Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2004

USA v. Kent
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3443




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"USA v. Kent" (2004). 2004 Decisions. Paper 875.
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                                                 NOT PRECEDENTIAL


        THE UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                        ___________

                        No. 01-3443
                        ___________


              UNITED STATES OF AMERICA

                             vs.

          JEROME KENT a/k/a/ JAMES WILLIAMS

                             Jerome Kent, Appellant

                        ___________


 ON APPEAL FROM THE UNITED STATES DISTRICT COURT
     FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
              (D.C. Criminal No. 98-cr-00136-7)
       District Judge: The Honorable Sylvia H. Rambo

                        ___________

          Submitted Under Third Circuit LAR 34.1(a)
                      January 26, 2004




BEFORE: NYGAARD, FUENTES, and STAPLETON, Circuit Judges.




                    (Filed April 6, 2004)
                                       ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

              Jerome Kent challenges the District Court’s partial denial of his 28 U.S.C. §

2255 motion. In particular, Kent claims that (1) the District Court erred by failing to find

an Apprendi violation in his sentence, (2) the trial court constructively amended his

indictment and (3) he received ineffective assistance of counsel. We agree with the

District Court on each of these issues and will affirm.

                                             I.

              The facts of this matter are well known to the parties, for whom we write

exclusively, and we thus recount them only briefly. Kent was charged with being

involved in the unlawful distribution of and criminal conspiracy to distribute in excess of

fifty grams of crack cocaine. 21 U.S.C. §§ 841(a)(1) and 846. The jury returned a

general verdict of guilty and did not determine the type or quantity of controlled

substance at issue.

              At sentencing, the Court adopted the findings of the presentence report that

Kent was involved in the distribution of between 150 and 500 grams of crack cocaine.

Given Kent’s circumstances, the sentencing guidelines for this amount of crack cocaine

called for a sentence of between 324 and 393 months in prison. The Court sentenced



                                             2
Kent to 324 months. Kent then filed a 28 U.S.C. § 2255 motion challenging his sentence.

The District Court initially granted that motion in part and denied it in part in order to

resentence Kent under United States Sentencing Guideline (“U.S.S.G.”) § 5G1.2(d). On

Kent’s Rule 60(b) motion, the Court determined that, because the government had filed

an information regarding prior convictions pursuant to 21 U.S.C. § 851(a)(1), Kent’s

sentence was within the statutory limit and no resentencing was required. The Court also

adjusted the supervised-release period downward to six years.

              In this appeal Kent raises three issues. Taken verbatim from his brief, they

are:

              (1)    that trial counsel was ineffective for failing to make a request under

                     the Jencks Act for Andre White’s prior statements;

              (2)    that [Kent’s] sentence violates the rule announced in Apprendi v.

                     New Jersey, 

(2000), because it was based on the

                     District Court’s finding of drug quantity under the preponderance of

                     the evidence standard; and

              (3)    that the District Court constructively amended the indictment when it

                     instructed the jury that it could find him guilty without making

                     findings as to drug identity and drug quantity.

Appellant’s Brief at 2.




                                              3
              We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we exercise

plenary review over the District Court’s denial of Kent’s motion under § 2255. United

States v. Jenkins, 

, 153 (3d Cir. 2003). We may affirm that denial on any

ground supported by the record. 

address Kent’s Apprendi issue first, then his

constructive amendment claim, and finally his ineffective assistance of counsel argument.

                                              II.

                                             A.

              Under Apprendi, any fact that increases a defendant’s sentence beyond the

statutory maximum must be submitted to the jury and proved beyond a reasonable 

. Kent argues that because the amount and identity of drugs involved in

his case were not submitted to the jury, his sentence exceeds the catch-all maximum of

one year, and Apprendi is violated. The government concedes that the jury was not asked

to specifically determine the identity or quantity of the drugs involved in this case.

However, the government contends that the jury’s failure to determine the identity of the

drugs was harmless error and that no Apprendi violation occurred with respect to drug

quantity because Kent was sentenced below the statutory maximum.

              Under the harmless error analysis applicable to Apprendi, we must

determine whether “it appears beyond a reasonable doubt that the error complained of did

not contribute to the verdict obtained.” Neder v. United States, 

, 15 (1999)

(internal quotations omitted). The District Court determined that because the government



                                              4
filed an information pursuant to 21 U.S.C. § 851, Kent’s sentence of twenty-seven years

was within the statutory maximum of thirty years under 21 U.S.C. § 841(b)(1)(C). We

agree with this conclusion.

