UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 98-51084

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

LUIS OBED RIOS-QUINTERO,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas

February 10, 2000 Before REYNALDO G. GARZA, JOLLY, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Luis Obed Rios-Quintero appeals his federal criminal

convictions on charges that he possessed heroin with the intent to

distribute the drug in violation of

(a)(1) and that

he imported heroin in violation of

(a) and

960(a)(1). On appeal, Rios-Quintero argues that his convictions

must be vacated because the district court treated the relevant

quantity of heroin as a sentencing factor, rather than an as

essential element of his drug trafficking offenses. The single issue presented for review is whether, in light of the Supreme

Court’s recent decision in Jones v. United States,

(1999), this Court can or should deviate from existing precedent

treating drug quantity as a sentencing factor by holding that drug

quantity is an essential element of the offenses defined by §§ 841,

952, and 960.

The impact of Jones upon the federal drug offenses defined in

§§ 841, 952, and 960 is an important issue of first impression in

our Circuit. We are not, however, at liberty to give free-ranging

consideration to that issue in this appeal. Jones was decided

after Rios-Quintero was convicted and sentenced in the district

court, but before the briefs were filed in this Court. Given that

timing, Rios-Quintero’s Jones-based argument that drug quantity is

an essential element of his offenses that should have been charged

in his indictment, submitted to the jury, and proven beyond a

reasonable doubt, was not made in the district court. We are

therefore constrained to review the error identified by Rios-

Quintero for plain error only. See Johnson, 117 S. Ct. at 1549

(reviewing the district court’s failure to submit an essential

element of offense to the jury as mandated by the Supreme Court’s

intervening decision in United States v. Gaudin,

(1995) for plain error only). Under that standard, the Court does

not grant relief unless there is (1) error, (2) that is plain, and

(3) affects the defendant’s substantial rights. See United States

2 v. Johnson,

(1997). Even when those three

prerequisites are met, plain error should not be remedied unless

the Court determines that the error seriously affects the fairness,

integrity or public reputation of judicial proceedings. See

Having concluded our plain error review, we hold that the

impact of Jones is not sufficiently obvious or clear to permit this

panel to deviate from thise Circuit’s existing precedent

characterizing drug quantity as a sentencing factor under §§ 841,

952, and 960. Stated simply, the error identified in this case is

not sufficiently plain to merit relief. See Johnson,

; United States v. Olano,

(1993); United

States v. Leonard,

(5th Cir. 1998) (error may not

be characterized as plain unless it is clear or obvious).

Moreover, even if such error were obvious or plain, the

circumstances of this case do not even potentially implicate any of

the constitutional concerns that gave rise to constitutional doubt

in Jones. See Jones,

n.6 (placing emphasis on

fair notice of the charge, an adequately supported finding by the

relevant fact finder, and proof beyond a reasonable doubt). For

that reason, there is no risk that the error identified in this

case will affect the “fairness, integrity or public reputation of

judicial proceedings,” and relief is not warranted under our plain

error standard. See Johnson,

. We therefore

affirm.

3 BACKGROUND

Rios-Quintero was arrested at the Paso Del Norte Port of Entry

after more than one kilogram of heroin was found stitched into the

lining of clothing he was transporting as a passenger in a taxi

entering Texas from Mexico. Rios-Quintero was subsequently charged

in a two count indictment alleging in count 1 that he imported an

unspecified “quantity” of heroin, in violation of

(a) and 960(a)(1), and alleging in count 2 that he possessed

an unspecified “quantity” of heroin with intent to distribute, in

violation of

(a)(1). The government filed a Notice

of Enhanced Penalty with the indictment, stating its intent to seek

enhanced penalties because Rios-Quintero possessed more than one

kilogram of heroin.

At trial, Rios-Quintero’s defense was that he did not know

there was heroin stitched into the clothes he was carrying.

Specifically, Rios-Quintero claimed that he was carrying the

clothes, which contained heroin valued between $800,000 and

$900,000, to New York City for a stranger he met in a bar in Mexico

City.

Rios-Quintero did not dispute the quantity of heroin found.

