United States v. Matthews

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-50440
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JEFFREY MATTHEWS,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
November 12, 2002
Before JONES, SMITH, and SILER,*
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
For the second time, Jeffrey Matthews ap-
peals his sentences for convictions of carjack-
ing and conspiracy to commit carjacking.
Although both sentences violate Apprendi v.
New Jersey, 530 U.S. 466 (2000), these errors
are harmless under Chapman v. California,
386 U.S. 18 (1967), so we affirm.
I.
A.
We described the facts of Matthews’s hei-
nous crimes in his first appeal, United States v.
Matthews, 178 F.3d 295, 297-98 (5th Cir.
1999) (“Matthews I”), so we review them only
briefly here. Matthews and three other men
* Judge of the United States Court of Appeals
for the Sixth Circuit, sitting by designation.

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2
stalked Terrie Dittman as she drove her van
home. When she pulled into her driveway,
Matthews took a gun from his co-defendant,
Michael Cook, walked up to the van’s driver-
side window, and pointed the gun at Dittman.
When she tried to drive away, Matthews shot
at her five times and hit her three times, griev-
ously injuring her and leaving her for dead.
A jury convicted Matthews of carjacking in
violation of 18 U.S.C. § 2119, conspiracy to
commit carjacking in violation of 18 U.S.C.
§ 371, and using or carrying a firearm during
a carjacking in violation of 18 U.S.C. § 924(c).
(Cook was convicted of similar crimes.) The
district court sentenced Matthews to
(1) twenty-five years’ imprisonment for car-
jacking, which included a ten-year enhance-
ment because he inflicted serious bodily injury,
18 U.S.C. § 2119(2); (2) seven years for
conspiracy, which included a two-year en-
hancement under the criminal street gangs stat-
ute, 18 U.S.C. § 521; and (3) five years for the
firearms violation. The court ordered the
sentences to run consecutively, for a total of
thirty-seven years.
In Matthews I, this court affirmed
Matthews’s convictions on all three counts and
affirmed his conspiracy and firearms sentences,
but vacated his carjacking sentence. After the
district court sentenced Matthews but before
we had decided Matthews I, the Court held in
Jones v. United States, 526 U.S. 227 (1999),
that the carjacking statute, 18 U.S.C. § 2119,
stated three separate offenses, not one offense
with three possible sentences.1 For simplicity,
we herein refer to these offenses as simple car-
jacking, § 2119(1); carjacking resulting in
serious bodily injury, § 2119(2); and carjack-
ing resulting in death, § 2119(3).
The maximum sentence for simple carjack-
ing is fifteen years; for carjacking resulting in
serious bodily injury, twenty-five years; and
for carjacking resulting in death, life imprison-
ment or death. “[T]he serious bodily injury as-
pect of § 2119(2) was not included in the in-
dictment or presented to the jury,” Matthews I,
178 F.3d at 301, because Matthews’s trial and
sentencing preceded Jones. Nevertheless,
Matthews received the benefit of Jones on his
direct appeal, so “we vacate[d] Matthews’
sentence for carjacking and remand[ed] to the
district court for re-sentencing consistent with
Jones and the lower maximum imprisonment
of § 2119(1).” Id.
On the other hand, we affirmed the two-
year enhancement of Matthews’s conspiracy
sentence under the criminal street gangs stat-
ute, 18 U.S.C. § 521. Section 521(b) states
that “[t]he sentence of a person convicted of
an offense described in subsection (c) shall be
increased by up to 10 years if the offense is
committed under the circumstances described
in subsection (d).”2 Subsection (d) identifies
three facts necessary to increase a defendant’s
sentence under subsection (b): The defendant
(1) “participates in a criminal street gang with
knowledge that its members engage in or have
1 Jones rested partly on ordinary principles of
statutory interpretation, 526 U.S. at 232-39, but
also on the canon of constitutional doubt, 526 U.S.
at 239-52. These doubts were identical to the
(continued...)
(...continued)
eventual holding of Apprendi. Indeed, the Supreme
Court has observed that Apprendi “was fore-
shadowed by our opinion in Jones.” Apprendi,
530 U.S. at 476 (citation omitted).
2 Matthews does not dispute that both car-
jacking and conspiracy to commit carjacking are
qualifying § 521(c) offenses.

