Appeals from the United States District Court for the Central District of Illinois. No. 06-10033-Michael M. Mihm, Judge.
The opinion of the court was delivered by: Wood, Circuit Judge
Before EASTERBROOK, Chief Judge, and MANION and WOOD, Circuit Judges.
Neashon Washington and Adrein Bennett were two members of a drug distribution gang that called itself the "Bigelow boys." The Boys operated in the general area of Peoria, Illinois, using a house at 1811 Bigelow Street. The police began focusing on Washington and Bennett in mid-2005, with the help of a confidential informant. Undercover work and controlled sales followed. Eventually, Washington, Bennett, and three other men were charged with conspiracy to distribute crack cocaine and a number of substantive distribution offenses, in violation of 21 U.S.C. §§ 841(a)(1) and 846. After a jury found Bennett and Washington guilty of all charges against them, the district court sentenced Bennett to a term of 240 months' imprisonment, with 10 years of supervised release on the conspiracy count and 6 years on all other counts, and it sentenced Washington to a term of 140 months' imprisonment, with varying terms of supervised release for different counts.
Both have appealed. Bennett argues that the district court made two errors in sentencing him: first, he asserts that it was inconsistent with Apprendi v. New Jersey, 530 U.S. 466 (2000), for the judge to use 21 U.S.C. § 841(b)(1)(A) as the basis for a statutory minimum sentence of 20 years, despite the jury's failure to find that he had dealt in the necessary quantity of drugs to trigger subpart (A)'s maximum sentence; and second, he argues that the judge should not have applied the two-level enhancement for use of a gun in relation to a drug trafficking crime, under U.S. Sentencing Guideline § 2D1.1(b)(1), in computing his offense level. Washington argues only that the district court erred in entering judgment and sentencing him for distribution of cocaine base (crack), when the jury found him guilty only of distributing the powder form of cocaine. The district court has since corrected the judgment so that it now reads "distribution of cocaine." As the error did not otherwise affect Washington's sentence, the district court's action suffices to moot Washington's appeal. We therefore confine our remarks here to Bennett's case.
Because Bennett's arguments focus exclusively on his sentence, we can dispense with a detailed account of the operation of the drug conspiracy. The jury was presented with evidence from a cooperating member of the conspiracy, who told them about what was sold (usually crack), how much was sold, what prices were charged, and how the drugs were weighed, packaged, and delivered. When the time came to instruct the jury, one instruction went as follows:
If you find the defendant, Adrein Bennett, guilty of conspiracy as charged in Count 1 of the Indictment, next you must find beyond a reasonable doubt the quantity of drugs involved. Indicate your findings as to the quantity of drugs below and have each juror sign this form.
We, the jury, find that the amount of controlled substances involved in the conspiracy and reasonably foreseeable to Adrein Bennett was:
_____5 grams or more, but less than 50 grams
With respect to Count 2 (which charged Bennett and Washington with distribution of crack), the jury was asked to decide only whether Bennett was guilty of distributing "cocaine." For Counts 3 through 17, the jury was asked to make a finding of guilty or not guilty, and then to indicate whether the drug distributed was "co-caine base, but not cocaine base (crack)" or "cocaine base (crack)." It was not asked to find quantity for Counts 2 through 17.
At one point during its deliberations, the jury sent a note indicating that it was having trouble agreeing on the quantity of cocaine involved in any of the counts. After a discussion, the prosecutor and defense counsel agreed that the court should just await the jury's verdict and decide then what to do if anything was missing. The jury eventually returned its verdict and found Bennett guilty of the conspiracy charged in Count 1, but it left the form addressing drug quantity blank. It ...