              On September 28, 1998, the government put Kent on notice that it intended

to seek an enhanced sentence under 21 U.S.C. § 841 based on his two prior drug

convictions that occurred in 1996 and 1989. Under § 841(b)(1)(C), a person convicted of

distribution of a Schedule II controlled substance may be sentenced to up to thirty years

imprisonment if that person “commit[ted] such a violation after a prior conviction for a

felony drug offense [had] become final.” In order to seek the enhancement of a sentence

based on a prior conviction, the government must file an information pursuant to 21

U.S.C. § 851. That information must identify the convictions on which the government

will rely in seeking the enhancement. If the government files such an information, the

Court must, before sentencing but after conviction, inquire of the defendant whether he

admits that he has been previously convicted as identified in the government’s

information. 21 U.S.C. § 851(b). A person may not challenge the validity of any

conviction that occurred more than five years before the date on which the government

filed its information. 21 U.S.C. § 851(e)

              At sentencing, Kent challenged the 1996 conviction but admitted that the

1989 charges “appeared” to result in a conviction. App. at 22. Rather than engage in the

inquiry required under § 851, the District Court and government agreed to treat the § 851


                                             5
information as moot because the drug identity and quantity, as determined by the Court

during sentencing, increased Kent’s statutory maximum beyond the thirty years provided

in § 841(b)(1)(C). The government, however, did not withdraw the § 851 information

but simply agreed to treat it as moot.

              We agree with the District Court that, based on the government’s § 851

information, the statutory maximum applicable to Kent was thirty years. Even though the

District Court committed error by not conducting the inquiry required under § 851, that

error was harmless. Kent’s counsel admitted that there “appeared” to be a 1989 felony

conviction. Further, that conviction was identified in the pre-sentence report and Kent

did not challenge this part of that report. Given the admitted existence of this conviction,

Kent could not challenge its underlying validity because it was entered more than five

years before the government filed is § 851 information. 21 U.S.C. § 851(e). Regardless

of the validity of the 1996 conviction, the existence of the 1989 conviction results in

Kent’s statutory maximum being increased to thirty years under § 841(b)(1)(C). His

sentence of 27 years was within that statutory maximum and there is no Apprendi

violation.

                                             B.

              Kent argues next that the District Court constructively amended his

indictment by referring to a controlled substance “such as crack cocaine or cocaine” twice

during its jury charge. In United States v. Lewis, this Court was presented with a nearly



                                             6
identical factual situation. 

, 492-93 (3d Cir. 1997). In Lewis, the defendant

was indicted for distributing in excess of five grams of cocaine base. 

The trial

court, however, instructed the jury that it could find Lewis guilty regardless of whether it

found that he distributed cocaine base or cocaine powder. 

the Court held

that this variance between the indictment and the charge did not require that the Court

vacate Lewis’s conviction because none of his substantial rights were prejudiced. 

is on point and controlling in this case.

              As described above, Kent was sentenced within the applicable statutory

maximum regardless of what Schedule II controlled substance he was convicted of

distributing. Therefore, as in Lewis, the variance between his indictment and the trial

judge’s charge did not prejudice any substantial right. 

                                             C.

              Finally, Kent argues that he received ineffective assistance of counsel

because his attorney did not obtain the prior statements of Andre White, a witness called

by the government at sentencing, and, as a result, elicited incriminating testimony from

White. In order to succeed on this argument, Kent must establish that his attorney’s

actions were deficient and that those deficiencies prejudiced his defense. Strickland v.

Washington, 

, 693 (1984). Even if his attorney’s failure to obtain any of




                                              7
White’s previous statements was deficient,1 Kent has not shown that such a failure

prejudiced his defense. In fact, the record shows that Kent’s attorney cross-examined

White in an attempt to discredit him, and successfully elicited admissions that he was in

jail for a drug offense and had previously failed a polygraph test in connection with his

own trial. While it is true, as Kent insists, that his counsel’s examination of White

elicited an answer including the fact that Kent was carrying a gun and that this might have

been avoided had counsel been provided with a Jencks Act statement, there was no

prejudice because the fact that Kent had a gun was previously disclosed by White on

direct examination.

                                            III.

              For the foregoing reasons, we will affirm the District Court’s partial denial

of Kent’s 28 U.S.C. § 2255 motion.




1        The government argues, and the District Court accepted, that White did not
testify before the grand jury and was simply interviewed by federal agents. While that
interview was placed in a report, the government claim s that it was not subject to
disclosure under the Jencks A ct. See United States v. Ramos, 

, 69-70 (3d
Cir. 1994) (explaining that the Jencks Act only requires the disclosure of transcripts of
grand jury testim ony, signed or adopted statements, or a sub stantially verbatim
recording, transcription or contemporaneous mem orialization of a witness’ oral
statement). W e need not decide whether any prior statem ent of W hite falls w ithin
these disclosure rules because K ent has failed to sho w any prejudice based on his
attorney’s failure to request such a statem ent.

                                             8