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3
engaged in a continuing series of offenses de-
scribed in subsection (c),” (2) “intends to pro-
mote or further t he felonious activities of the
criminal street gang or maintain or increase his
or her position in the gang,” and (3) “has been
convicted within the past 5 years” of a crime
within several listed categories.3 18 U.S.C.
§ 521(d).
Matthews challenged the § 521 enhance-
ment as a violation of his Fifth and Sixth
Amendment rights. “Matthews argue[d] that
§ 521 is a separate offense that must be
charged by indictment, proven beyond a rea-
sonable doubt, and submitted to a jury for its
verdict as required by the Fifth and Sixth
Amendments.” Matthews I, 178 F.3d at 302.
Using the ordinary tools of statutory
interpretation, we agreed with the district
court that § 521 is a sentence enhancement
statute, not a separate offense the elements of
which must be pleaded in the indictment and
proven to a jury beyond a reasonable doubt.
Id. Thus, we affirmed the two-year
enhancement of the conspiracy sentence based
on evidence presented by the government
“during the sentencing phase of the trial.” Id.
at 303.
B.
On remand, both parties sought more than
a ministerial resentencing order. The
government urged the court not only to
sentence Matthews to fifteen years for simple
carjacking under § 2119(1), but also to
enhance this sentence by ten years under § 521
based on the court’s earlier factual findings for
the § 521 enhancement of the conspiracy
sentence. Matthews, however, urged the court
to reconsider the § 521 enhancement of the
conspiracy sentence because the Supreme
Court had decided Apprendi after our decision
in Matthews I but before the district court
resentenced him. He argued that
Apprendi was an intervening change of law
that effectively overruled our holding in
Matthews I that the necessary facts for a § 521
enhancement need not be pleaded in the
indictment and proven to a jury beyond a
reasonable doubt. Further, for the same
reasons, he argued against the government’s
requested § 521 enhancement of the carjacking
sentence.4
The district court accepted the govern-
ment’s arguments and resentenced Matthews
to fifteen years for simple carjacking under
§ 2119(1) but added a ten-year enhancement
under § 521 based on its earlier factual
findings. The court declined to reconsider its
earlier two-year § 521 enhancement of the
conspiracy sentence, thus achieving its original
sentencing intent of twenty-five years for the
carjacking offense and thirty-seven total years.
II.
Matthews appeals the § 521 enhancements
of the carjacking and the conspiracy sentences.
The enhancements rest on identical factual
findings and thus pose one underlying legal
question, namely, the validity, after Apprendi,
of a § 521 enhancement based on facts not
pleaded in the indictment and not proven to a
jury beyond a reasonable doubt.
Before we reach the merits of this question,
however, we must address two procedural
questions. Matthews argues that the doctrine
3 Matthews does not dispute that his long crim-
inal record includes several crimes within these
categories.
4 He also argued that the requested § 521 en-
hancement for the carjacking sentence would ex-
ceed our mandate from Matthews I.

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4
of law of the case permitted the district court
to reconsider and vacate its § 521
enhancement of his conspiracy sentence and
prohibited the court from enhancing his
carjacking sentence under § 521. We agree
with the former but not the latter. Thus, we
may review both § 521 enhancements.
A.
“Under the law of the case doctrine, an is-
sue of fact or law decided on appeal may not
be reexamined either by the district court on
remand or by the appellate court on a
subsequent appeal.” Tollett v. City of Kemah,
285 F.3d 357, 363 (5th Cir. 2002) (citation
omitted), cert. denied, 2002 U.S. App. LEXIS
6495 (U.S. Oct. 7, 2002). Without this
doctrine, cases would end only when obstinate
litigants tire of re-asserting the same
arguments over and over again. Moreover,
the doctrine discourages opportunistic litigants
from appealing repeatedly in hopes of
obtaining a more sympathetic panel of this
court. United States v. Becerra, 155 F.3d
740, 752 (5th Cir. 1998). The doctrine of law
of the case, in other words, is essential to the
orderly administration of justice.
At the same time, law of the case is not a
jurisdictional rule, but a discretionary practice.
The doctrine “merely expresses the practice of
courts generally to refuse to reopen what has
been decided, not a limit to their power.”
Messenger v. Anderson, 225 U.S. 436, 444
(1912).5 Law of the case therefore “is not in
violate.” Becerra, 155 F.3d at 752. The doc-
trine has three exceptions: (1) The evidence at
a subsequent trial is substantially different;
(2) there has been an intervening change of
law by a controlling authority; and (3) the
earlier decision is clearly erroneous and would
work a manifest injustice. Id. at 752-53.
These observations about law of the case
extend as well to the so-called mandate rule,
which is but a specific application of the gen-
eral doctrine of law of the case. That rule
“provides that a lower court on remand must
implement both the letter and the spirit of the
appellate court’s mandate and may not
disregard the explicit directives of that court.”
Id. at 753 (internal alterations and quotation
marks omitted). The mandate rule, however,
has the same exceptions as does the general
doctrine of law of the case; these exceptions,
if present, would permit a district court to ex-
ceed our mandate on remand. Id.
B.
The district court could have reconsidered,
and this court can review, the § 521
enhancement of the conspiracy sentence,
because Apprendi was an intervening change
of law that effectively overruled our decision
affirming this enhancement in Matthews I. In
his first appeal, Matthews presciently
anticipated the eventual ruling in Apprendi.
He squarely argued that the necessary facts for
a § 521 enhancement “must be charged by
indictment, proven beyond a reasonable doubt,
and submitted to a jury for its verdict as
required by the Fifth and Sixth Amendments.”
Matthews I, 178 F.3d at 302. 5 “The courts are understandably reluctant to
reopen a ruling once made. . . . Reluctance, how-
ever, does not equal lack of authority. The con-
straint is a matter of discretion. So long as a case
remains alive, there is power to alter or revoke
earlier rulings.” WRIGHT, MILLER & COOPER,
(continued...)
5(...continued)
FEDERAL PRACTICE AND PROCEDURE: JURISDIC-
TION 2D § 4478, at 637 (2002).

