USA v. Graham, Steven A., No. 00-3121 (D.C. Cir. 2003)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 4, 2002 Decided January 31, 2003

No. 00-3121

United States of America,

Appellee

v.

Steven A. Graham,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 99cr00355-14)

A. J. Kramer, Federal Public Defender, argued the cause

and filed the briefs for appellant.

Roy W. McLeese III, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Roscoe C.

Howard, Jr., U.S. Attorney, John R. Fisher, and Timothy J.

Heaphy, Assistant U.S. Attorneys.

 Before: Randolph and Rogers, Circuit Judges, and

Williams, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: Steven Graham appeals his convic-

tion by a jury of conspiracy to distribute heroin or cocaine

base, 21 U.S.C. s 846, and possession with intent to distribute

heroin, 21 U.S.C. s 841 (a)(1) & (b)(1)(C). Graham contends

that: (1) an FBI agent was improperly allowed to offer

irrelevant hearsay evidence to Graham's prejudice, (2) the

government improperly attempted to impeach his key wit-

ness, and (3) the district court essentially directed a verdict

for the government with regard to the conspiracy count. We

conclude that Graham has failed to show that the hearsay

evidence was prejudicial in light of other evidence from

conspirators or to show plain error with regard to his two

other contentions. Regarding his sentence, Graham contends

that the district court erred in: (1) determining the quantity

of drugs to be attributed to him, (2) denying a downward

adjustment as a minor participant, and (3) imposing super-

vised release in excess of the amount allowed by statute.

Although Graham's first two sentencing challenges are merit-

less, because the district court improperly sentenced Graham

under s 841(b)(1)(A), we remand the case for resentencing

under s 841(b)(1)(C). Accordingly, we affirm the judgment

of conviction except insofar as we remand the case to the

district court to impose a term of supervised release under

s 841(b)(1)(C).

I.

Graham was arrested on May 26, 1999, at the Arthur

Capers housing area in Southeast, Washington, D.C., by

Metropolitan Police Department officers. The officers' trial

testimony revealed that one of them had observed Graham

dropping an object resembling small bags of heroin on the

ground as the police had approached him. However, Graham

was almost immediately released from custody and not rear-

rested until June 18, 1999, on a parole violator warrant. The

government thereafter indicted Graham for being part of a

drug conspiracy led by Kevin Gray; his indictment was

severed from that of the other defendants and Graham went

to trial alone.

At trial, the government presented essentially three types

of evidence: (1) tape recordings of conversations obtained

from wiretaps of Gray's cellular phone; (2) testimony from

admitted conspirators Maurice Andrews and Marvin Dixon,

who provided explanations for the meaning of the words in

the taped telephone conversations and described incidents

they had observed or heard about regarding Graham's activi-

ties as part of the drug conspiracy; and (3) testimony from

the arresting officers. In his defense, Graham showed that

he was on supervised release or in prison during the time of

the conspiracy except for approximately six weeks, from May

4 to June 18, 1999. Through the testimony of Dale Harris,

Graham also disputed an officer's testimony that he dropped

the bags later confirmed to contain heroin; Harris testified

that she did not see Graham drop anything on the ground

when the police approached him on May 26, 1999. The

prosecutor attempted to impeach Harris by asking her about

a number of prior convictions, which, except for one, she

denied. The jury found Graham guilty of conspiracy to

distribute heroine or cocaine base, and possession with intent

to distribute heroin.

During sentencing, Graham objected to the draft pre-

sentence report on the ground that there was insufficient

evidence to attribute to him two to four kilograms of cocaine

and one to three kilograms of heroin; he also contested

factual conclusions in the report that connected Graham to

the Gray conspiracy. A revised report reduced the drug

quantities attributable to Graham to not more than 150 grams

of cocaine base and between one and three kilograms of

heroin. The government filed a memorandum in support of

the reduced attributions. At the sentencing hearing, Graham

reiterated that there was insufficient and contradictory evi-

dence to attribute the full amount of the reduced quantity of

drugs to him, and that the government had failed to establish

the scope of the conspiracy Graham had entered. The dis-

trict court rejected Graham's arguments, adopted the conclu-

sions of the presentence report, and sentenced Graham to the

high end of the sentencing range (168-210 months) under the

Sentencing Guidelines: two concurrent 210-month sentences

of imprisonment, followed by two concurrent sentences of five

years and three years of supervised release.

II.

On appeal, Graham's challenges a series of rulings by the

district court at trial and sentencing.

A.

