United States District Court, Central District of Illinois, Springfield Division
September 27, 2000
UNITED STATES OF AMERICA, PLAINTIFF,
ROBERT SCOTT, DEFENDANT.
The opinion of the court was delivered by: Richard Mills, District Judge.
Apprendi is the law of the land and is binding on this
However, Apprendi's holding does not result in the sentence
which Defendant seeks.
On June 11, 1999, a federal grand jury indicted Defendant for
conspiring to possess with the intent to distribute and to
distribute marijuana and cocaine in violation of 21 U.S.C. § 841
and § 846. Defendant's trial began on November 29, 1999. On
December 15, 1999, the jury informed the Court that it was
deadlocked and unable to reach a unanimous verdict. Accordingly,
the Court declared a mistrial.
Defendant's re-trial began on April 3, 2000. On April 13,
2000, the jury found Defendant guilty of conspiracy as charged
in the indictment, and the Court ordered the United States
Probation Office to prepare a Presentence Investigation Report
("PSR"). Defendant has now raised the following unresolved
objections to his PSR.
II. OBJECTIONS AND FINDINGS
Defendant objects to the Court making factual findings
regarding the type and amount of drugs which were distributed as
part of the conspiracy of which he was convicted. Defendant
argues that, pursuant to Apprendi v. New Jersey, ___ U.S. ___,
120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Court cannot make
factual determinations regarding any matter which would increase
his statutory penalty. Defendant asserts that, because the jury
did not determine the type of drugs and the amount of drugs
distributed as part of the conspiracy, the Court should sentence
him pursuant to 18 U.S.C. § 371 which is the statutory penalty
provision for the crime of conspiracy to defraud the United
States and which carries a maximum penalty of five years.
Initially, the Court notes that even assuming, arguendo,
that Defendant's Apprendi argument carries the day for him,
his sentence is not governed by 18 U.S.C. § 371. Title
18 U.S.C. § 371 establishes the statutory penalty for the crime of
conspiring to defraud the United States of
America or one of its agencies. Defendant was convicted of
conspiring to possess with the intent to distribute and to
distribute marijuana and cocaine in violation of
21 U.S.C. § 841(a)(1) and § 846. The applicable statutory penalty provisions
for this crime is codified at 21 U.S.C. § 841(b). Thus, the best
that Defendant can hope for — as far as his sentence is
concerned — is that this Court sentences him pursuant to
21 U.S.C. § 841(b)(1)(D) which provides for a maximum sentence of
ten years if the offense involved less than 50 kilograms of
marijuana and involved no schedule I or II controlled
substances. Title 18 U.S.C. § 371 is simply inapplicable to
Although the Court followed the well-established law in this
circuit at trial, in light of Apprendi, there is little doubt
that this Court erred in instructing the jury that it need not
decide, beyond a reasonable doubt, what type of narcotic(s)
Defendant conspired to possess with the intent to distribute and
to distribute and erred in failing to instruct the jury to
determine, beyond a reasonable doubt, the amount of drugs which
were distributed as part of the conspiracy. Apprendi, ___ U.S.
at ___ - ___, 120 S.Ct. at 2362-63. The United States Supreme
Court explained in Apprendi 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." Id. The jury
in this cause did not determine beyond a reasonable doubt the
type and quantity of drugs distributed in Defendant's
conspiracy, and the Court erred in failing to instruct the jury
to make these determinations.
However, the Court believes that its failure to do so
constitutes harmless error. Because Defendant did not object to
the Court's failure to instruct the jury to determine the type
of drugs distributed as part of the conspiracy nor did he object
to the Court's failure to instruct the jury to determine the
amount of drugs distributed, he is only entitled to relief if
the Court's error was "plain." Fed.R.Crim.Pro. 52(b); see
United States v. Garcia-Guizar, 227 F.3d 1125, 1129 (9th Cir.
2000) (holding that "we may not grant him relief unless the
Apprendi error was `plain.'"); see also United States v.
