United States of America v.  Corey Angle

OPINION ON REHEARING EN BANC
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4662 
COREY ANGLE,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4672 
JAMES EDWARD PHIFER, a/k/a Rick
Daye,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4187 
JAMES EDWARD PHIFER, a/k/a Rick
Daye,
Defendant-Appellant. 
Appeals from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-94-41-V)
Argued: February 27, 2001
Decided: June 29, 2001

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Before WILKINSON, Chief Judge, and WIDENER, WILKINS,
NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ,
TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed in part and vacated and remanded in part by published opin-
ion. Judge Wilkins wrote the opinion, in which Judges Widener, Wil-
liams, Michael, Motz, Traxler, and King joined. Chief Judge
Wilkinson wrote an opinion concurring in part and concurring in the
judgment. Judge Niemeyer wrote an opinion concurring in the judg-
ment, in which Judge Gregory joined. Judge Luttig wrote an opinion
concurring in the judgment.
COUNSEL
ARGUED: Thomas Franklin Loflin, III, LOFLIN & LOFLIN, Dur-
ham, North Carolina, for Appellant Angle; Robert Adams Blake, Jr.,
LAW OFFICES OF JAMES F. WYATT, III, Charlotte, North Caro-
lina, for Appellant Phifer. Nina Swift Goodman, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: James F. Wyatt, III, LAW OFFICES OF JAMES F.
WYATT, III, Charlotte, North Carolina, for Appellant Phifer. Mark
T. Calloway, United States Attorney, Frank D. Whitney, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
OPINION
WILKINS, Circuit Judge:
We are convened en banc to consider challenges by Corey Angle
and James Edward Phifer (collectively, "Appellants") to their sen-
tences pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000). For
the reasons set forth below, we conclude that neither Appellant has
demonstrated plain error with respect to his Apprendi challenge.
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I.
Evidence at trial established that Appellants supplied various drug
dealers in the area of Statesville, North Carolina, with cocaine and
cocaine base. Phifer supplied dealers with varying amounts of narcot-
ics, ranging from a few ounces to several kilograms. Angle operated
on a more limited scale, providing dealers with only a few ounces at
a time. Based upon the evidence presented at trial, Appellants were
convicted of conspiracy to possess with the intent to distribute and to
distribute cocaine and cocaine base, see 21 U.S.C.A. § 846 (West
1999); Phifer was additionally convicted of two counts of money
laundering, see 18 U.S.C.A. § 1956(a)(1)(B)(i) (West 2000). The drug
trafficking count of the indictment did not allege a specific quantity
of narcotics, and the jury was not instructed to make a finding regard-
ing the quantity of drugs involved in the conspiracy.
Appellants were sentenced as follows. In calculating Angle’s sen-
tencing range pursuant to the U.S. Sentencing Guidelines Manual
(1995), the district court did not make specific findings regarding the
amount of narcotics attributable to Angle. Rather, the court simply
stated that "[o]n examination of the evidence and the preponderance
thereof, the Court finds the amount of drugs attributable to [Angle]
in this matter would give him a [base offense] Level 34." J.A. 456;
see U.S.S.G. § 2D1.1(c)(3). Additional calculations resulted in a
guideline range of 210-262 months imprisonment. The district court
imposed a sentence of 210 months.
The district court determined that Phifer was responsible for at
least 29 kilograms of cocaine and 3 kilograms of cocaine base, result-
ing in a base offense level of 38 for the drug trafficking conviction.
See U.S.S.G. § 2D1.1(c)(1). Further guideline calculations resulted in
a guideline range of 292-365 months imprisonment. The district court
imposed a sentence of 292 months on the drug trafficking conviction
and concurrent sentences of 240 months on each of the money laun-
dering convictions.
Angle and Phifer subsequently appealed, raising numerous chal-
lenges to their convictions and sentences. While the appeal was pend-
ing, the Supreme Court issued its decision in Apprendi. Based on
Apprendi, Appellants argued for the first time on appeal that the dis-
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trict court erred in failing to treat as an element the specific quantity
of narcotics involved in the offense. A panel of this court agreed,
holding that because a specific quantity of narcotics was not charged
in the indictment, Appellants were subject to a maximum penalty of
20 years imprisonment pursuant to 21 U.S.C.A. § 841(b)(1)(C) (West
Supp. 2001). See United States v. Angle, 230 F.3d 113, 123 (4th Cir.
