Appeal from the United States District Court for the Western District of Louisiana.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Carol Mignonne Griffing, Assistant U.S. Attorney, James G. Cowles, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Louisiana, Shreveport, LA.
For RANDY L. RANDALL, Defendant - Appellant: Jennifer P. McKay, Esq., Colvin, Smith & McKay, Shreveport, LA.
Before DAVIS, DeMOSS, and ELROD, Circuit Judges.
Randy L. Randall pleaded guilty pursuant to a plea agreement to one count of conspiracy to possess with intent to distribute five kilograms or more of cocaine (Count 1), in violation of 21 U.S.C. § § 841(a)(1) and 846, and one count of possession of a firearm in furtherance of a drug trafficking crime (Count 24). As part of a signed " Factual Basis," he admitted that the facts therein were sufficient to support the conspiracy charge and that the " overall scope" of the conspiracy involved five kilograms or more of cocaine. However, the Factual Basis stated that only 148.8 grams of cocaine and 35.2 grams of cocaine base had been seized from the apartment where Randall was arrested. At rearraignment, Randall admitted that he did " knowingly and intentionally conspire and agree together [with other persons] to possess with intent to distribute 5 kilograms or more of a mixture and substance containing a detect[a]ble amount of cocaine." He also was advised that he faced a sentence of 10 years to life.
The PSR found that, although the overall drug amount involved in the conspiracy was five kilograms or more of cocaine, Randall's own " responsibility and knowledge in this case was limited to 148.8 net grams of powder cocaine, and 35.2 net grams of crack cocaine."  Based on that drug amount, the PSR calculated a Guidelines range of 70 to 87 months of imprisonment. However, the PSR concluded that the statutory mandatory minimum sentence of 120 months under 21 U.S.C. § 841(b)(1)(A)(ii) was required.
At sentencing, the district court " accept[ed] the findings of the probation office." Although the district court noted the applicable Guidelines range of 70 to 87 months, it concluded that it was required to impose the statutory minimum sentence of 120 months for Count 1. Thus, Randall was sentenced above the calculated Guidelines range to the statutory mandatory minimum of 120 months of imprisonment on Count 1 and a consecutive mandatory sentence of 60 months of imprisonment on Count 24. He filed a timely notice of appeal. He now argues for the first time on appeal that the district court erred by imposing the statutory mandatory minimum sentence for Count 1.
For the reasons set out below, we VACATE the sentence and REMAND for resentencing consistent with this opinion.
In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held 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,"  or, under Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), ...