Jenkins, 2000 WL 1359666, * 1 (4th Cir. Sept. 21, 2000) (same);
see also United States v. Nordby, 225 F.3d 1053, 1060 (9th
Cir. 2000) (same); see also United States v. Meshack,
225 F.3d 556, 575-78 (5th Cir. 2000) (same); see also United States v.
Sheppard, 219 F.3d 766, 768-69 (8th Cir. 2000) (same); see
also United States v. Mojica-Baez, 229 F.3d 292, 306-07 (1st
Cir. 2000) (same); see also United States v. Smith,
223 F.3d 554 (7th Cir. 2000) (same). In order to overcome harmless error,
Defendant must prove that: "(1) there was `error'; (2) the error
was `plain'; and (3) the error affected `substantial rights.'"
Garcia-Guizar, 227 F.3d at 1129, citing United States v.
Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508
(1993); see Mojica-Baez, 229 F.3d at 306 (noting that "[p]lain
error review requires four showings: that there was error; that
it was plain; that the error affected substantial rights; and
that the error seriously affected the fairness, integrity or
public reputation of judicial proceedings."). Defendant "bears
the burden of showing prejudice under the plain error test."
In the instant case, the Court has already conceded that it
erred in instructing the jury. Moreover, the Court acknowledges
that this error is now, in the subsequent light of Apprendi,
However, the Court does not believe that this error affected
Defendant's substantial rights. The United States Court of
Appeals for the Seventh Circuit recently explained the law on
this issue as it relates to improper jury instructions:
Lanier predictably insists that the district court
failure to provide the unanimity instruction was a
"structural" constitutional error within the meaning
of Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct.
1246, 113 L.Ed.2d 302 (1991), which would require us
to reverse Lanier's conviction without evaluating the
prejudicial effect of the error. Such structural
errors are so intrinsically harmful that they require
automatic reversal of conviction. See id. at 310,
499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302. The
government disagrees and insists that the absence of
a unanimity instruction is subject to harmless error
analysis. Fortunately, the Supreme Court's decision
last term in Neder v. United States, 527 U.S. 1,
119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), is helpful
In Neder, 119 S.Ct. at 1836, the Court held that
omission of an element from the district court charge
to the jury is not a structural constitutional error
exempt from harmless error analysis. The Court
explained that structural errors "infect the entire
trial process," id. at 1833 (quoting Brecht v.
Abrahamson, 507 U.S. 619, 630, 113 S.Ct. 1710, 123
L.Ed.2d 353, (1993)), and "necessarily render a trial
fundamentally unfair." Neder, 119 S.Ct. at 1833
(quoting Rose v. Clark, 478 U.S. 570, 577, 106
S.Ct. 3101, 92 L.Ed.2d 460 (1986)). The Court
recognized that trial errors escape harmless error
review only in a "very limited class of cases" and
cited the example of "the complete deprivation of
counsel or trial before a biased judge" because such
a defect necessarily renders the trial fundamentally
unfair and vitiates all the jury's findings of guilt.
Neder, 119 S.Ct. at 1833. In contrast, omission of
an element of a crime is not a structural defect, nor
is an error involving improper instruction on a
single element of an offense. See id. at 183334
(citing California v. Roy, 519 U.S. 2, 117 S.Ct.
337, 136 L.Ed.2d 266 (1996) (omission of an "intent
or purpose" element of crime); Yates v. Evatt,
500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991)
(erroneous mandatory rebuttable presumption);
Carella v. California, 491 U.S. 263, 109 S.Ct.
2419, 105 L.Ed.2d 218 (1989) (erroneous mandatory
conclusive presumption); Pope v. Illinois,
481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) (wrong
standard for guilt)). An erroneous jury instruction
on only one element of the crime draws harmless error
analysis because the error does not pervade the
entire judicial proceeding and render its outcome
categorically unreliable or unjust.
Lanier v. United States, 220 F.3d 833, 838 (7th Cir. 2000).
The Court finds that its failure to instruct the jury to
determine the type and quantity of drugs distributed as part of
Defendant's conspiracy did not affect his substantial rights
because a reasonable jury could not have found beyond a
reasonable doubt that the conspiracy involved no amount of
cocaine. "[W]here a reviewing court concludes beyond a
reasonable doubt that the omitted element was uncontested and
supported by overwhelming evidence, such that the jury verdict
would have been the same absent the error, the erroneous
instruction is properly found to be harmless." Neder v. United
States, 527 U.S. 1, 17, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).
