United States District Court, D. Kansas
MEMORANDUM AND ORDER
Kathryn H. Vratil, United States District Judge.
found defendant guilty on multiple counts of the Second
Superseding Indictment (Doc. #462) including Count 1
which charged him in part with conspiracy to possess
marijuana with intent to distribute it and to distribute
marijuana. See Verdict (Doc. #1433) filed July 23,
2014 at 7. The jury also found on Count 1 that “the
overall scope of the agreement involved more than 1, 000
kilograms of marijuana.” Instructions To The
Jury (Doc. #1430) filed July 23, 2014, No. 19. On
September 29, 2015, the Court sentenced defendant to 201
months in prison. See Judgment In A Criminal Case
(Doc. #2087). On April 4, 2017, the Tenth Circuit affirmed
defendant's convictions and forfeiture order, but
remanded for resentencing based on the calculation of the
amount of marijuana attributable to him. United States v.
Roosevelt Dahda, 852 F.3d 1282, 1298 (10th Cir. 2017),
aff'd, 138 S.Ct. 1491 (2018).
December 12, 2019, the Court resentenced defendant to a
controlling term of 141 months in prison and eight years of
supervised release. This memorandum and order explains why
(1) as to Count 1, the statutory range set forth in 21 U.S.C.
§ 841(b)(1)(C) applies and (2) the Court corrects
defendant's controlling sentence to reduce the term of
supervised release to six years.
Statutory Penalty Range - Count 1
Count 1, defendant argues that because a jury did not
determine that a specific drug quantity was reasonably
foreseeable to him, the Court should apply the default
provision of 21 U.S.C. § 841(b)(1)(D). On direct appeal,
the Tenth Circuit rejected this same argument as to both Los
Dahda and Roosevelt Dahda. As to Los Dahda, it reasoned as
Los was found guilty on count 1, which charged a conspiracy
involving 1, 000 kilograms or more of marijuana. See
21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii), 846, 856.
For this count, Los obtained a sentence of 189 months'
imprisonment. He contends that this sentence violates the
Constitution because the jury did not specifically find the
marijuana quantity involved in the conspiracy.
“We review the legality of an appellant's sentence
de novo.” United States v. Jones, 235 F.3d
1231, 1235 (10th Cir. 2000).
The penalties for violating § 841(a) appear in
subsection (b). Subsection (b)(1)(D) provides a maximum
sentence of 5 years' imprisonment if the total marijuana
weight was less than 50 kilograms. 21 U.S.C. § 841
(b)(1)(D). Subsection (b)(1)(C) provides a maximum sentence
of 20 years' imprisonment when no specific amount is
charged. And subsections (b)(1)(A) and (B) provide higher
maximum sentences depending on the type and quantity of the
substance; in cases involving 1, 000 kilograms or more of
marijuana, subsection (b)(1)(A) imposes a mandatory minimum
sentence of 10 years and a maximum sentence of life
imprisonment. 21 U.S.C. § 841(b)(1)(A)(vii).
Although Los was found guilty of participating in a
conspiracy involving 1, 000 kilograms or more of marijuana,
the government agreed to waive the 10-year mandatory minimum
under § 841(b)(1)(A). Thus, Los was sentenced under
But he argues that he should have been subject to the 5-year
maximum under § 841(b)(1)(D) because the verdict form
did not require a specific determination of the marijuana
quantity. We reject this argument because the marijuana
quantity, 1, 000 kilograms, was an element of the charged
Los correctly argues that to increase his maximum sentence
based on drug quantity, the quantity of drugs had to be
charged in the indictment, submitted to the jury, and proven
beyond a reasonable doubt. Apprendi v. New Jersey,
530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000);
United States v. Jones, 235 F.3d 1231, 1233, 1236
(10th Cir. 2000). Thus, if the jury had not found a marijuana
quantity beyond a reasonable doubt, the Constitution would
have limited the maximum sentence to five years under §
841(b)(1)(D). United States v. Cernobyl, 255 F.3d
1215, 1220 (10th Cir. 2001).
But no constitutional violation took place. On count 1, the
jury found that the conspiracy had involved 1, 000 kilograms
or more of marijuana. Though the quantity was not addressed
on the verdict form, the quantity was charged in the
indictment and included in Instruction 19: “As to each
defendant, to carry its burden of proof on Count 1, the
government must prove beyond a reasonable doubt each of the
following elements: . . . the overall scope of the agreement
involved more than 1, 000 kilograms of marijuana.” R.
vol. 1 at 401. In turn, the verdict form directed the jury to
make its findings on count 1 “[u]nder instructions
19-21.” Id. at 433.
“We presume the jury follows its instructions” in
the absence of an overwhelming probability to the contrary.
United States v. Rogers, 556 F.3d 1130, 1141 (10th
Cir. 2009); United States v. Herron, 432 F.3d 1127,
1135 (10th Cir. 2005). There is no reason to think that the
jury disregarded its instructions, and we see no reason to
reject the presumption here. Thus, we reject Los's
challenge to the sentence on count one. See United States
v. Singh, 532 F.3d 1053 (9th Cir. 2008) (holding that no
Apprendi violation took place when the burden of
proof on a fact, which enhanced the statutory maximum, was
contained in a jury instruction but not in the verdict form);
United States v. O'Neel, 362 F.3d 1310, ...