Indeed, his attorney conceded the quantity of heroin at issue in

argument to the jury. Moreover, Rios-Quintero signed a joint

stipulation providing that more than one kilogram of heroin was

4 recovered from the clothes in his suitcase. That stipulation was

read to the jury at trial and then entered into the record as one

of the few exhibits submitted to the jury. The jury was instructed

on the statutory language as contained in §§ 841(a), 952(a), and

960(a), without reference to the quantity of heroin or the

quantity-based penalties provided in §§ 841(b) and 960(b). Rios-

Quintero did not object to the jury charge, and the jury eventually

convicted Rios-Quintero on both counts.

Rios-Quintero was sentenced on the basis of the ten year to

life range required by §§ 841(b)(1)(A) and 960(b)(1)(A) for

offenses involving at least one kilogram of heroin. Rios-

Quintero’s guideline range, based upon the same quantity, was 121-

151 months.1 The district court responded to Rios-Quintero’s plea

for leniency within the range by sentencing Rios-Quintero to two

121 month concurrent sentences, to be followed by five years of

supervised release. Rios-Quintero did not object to the quantity

determination of more than one kilogram, as listed in the

presentence report and used for sentencing. Rios-Quintero

thereafter filed a timely notice of appeal from his conviction and

sentence.

DISCUSSION

1 The presentence report used an offense level of 32 and a criminal history category of I.

5 I.

Rios-Quintero maintains that his drug convictions must be

vacated because drug quantity is an essential element of his

offenses, which was not charged in the indictment, submitted to the

jury for decision, or proven beyond a reasonable doubt. Rios-

Quintero premises his argument upon a broad reading of the Supreme

Court’s recent decision in Jones V. United States,

(1999), in which the Supreme Court held that constitutional doubt

about certain provisions of the federal car-jacking statute,

, required that the provisions be construed as

creating three separate offenses rather than one offense subject to

three separate punishments.

. In reaching that

holding, the Jones Court stated the relevant constitutional

principle at issue as follows:

[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.

at 1224 n.6. Drug quantity clearly increases both the minimum

and maximum statutory penalties defined by §§ 841(b) and 960(b).

Thus, Rios-Quintero argues that Jones sets forth a new rule

requiring that drug quantity be charged in his indictment,

submitted to his jury, and proven beyond a reasonable doubt.

The government interprets Jones quite narrowly, responding

6 that Jones merely addressed the parameters of an unresolved

constitutional issue, rather than announcing any new constitutional

rule which Rios-Quintero would be entitled to take advantage of in

this appeal. Indeed, the government maintains that no

constitutional lessons may be drawn from Jones at all, offering a

number of superficially persuasive quotes from the case. See

Jones,

n.11 (“our decision today does not

announce any new principle of constitutional law, but merely

interprets a particular federal statute in light of a set of

constitutional concerns that have emerged through a series of our

decisions for the past quarter century”). In a related argument,

the government maintains that the relevant language in Jones is

dicta because the case was premised upon the doctrine of

constitutional doubt, not certainty, and therefore did not actually

resolve the thorny issues of constitutional law presented therein.

See

at 1224 n.6 (“Because our prior cases suggest rather than

establish this principle, our concern about the Government’s

reading of the statute rises only to the level of doubt, not

certainty.”);

(diminution of the jury’s significance

raises genuine Sixth Amendment concerns that remain unresolved).

The government reinvents the same argument a third time to argue

that any lessons to be drawn from Jones must be applied only to the

car-jacking statute and no other. Given these fundamental

limitations on the holding in Jones, the government responds that

7 the effect of Jones is neither clear nor obvious enough to support

a determination of plain error in this case.

II.

Prior to Jones, this Court routinely held that drug quantity

is a sentencing factor that need not be included in the indictment,

submitted to the jury, or proven beyond a reasonable doubt. See,

e.g., United States v. Hare,

, 428 n.2 (5th Cir. 1998);

United States v. Cisneros,

(5th Cir. 1997);

United States v. Ruiz,

(5th Cir. 1995); United

States v. Montes,

(5th Cir. 1982); United States v.