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5
In Apprendi, the Court adopted this
position almost verbatim: “[A]ny fact (other
than a prior conviction) that increases the
maximum penalty for a crime must be charged
in an indictment, submitted to a jury, and
proven beyond a reasonable doubt.”
Apprendi, 530 U.S. at 476 (quoting Jones,
526 U.S. at 243 n.6). As we explain in greater
detail, infra part III.A, Apprendi repudiates
Matthews I. Law of the case therefore did not
prevent the district court from reconsidering
the § 521 enhancement of the conspiracy sen-
tence, nor does it prevent us from entertaining
Matthews’s challenge in this appeal.
C.
Though unenthusiastic about law of the
case on his conspiracy sentence, Matthews un-
derstandably is an ardent defender of the man-
date rule on his carjacking sentence. The man-
date in Matthews I stated that “we vacate
Matthews’[s] sentence for carjacking and re-
mand to the district court for re-sentencing
consistent with Jones and the lower maximum
imprisonment of § 2119(1).” Matthews I, 178
F.3d at 301. Matthews argues that this
mandate prohibited the court from enhancing
his carjacking sentence under § 521. We
disagree, concluding that the district court did
not exceed our mandate from Matthews I.
To determine whether the district court
complied with the mandate rule, we must de-
termine the meaning of the Matthews I
mandate. This court has adopted a restrictive
rule for interpreting the scope of the mandate
in the criminal resentencing context. United
States v. Marmolejo, 139 F.3d 528 (5th Cir.
1998) (“Marmolejo II”).
In United States v. Marmolejo, 106 F.3d
1213 (5th Cir. 1997) (“Marmolejo I”), we re-
versed sentence reductions for the defendant’s
acceptance of responsibility and his role as a
minor participant in a conspiracy, and remand-
ed for resentencing. On remand, the defendant
challenged an unappealed aspect of his initial
sentence, namely, an enhancement for
obstruction of justice, but the court declined to
reconsider this enhancement. Marmolejo II,
139 F.3d at 529. The defendant argued on ap-
peal that a resentencing hearing should be de
novo, and the district court should be able to
(re)consider every legal and factual ground for
every aspect of his sentence for every count.
Id. at 530.
Although noting that a majority of the cir-
cuits had adopted this view, we rejected it and
took the minority view that “only those
discrete, particular issues identified by the
appeals court for remand are properly before
the resentencing court.” Id.
The only issues on remand properly be-
fore the district court are those issues
arising out of the correction of the
sentence ordered by this court. In short,
the resentencing court can consider
whatever this court directsSSno more,
no less. All other issues not arising out
of this court’s ruling and not raised
before the appeals court, which could
have been brought in the original appeal,
are not proper for reconsideration by the
district court below.
Id. at 531. Thus, we affirmed the district
court’s refusal to reconsider its initial
enhancement for obstruction of justice,
because the defendant had not appealed that
enhancement in Marmolejo I and it did not
arise out of our mandate in Marmolejo I.
At first blush, Marmolejo II seems to pro-
hibit the § 521 enhancement for the carjacking

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6
sentence. Although we discussed § 521 as we
reviewed Matthews’s conspiracy sentence,
Matthews I, 178 F.3d at 301-03, we did not
mention the statute as we reviewed his car-
jacking sentence, id. at 301. Moreover, our
mandate did not refer to § 521: “[W]e vacate
Matthews’[s] sentence for carjacking and re-
mand to the district court for re-sentencing
consistent with Jones and the lower maximum
imprisonment of § 2119(1).” Id. Matthews
therefore appears on solid ground when he ar-
gues that the court exceeded the scope of our
mandate (even though he does not cite Mar-
molejo II).
At second glance, however, this argument
misunderstands the effect of Jones on § 2119
and the nature of our mandate in Matthews I.
Without the aid of Jones, the grand jury
indicted Matthews for, and the petit jury con-
victed him of, a single abstract crime known as
“carjacking” under § 2119. The district court,
also without the aid of Jones, enhanced
Matthews’s sentence by ten years under
§ 2119(2) because he had caused “serious
bodily injury” to Dittman. We vacated this
sentence because “the [Supreme] Court
construed § 2119(1), (2), & (3) ‘as
establishing three separate offenses by the
specification of distinct elements, each of
which must be charged and proven by
indictment, proven beyond a reasonable doubt,
and submitted to a jury for its verdict.’”
Matthews I, 178 F.3d at 301 (quoting Jones,
526 U.S. at 252).
Matthews and the government still conceive
of Matthews I as affirming a single abstract
crime known as “carjacking” under § 2119 and
remanding for resentencing for that crime.
This conception is wrong. After Jones, there
is no such crime as “carjacking” under § 2119.
Rather, there are three distinct crimes under,
respectively, § 2119(1), (2), and (3), what we
have called simple carjacking, carjacking
resulting in serious bodily injury, and
carjacking resulting in death.
Matthews was sentenced initially as if he
had been convicted of carjacking resulting in
serious bodily injury under § 2119(2). Jones
undermined this conviction, because the gov-
ernment had not pleaded or proved the serious
bodily injury element. Thus, when we vacated
the sentence and remanded in Matthews I, we
did not merely vacate a sentence; instead, we
vacated Matthews’s entire conviction of the
aggravated offense of carjacking resulting in
seriously bodily injury, and remanded for sen-
tencing on the lesser included offense of simple
carjacking.
When the case is understood in this light,
Matthews had never been sentenced for the
lesser included offense of simple carjacking.
Likewise, the district court had never conduct-
ed a full de novo sentencing hearing on this
conviction or allowed the parties to argue for
enhancements or reductions in the sentence for
this conviction. Thus, the necessary and log-
ical implication of our mandate in Matthews I
was to authorize the district court to conduct
just such a hearing. This implication takes this
case outside the realm of Marmolejo II, which
dealt only with resentencing on the same
conviction, and makes the § 521 enhancement
of the simple carjacking sentence on remand
perfectly appropriate.
We acknowledge that our mandate in Mat-
thews I might have contributed to the parties’
confusion. Again, it stated: “[W]e vacate
Matthews’[s] sentence for carjacking and re-
mand to the district court for re-sentencing
consistent with Jones and the lower maximum
imprisonment of § 2119(1).” Matthews I, 178

