unanimous finding beyond a reasonable doubt of the quantity of
methamphetamine, if any, attributable to the defendant.” In response the
jury marked, “Less than 50 grams of a mixture or substance containing a


        1
          I agree with the majority opinion that the district court did not clearly err in
applying the public-trust enhancement and that it was not without foundation in declining
to award an acceptance-of-responsibility reduction. I concur in those portions of the
majority opinion.



                                            8
                                       No. 19-40498



detectable amount of methamphetamine.” The interrogatory and response
plainly give the jury’s affirmative finding that Leontaritis was accountable for
less than 50 grams of methamphetamine mixture.
        The only way to read the special interrogatory differently is by actually
changing the words of the interrogatory.                  That is exactly what the
government did. Twice in its brief, the government claims that “[t]he jury
unanimously found beyond a reasonable doubt that Leontaritis was
responsible for up to 50 grams.” The government’s change of “less than” to
“up to” fits its theory that the jury did not weigh in on amounts more than
50 grams—a position otherwise untenable since “less than” is plainly
inconsistent with “more than.” It does not, however, fit the actual words of
the special interrogatory.
        The government and the majority opinion rely on a series of cases to
support their a-textual interpretation of the special interrogatory. Neither
the majority opinion nor the government’s brief engage with the language in
the special interrogatories at issue in those cases. Nor, in fact, do the cases
themselves. See United States v. Lopez-Esmurria, 714 F. App’x 125, 127 (3d
Cir. 2017); United States v. Webb, 

, 677–78 (8th Cir. 2008);
United States v. Florez, 

, 156 (2d Cir. 2006); United States v.
Magallanez, 

, 683–85 (10th Cir. 2005); United States v. Goodine,

, 32–34 (1st Cir. 2003); United States v. Picanso, 

, 25–
26 (1st Cir. 2003); United States v. Smith, 

, 743–45 (7th Cir.
2002). 2


        2
          I reviewed the special interrogatories at issue in each of these cases, except for
Goodine, Picanso, and Smith. In those three cases, retrieval of the actual verdict form was
made difficult by a lack of electronic records in the district courts for the relevant years.
The dockets, however, show that the verdict forms for Goodine, Picanso, and Smith are
available, respectively, at Docket No. 64, United States v. Goodine, No. 2:01-cr-00025-


                                             9
                                      No. 19-40498



        The language in the special interrogatories in those cases can be
generally categorized into two types: (i) burden-of-proof language and (ii)
jury-finding language. On the burden-of-proof side lies Florez, in which the
special interrogatory directs the jury to “state the maximum quantity of
heroin that the prosecution has proven beyond a reasonable doubt that the
importation involved. 10 kilograms or more ___ 3 kilograms or more ___
1 kilogram or more ___ 100 grams or more ___.” Verdict Form, United
States v. Florez, No. 04-CR-80 (E.D. N.Y. May 12, 2005). 3
        Similarly, the special interrogatory in United States v. Pineiro, 

(5th Cir. 2004)—analyzed by Leontaritis in his reply and at oral
argument—contains burden-of-proof language because it asks the jury to find
the defendant guilty or not-guilty as to different amounts:
        Conspiracy to Distribute Marijuana:
        ___ Guilty of Conspiracy to Distribute 100 kilograms or more
        of marijuana.
        ___ Guilty of Conspiracy to Distribute 50 to 100 kilograms of
        marijuana.
          ✓ Guilty of Conspiracy to Distribute less than 50 kilograms
        of marijuana.
        ___ Not guilty.




DBH-2 (D. Me. Aug. 01, 2002); Docket Nos. 117–18, United States v. Picanso, No. 1:99-
CR-10343-EFH (D. Mass. May 02, 2002) (Nos. 02-1551, 02-2013); and Docket Nos. 110–
16, United States v. Smith, No. 99-CR-50022 (N.D. Ill. Aug. 08, 2000). Each of these three
cases pre-dates United States v. Booker, 

(2005).
        3
          For consistency, I refer to each of the documents containing general and special
interrogatories and jury responses as a “verdict form.”