Royal,

(5th Cir. 1990); United States v. Brown,

(5th Cir. 1989). At least some of the reasoning

used to reject constitutional challenges to §§ 841, 952, or 960 in

those cases is consistent with and therefore probably remains

viable after the constitutional doubt analysis applied in Jones.

See, e.g., United States v. Morgan,

(5th Cir. 1987)

(citing legislative history for proposition that Congress did not

intend for quantity to be an element with respect to § 841

offenses). Indeed, several of our sister Circuits have relied upon

the continuing viability of pre-Jones precedent to hold that Jones

either will not support a finding of plain error or will not

support a finding of error at all when the defendant’s argument is

that drug quantity is an essential elements of conviction under

8 §§ 841, 952, and 960 that should have been charged in the

indictment and submitted as an essential element to the jury. See

United States v. Hester,__ F.3d __,

(11th Cir. Jan.

7, 2000) (reaffirming pre-Jones precedent that drug quantity is a

sentencing factor under § 841); United States v. Jones,

(10th Cir. 1999) (concluding that Jones’ application

to § 841 is insufficiently clear to permit an abandonment of pre-

Jones precedent holding that quantity is a sentencing factor under

§ 841); United States v. Williams,

(D.C. Cir.

1999) (same); United States v. Talley, No. 99-4146,

*2 (4th Cir. Nov. 22, 1999) (unpublished) (absence of authority

applying Jones to § 841 negates premise that error arising from

failure to submit quantity as an essential element was plain

error); see also United States v. Bennett,

(N.D.

Ga. 1999) (denying defendant’s motion to dismiss the indictment for

failure to allege drug quantity with respect to §§ 841 and 846

offenses); United States v. Magana, No. 98-C-1846,

(N.D. Ill. Aug. 26, 1999) (unpublished) (denying § 2255 relief

sought on the basis, inter alia, that drug quantity is an essential

element of the federal drug offense defined in § 841).

Our Court has not yet examined the effect of Jones on the

federal drug offenses defined by

, 952, and 960.

The Court has, however, applied Jones to arguments involving

different statutory provisions. See Bledsue v. Johnson,

(5th Cir. 1999) (reading Jones broadly in dicta, but eventually

denying state habeas relief because the phrase “adulterants and

dilutants” was not an essential element under the state drug

statute at issue); United States v. Nunez,

(5th Cir.

1999) (reading Jones broadly and holding that the constitutional

doubt underpinning Jones requires that

(a), which

defines a substantive offense, and § 111(b) which provides for an

“[e]nhanced penalty,” be construed as setting forth two different

federal offenses); United States v. Castillo,

(5th

Cir. 1999) (examining the structure of

(c) and

concluding that “the type of weapon used or carried is a sentencing

enhancement, and not an element” of the offense), cert. granted,

(2000); United States v. Matthews,

(5th

Cir. 1999) (relying upon legislative history for the proposition

that Congress clearly intended for the enhanced penalty provided in

the applicable version of

(b) and (d) to be a

sentencing enhancement provision rather than a separate federal

offense or essential element of a defined offense), cert. denied,

(1999); see also Texas Office of Public Utility

Counsel v. F.C.C.,

(5th Cir. 1999) (citing Jones for

constitutional doubt doctrine in civil case), pet. for cert. filed,

(U.S. Dec. 23, 1999) (No. 99-1072). These cases provide some

insight into how broadly various panels of our Court have been

willing to construe Jones.

10 Clearly, this Court’s precedent does not limit Jones to the

car-jacking statute. In Nunez, the Court indicated its willingness

to derive broad constitutional lessons from Jones by stating that

“Jones teaches us to avoid encroaching on a defendant’s Fifth

Amendment rights by construing statutes setting out separate

punishments as creating separate, independent criminal offenses

rather than a single criminal offense with different punishments.”