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7
F.3d at 301. The mandate does not refer to
Matthews’s conviction and does refer to his
“sentence” and to a remand for “re-
sentencing.”
Yet, to be “consistent with” Jones and
§ 2119(1), this mandate must be understood as
vacating the conviction and the sentence for
carjacking resulting in serious bodily injury.
Moreover, our comment that we remanded for
“re-sentencing” merely reflects that Matthews
still had a valid conviction for the lesser in-
cluded offense of simple carjacking, so the
court did not need to hold a new trial on the
question of guilt.
Furthermore, the district court “must
implement the letter and the spirit” of our
mandate, Becerra, 155 F.3d at 753 (citation
and internal quotation marks omitted), both of
which indicate that we intended the court to
hold a full de novo hearing on the sentence for
the lesser included offense of simple carjack-
ing, for which Matthews had never been sen-
tenced. First, there is no logical inconsistency
between the Matthews I mandate and what the
district court did on remand. We directed the
court to resentence consistent with Jones and
§ 2119(1), i.e., the lesser included offense of
simple carjacking, the only crime for which
Matthews was properly convicted. The court
did just that, imposing the base fifteen-year
sentence for simple carjacking under § 2119(1)
and then enhancing the base sentence under §
521.
Second, if we had intended only a
ministerial resentencing, we could have
reversed and rendered the fifteen-year sentence
to save everyone involved time, expense, and
effort.6 That we did not reverse and render
indicates that we intended the district court to
engage in a full de novo hearing on the
theretofore unsentenced conviction of the
lesser included offense of simple carjacking.
Moreover, if we had not intended that court to
consider enhancements or reductions to the
sentence, we would have been more explicit,
for example, by remanding “for resentencing
for not more than fifteen-years as required by
§ 2119(1).”7
To illustrate the point further, imagine a hy-
pothetical but nearly identical case. If Mat-
thews committed these crimes today, i.e., after
Jones, the government likely would indict him
for carjacking resulting in serious bodily injury
under § 2119(2) and the lesser included of-
fense of simple carjacking under § 2119(1).
Suppose that the jury convicted (with proper
instructions) on both counts, and the district
court properly sentenced him for the
aggravated offense but not the lesser included
offense. Suppose further that Matthews
appealed his convictions for insufficient
evidence. On appeal, suppose finally that we
reversed the conviction for carjacking resulting
in serious bodily injury because insufficient
evidence supported the element of serious
bodily injury, but we affirmed the conviction
for simple carjacking because sufficient
evidence supported the remaining elements.
What would we then do?
6See, e.g., United States v. Hernandez-Gue-
vara, 162 F.3d 863, 878 (5th Cir. 1998) (“[W]e
need not waste judicial resources by remanding for
what undoubtedly would be a rote resentencing.”).
7See, e.g., United States v. Bell, 470 F.2d 1178
(5th Cir. 1978) (vacating and remanding after dis-
trict court ignored a mandate that the new sentence
was “not to exceed six years”).

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8
We would vacate the conviction and the
sentence for carjacking resulting in serious
bodily injury, and we would remand for
sentencing on the lesser included offense of
simple carjacking, for which the defendant had
never been sentenced. Our mandate might
even say that we remand “for resentencing
consistent with § 2119(1).” Under these cir-
cumstances, no one would doubt that the dis-
trict court could, and indeed should, conduct
a full de novo sentencing hearing for the simple
carjacking conviction.8 The only difference
between this hypothetical and this case is the
timing of Jones, which does not make a
difference to the meaning of our mandate in
Matthews I.
In sum, our mandate in Matthews I
authorized the district court to conduct a full
de novo sentencing hearing on the conviction
of simple carjacking and to entertain any
requests for enhancements or reductions in the
fifteen-year sentence authorized by § 2119(1).
The court complied with our mandate. It
therefore did not violate the mandate rule.
III.
With these procedural matters settled, we
reach the question whether Apprendi permits
a § 521 enhancement based on facts not plead-
ed in the indictment and not proven to a jury
beyond a reasonable doubt. Matthews mounts
identical challenges to the § 521 enhancements
for the carjacking and the conspiracy
convictions.
The enhancements required three essential
factual findings: (1) participation in a criminal
street gang with knowledge of its criminal ac-
tivities, (2) intent to promote or further these
activities or to maintain or increase one’s po-
sition in the gang, and (3) a prior conviction
for certain kinds of offenses. 18 U.S.C. § 521-
(d). The district court found these facts by a
preponderance of the evidence during the
sentencing hearing. Matthews argues that this
procedure violates his Fifth Amendment right
to be charged by indictment with all the
essential elements of his crime9 and his Sixth
Amendment right to require a jury finding of
guilt beyond a reasonable doubt on every ele-
ment of the crime.10
8 Any other approach would unduly restrict the
prosecution’s discretion and expose the criminal
defendant to unnecessarily harsh sentences. Where
a defendant is convicted of an aggravated and a
lesser included offense, the prosecution may believe
that the maximum sentence for the aggravated
offense is sufficiently long, but the maximum
sentence for the lesser included offense is too short.
Because the defendant is sentenced only for the
aggravated offense, the prosecution need not
request any enhancements. Yet, if the prosecution
feared that an appellate court might reverse the
aggravated offense conviction or sentence and
remand for resentencing on the lesser included
offense without the possibility of enhancements, the
prosecution likely will seek enhancements in the
initial sentencing despite its belief that the
enhancements are needlessly harsh. Cf. United
States v. Campbell, 106 F.3d 64, 68 (5th Cir.
1997) (endorsing the “aggregate approach” when
evaluating a Pearce vindictive resentencing claim
because “[s]entencing is a fact-sensitive exercise
that requires district court judges to consider a
wide array of factors when putting together a
‘sentencing package’” and therefore “the district
court’s job on remand is to reconsider the entirety
of the (now-changed) circumstances and fashion a
sentence that fits the crime and the criminal”).
9 U.S. CONST. amend. V; United States v.
Hamling, 418 U.S. 87, 117 (1970).
10 U.S. CONST. amend. VI; United States v.
Gaudin, 515 U.S. 506, 510 (1995); Sullivan v.
Louisiana, 508 U.S. 275, 278 (1993); In re Win-
ship, 397 U.S. 358, 364 (1974).