                                           10
                                  No. 19-40498



Verdict Form, United States v. Pineiro, No 2:02-CR-20024, 

(W.D. La. Apr. 07, 2007). Both the Florez and Pineiro special interrogatories
clearly ask the jury to decide whether the prosecution had met its burden of
proof rather than decide for itself the actual amount at issue in the case.
       The special interrogatory in this case, which instructs the jury to
“[i]ndicate below [its] unanimous finding beyond a reasonable doubt of the
quantity of methamphetamine, if any, attributable to the defendant,” is
markedly different. The special interrogatory asks the jury to make its own
affirmative finding as to the precise amount of methamphetamine mixture
attributable to Leontaritis. Thus, this special interrogatory falls on the jury-
finding side of the ledger, alongside the special interrogatories in Webb,
Magallanez, and Lopez-Esmurria. The Webb special interrogatory includes
the following language:
       We, the jury, find beyond a reasonable doubt, that the quantity
       of cocaine base (crack cocaine) involved in the conspiracy and
       that was either directly attributable to defendant Geno Webb
       or reasonably foreseeable to him was:
            more than 50 grams
         ✓ more than 5 grams but less than 50 grams
             less than 5 grams.
Verdict Form at 2, United States v. Rey et al., No. 3:06-CR-00573-JAJ-SBJ,

(S.D. Iowa Jan. 28, 2008).
       Similarly, the Magallanez verdict form contains the following special
interrogatory and response:
       We, the jury, duly empaneled, find beyond a reasonable doubt
       as to the amount of a mixture containing methamphetamine
       distributed or possessed with the intent to distribute in the
       conspiracy charged in the Indictment: (check only one)


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                                No. 19-40498



      ( ) That the amount of a mixture containing methamphetamine
      distributed or possessed with intent to distribute exceeded 500
      grams.
      (✓) That the amount of a mixture containing
      methamphetamine distributed or possessed with intent to
      distribute was more than 50 grams, but less than 500 grams.
      ( ) That the amount of a mixture containing methamphetamine
      distributed or possessed with intent to distribute was less than
      50 grams.
Verdict Form at 1–2, United States v. Magallanez, No. 2:02-CR-125-NDF-7
(D. Wyo. Feb. 12, 2004).
      The Lopez-Esmurria special interrogatory contains hybrid language
because it instructs the jury to find the specific quantity of cocaine
hydrochloride beyond a reasonable doubt” while including “Not guilty as it
relates to cocaine hydrochloride” as one of the quantity responses:
       On the charge outlined in Count One, we find that Defendant
       Mr. Lopez-Esmurria conspired to knowingly and intentionally
       distribute and possess with intent to distribute the following
       amount of cocaine hydrochloride (check only one):
       Five kilograms and more: ___
       Less than five kilograms, but equal to or more than five
       hundred grams: ___
      Any weight less than 500 grams: ✓__
      Not guilty as it relates to cocaine hydrochloride: ___.
Verdict at 1–2, United States v. Lopez-Esmurria, No. 1:11-CR-00230-YK,

, (M.D. Pa. Oct. 6, 2014). The verdict form uses similar
language for the heroin-related counts and the counts against other
defendants.

                                  No. 19-40498



       None of the circuit cases, however, discusses the language in the
special interrogatory at issue. The only case cited in the briefs or the majority
opinion that actually addresses the language of the special interrogatory is
United States v. Pimentel-Lopez, 

, 1140, 1142–43 (9th Cir. 2016).
The special interrogatory used in Pimentel-Lopez reads:
       Having found Jesus Pimentel-Lopez guilty of the charge in
       Count I of the indictment, we unanimously find beyond a
       reasonable doubt the amount of a substance containing a
       detectable amount of methamphetamine attributable to Jesus
       Pimentel-Lopez to be:
        X Less than 50 grams of a substance containing a detectable
       amount of methamphetamine.
       ___ 50 grams or more, but less than 500 grams, of a substance
       containing a detectable amount of methamphetamine.
       ___ 500 grams or more of a substance containing a detectable
       amount of methamphetamine.
Verdict Form at 1–2, United States v. Pimentel-Lopez, No. 2:13-CR-00024-
SEH-1 (D. Mont. Sept. 30, 2014); see also Pimentel-

.
Similar wording was used for Count II. See Verdict Form at 3.
       Pimentel-Lopez rejected the government’s argument that the jury
verdict in response to the special interrogatory merely constituted an
acquittal on amounts greater than 50 grams, because the special interrogatory
was not capable of that 

–42. Rather, the jury-
finding language in the special interrogatory could only be read as requesting
an affirmative finding by the jury of the actual amount of methamphetamine
mixture attributable to the defendant.