Nunez,

. In Bledsue, the one post-Jones Fifth

Circuit case involving a drug offense, the Court eventually denied

state habeas relief sought on the premise that the phrase

“adulterants and dilutants” was an essential element of the

offense. In broadly written dicta, however, the Court relied upon

Jones for the proposition that:

[T]he state would violate Bledsue’s Sixth Amendment jury trial rights if it proved that he possessed less than 28 grams, then convinced the court to impose a heavier sentence based on a non-jury finding that he possessed more than 28 grams. In other words, because the amount of the controlled substance possessed determines the severity of the punishment, the amount possessed is a jury question and an essential element under Jones and Jackson [v. Johnson,

(5th Cir. 1998), cert. denied,

(1999)].

Bledsue,

at *9 (emphasis added). If accepted

without qualification, the Bledsue dicta can be cited for the

proposition that drug quantity is an essential element in the

statutes at issue here. At a minimum, Bledsue, particularly when

paired with Nunez, demonstrates that the government’s attempt to

11 narrowly limit Jones to the factual confines of that case must be

rejected.

Nonetheless, and without regard to how these difficult

constitutional issues may ultimately be resolved in a case in which

error was preserved, we cannot conclude that the Supreme Court’s

identification of unresolved constitutional issues in Jones is

sufficiently plain or obvious with respect to its application to

the federal drug trafficking statutes to permit a finding of

remediable plain error in this case. Even if we were to conclude

that Jones gives rise to “grave doubt” about the constitutionality

of treating drug quantity as a sentencing factor, see Jones,

, such doubt would not support a determination of

obvious or conspicuous error. Jones is simply too thin a reed upon

which to hang a wholesale abandonment of this Court’s pre-Jones

precedent in this case.

Of equal importance, Jones identified the constitutional

guarantees implicated when an essential element of an offense is

impermissibly treated as a sentencing factor. The Jones Court

placed an emphasis on (1) fair notice of the charge, (2) submission

to and a finding by the relevant fact finder, and (3) proof beyond

a reasonable doubt. See Jones,

n.6. None of

those guarantees are implicated in this case. While the relevant

drug quantity was not charged in Rios-Quintero‘s indictment, the

indictment was filed with a Notice of Enhancement that listed the

12 relevant drug quantity. Therefore, Rios-Quintero was provided

notice that the government intended to seek a penalty commensurate

with his possession and importation of more than one kilogram of

heroin.

In addition, Rios-Quintero stipulated that the offense

involved more than one kilogram of heroin and that evidence was

submitted to the jury. Rios-Quintero’s attorney conceded the

relevant quantity in argument before the jury. Thus, the issue of

quantity was undisputed. The undisputed and well-documented

quantity of heroin at issue, when combined with Rios-Quintero’s

stipulation and his concession at trial before the jury, is

adequate to support the proposition that the government met its

burden of proving quantity, without regard to which standard of

proof is applied. Similarly, the record evidence unequivocally

supports an affirmative jury finding on the issue of quantity. In

sum, Rios-Quintero cannot argue that he was prejudiced by the

government’s failure to submit an issue that was both uncontested

and conclusively established. See Johnson,

(failure to submit essential element of offense to jury amounted to

plain error, but did not justify relief because the issue was both

uncontroverted and conclusively established at trial). None of the

constitutional guarantees identified by the Supreme Court in Jones

are implicated in this case. For that reason, the error identified

13 in this case does not affect the “fairness, integrity or public

reputation of judicial proceedings,” and relief is not warranted

under our plain error standard.

We hold only that Jones does not support a determination of

plain error in this case. We are not presented with and do not

decide the more complex issue of whether the Supreme Court’s

decision in Jones, that there are grave doubts about the

constitutionality of statutory language defining facts that

increase the maximum penalty as sentencing factors rather than

essential elements, should have any affect upon our pre-Jones

precedent construing

, 952, and 960. Such a

contention would require a defendant’s inclusion of fair notice

arguments in a motion to quash an indictment that does not list

quantity, and a defendant’s objection at trial that quantity is an

essential element of conviction under these statutes. But such

contentions will certainly need to be presented to and preserved in

the district court before it may be properly considered by this

Court on appeal.

CONCLUSION

The district court is AFFIRMED.

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