Regarding his trial, Graham first contends that he was

prejudiced as a result of the district court's error in allowing

FBI Agent Fullmer to testify as to irrelevant and hearsay

matters. Our review of the admissibility of hearsay evidence

is for abuse of discretion. United States v. Evans, 216 F.3d 80, 85 (D.C. Cir.), cert. denied 531 U.S. 971 (2000).

The government's case began with testimony from FBI

Agent Fullmer about the wiretaps that had been placed on

Kevin Gray's telephone. The prosecutor asked the Agent:

"What information specifically led the Safe Streets Task

Force to focus on Mr. Gray as the subject of investigation?"

Defense counsel objected to the question as calling for hear-

say. The district court overruled that objection, and Agent

Fullmer testified:

We had received information from numerous sources

that Mr. Gray and his organization were involved in

trafficking in large amounts of narcotics, be it co-

caine, heroin, marijuana, as well as being responsible

for numerous murders in the Washington, D.C. met-

ropolitan area.



The prosecutor then elicited from the Agent a detailed expla-

nation of the FBI's investigation of the Gray organization, the

legal process by which the FBI obtained a wiretap on Gray's

telephone, how it recorded information from that telephone,

and the process by which that information was analyzed and

stored. This included admission of the application for the

wiretap and associated affidavits (some of which defense

counsel consented to admission).

Graham contends that the admission of the Agent's answer

quoted above was error, and that all of the Agent's back-

ground testimony concerning the wiretap as well as the

affidavits and the application for the wiretap were inadmissi-

ble hearsay and prejudicial. Assuming that defense counsel's

initial objection to the first question and the Agent's answer

sufficed to preserve his objection to any later testimony that

might have been hearsay, and that the first question and

answer were inadmissible hearsay, see Evans, 216 F.3d at 84-

89, Graham's claim fails. First, most of the testimony by the

Agent was not hearsay, and, contrary to Graham's conten-

tions, was relevant to the reliability of the wiretap evidence.

Second, Graham waived any claim as to the admissibility of a

number of documents when defense counsel consented to

their introduction as evidence. Third, with respect to the

limited testimony that is arguably hearsay, Graham fails to

show how he was prejudiced. The Agent's "background"

testimony about the Gray conspiracy was duplicated by prop-

erly admitted evidence from two admitted conspirators, An-

drews and Dixon. United States v. Lampkin, 159 F.3d 607,

615 (D.C. Cir. 1998).

B.

Graham's challenge to the prosecutor's cross-examination

of the key defense witness would be more problematic had

defense counsel made a contemporaneous objection. Howev-

er, absent such objection, our review is confined to whether

there was plain error, see United States v. Olano, 507 U.S. 725, 731-37 (1993), and we find none.

The prosecutor asked Dale Harris about a series of previ-

ous convictions: for marijuana possession in Maryland, for

escape, for theft, for bail violations, for assault and battery,

for possession of a controlled substance with intent to distrib-

ute in Maryland, and for possession of cocaine and heroin in

D.C. Harris admitted the conviction for marijuana posses-

sion, but denied the other convictions, claiming that another

person had been using her name and had been arrested and

convicted. The prosecutor also asked Harris whether she

had been charged but not convicted of possession of heroin;

Harris admitted she had. At the close of the evidence,

defense counsel requested that the jury be instructed that the

government had failed to impeach Harris, except for the

conviction she admitted, and also moved for a new trial when

the district court declined to give the instruction.

Graham contends that the cross-examination of Harris was

improper because: (1) evidence of the Maryland conviction

was improperly admitted under Fed. R. Evid. 609(a) as the

conviction is neither a felony nor a crime of dishonesty or

false statement; (2) the prosecutor improperly asked Harris

whether she had been charged but not convicted of a crime

and asked about other convictions that were not felonies; (3)

the prosecutor did not have a good-faith basis for the cross-

examination; and (4) the district court never ruled in advance

that the prior-conviction evidence was admissible as more

probative than prejudicial under Fed. R. Evid. 403. Assum-

ing the Maryland conviction is not punishable by more than

one year's imprisonment, and therefore does not qualify as a

felony for purposes of Rule 609(a), as appears to be the case,

Md. Code Ann., Art. 27, s 287(e) (2000) (repealed 2002), and

assuming further that the prosecutor's questions about

whether Harris had ever been charged but not convicted of a

drug crime and about whether she had ever been convicted of

any crimes in general were improper, as they appear to be,

Jordan v. Medley, 711 F.2d 211, 218 (D.C. Cir. 1983), Graham

fails to show that the alleged error is "clear" or "obvious,"

and "prejudicial" because it "affected the outcome of the

district court proceedings," and that the error "seriously

affect[s] the fairness, integrity, or public reputation of judicial

proceedings." Olano, 507 U.S. at 734, 736.