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9
“The applicability of Apprendi to this case
is a question of law that we review de novo.”
United States v. Stone, 306 F.3d 241, 243 (5th
Cir. 2002). Following Apprendi, we agree
that this procedure violated Matthews’s Fifth
and Sixth Amendment rights, but we also con-
clude that these errors were harmless. We
therefore affirm both § 521 enhancements.
A.
In his first appeal, Matthews challenged the
§ 521 enhancement of his conspiracy
conviction on an identical ground. “Matthews
argue[d] that § 521 is a separate offense that
must be charged by indictment, proven beyond
a reasonable doubt, and submitted to a jury for
its verdict as required by the Fifth and Sixth
Amendments.” Matthews I, 178 F.3d at 302.
We rejected this challenge, “hold[ing] that §
521 is a sentence enhancement statute rather
than a separate offense.” Id. We reached this
interpretation by carefully reviewing the text
and legislative history of § 521 and the
Sentencing Commission’s treatment of § 521
as a sentence enhancement provision. Id.
These sources, we thought then and still
believe, were “overwhelming evidence of Con-
gress’[s] intent regarding § 521” as a sentence
enhancement statute, not a separate criminal
offense. Id. This distinction, we held in
Matthews I, permitted the district court to find
the essential facts of a § 521 enhancement by
a mere preponderance of the evidence. Id.
This distinction, however, is largely
irrelevant after Apprendi11: “[A]ny fact (other
than a prior conviction) that increases the
maximum penalty for a crime must be charged
in an indictment, submitted to a jury, and
proven beyond a reasonable doubt.”
Apprendi, 530 U.S. at 476 (quoting Jones,
526 U.S. at 243 n. 6).12 Apprendi repeatedly
disparaged the distinction between a fact
characterized as a sentencing factor and a fact
characterized as an element of a separate
offense when the fact increases the statutory
maximum penalty.13
11 We say the distinction is only “largely” in-
stead of “wholly” irrelevant after Apprendi, be-
cause “a majority of the [Supreme] Court con-
cludes that the distinction between elements and
sentencing factors continues to be meaningful as to
(continued...)
11(...continued)
facts increasing the minimum sentence.” Ring v.
Arizona, 122 S. Ct. 2428, 2441 n.5 (2002) (citing
Harris v. United States, 122 S. Ct. 2406, 2419
(2002) (plurality)). But see Harris, 122 S. Ct. at
2428 (Thomas, J., dissenting) (observing that “only
a minority of the Court embrac[es] the distinction”
between facts increasing the statutory maximum
penalty and the statutory minimum penalty).
12 There are actually two rules of Apprendi, be-
cause the Fifth Amendment’s Grand Jury Clause,
alone among the Bill of Rights, has not been ap-
plied to the states through the Fourteenth
Amendment’s Due Process Clause. Thus, the rule
of Apprendi as applied to the states is that “[o]ther
than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the pre-
scribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.”
Apprendi, 530 U.S. at 490. We cite the federal
version of the rule here, because the Grand Jury
Clause applies to Matthews’s federal crime.
13 See, e.g., Apprendi, 530 U.S. at 492 (re-
jecting the argument that a finding of biased pur-
pose “is not an ‘element’ of a distinct hate crime
offense, but rather the traditional ‘sentencing fac-
tor’ of motive” as “nothing more than a dis-
agreement with the rule we apply today”); id. at
494 (“the relevant inquiry is one not of form, but of
effectSSdoes the required finding expose the
(continued...)