In other words, a district court should "ask whether the
record contains evidence that could rationally lead to a
contrary finding with respect to the omitted element. If the
answer to that question is `no,' holding the error harmless does
not `reflec[t] a denigration of the constitutional rights
involved.'" Id. at 20, 119 S.Ct. 1827, quoting Rose v.
Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460
Every witness at Defendant's trial testified that the
conspiracy involved both marijuana and cocaine. Moreover, as
set forth in more detail infra, Defendant's co-conspirators
admitted when they pleaded guilty in their cases before this
Court that the instant conspiracy involved both marijuana and
cocaine. Finally, Defendant has never denied (either during the
trial or now at sentencing) that the conspiracy involved
cocaine; rather, he merely denies that he was a member of the
conspiracy — a defense which the jury rejected. Accordingly, the
Court finds beyond a reasonable doubt that, based upon the
evidence presented at trial, a rational jury could come to no
other conclusion than that the conspiracy in which Defendant was
involved and of which he was convicted distributed at least some
amount of cocaine. Thus, the Court's failure to instruct the
jury to determine the type of drug distributed as part of the
conspiracy was harmless because the failure did not affect
Defendant's substantial rights, nor did the error seriously
affect the fairness, integrity, or public reputation of the
judicial proceedings. Lanier, 220 F.3d at 838.
Because the conspiracy involved at least some amount of
cocaine, Defendant's statutory maximum penalty is 30 years. The
indictment cited to 21 U.S.C. § 841(b)(1)(B) as the penalty
provision governing Defendant's offense. This statute provides
for a mandatory minimum of ten years to life if the defendant
has a prior felony drug conviction and distributed either 500
grams or more of cocaine or 100 kilograms or more of marijuana.
Apprendi teaches that district courts can no longer decide
facts, such as drug amounts, if it elevates a defendant's
maximum statutory exposure. Apprendi, ___ U.S. at ___ - ___
120 S.Ct. at 2362-63.
Therefore, the Court believes that the proper penalty
provision in this case is 21 U.S.C. § 841(b)(1)(C). Title
21 U.S.C. § 841(b)(1)(C) is a lesser included offense section of §
841(b)(1)(B) and provides for a statutory maximum penalty of 20
years if the offense involved any amount of a schedule I or II
controlled substance or 30 years if the defendant has a prior
felony drug conviction. Because Defendant was convicted of
conspiracy, he is held accountable for the drugs which were
reasonably forseeably distributed as part of the conspiracy.
United States v. Whitt, 211 F.3d 1022, 1028 n. 11 (7th Cir.
2000). Because cocaine is a schedule II controlled substance, §
841(b)(1)(C) applies. Finally, because § 841(b)(1)(C) provides
for a 30 year statutory maximum penalty in this case (Defendant
has a prior felony drug conviction) and because Defendant's
sentencing guideline range is less than 30 years (his guideline
range is 262 to 327 months), Apprendi is inapposite. See
Garcia-Guizar, 227 F.3d at 1129 (holding that because the court
sentenced the defendant to a term below the applicable statutory
minimum, Apprendi did not apply); see also United States v.
Egge, 223 F.3d 1128, 1132 n. 1 (9th Cir. 2000) (same); see
also Meshack, 225 F.3d at 575-76 (same); see also United
States v. Aguayo-Delgado, 220 F.3d 926, 934 (8th Cir. 2000)
(same). Accordingly, Defendant's objection to the PSR based upon
Apprendi is denied.*fn4
B AMOUNT OF DRUGS
Defendant also objects to paragraphs 14, 15, 16, 17, and 23
which hold him
accountable for the equivalent of 2,500.18 kilograms of
marijuana.*fn5 In addition to objecting to these paragraphs
based upon Apprendi, Defendant argues that, although the
amount of drugs for which he is being held accountable in these
paragraphs is based upon statements made to law enforcement
officials by his co-conspirators and other witnesses, when these
witnesses testified at trial, they contradicted their previous
statements regarding the drug amounts distributed as part of the
conspiracy. Accordingly, Defendant claims that the information
contained within these paragraphs is unreliable and that he
should not be held accountable for the drug amounts set forth
However, the trial testimony of Defendant's co-conspirators
and the other witnesses clearly establish that the conspiracy
involved the equivalent of at least 1,000 kilograms of
marijuana, i.e., the minimum threshold amount for Defendant to
receive a base offense level of 32. See United States v.
