In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4071

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.
CHARLES R. ROBINSON IV,

Defendant-Appellant.

Appeal from the United States District Court
for the Central District of Illinois.
No. 97 CR 30025--Richard Mills, Judge.

On Remand From
The United States Supreme Court

Submitted January 26, 2001--DECIDED May 3, 2001


  Before BAUER, RIPPLE, and EVANS, Circuit
Judges.

  EVANS, Circuit Judge. On direct appeal,
we affirmed Charles Robinson’s cocaine
convictions but vacated his sentences,
reasoning that the police reports relied
on by the ditrict court to calculate the
vast majority of his relevant conduct
lacked sufficient indicia of reliability.
See United States v. Robinson, 

, 1071 (7th Cir. 1999). After the
district court resentenced Robinson, we
rejected Robinson’s new appeal and
affirmed the amended judgment in an
unpublished order. See United States v.
Robinson, No. 99-4071, 

(7th Cir. 2000). Subsequently, the
Supreme Court granted Robinson’s petition
for certiorari, vacated our judgment, and
returned the case to us for further
consideration in light of Apprendi v. New
Jersey, 

 (2000). See
Robinson v. United States, 

(2000). Both Robinson and the United
States have submitted statements pursuant
to Circuit Rule 54 indicating their
position as to the action we should take
on remand.

  Because Robinson did not raise an
Apprendi claim either time that he was
sentenced, our review is only for plain
error. United States v. Nance, 

, 824 (7th Cir. 2000). This means we
must determine (1) whether there was
error at all, (2) if so, whether it was
plain, (3) whether the error affected
Robinson’s substantial rights, and (4)
whether it seriously affected the
fairness, integrity, or public reputation
of the proceedings. Johnson v. United
States, 

, 466-67 (1997). As
with most unpreserved Apprendi claims
presented to this court, Robinson fails
to establish the fourth prong of the
plain-error test. For the sake of
completeness, however, we will briefly
address the other prongs of the test.

  In Apprendi, the Supreme Court 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." Apprendi, 120 S. Ct. at 2362-63.
The implication of Apprendi for
defendants charged with drug offenses
under 21 U.S.C. sec. 841(a) is that they
may not be subjected to a statutorily
enhanced sentence based on drug type and
quantity, as provided in sec. 841(b),
without those elements being charged in
the indictment and proven beyond a
reasonable doubt. Nance, 236 F.3d at 824
(collecting cases). However, when a
defendant’s sentence does not exceed 20
years imprisonment--the maximum under
sec. 841(b) for possessing/distributing
the smallest amount of cocaine--Apprendi
is irrelevant. Talbott v. Indiana, 

, 869 (7th Cir. 2000); accord
United States v. Jones, ___ F.3d ___, No.
00-2531, 

, at *3 (7th Cir.
Mar. 28, 2001); United States v. Huerta,

, 876 (7th Cir. 2001).

  In this case Robinson was convicted of
(1) possession of both powder and crack
cocaine with intent to distribute, (2)
distribution of crack, and (3) possession
of crack with intent to distribute. The
district court sentenced him to
consecutive prison terms of 40, 20, and
40 years, respectively. The distribution
sentence does not exceed 20 years, so it
drops from the analysis. Talbott, 226
F.3d at 869. And since both of the
remaining counts alleged explicitly that
Robinson possessed quantities of crack
greater than five grams, the indictment
satisfies the requirement that the type
and quantity of drugs necessary to
trigger a statutory enhancement--in this
case 40 years pursuant to 21 U.S.C. sec.
841(b) (1)(B)(iii)--be charged in the
indictment. But, because the issue of
drug quantity was not submitted to the
jury, the district court erred when it
sentenced Robinson to 40 years on each of
the possession convictions. Nance, 236
F.3d at 825. Moreover, Apprendi makes it
apparent that these errors were plain.
United States v. Patterson, 

,
913 (7th Cir. 2001); United States v.
Jackson, 

, 888 (7th Cir.
2001). Also, because the errors increased
Robinson’s sentences by 20 years, there
is no question that the errors affected
his substantial rights. See United States
v. Mietus, 

, 875 (7th Cir.
2001) (7-year increase affects
defendant’s substantial rights); Nance,
236 F.3d at 826 (22-month increase). So
Robinson’s case easily meets the first
three prongs of the plain-error test.

  To be entitled to a new sentencing
hearing, however, Robinson must also
establish that the sentencing errors
seriously affected the fairness,
integrity, or public reputation of the
judicial proceedings. When applying this
test to Apprendi cases, we ask whether
"it is ’clear beyond a reasonable doubt
that a rational jury would have found the
defendant guilty absent the error.’"
Nance, 236 F.3d at 825 (quoting Neder v.
United States, 

, 18 (1999)). In
practical terms, we analyze whether there
was overwhelming evidence that with
respect to each 40-year count Robinson
possessed more than five grams of crack.
See Patterson, 241 F.3d at 914; Mietus,
237 F.3d at 875; Jackson, 236 F.3d at
888. In this case the police arrested
Robinson twice, each time recovering
quantities of crack that exceeded five
grams. These arrests underlie the two 40-
year sentences. As we will explain, as to
each 40-year count, the government’s
evidence of drug quantity was
overwhelming.

  Regarding the first arrest, Officers
Jerry Castles and Jeremy Woolridge
testified that they separately responded
to a call relaying a Steak ’N Shake
security guard’s report of a man at the
drive-thru with an open bottle of
beerbetween his legs as he sat in his
car. Castles identified Robinson as the
driver and arrested him. Robinson’s car
was searched, and Castles testified that
in addition to drug paraphernalia, he
uncovered an off-white chunky substance.
Woolridge testified that he assisted in
the search and discovered a plastic baggy
containing a white powdery chunky
substance. Castles then drove Robinson to
the police station. After he was
processed, Officer Joseph Pisarek
transported Robinson to the county jail.
Pisarek testified that when they arrived
at the jail he searched Robinson and
discovered a small, white, rock-like
substance. The next morning, Officer
Michael Pennington searched Robinson’s
impounded car. Pennington testified that
his search uncovered a brown pill bottle
containing what appeared to be crack.

  State forensic scientist Michael Cravens
testified that these seized items were
2/10 of a gram of crack, 4/10 of a gram
of crack, 27.6 grams of cocaine, and 16.2
grams of crack. Robinson did not contest
on cross-examination the recovery,
nature, or quantity of these seized
items, nor did he submit any evidence of
his own disputing these facts. Rather,
his trial strategy was to argue that he
possessed the drugs for personal
consumption, not distribution. The jury
obviously rejected this defense.

  Regarding the second arrest, Officer
Dennis Baird testified that he responded
to a Super 8 motel manager’s report of
suspected drug activity in a hotel room.
Baird testified that the occupant of the
room was absent when he arrived but that
a vehicle matching the hotel manager’s
description of the guest’s car soon drove
up. Baird testified that while standing
on the passenger side of the car he
observed Robinson seated in the driver’s
seat and a bag of what appeared to be
crack next to the gear shift. When Baird
identified himself as a police officer
and asked Robinson to exit the vehicle,
Robinson attempted to drive away. Baird
blocked the parking lot exit with his car
and Robinson abandoned his vehicle and
unsuccessfully attempted to flee on foot.
Baird testified that he discovered the
bag of crack on the ground about 10 feet
from Robinson’s car. State forensic
scientist Mark Paiva testified that the
bag held 14.5 grams of crack. Again,
Robinson did not contest the nature,
quantity, or recovery of the bag of
crack.
  Robinson’s decision not to contest the
quantities of drugs obtained in the
searches is significant, given his theory
that the drugs were for his personal use.
Officer Kelly Cain testified that based
on his experience most crack addicts
purchase quantities ranging from less
than one gram to 3 grams for personl
use. On cross-examination, Cain stated
his belief that personal-use amounts of
crack top out at 5 to 6 grams. Thus, to
establish that he possessed the drugs for
personal use, i.e., to create doubt that
he was a drug dealer, Robinson had two
options for closing the gap between the
amount of drugs recovered and the
personal-use-amount ceiling. He could
have (1) contested the quantity of drugs
recovered, or (2) contradicted Cain’s
testimony regarding the five- to six-gram
personal-use ceiling. We believe that
Robinson’s decision to pursue only the
latter course indicates that the
government’s drug quantity evidence was
solid. In fact, it is hard to imagine any
reasonable argument Robinson could have
presented disputing the stated drug
quantities. This is not a case in which
witnesses testified that they observed
the defendant with certain quantities of
drugs. Here, the police actually
recovered the drugs from Robinson, and a
forensic scientist testified that each of
the two most significant packages of
crack weighed well over 5 grams.
Accordingly, the government presented
overwhelming evidence that Robinson twice
possessed more than 5 grams of crack. See
Mietus, 237 F.3d at 875 (evidence
overwhelming where government presented
uncontested evidence that police seized
drugs in excess of amount necessary to
trigger increased sentence); cf. United
States v. Westmoreland, 

, 635
(7th Cir. 2001) (reversible error where
amount of drugs recovered not sufficient
to trigger increased sentence and drug
quantity contested at trial). Thus,
Robinson’s Apprendi argument comes up
short.

  Perhaps foreseeing the difficulty of
meeting the plain error test, Robinson’s
Circuit Rule 54 statement urges us to
adopt a novel interpretation of
"statutory maximum." Robinson argues that
"statutory maximum" means the maximum
penalty within the relevant range
specified by the sentencing guidelines.
Thus, Robinson contends, any fact that
affects a guideline range determination,
e.g., a drug quantity determination for
purposes of relevant conduct, must be
submitted to a jury and proved beyond a
reasonable doubt. This argument is based
on an expansive reading of Justice
Thomas’s concurring opinion in Apprendi,
which states that any fact that is a
"basis for imposing or increasing
punishment--for establishing or
increasing the prosecution’s entitlement-
-is an element [of the crime]," not just
a sentencing factor. Apprendi, 120 S. Ct.
at 2379 (Thomas, J., concurring (joined
by Scalia, J.)). Thus, Justice
Thomasreasoned, a fact that triggers a
mandatory minimum sentence is an element
even though it does not affect the
statutory maximum penalty, e.g., a fact
that restricts a 0- to 10-year sentencing
range to a 5- to 10-year range must be
submitted to a jury and proved beyond a
reasonable doubt. Robinson argues that we
should apply Justice Thomas’s reasoning
not only to mandatory minimum penalties
imposed by statute but also to all
sentencing guideline issues. Because we
have already rejected this suggested
extension of Apprendi both as it applies
to mandatory minimum penalties, United
States v. Williams, 

, 877
(7th Cir. 2001) (collecting cases);
United States v. Smith, 

,
566-67 (7th Cir. 2000), and sentencing
guideline issues, Hernandez v. United
States, 

, 841 (7th Cir.
2000), we think Robinson’s argument lacks
merit.

  For these reasons, we believe that the
sentences imposed by the district court
did not violate the rule announced in
Apprendi. The original judgment is,
therefore, reinstated.