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10
The Supreme Court unequivocally re-enun-
ciated this principle earlier this year. “As to
elevation of the maximum punishment . . .
Apprendi repeatedly instructs in that context
that the characterization of a fact or
circumstance as an ‘element’ or a ‘sentencing
factor’ is not determinative of the question
‘who decides,’ judge or jury.” Ring, 122 S.
Ct. at 2441. “[T]he fundamental meaning of
the jury-trial guarantee of the Sixth
Amendment is that all facts essential to
imposition of the level of punishment that the
defendant receivesSSwhether the statute calls
them elements of the offense, sentencing fac-
tors, or Mary JaneSSmust be found by the jury
beyond a reasonable doubt.” Id. at 2444
(Scalia, J., concurring).
The import of Apprendi is inescapable: If
a fact increases the statutory maximum
penalty, it must be pleaded in the indictment
and found by a jury beyond a reasonable
doubt, regardless of whether Congress intend-
ed the fact to be a “sentencing factor” or an
“element” of a separate offense. Section 521
requires findings of just this kind of fact. Mat-
thews faced a statutory maximum of fifteen
years for his simple carjacking offense, 18
U.S.C. § 2119(1), and a statutory maximum of
five years for his conspiracy offense, 18 U.S.C.
§ 371. Section 521 increased these maximum
sentences by up to ten years each if he was
found to have committed these offenses (1)
while participating in a criminal street gang
with knowledge of its criminal activities, (2)
with intent to promote or further these
activities or to maintain or increase his position
in the gang, and (3) with a prior conviction for
certain kinds of offenses. Without a finding of
these facts, Matthews would have faced only
a fifteen- and a five-year sentence,
respectively, on each count.
Therefore, to the extent that Matthews I
held that the district court could find these
facts by a preponderance of the evidence and
thereby increase Matthews’s sentence under
§ 521, Apprendi plainly overruled Matthews I.
The essential facts for a § 521 enhance-
mentSSwhatever label one wishes to give
themSSmust be pleaded in an indictment and
found by a jury beyond a reasonable doubt.
The government more or less concedes this
position, because it does not argue that § 521
does not increase the statutory maximum pen-
alty for Matthews’s offenses or that the
distinction between a sentencing factor and an
element of a separate offense is relevant for
this case. Instead, the government urges that
our ruling in Matthews I is law of the case. As
should be obvious from the foregoing analysis,
Apprendi is an intervening change of law that
(...continued)
defendant to a greater punishment than that au-
thorized by the jury’s guilty verdict?”); id. at 494
n. 19 (“[W]hen the term ‘sentence enhancement’ is
used to describe an increase beyond the maximum
authorized statutory sentence, it is the functional
equivalent of an element of a greater offense than
the one covered by the jury’s guilty verdict.”); id.
at 495 (“merely because the state legislature placed
its hate crime sentence ‘enhancer’ within the
sentencing provisions of the criminal code does not
mean that the finding of biased purpose to
intimidate is not an essential element of the
offense”) (internal quotation marks omitted); id. at
501 (Thomas, J., concurring) (“[I]f the legislature
defines some core crime and then provides for
increasing the punishment of that crime upon a
finding of some aggravating fact . . . the core crime
and the aggravating fact together constitute an
aggravated crime, just as much as grand larceny is
an aggravated form of petit larceny. The
aggravated fact is an element of the aggravated
crime.”).

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11
overrules our earlier holding in this case.
Perhaps realizing this, the government also
argues that § 521 is a mere recidivist statute,
the findings for which need not be pleaded in
an indictment or submitted to a jury. The
Court held in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), that the fact of a
prior conviction can be used to enhance a sen-
tence beyond the statutory maximum without
pleading the fact in the indictment or
submitting it to a jury. Apprendi incorporates
this holding by exempting from the rule of Ap-
prendi the fact of a prior conviction. Appren-
di, 530 U.S. at 476, 490. The Court warned in
Apprendi, however, that Almendarez-Torres
“represents at best an exceptional departure
from the historic practice,” id. at 487, and
should be treated “as a narrow exception to
the general rule [of Apprendi]” id. at 490.
The government undoubtedly is correct that
the fact of a prior co nviction of certain kinds
of offenses is required for a § 521
enhancement, 18 U.S.C. § 521(d)(3), and that
this fact need not be pleaded in the indictment
or submitted to a jury under Almendarez-
Torres.14 Yet, the government is woefully
incorrect that this required factual finding
moves § 521 as a whole out of Apprendi and
into Almendarez-Torres.
In addition to the fact of a prior conviction,
§ 521 requires two additional factual findings:
(1) participation in a criminal street gang with
knowledge of its criminal activities and (2) in-
tent to promote or further these activities or to
maintain or increase one’s position in the gang.
18 U.S.C. § 521(d)(1)-(2). These two facts
are unrelated to the fact of a prior conviction,
but directly related to the current charged
offense. They also resemble the element of
mens rea, a classic criminal law finding
reserved for the jury. Apprendi, 530 U.S. at
493 & n.8. They do not become exempt from
the rule of Apprendi simply because they are
located in the statute next to the finding of a
prior conviction, especially given the command
in Apprendi that the courts not unduly expand
the Almendarez-Torres exception.
The government unpersuasively tries to an-
alogize § 521 to other recidivism enhancement
statutes, 18 U.S.C. §§ 924(e) and 3559, which
enhance a sentence for a prior conviction of a
certain kind of offense, for example, a “serious
drug offense.” The government leans heavily
on cases holding that a judge, not a jury,
should determine whether a prior conviction is
a qualifying offense under these statutes.15
“[A] fact of prior conviction includes not only
the fact that a prior conviction exists, but also
a determination of whether a conviction is one
of the enumerated types qualifying for the
sentence enhancement under section 3559.”
Davis, 260 F.3d at 969.
14 The Almendarez-Torres exception extends
beyond the question whether a prior conviction
exists and to the question whether it is a qualifying
conviction under the statute. Stone, 306 F.3d at
243 (sustaining 18 U.S.C. § 924(e) against an
Apprendi challenge). This question is not at issue
here, because Matthews concedes that his prior
convictions qualified under § 521(d)(3).
15See United States v. Santiago, 268 F.3d 151,
156 (2d Cir. 2001), cert. denied, 122 S. Ct. 1946
(2002) (applying Almendarez-Torres exception to
18 U.S.C. § 924(e)); United States v. Davis, 260
F.3d 965, 969 (8th Cir. 2000), cert. denied, 122 S.
Ct. 909 (2002) (applying Almendarez-Torres ex-
ception to 18 U.S.C. § 3559); United States v.
Gatewood, 230 F.3d 186, 191-92 (6th Cir. 2000)
(en banc), cert. denied, 122 S. Ct. 911 (2002)
(same).