Henderson, 105 F. Supp.2d 523, 527 n. 8 (S.D.W. Va. 2000)
(holding that "Apprendi now prohibits a sentencing judge from
making factual determinations that increase statutory penalties.
Apprendi does not, however, extend so far as to preclude
judges from determining the drug amount for purposes of relevant
conduct."). As the Court stated supra,
[i]n a drug conspiracy, each conspirator is
responsible not only for amounts with which he was
directly involved, but also for amounts involved in
transactions by co-conspirators that were reasonably
foreseeable to him. Cotts, 14 F.3d at 305;
Goines, 988 F.2d at 775. "[R]easonable
foreseeability means more than subjective awareness
on the part of the individual defendants. . . .
Instead, conduct of co-conspirators . . . can be
considered `reasonably foreseeable' to a particular
defendant if that defendant has demonstrated a
substantial degree of commitment to the conspiracy's
objectives, either through his words or his conduct."
United States v. Edwards, 945 F.2d 1387, 1393-94
(7th Cir. 1991), cert. denied, 503 U.S. 973, 112
S.Ct. 1590, 118 L.Ed.2d 308 (1992).
United States v. Zarnes, 33 F.3d 1454, 1474 (7th Cir. 1994).
The Court finds that Defendant should be held accountable for
the full amount of the drugs distributed during the conspiracy
because the evidence presented at his trial establishes that he
had a substantial degree of commitment to the conspiracy's
objective of distributing cocaine and marijuana in the
Taylorville, Illinois, area. In fact, Defendant's role in the
conspiracy was both substantial and crucial. Shawn Jones*fn6
(a co-conspirator) testified before the grand jury*fn7 that
Defendant was the "money man" for Defendant's brother Billy
Scott (an unindicted co-conspirator) which enabled Billy Scott
to purchase cocaine and marijuana from Charles Kelsay.*fn8
Kelsay was the conspiracy's drug source in
Chicago, Illinois, and was a co-Defendant in this case. Jones
also testified that after Defendant and Billy Scott had a
falling out, Defendant gave him money to purchase drugs in
Q. Approximately how much would Bob Scott give you
to purchase drugs?
A. On the average anywhere from 5 to 10,000 dollars
on each trip, just depended on what he wanted. It
(Tr. 13). Molly Rahar, Billy Scott's ex-girlfriend, corroborated
Jones' testimony when she testified at trial that Defendant gave
money to Billy Scott to purchase cocaine and marijuana from
Kelsay in Chicago which he brought back to Taylorville and gave
In addition, several witnesses, including Rahar and
co-conspirators Timothy Burnett*fn9 and Ronald
Cooper,*fn10 testified that the drugs which were obtained
from Kelsay in Chicago as part of the conspiracy were brought
back and divided among the co-conspirators at Defendant's lake
house. Billy Chance, an inmate at the Sangamon County jail who
was assigned to the same cell block as Defendant, corroborated
this testimony when he testified at trial as follows:
Q. Did the defendant tell you anything about what
happened with the drugs after they were returned to
Taylorville? In terms of where they would be
A. He told me that either his lake lot or his
residence or at his bar.
Q. What did he tell you about the lake lot?
A. He told me that he had a lot of parties out at
his lake lot and that he sold a lot of drugs out
there at those parties.
(Tr. 20, 21). Therefore, it is clear, based upon the evidence at
trial, that Defendant played a major role in this conspiracy
from its inception and that he should be held accountable for
the full amount of the drugs possessed with the intent to
distribute and distributed as part of the conspiracy.
It is also clear that the conspiracy involved the equivalent
of at least 1,000 kilograms of marijuana. Jones testified before
the grand jury as follows:
Q. How many — on how many occasions did you go to
Chicago where Bob Scott gave you money to purchase
A. Numerous. I mean I couldn't give you an exact
figure because there was so many.
