APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal Nos. 00-cr-00419-8, 00-cr-00419-7, 00-cr-00419-4, 00-cr-00419-3) District Judge: The Honorable Eduardo C. Robreno
Before: Alito, Barry, and Ambro, Circuit Judges
The opinion of the court was delivered by: Barry, Circuit Judge
Argued: September 11, 2003
On July 18, 2000, appellants James Phillips, Jeffrey Johnson, Dennis Jenkins, and Otto Barbour were indicted for conspiracy to distribute over 50 grams of cocaine base — hereinafter "crack" or "crack cocaine"; distribution of crack cocaine; and distribution of crack cocaine within 1,000 feet of a public housing project, in violation of 21 U.S.C. §§ 841, 846 & 860. The government subsequently dismissed the substantive counts against Johnson. On December 20, 2000, following a jury trial in the United States District Court for the Eastern District of Pennsylvania, appellants were convicted on all remaining counts.*fn1 The jury also returned a supplemental verdict finding that the conspiracy involved 50 or more grams of crack cocaine.
The District Court granted Barbour's post-trial motion for a judgment of acquittal on the conspiracy count, and denied all other post-trial motions. As relevant here, Phillips and Johnson were sentenced to 360-month terms of imprisonment, Barbour to 235 months, and Jenkins to 262 months. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We will affirm in part and reverse in part, remanding for reconsideration of the sentence imposed on Jenkins.
The primary issue before us is whether, pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), a jury in a multi-defendant drug conspiracy case must determine the amount of drugs attributable to each defendant, or only the amount involved in the conspiracy as a whole. This issue, one of first impression for us, is an issue over which we exercise plenary review. United States v. Barbosa, 271 F.3d 438, 452 (3d Cir. 2001).
The District Court denied the requests of Phillips and Johnson for a determination by the jury of the quantity of crack attributable to each of them individually. Instead, the Court instructed the jury to decide, beyond a reasonable doubt, only the amount of crack involved in the conspiracy itself. The jury found, beyond a reasonable doubt, that the amount of crack attributable to the conspiracy was 50 or more grams, an amount which triggered the statutory maximum of life imprisonment under 21 U.S.C. § 841(b)(1)(A).*fn2
Phillips and Johnson argue on appeal that Apprendi was violated because the District Court asked the jury to decide only the quantity involved in the conspiracy and not the quantity attributable to each of them individually. The government, in response, contends that there was no Apprendi violation. We agree with the government.*fn3
In Apprendi, the Supreme Court held 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." 530 U.S. at 490. There can be no dispute that Apprendi recognized a new constitutional right, and dramatically changed what had gone before in terms of federal sentencing law and procedure. Neither can it be disputed that, post- Apprendi, district courts and courts of appeals have struggled with the various permutations and combinations in which Apprendi is, or can be, or is not, implicated. It is clear, however, that while, after Apprendi, drug type and quantity remain sentencing issues, both the burden of proof and the fact-finder have changed. Consistent with Apprendi, therefore, we held in United States v. Vazquez, 271 F.3d 93, 98 (3d Cir. 2001), and our sister courts of appeals have held, that an Apprendi violation occurs if drug type and quantity are not found by a jury beyond a reasonable doubt and the defendant's sentence exceeds the prescribed statutory maximum to which he or she is exposed under 21 U.S.C. § 841 by virtue of the jury's verdict. We have not yet had occasion to address the issue of whether Apprendi requires that a jury make a defendant -specific finding of drug type and quantity where there is a conspiracy. Other courts of appeals, however, have done so, and we do so now.
The First Circuit, in Derman v. United States, 298 F.3d 34 (1st Cir. 2002), cert. denied, 537 U.S. 1048 (2002), held that the government need only prove to the jury the facts necessary to increase the statutory sentencing maximum for the conspiracy as a whole, and not for each defendant. Id. at 43. The Derman Court relied on Edwards v. United States, 523 U.S. 511 (1998), in which the Supreme Court held, pre- Apprendi, that as long as the jury determines that a defendant participated in the conspiracy, and his or her sentence does not exceed the statutory maximum applicable to that conspiracy, the court may determine both the quantity and type of drugs attributable to the defendant and impose sentence accordingly. Finding that Edwards was not overruled by Apprendi, the First Circuit reconciled what Edwards had to say with what the Court in Apprendi later had to say:
[T]he two decisions are easily harmonized: in a drug conspiracy case, the jury should determine the existence vel non of the conspiracy as well as any facts about the conspiracy that will increase the possible penalty for the crime of conviction beyond the default statutory maximum; and the judge should determine, at sentencing, the particulars regarding the involvement of each participant in the conspiracy. This means that once the jury has determined that the conspiracy involved a type and quantity of drugs sufficient to justify a sentence above the default statutory maximum and has found a particular defendant guilty of participation in the conspiracy, the judge lawfully may determine the drug quantity attributable ...