USA v. Kevin Williams, 05-4405. Kevin Williams was convicted of conspiracy to violate 21 U.S.C. § 846 by knowingly and intentionally possessing and distributing "cocaine and cocaine base, commonly known as ‘crack,’ . . . heroin and marijuana." In finding him guilty, the jury made no factual findings about either drug type or quantity, because the trial took place before the Supreme Court’s pivotal decision in Apprendi v. New Jersey, 530 U.S. 465 (2000).
On remand, the district court imposed a harsher sentence of 360 months’ imprisonment. Williams complained that this sentence was invalid because there was neither a jury finding nor an admission on his part about either the drug type or quantity-both necessary to establish the statutory maximum. Without specific findings, Williams argues he is entitled to be sentenced to no more than 10 years in prison, the lowest maximum sentence specified in 21 U.S.C. § 841(b) for someone with his criminal history.
Williams was convicted on one count of conspiracy to distribute narcotics under 21 U.S.C. § 846, for which the penalties are equivalent to those for the distribution of the underlying drug. Notwithstanding the lack of input from the jury, Judge Marovich had little trouble finding that Williams, like the other regents who supervised the drug operation in the hundreds and who were sentenced with him, was responsible for "at least 1.5 kilos of crack, or in the alternative, 150 kilos of powder."
Williams has been arguing that failure to prove drug type and quantity to a jury is the kind of structural error that justifies automatic reversal. See United States v. Orozco-Prada, 732 F.2d 1076 (2d Cir. 1984). Recuenco definitively rejects that position. Washington v. Recuenco, 126 S.Ct. 2546 (2006).
Harmless error review is grounded in FED. R. CRIM. P. 52(a), which stipulates that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Although the error alleged in this case is of a constitutional dimension, "most constitutional errors can be harmless." Neder v. United States, 527 U.S. 1, 8(1999).
For constitutional errors that do not affect the "framework within which the trial proceeds," Neder, 527 U.S. at 8, courts must apply "Rule 52(a)’s harmless error analysis and must ‘disregar[d]’ errors that are ‘harmless beyond a reasonable doubt,’ " Id. at 7. "The test . . . is whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ " Neder, 527 U.S. at 15
In Recuenco, the Court concluded that "sentencing factors, like elements, are facts that have to be tried to the jury and proved beyond a reasonable doubt." Recuenco at 2552 (2006). The implication of equating sentencing factors and elements of a crime for purposes of the requirements of the jury and the burden of proof is to equate them also for harmless error purposes.
Thus, the Court held in Recuenco, "an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Id. at 2551 (emphasis in original). Accordingly, "[f]ailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not a structural error," and harmless error review must be applied. Id.at 2553. Applied to this case, that means that we must decide whether the failure to have the jury decide beyond a reasonable doubt the drug type and quantity issues that would raise the statutory maximum from 10 years to life was harmless error.
The central question is whether "it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ " Neder, 527 U.S. at 15
We are convinced, beyond a reasonable doubt, that this is the case. The government presented evidence of crack cocaine that Williams sold; it obtained that evidence from ledgers that recorded the drug transactions of the Gangster Disciples, taken from the home of one of his co-defendants.
At the first sentencing hearing, Judge Marovich calculated that approximately 312 kilos of crack and 2,080 kilos of power were sold on an annual basis in Williams’s area, with each of the regents supervising "anywhere from 10 to 12 percent" of those sales. Those numbers more than satisfied the court that the regents could be held responsible for "at least 1.5 kilos of crack, or in the alternative, 150 kilos of powder."
Given the evidence of the size of the Gangster Disciples’ crack and cocaine operation in the hundreds and Williams’s leadership role, we are satisfied that the error in failing to submit the questions of drug type and quantity to a jury was harmless.
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