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12
This proposition, however, does not
support the government’s attempt to shoehorn
§ 521 into Almendarez-Torres. Unlike
§§ 924(e) and 3559, § 521 requires additional
factual findings unrelated to the nature of the
prior conviction, i.e., participation with knowl-
edge and intent. 18 U.S.C. § 521(d)(1)-(2).
The government overlooks this critical
distinction.
Section 521 is a relatively new statute, and,
as far as we can tell, Matthews I is the only
case interpreting it. We therefore want to be
unambiguous: We do not conclude that § 521
is unconstitutional, but only that Apprendi re-
quires the facts of (1) participation in a
criminal street gang with knowledge of its
criminal activities and (2) intent to promote or
further these activities or to maintain or
increase one’s position in the gang, 18 U.S.C.
§ 521(d)(1)-(2), to be charged in the
indictment, submitted to a jury, and proven
beyond a reasonable doubt before a court may
enhance a sentence under § 521(b).
In this case, the indictment did not charge,
and the jury did not find beyond a reasonable
doubt, either fact. Instead, the court found
both facts (plus the fact of a qualifying prior
conviction) by a preponderance of the
evidence. This procedure violated Matthews’s
Fifth and Sixth Amendment rights.16
B.
We now apply the Chapman harmless error
analysis. Matthews alleges a general Apprendi
error, which is really two specific kinds of
constitutional error, i.e., a defective indictment
and a defective jury instruction. Neither
belongs in the “limited class of fundamental
constitutional errors that ‘defy analysis by
harmless error standards.’” Neder v. United
States, 527 U.S. 1, 8 (1999) (quoting Arizona
v. Fulminante, 499 U.S. 279, 309 (1991)).
The Supreme Court has applied harmless error
analysis to a jury instruction that omits an es-
sential element. Id. at 10. This court has ap-
plied harmless error analysis to an indictment
that omits an essential element. United States
v. Baptiste, 2002 U.S. APP. LEXIS 20745, at
*6-7 (5th Cir. Oct. 2, 2002). In short,
Apprendi error is susceptible to harmless error
analysis. United States v. Virgen-Moreno, 265
F.3d 276, 297 (5th Cir. 2001), cert. denied,
534 U.S. 1095, and cert. denied, 122 S. Ct.
1452 (2002).
“An otherwise valid conviction will not be
set aside if the reviewing court may confident-
ly say, on the whole record, that the
constitutional error was harmless beyond a
reasonable doubt.” Delaware v. Van Arsdall,
475 U.S. 673, 681 (1986). “The standard for
determining harmlessness when a jury is not
instructed as to an element of an offense is
whether the record contains evidence that
could rationally lead to a contrary finding with
respect to the omitted element.” Virgen-Mo-
reno, 265 F.3d at 297 (citation and internal
quotation marks omitted). After a careful re-
view of the whole record, we are convinced
that any rational grand jury, when presented
with a proper indictment, would have charged,
and any rational petit jury, when presented
with a proper jury instruction, would have
found beyond a reasonable doubt, that
16 In finding these errors, we do not disparage
the district court. It initially sentenced Matthews
before the Supreme Court decided Jones, much less
Apprendi. Although resentencing occurred after
Apprendi, we expressly approved, in Matthews I,
the procedure used to enhance Matthews’s sentence
under § 521. Throughout this long and
complicated case, the district court conscientiously
tried to follow this rapidly changing area of law,
and we commend its diligent and dutiful efforts.