2000). The panel determined that Phifer’s sentence of 292 months
exceeded this maximum and was therefore erroneous under Apprendi;
accordingly, the panel vacated Phifer’s sentence and remanded for
resentencing to no more than 20 years imprisonment. See id. at 124.
Because Angle’s sentence of 210 months was less than the applicable
maximum penalty, the panel found no error under Apprendi. See id.
at 123. The panel nevertheless vacated Angle’s sentence and
remanded for more specific fact finding regarding the quantity of nar-
cotics attributable to him. See id. at 124-25. The panel rejected the
remainder of Appellants’ challenges.
We subsequently voted to vacate the panel decision and rehear the
appeal en banc along with the appeal in United States v. Promise, No.
99-4737, also decided today. For the reasons set forth below, we hold
that neither Appellant has demonstrated plain error with respect to his
challenge under Apprendi. We adopt the opinion of the panel regard-
ing all other issues. Accordingly, we affirm Appellants’ convictions
and Phifer’s sentence; however, we vacate Angle’s sentence and
remand for more specific fact finding regarding the amount of drugs
attributable to him for sentencing purposes.
II.
Because neither Angle nor Phifer objected at trial to the failure of
the district court to treat specific threshold drug quantities as elements
of aggravated drug trafficking offenses,1 our review is for plain error.
1"Specific threshold drug quantities" are those quantities of drugs set
forth in 21 U.S.C.A. § 841(b)(1)(A), (b)(1)(B), a finding of which sub-
jects a defendant to a sentence of ten years to life imprisonment
(§ 841(b)(1)(A)) or five to 40 years imprisonment (§ 841(b)(1)(B)). See
United States v. Promise, ___ F.3d ___, ___ n.1 (4th Cir. 2001) (en
banc).
An "aggravated drug trafficking offense" is one that involves a specific
threshold drug quantity. See id.
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See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,
731-32 (1993). In order to demonstrate plain error, Appellants must
show that an error occurred, that the error was plain, and that the error
affected their substantial rights. See Olano, 507 U.S. at 732; United
States v. Jackson, 124 F.3d 607, 614 (4th Cir. 1997). Even if Appel-
lants can satisfy these requirements, correction of the error remains
within our discretion, which we "should not exercise . . . unless the
error ‘seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.’" Olano, 507 U.S. at 732 (second alteration in
original) (quoting United States v. Young, 470 U.S. 1, 15 (1985)).
Before turning to our consideration of whether Appellants can sat-
isfy the requirements of plain error analysis, we pause to reiterate the
relevant conclusions reached in Promise. In Promise, we held that
Apprendi mandates that specific threshold drug quantities be treated
as elements of aggravated drug trafficking offenses. See United States
v. Promise, ___ F.3d ___, ___ (4th Cir. June 29, 2001). We further
held that the district court plainly erred in failing to do so. See id. at
___.
A.
Turning first to Angle’s challenge, we conclude that he cannot
demonstrate any Apprendi error committed by the district court.
Angle was charged with conspiring to possess with the intent to dis-
tribute and to distribute "a quantity of cocaine and cocaine base," J.A.
52, and he does not dispute that the jury was properly charged as to
the elements of this offense. Accordingly, Angle was charged with,
and convicted of, conspiring to commit an offense involving an
unspecified quantity of drugs. Because Angle’s sentence of 210
months is less than the maximum penalty authorized by the facts
found by the jury (240 months, see 21 U.S.C.A. § 841(b)(1)(C)), there
was no error.
B.
We next consider Phifer’s claim. Phifer was charged in the same
indictment as Angle with conspiring to traffic in an unspecified quan-
tity of drugs. Unlike Angle, however, Phifer was sentenced by the dis-
trict court to a term of imprisonment greater than the 20-year
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maximum penalty authorized by the facts found by the jury. As we
held in Promise, the district court thus committed plain error.
We hold, however, that Phifer cannot demonstrate that the error
affected his substantial rights. See Olano, 507 U.S. at 734. In order
to make such a showing, Phifer must demonstrate that the error was
prejudicial, i.e., that it "actually affected the outcome of the proceed-
ings." United States v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998).
Thus, Phifer must establish that his 292-month sentence was longer
than that to which he would otherwise be subject.
