Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-31-2002

USA v. Fitzgerald
Precedential or Non-Precedential:

Docket 0-2393




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Recommended Citation
"USA v. Fitzgerald" (2002). 2002 Decisions. Paper 82.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/82


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                                                      NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                               ___________

                        Nos. 00-2393 & 00-2399
                             ___________


                      UNITED STATES OF AMERICA

                                  v.

                        DAVID J. FITZGERALD,
                                     Appellant at No. 00-2393

                            LENWOOD MALACHI,
                                      Appellant at No. 00-2399

         _______________________________________________

         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
         D.C. Criminal Nos. 99-cr-00450-7 & 99-cr-00450-6
                  (Honorable Harvey Bartle, III)
                       ___________________


         Submitted Pursuant to Third Circuit LAR 34.1(a)
                        December 13, 2001

           Before:    SCIRICA and BARRY, Circuit Judges,
                     and MUNLEY, District Judge*




     *The Honorable James M. Munley, United States District Judge for the
Middle
District of Pennsylvania, sitting by designation.

                     (Filed:    January 31, 2002)

                          __________________

                          OPINION OF THE COURT
                           __________________


PER CURIAM.
     These drug trafficking cases require application of the rule stated
in Apprendi v.
New Jersey, 

(2000).
     At a bench trial, defendants Lenwood Malachi and David Fitzgerald
were
convicted of conspiracy to distribute marijuana. In its verdict, the
District Court found
defendants were guilty of distributing "large quantities of marijuana."
The court made no
more specific findings with respect to drug quantities. Before the trial,
defendants and the
government agreed that the District Court would make findings of drug
quantity at
sentencing.
     Following the verdicts, but before sentencing, the United States
Supreme Court
decided Apprendi v. New Jersey, 

(2000). The Court held,
"'[I]t is
unconstitutional for a legislature to remove from the jury the assessment
of facts that
increase the prescribed range of penalties to which a criminal defendant
is exposed. It is
equally clear that such facts must be established by proof beyond a
reasonable doubt.'"

(quoting Jones v. United States, 

, 252-53 (1999)
(Stevens, J.,
concurring)).
     As noted, the District Court made no findings at trial on specific
drug quantities.
Because of Apprendi, the government asked the court to supplement its
findings to
establish drug quantities, and to make, for these purposes, only such
findings as could be
established beyond a reasonable doubt. At sentencing, the District Court
again stated
defendants had trafficked "large quantities," but declined to make a
specific finding
beyond a reasonable doubt with respect to quantity.
     The relevant statute establishes different ranges of punishments
depending on the
amount of drugs involved. 21 U.S.C.   841. The maximum punishment for
trafficking
less than fifty kilograms of marijuana is five years, or ten years if the
defendant has
previously been convicted of a felony drug offense.   841(b)(1)(D). If
there is more than
one thousand kilograms of marijuana which the government alleges
represents the
actual quantity distributed the maximum prescribed sentence is life
imprisonment.
  841(b)(1)(A).
     The District Court made findings with respect to quantity only under
the
preponderance of evidence standard. The District Court found Malachi
conspired to
distribute 1400 kilograms of marijuana, and Fitzgerald conspired to
distribute 2600
kilograms of marijuana, by a preponderance of the evidence.
     As initially calculated, the guidelines for Malachi specified a range
of 121-150
months; for Fitzgerald, 168-210 months. Because there was no finding of
drug quantity
beyond a reasonable doubt, the District Court believed its authority after
Apprendi was
constrained by the statutory maximum for trafficking less than fifty
kilograms of
marijuana. For this reason, it sentenced Malachi to five years, the
maximum for such a
quantity absent a prior felony drug conviction. Because Fitzgerald had a
prior felony drug
conviction, it sentenced him to ten years, the maximum permitted for
trafficking under
fifty kilograms of marijuana. Defendants appeal.
     In United States v. Williams, 

(3d Cir. 2000), we held
Apprendi does
not apply where a relevant factor raises the maximum statutory penalty, so
long as the
sentence actually imposed remains at or below the maximum applicable when
the factor
is not established beyond a reasonable doubt. 

Because the
District Court here
imposed a sentence within the maximum statutory range for trafficking less
than fifty
kilograms of marijuana, Apprendi does not apply.
     Defendants seek to avoid this conclusion by arguing that the District
Court's
verdict amounted to an acquittal of any charge that they conspired to
traffic more than
fifty kilograms of marijuana. It follows, they argue, that the District's
finding of
substantially greater amounts of marijuana for purposes of application of
the sentencing
guidelines which raised their sentences up to the statutory maxima
amounted to
double jeopardy, insofar as it negated the effect of the "acquittal."
There is no basis,
however, for defendants' claim that they were acquitted of trafficking
more than fifty
kilograms of marijuana.
     Furthermore, an "acquittal does not prevent the sentencing court from
considering
conduct underlying the acquitted charge, so long as that conduct has been
proved by a
preponderance of the evidence." United States v. Watts, 

, 157
(1997).
Accordingly, it was appropriate to determine the applicable sentence
(within the
constraints imposed by the statute) based on an amount of marijuana found
by a
preponderance of the evidence, though not beyond a reasonable doubt. This
is simply a
consequence of the different standards of proof employed.
     Defendants contend the lack of a specific finding on quantity bars
conviction under
  841(b)(1)(D), which applies to trafficking less than fifty kilograms.
They argue they can
be convicted only under   841(b)(4), which applies to defendants who have
"distribut[ed]
a small quantity of marihuana for no remuneration," because their
responsibility for more
than "a small quantity" has not been established beyond a reasonable
doubt. But the
District Court expressly found at trial beyond a reasonable doubt that
defendants
conspired to distribute "large quantities" of marijuana a finding
inconsistent with
application of   841(b)(4). This was consistent with the evidence
presented at trial.
     Fitzgerald also contests the court's application of the higher
statutory maximum by
reason of a previous conviction for drug-related felonies. The basis for
his argument is
that the prior conviction which Fitzgerald does not now contest was not
noted in the
indictment, and was not established beyond a reasonable doubt at trial. In
Apprendi,
however, the Court excepted from its rule prior convictions: "Other than
the fact of a
prior conviction, any fact that increases the penalty for a crime beyond
the prescribed
statutory maximum must be   proved beyond a reasonable 

(emphasis added). The Court declined to overrule its previous decision
that prior
conviction need not be so treated. See Almendarez-Torres v. United States,

(1998). Whatever misgivings the Court may have expressed about that
decision in
Apprendi are, for these purposes, irrelevant. The Apprendi Court expressly
declined to
overrule it, and we are therefore bound by 

.
     Accordingly, the judgments of sentence will be affirmed.
TO THE CLERK:

         Please file the foregoing opinion.




                                       Circuit Judge

DATED: