United States v. Darrell B. Caldwell , 255 F.3d 532 ( 2001 )

PER CURIAM.

On remand from the Supreme Court, Darrell Caldwell challenges the district court’s resentencing following our decision in United States v. Caldwell, 88 F.3d 522, 524-27 (8th Cir.), cert. denied, 519 U.S. 1048, 117 S.Ct. 625, 136 L.Ed.2d 547 (1996), appeal after remand, 221 F.3d 1344 (8th Cir.) (table), vacated and cert. granted, 531 U.S. 1049, 121 S.Ct. 651, 148 L.Ed.2d 555 (2000). We affirm.

In 1995, a jury convicted Caldwell of conspiracy to manufacture and distribute marijuana and manufacturing and possessing marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. On appeal, we concluded that the district court’s sentencing determination of relevant drug quantities was erroneous, and we remanded the case with instructions for resentencing. Caldwell, 88 F.3d at 527.

Consistent with our instructions, on re-sentencing the district court held Caldwell responsible for 756.55 kilograms of marijuana and resentenced Caldwell to three concurrent 160-month terms of imprisonment. We affirmed, and the Supreme Court granted certiorari and vacated our judgment, remanding the case for reconsideration in light of its intervening decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). On remand, we conclude that Apprendi does not require vacation of Caldwell’s sentence, and we once again affirm the district court’s decision on resentenc-ing.

Under Apprendi, a criminal defendant has a due process right to have a jury make any finding of fact that increases the statutory maximum sentence available for his offense. 120 S.Ct. at 2362-63. The use of a judicially determined drug quantity as a basis for sentencing is permissible, however, so long as the defendant’s sentence does not exceed the statutory maximum sentence available for an indeterminate amount of the drug. United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.), cert. denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000).

We review the district court’s re-sentencing for plain error, because no Apprendi issue was raised before the district court. United States v. Poulack, 236 F.3d 932, 937-38 (8th Cir.2001). Thus, Caldwell is entitled to resentencing under Apprendi only if he can show that the district court made a sentencing error that was erroneous, plain, and seriously affected the fairness, integrity, or public reputation of the sentencing proceeding. Poulack, 236 F.3d at 937.

The statutory maximum sentence for an indeterminate amount of marijuana is 60 months. 21 U.S.C. § 841(b)(1)(D). Because Caldwell’s 160-month sentences exceed that maximum and were based on drug quantities not submitted to a jury, they were erroneous in light of Apprendi. See, e.g., United States v. Sturgis, 238 F.3d 956, 960 (8th Cir.2001). When a defendant is convicted of multiple counts, however, a sentence assessed in violation of Apprendi does not necessarily constitute plain error because “[t]he [Federal Sentencing] Guidelines require a district court to run sentences from multiple counts consecutively, rather than concurrently, if the Guideline sentence exceeds the statutory maximum sentence for each count.” Sturgis, 238 F.3d at 960; see U.S.S.G. § 5G1.2(d). We are not unmindful of the concerns resulting from affirming sentences that would otherwise be Apprendi-barred on the assumption that consecutive sentences would have been imposed in them stead. See United States v. Alvarez, 254 F.3d 725, 727 (8th Cir.2001); United States v. Bradford, 246 F.3d 1107, 1115 (8th Cir.2001). We are bound, however, by our holding in Sturgis that, where a defendant’s sentence could be reformed under § 5G1.2(d) to avoid an Apprendi error, there is no plain error in his sentence. See Sturgis, 238 F.3d at 961.

In this case, applying § 5G1.2(d), the district court could have determined that Caldwell’s 60-month sentences for each count should run consecutively, thus incarcerating him for 180 months, 20 months longer than he will be incarcerated under his current sentence. See Sturgis, 238 F.3d at 960-61. Therefore, because Caldwell could have received a lengthier sentence under the guidelines even if he had been sentenced under the statutory míni-mums for an indeterminate drug quantity, his concurrent 160-month sentences do not amount to plain error.

Accordingly, the judgment is affirmed.