Phifer does not posit any way in which the error here, unlike a sim-
ilar error in Promise, affected his substantial rights, and we can see
none.2 This is so because the grand jury indicted, and the petit jury
convicted, Phifer of three crimes, exposing him to a total statutory
maximum prison term of 60 years. In the case of multiple counts of
conviction, the sentencing guidelines instruct that if the total punish-
ment mandated by the guidelines exceeds the statutory maximum of
the most serious offense of conviction, the district court must impose
consecutive terms of imprisonment to the extent necessary to achieve
the total punishment. See U.S.S.G. § 5G1.2(d). For example, suppose
a defendant is convicted of three offenses, each with a statutory maxi-
mum term of five years (60 months) imprisonment. If the district
court determines that the appropriate sentence under the guidelines is
156 months, § 5G1.2(d) requires the imposition of consecutive terms
on each count of conviction until the guideline punishment is
achieved.
Applying these principles here, we conclude that Phifer’s substan-
tial rights were not affected by the imposition of a 292-month term
of imprisonment on the drug trafficking conviction. Had the district
court been aware when it sentenced Phifer that the maximum penalty
for his drug trafficking conviction was 20 years, § 5G1.2(d) would
have obligated it to achieve the guideline sentence of 292 months
imprisonment by imposing a term of imprisonment of 240 months or
2Of course, if a defendant, in circumstances like Phifer’s, could dem-
onstrate that a refusal to vacate his sentence and order resentencing could
in some way affect his substantial rights, that would present a different
case.
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less on each count of conviction and ordering those terms to be served
consecutively to achieve the total punishment mandated by the guide-
lines. See United States v. Sturgis, 238 F.3d 956, 960-61 (8th Cir.
2001) (holding that appellant was not prejudiced by imposition of
sentence greater than statutory maximum because he was convicted
of multiple counts and U.S.S.G. § 5G1.2(d) would have obligated the
district court to achieve the same sentence through imposition of con-
secutive sentences); United States v. White, 238 F.3d 537, 542-43 (4th
Cir. 2001) (same); United States v. Page, 232 F.3d 536, 544-45 (6th
Cir. 2000) (same), cert. denied, 121 S. Ct. 1389 (2001); see also
United States v. Smith, 240 F.3d 927, 930 (11th Cir. 2001) (per
curiam) (holding that imposition of sentences greater than statutory
maximum on each of three counts did not affect appellants’ substan-
tial rights because the sentences imposed did not "exceed the aggre-
gate statutory maximum for the multiple convictions"); cf. United
States v. White, 240 F.3d 127, 135 (2d Cir. 2001) (rejecting Apprendi
challenge to imposition of consecutive sentences under § 5G1.2(d)
because "the district court did not exceed the maximum for any indi-
vidual count" and because there is "no constitutionally cognizable
right to concurrent, rather than consecutive, sentences").
Apprendi does not foreclose this result. Charles Apprendi "pleaded
guilty to two counts (3 and 18) of second-degree possession of a fire-
arm for an unlawful purpose and one count (22) of the third-degree
offense of unlawful possession of an antipersonnel bomb." Apprendi,
530 U.S. at 469-70 (citations omitted). Although the maximum pen-
alty for each second-degree offense was 10 years, the trial court
imposed a sentence of 12 years on count 18 pursuant to a finding, by
a preponderance of the evidence, that Apprendi had a racially biased
purpose in committing the offense. See id. Apprendi maintained that
this increase in the maximum sentence violated his rights under the
Due Process Clause. See id. Before the Supreme Court, the State of
New Jersey argued that there was no error because the trial court
could have achieved the same total sentence by imposing consecutive
sentences on counts 3 and 18. See id. at 474. The Supreme Court
rejected this argument, reasoning that "[t]he constitutional question
. . . is whether the 12-year sentence imposed on count 18 was permis-
sible, given that it was above the 10-year maximum for the offense
charged in that count." Id.
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Apprendi is not controlling. In the above-quoted passage, the
Apprendi Court rejected New Jersey’s argument that there was no
error in Apprendi’s sentence because the trial court could have
imposed the same sentence even without a finding of racial bias.
Here, in contrast, we have already concluded that there was error, and
the only question is whether Phifer can demonstrate that the error
prejudiced him. See Page, 232 F.3d at 545. For the reasons discussed
above, he cannot make such a showing.
III.
