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00-2887 U.S. v. Gilliam

By: dmc-admin//July 2, 2001//

00-2887 U.S. v. Gilliam

By: dmc-admin//July 2, 2001//

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“Generally, Apprendi does not require facts pertinent to application of

the Sentencing Guidelines to be determined under an elevated burden of

persuasion… However, this is one instance where Apprendi is applicable

to a determination made in accordance with the Sentencing Guidelines.

This is because U.S.S.G sec. 4B1.1 makes the ‘offense statutory maximum’

the determinative factor in calculating a sentence under the career

offender guideline. Therefore, the rule set forth in Apprendi was

implicated when the court relied upon an indictment listing no drug

quantity, and only referencing sec. 841(a)(1), in setting the offense

statutory maximum for career offender purposes at life imprisonment.”

“While we recognize that Apprendi is properly implicated by these facts,

as above, we do not believe that the district court’s decision seriously

affected the fairness, integrity, or public reputation of the judicial

proceedings. See United States v. Saya, 247 F.3d 929, 940-42 (9th Cir.

2001) (finding that applying an incorrect offense statutory maximum for

career offender purposes implicates Apprendi, but that nonetheless,

plain error review still applies). As stated above, at no point during

the proceedings did Gilliam ever believe the statutory maximum penalty

for Count I was anything other than life imprisonment. Furthermore,

though we need not rehash the facts of this case, we are confident that

the testimony of both agent Baker and Gilliam overwhelmingly established

that Gilliam had dealt in a quantity of drugs sufficient to set his

statutory offense maximum at life imprisonment. As such, the application

of that maximum for career offender level purposes does not require that

we vacate Gilliam’s sentence.”

Affirmed.

Appeal

from the United States District court for the Southern District of

Indiana, Barker, J., Flaum, J.

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