So too here. The majority
opinion’s attempts to re-write the special interrogatory in this case in terms
of burden of proof are unavailing. We must take the verdict form as we find



                                       13
                                  No. 19-40498



it, and the jury-finding language in this special interrogatory and response
constitutes an affirmative finding by the jury.
         The upshot is that the majority opinion joins what I believe is the
wrong side of a deeply entrenched circuit split, which has developed without
careful parsing of the actual words of the relevant special interrogatories. On
one side of the split lies the Ninth Circuit, which explicitly discussed the
language of the relevant special interrogatory in its opinion. See Pimentel-

, 1141–42. On the other side lie the Third, Eighth,
Tenth, and, now, Fifth Circuits. See Lopez-Esmurria, 714 F. App’x at 127
(citing United States v. Smith, 

, 117 (3d Cir. 2014)); 

–78; 

–85. What is most disappointing
about the majority opinion is that it, unlike the Third, Eighth, and Tenth
Circuit opinions, does address and quote the language of the special
interrogatory. Nevertheless, it ignores the actual words of the special
interrogatory.
                                        II.
         The majority opinion’s approach leads it to a more fundamental error:
its conclusion that the judge can contradict the jury’s factual findings at
sentencing. The majority opinion cites to United States v. Booker, 

(2005) to frame this case in terms of a “clean division of labor” between
the judge and the jury; i.e., juries assess guilt and judges assign punishment.
The problem posed by this case, however, goes beyond the question settled
in Booker. While Booker addressed whether the judge or the jury should
decide the facts of the “real conduct” underlying a statutory offense for
purposes of sentencing, 

–51, this case asks whether
the judge can contradict the jury once it has already found a portion of those
facts.



                                       14
                                  No. 19-40498



       The majority opinion would have Booker do too much. The majority
opinion claims that “because mandatory guidelines impinged on the judge’s
role [in sentencing], Booker severed that part of the Guidelines statute.”
That is simply not accurate. The first part of the Booker opinion found the
guidelines, as written, unconstitutional because they impinged on the Sixth
Amendment right to a jury trial. 

–34; 244 (discussing
Blakely v. Washington, 

, 299, 313, 325 (2004)). The problem was
an insufficient role of the jury when the guidelines were mandatory. The
second part of the Booker opinion fixed the constitutional problem by excising
the provision in the Sentencing Act which made the guidelines mandatory.

A lack of judicial discretion was not the problem; rather, the
addition of judicial discretion was the easiest remedy given the likely intent
of Congress had it understood the impact of the Sixth Amendment’s jury-
trial right on sentencing.

       Booker does not settle all questions regarding the relationship of the
judge and the jury at sentencing, and it does not address the question
presented by this case: can a district court’s sentence contradict an
affirmative finding by the jury? There is certainly reason to be cautious in
exploring this question, and I share Judge Graber’s concern that the Pimentel-
Lopez opinion “suggests that any jury finding as to drug weight that sets an
‘upper boundary’ precludes a sentencing judge from finding a drug weight
above that boundary by a preponderance of the evidence.” Pimentel-

(Graber, J., dissenting from denial of rehearing en banc)
(emphasis in original). That issue is not presented here, however, where the
special interrogatory and response provide an answer to the question that
does not depend on a superiority determination between judge and jury.
       In my view, if the jury has affirmatively found a specific fact, rather
than having simply decided that the government did not meet its burden of


                                       15
                                   No. 19-40498



proof on related facts, then the court may not make a finding inconsistent
with or impose a sentence beyond a limit set by the jury’s finding. The court
is at all times free to structure its special interrogatory like the interrogatories
in United States v. Pineiro or United States v. Florez. Verdict Form, United
States v. Pineiro, No 2:02-CR-20024, 

(W.D. La. Apr. 07,
2007); Verdict Form, United States v. Florez, No. 04-CR-80 (E.D. N.Y. May
12, 2005).      Here, however, the government requested this special
interrogatory, and the court adopted it and gave it to the jury. The jury’s
findings preclude the sentence that was given.
       I respectfully dissent.




                                        16