For the reasons set forth above, we conclude that neither Appellant
has demonstrated plain error with respect to his challenge under
Apprendi. As noted previously, we adopt the panel’s resolution of the
remaining issues; consistent with the panel’s conclusion that the dis-
trict court did not make adequate factual findings regarding the quan-
tity of drugs attributable to Angle, we vacate his sentence and remand
for further proceedings, noting that on remand the district court may
not impose a term of imprisonment greater than 240 months. Other-
wise, we affirm.
AFFIRMED IN PART; VACATED AND
REMANDED IN PART
WILKINSON, Chief Judge, concurring in part, and concurring in the
judgment:
I vote to affirm both Angle’s and Phifer’s convictions and Phifer’s
sentence. I agree also that Angle’s sentence should be remanded for
more specific fact finding on the quantity of drugs attributable to him
for sentencing purposes.
I write separately to reiterate my position in United States v. Prom-
ise, ___ F.3d ___, No. 99-4737 (4th Cir. June 29, 2001) (en banc)
(Wilkinson, C.J., concurring in part, and concurring in the judgment),
that 21 U.S.C. § 841(b) establishes a graduated sentencing scheme in
which life imprisonment constitutes the maximum penalty. Thus, no
Apprendi error occurred in either Angle’s or Phifer’s case.
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Even if I were to assume that some plain error had occurred, I do
not believe that Phifer’s substantial rights were affected for two inde-
pendent reasons. See United States v. Olano, 507 U.S. 725 (1993)
(holding that a plain error not raised at trial cannot be corrected by
an appellate court unless it affects substantial rights). One reason is
that spelled out by Judge Wilkins in his opinion today and previously
in United States v. White, 238 F.3d 537, 542-43 (4th Cir. 2001). The
second is that the evidence of drug quantity was more than sufficient
to justify the sentence Phifer received. See Promise, ___ F.3d at ___
(Wilkinson, C.J., concurring in part, and concurring in the judgment).
NIEMEYER, Circuit Judge, concurring in the judgment:
Corey Angle was charged and convicted on one count of conspir-
acy to traffic in an unspecified amount of cocaine and cocaine base,
in violation of 21 U.S.C. §§ 846 and 841(a)(1). The district court sen-
tenced Angle to 210 months imprisonment. Even under the interpreta-
tion of § 841 that Judge Wilkins’ opinion adopts — an interpretation
with which I do not agree — there would be no error under Apprendi
v. New Jersey, 120 S. Ct. 2348 (2000), in sentencing Angle to 210
months imprisonment. See United States v. Kinter, 235 F.3d 192, 201-
02 (4th Cir. 2000). I agree, however, that a remand is necessary for
factual findings on drug kind and quantity.
James Phifer was charged for drug trafficking in the same manner
and for the same offense as was Angle. In addition, Phifer was
charged and convicted of two counts of money laundering, in viola-
tion of 18 U.S.C. § 1956(a)(1)(B)(i). The district court sentenced
Phifer to 292 months imprisonment for the drug-trafficking count and
to two concurrent 240-month terms of imprisonment for the money
laundering counts. Even if the 292-month sentence was thought to be
error under Apprendi because it exceeded the 240-month maximum
for a conviction involving an unspecified amount of cocaine and
cocaine base, that error should not be noticed under plain-error princi-
ples because it did not affect Phifer’s substantial rights. The Sentenc-
ing Guidelines require that the three sentences be imposed
consecutively to achieve the 292-month sentence. See U.S.S.G.
§ 5G1.2(d); United States v. White, 238 F.3d 537, 542-43 (4th Cir.
2001). Therefore, I would affirm the judgment in Phifer’s case.
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I agree that on the other issues in these appeals, the panel opinion
disposed of them properly.
Accordingly, I concur in the judgment.
Judge Gregory has authorized me to indicate that he joins this opin-
ion.
LUTTIG, Circuit Judge, concurring in the judgment:
I would affirm both Angle’s and Phifer’s convictions and Phifer’s
sentence for the reasons set forth in my opinion in United States v.
Promise, ___ F.3d ___, No. 99-4737 (4th Cir. June 29, 2001) (en
banc) (Luttig, J., concurring in the judgment). However, I do agree
that Angle’s sentence should be remanded for more specific fact find-
ing on the quantity of drugs attributable to him for sentencing pur-
poses, and that the panel opinion properly disposed of the other issues
presented in these appeals.
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