By: dmc-admin//July 2, 2001//
“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.