United States v. Steven Bernard Jordan , 531 F. App'x 995 ( 2013 )

Case: 10-13702 Date Filed: 09/25/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-13702
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D.C. Docket No. 1:08-cr-00371-ODE-AJB-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STEVEN BERNARD JORDAN,
a.k.a. Steven Dodson,
a.k.a. Ladarius Timmons,
Defendant - Appellant.
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No. 10-13703
________________________
D.C. Docket No. 1:08-cr-00371-ODE-AJB-4
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
Case: 10-13702 Date Filed: 09/25/2013 Page: 2 of 4
versus
BENJAMIN D. SMARR,
Defendant - Appellant.
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Appeals from the United States District Court
for the Northern District of Georgia
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(September 25, 2013)
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before WILSON and EDMONDSON, Circuit Judges, and VINSON, * District
Judge.
PER CURIAM:
This case is before us on remand from the Supreme Court for consideration
in light of Alleyne v. United States, — U.S. —, 133 S. Ct. 2151 (2013). Following
a jury trial, Steven Bernard Jordan and Benjamin D. Smarr were found guilty of
both conspiracy and possession with intent to distribute cocaine, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii)(II), and 846. In a special verdict form, the
jury found Jordan and Smarr responsible for 500 grams or more of cocaine but
declined to find them responsible for the greater amount of five kilograms or
*
Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
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more. 1 Nonetheless, the district judge found at sentencing that the government had
established by a preponderance of the evidence that (contrary to what the jury had
found) the defendants were responsible for five kilograms or more of cocaine. The
district court accordingly sentenced Jordan to the statutory minimum sentence of
240 months’ incarceration. Smarr, who had no criminal record at the time, was
sentenced to the statutory mandatory minimum of 10 years’ imprisonment.
Jordan and Smarr appealed, arguing, inter alia, that “the quantity of cocaine
that was attributed to them at sentencing” was “contrary to the jury verdict.”
United States v. Jordan, 488 F. App’x 358, 365 n.9 (11th Cir. 2012) (per curiam),
vacated, 133 S. Ct. 2852 (2013). We affirmed, finding that this particular
argument merited no discussion because it was “foreclosed by binding circuit
precedent.” Id.; see Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348,
2362–63 (2000) (holding 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”); Spero v.
United States, 375 F.3d 1285, 1286 (11th Cir. 2004) (per curiam) (stating that “the
Apprendi rule does not apply in minimum mandatory circumstances where the
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The special verdict form permitted the jury to find the defendants responsible for
cocaine (1) weighing less than 500 grams, (2) weighing 500 grams or more, or (3) weighing 5
kilograms or more.
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enhanced minimum mandatory sentence does not exceed the non-enhanced
maximum sentence”).
The Supreme Court then decided Alleyne, in which it overruled its previous
decision in Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406 (2002), and
concluded that:
[a]ny fact that, by law, increases the penalty for a crime is an
“element” that must be submitted to the jury and found beyond a
reasonable doubt. Mandatory minimum sentences increase the
penalty for a crime. It follows, then, that any fact that increases the
mandatory minimum is an “element” that must be submitted to the
jury.
133 S. Ct. at 2155 (citation omitted). Alleyne compels that we vacate Jordan and
Smarr’s sentences and remand this case to the district court so that they may be
resentenced. At trial, the jury found that Jordan and Smarr were responsible for
500 grams or more of cocaine, but expressly declined to attribute five or more
kilograms of cocaine to these defendants. The district judge, however, found by a
preponderance of the evidence that Jordan and Smarr were responsible for five or
more kilograms of cocaine, and used that amount to increase the mandatory
minimum sentence applicable to them. Their sentences thus run afoul of Alleyne’s
command. Accordingly, we VACATE the sentences of Jordan and Smarr and
REMAND so that the district court can resentence them in accordance with
Alleyne.
VACATED AND REMANDED.
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