Q. More than ten?
A. Yes, yes, more than ten.
(Tr. 13-14). Likewise, Chance testified:
Q. Again, what was the — what did the defendant
tell you about the relation of Mr. Jones in terms
of the frequency of trips to Chicago and the weight
of drugs involved and the type of drugs involved?
A. He told me that Jones would go to Chicago and
get 10 to 12 pounds of pot and up to six ounces of
cocaine three to four times a month and that he
would give him anywhere from 10 to 15 grand to pay
for the drugs. He also told me that sometimes on
his drug runs on the way back en route to
would have Jones drop off drugs at various
(Tr. 20). Finally, Rahar estimated that the conspiracy involved
between 400 and 500 pounds of marijuana and between 40 and 50
ounces of cocaine; Burnett testified that on his trips to
Chicago, he obtained between 10 and 15 pounds of marijuana and
between four and twelve ounces of cocaine; and Cooper testified
that on his trips to Chicago, he obtained between 15 and 25
pounds of marijuana and between three and eight ounces of
Furthermore, in sentencing Defendant's co-conspirators, the
Court has previously found that the instant conspiracy involved
the equivalent of at least 1,000 kilograms of marijuana. Based
upon the evidence set forth above and the other evidence
presented at trial, it is abundantly clear that the conspiracy
of which Defendant was convicted distributed the equivalent of
at least 1,000 kilograms of marijuana. Accordingly, Defendant's
objections to paragraphs 14, 15, 16, 17, and 23 are denied.
C. CRIMINAL HISTORY
Defendant also objects to paragraphs 37, 38, 39, and 40 which
set forth part of his past criminal conduct. Defendant argues
that, because he was not assessed any criminal history points as
a result of the conduct contained within these paragraphs, the
information should not be contained within his PSR.
However, because Defendant's objections to these paragraphs do
not affect sentencing, the Court declines to make a factual
finding on those objections pursuant to Federal Rule of Criminal
In addition, the United States Probation Office is required to
include this information in Defendant's PSR regardless of
whether any criminal history points are added. Fed.R.Crim.Pro.
D. REASONS FOR THE SENTENCE
Finally, 18 U.S.C. § 3553(c) requires the Court to state the
reasons for the sentence imposed. Here, the Court believes that
a sentence at the high end of Defendant's applicable sentencing
guideline range is appropriate for several reasons. First, few
criminal defendants who have appeared before this Court have had
as extensive a criminal history background as Defendant.
Defendant's criminal history shows a complete and utter
disregard for the rules of society.*fn11 Beginning at age 13
and continuing (with little interruption) until today, Defendant
has been engaged in criminal activity. In short, Defendant is a
recidivist from whom society needs protection.
Second, Defendant's past criminal conduct displays a
contempt for law enforcement. On at least four occasions,
Defendant's criminal conduct has revealed his disdain for police
officers. For example, on one occasion, Defendant struck a
police officer and impeded the officer's attempts to get into
his squad car. On another occasion, Defendant placed a police
officer in a choke hold. On yet another occasion, Defendant
kicked, spat upon, and threatened the life of a police officer.
Third, Defendant has failed to show any remorse or
acceptance of responsibility for his crime. United States v.
Ward, 211 F.3d 356, 366-67 (7th Cir. 2000). On the contrary,
Defendant has repeatedly denied association in the instant
conspiracy despite the overwhelming evidence presented at trial
to the contrary. For these reasons, the Court believes that a
sentence at the high end of the guideline range is appropriate.
18 U.S.C. § 3553(c).
Ergo, Defendant's Objections to the Presentence
Investigation Report are DENIED. Therefore, Defendant has an
adjusted offense level of 34 and a criminal history within
category VI, yielding a
sentencing range of 262 to 327 months of imprisonment.
Accordingly, Defendant is hereby sentenced to 326 months of
imprisonment to be followed by a 6 year term of supervised
release upon being discharged from the Bureau of Prisons.
Defendant is ordered to pay a special assessment of $100.00
immediately. No fine or restitution is ordered. Finally, the
Court recommends to the Bureau of Prisons that Defendant be
placed in a facility as close to Taylorville, Illinois, as