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13
Matthew committed the offenses of carjacking
and conspiracy to commit carjacking while
participating in a criminal street gang with
knowledge of its activities and with the intent
either to promote or further the gang’s
felonious activities or to increase his position
in the gang.
The evidence at trial was extensive,
overwhelming, and essentially uncontradicted
on these issues. The government’s main
witnesses, Pamela Douglas and Teana
Williams, testified that Matthews confessed to
them to shooting Dittman and that Matthews
belonged to the Crips, a violent criminal street
gang. They based this testimony not only on
direct observation of Matthews’s interaction
with fellow gang members, but also on his
boasts to them of membership in the Crips.
Moreover, Douglas and Williams testified that
Cook belonged to the Crips, again based on
direct observation and Cook’s boasting. Fi-
nally, they stated that Matthews bragged about
the shooting to his fellow gang members.
Matthews tried to exclude, but did not con-
trovert, this testimony. The jury obviously
credited it, because they were the only
witnesses who testified to Matthews’s
confession.
Ronald Nicholson, a juvenile who was rid-
ing with Cook and Matthews during the car-
jacking, also testified against Matthews. Ni-
cholson identified Matthews and Cook as
members of the Crips, and Cook as a leading
figure in the gang. He also testified that the
fourth person in the car, Marlin Brunson, be-
longed to the Crips. Moreover, he stated that
Cook passed the gun used in the carjacking to
Matthews when Matthews asked for it.
Finally, he admitted that, if he did not belong
to the Crips (which he had admitted before the
grand jury), he was closely associated with
many of them, including Matthews and Cook.
Again, Matthews tried only to exclude, not
to controvert, this testimony. The jury
obviously credited Nicholson’s testimony as
well, because he was the only person present
for the carjacking who identified Matthews as
the shooter.
The jury also heard the testimony of
investigating officers Robert Morales and
James Rickhoff, who testified that Cook
admitted, during their investigation, that all
four men in the car that eveningSSMatthews,
Cook, Nicholson, and BrunsonSSbelonged to
the Crips. Rickhoff also testified that Cook
refused to identify the shooter because he
would not betray his fellow gang member.
They stated that Cook called himself a leader
of the Crips.
Cook did not testify at trial, but these state-
ments were admitted as non-hearsay
admissions of a party-opponent. See FED. R.
EVID. 801(d)(2). Though these statements
would be inadmissible hearsay to prove
Matthews’s membership in the Crips, they did
help establish the other three men’s
membership, which is directly relevant to the
scope and criminal purposes of the Crips. Yet
again, Matthews did not controvert this
testimony.
Though we conclude this trial evidence
demonstrates that the Apprendi error was
harmless, additional evidence offered at the
sentencing hearing further supports this
conclusion.17 The government offered the testi
17 We may review evidence offered at the
sentencing hearing for two reasons. First, the
(continued...)

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14
mony of John Dyer, a longtime officer in the
San Antonio Police Department with
widespread experience with gangs in San
Antonio and nationwide. Dyer offered very
damaging testimony.
Dyer observed that Matthews and Cook
regularly wore blue clothing, the traditional
color of the Crips. He also identified and ex-
plained several gang-related tattoos on
Matthews. First, Matthews has the numeral
“187” tattooed on his neck. Dyer explained
that “187” refers to the California penal code
section for first-degree murder, CAL. PENAL
CODE § 187, and is a common euphe-
mismSSmore accurately, a callous dysphem-
ismSSfor murder in gang culture. Second,
Matthews has the phrase “killa, killa” tattooed
on his neck. Dyer explained (not that
explanation here was really necessary) that this
phrase identified Matthews as a gang member
who had committed murder.
Third, Matthews has three small teardrop
tattoos under his right eye. According to Dy-
er, these teardrops have three possible
meanings, none of them good. The most
common meaning of teardrops are the number
of victims one has murdered. A less common
meaning is the number of dead fellow gang
members or time spent in prison or jail.18
Next, Dyer explained that the San Antonio
Police Department maintains an elaborate da-
tabase on gang activity in the San Antonio area
that reflected the large size of the Crips in San
Antonio, much larger than the requisite five
members under § 521(a). Moreover, the
database indicated that Matthews, Cook,
Brunson, and Nicholson belonged to the Crips.
In particular, Matthews had six separate
incidents of documented gang-related activities
in the database. These documented incidents
stretched back as far as January 1993, more
than two years before Matthews committed
the crimes in this case. Finally, Dyer testified
that, based on his long experience with gangs
and individual gangsters, he believed that
Matthews’s crimes were gang-related, not
mere crimes of opportunity.
Matthews was riding in a car with three fel-
low Crips. He obtained the gun used in the
crimes from Cook, a leading member of the
Crips. Matthews boasted of his crimes to fel-
low Crips. He had a long and documented his-
tory of gang activity with the Crips. Any ra-
tional grand or petit jury, when presented with
this evidence, could not and would not reach
17(...continued)
Court in Neder authorized harmless error review of
evidence “the jury did not actually consider.”
Neder, 527 U.S. at 17. More importantly, any er-
ror in excluding this evidence was invited. See
United States v. Solis, 299 F.3d 420, 452 (5th Cir.
2002) (applying the doctrine of invited error to an
Apprendi error).
Matthews went to great lengths to exclude evi-
dence of his gang activities. He filed a motion in
limine. He requested, and received, a court order
requiring the parties to give the district court notice
at a sidebar before they referred to gang activities.
He objected every time the government or a witness
referred to gang activity. He successfully moved to
exclude the testimony of the government’s gang
expert, who testified instead at the sentencing
hearing. Matthews “clearly induced the erroneous
omission” of evidence related to the § 521
enhancement. Id. at 453. He therefore cannot
complain now that we consider this evidence on
harmless error review.
18 We note that Matthews had not spent three
years in prison or jail before these offenses were
committed.

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15
“a contrary finding with respect to the omitted
element[s],” Virgen-Moreno, 265 F.3d at 297
(citation and internal quotation marks
omitted), namely, that Matthew committed his
crimes while participating in the Crips with
knowledge of its criminal activities and with
the intent either to promote or further these
activities or to increase his position in the
Crips. The Apprendi errors in this case were
harmless.
AFFIRMED.

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