The challenged cross-examination involved Harris, not the

defendant, and hence any error is likely to have been less

prejudicial. United States v. Logan, 998 F.2d 1025, 1032

(D.C. Cir. 1993). Further, the prosecutor never directly

discussed the convictions in his closing arguments to the jury,

referring instead to the question of whether Harris had "any

motive to say something that's not true after the police ran up

in her apartment several times" in searches of her apartment

by the FBI and local police. See id. at 1032. Although

Harris provided key eyewitness testimony in Graham's de-

fense, and the evidence whether Graham had dropped the

drugs at Arthur Capers was hardly overwhelming (as only

one of the two police officers at the scene testified that he had

seen Graham drop the bags of heroin), more telling is the

government's evidence through co-conspirator Andrews that

Graham himself told Gray that he had left the bags in the

area at the time. Overall, then, the circumstances fail to

indicate an error sufficiently prejudicial to warrant a new

trial; whether Graham dropped the drugs at the site or not

was only relevant for one of the two charges, and the error

only involved one of the multiple grounds on which the

prosecutor sought to impeach the defense witness. Graham's

contention that the prosecutor's other questions were improp-

er is without merit because he fails to show that the convic-

tions are not felonies. Moreover, the district court instructed

the jury that a lawyer's question is not evidence, and thereby

mitigated prejudice that might arise from any juror confu-

sion. See, e.g., United States v. Clarke, 24 F.3d 257, 270

(D.C. Cir. 1994).

Graham's other contentions challenging Harris's cross ex-

amination also fail. First, Graham fails to show that the

prosecutor did not have a good-faith basis for the cross-

examination of Harris. The prosecutor stated in advance that

the government had a criminal history record for Dale Harris

that it intended to rely upon. Even assuming it would be

preferable for the prosecutor, prior to cross-examination of a

key defense witness, to ascertain that the witness is the

person named in the criminal history, Graham does not

proffer evidence to suggest that, as a result of the FBI

searches, the government should have known that Dale Har-

ris was not the person identified in much of the criminal

history. Second, there is no evidence that Graham ever

sought a Rule 403 analysis by the district court. Third,

although defense counsel requested a special instruction that

Harris had not been impeached except as to the conviction

she admitted, the requested instruction is different from an

instruction advising the jury how it could permissibly use the

evidence of Harris' prior conviction; the proposed instruction

would not have cured any prejudice that resulted from the

government's improper questioning about the prior non-

felony conviction.

C.

Graham's further contends, for the first time on appeal,

that the district court erroneously instructed the jury by

"essentially directing a verdict for the government by telling

the jury that [Graham] was involved in the conspiracy and

what his role was." Appellant's Br. 39. The district court

instructed the jury that:

The government has presented evidence that De-

fendant Graham was involved in the conspiracy for

several months in the spring and summer of 1999.

The government has also presented evidence that

Defendant Graham's role in the conspiracy involved

the purchasing of heroin and cocaine from Kevin L.

Gray, the alleged leader of the charged conspiracy,

and the redistribution of that heroin and cocaine to

various purchasers in and around Washington, D.C.



Whatever its defects, the instruction falls short of directing a

verdict for the government on an element of the crime. See

United States v. Defries, 129 F.3d 1293, 1310-12 (D.C. Cir.

1997). The instruction only summarized the type of evidence

presented by the government and was not "so restrictive as

to remove from the jury any of its factfinding authority."

United States v. Breedlove, 204 F.3d 267, 271 (D.C. Cir. 2000).

This point was made clear to the jury by other instructions:

one shortly after the instruction quoted above, that the

government must "prove each of the following elements [of

conspiracy] beyond a reasonable doubt," listing the elements

of conspiracy, and one earlier instruction, that the jury should

disregard any expression or opinion by the district court

regarding the facts. Under the circumstances, inasmuch as

defense counsel did not object in the district court, we find no

plain error.

D.

Turning to Graham's sentencing challenges, Graham first

contends that, in light of the near ten-fold increase in his

sentence as a result of the quantity of attributed drugs, the

government must prove the facts underlying the attribution

by clear and convincing evidence. Because Graham did not

object in the district court to the standard of proof for

attribution, our review is for plain error, and we find none.

This circuit has never applied the "clear and convincing"

standard at sentencing. United States v. Jackson, 161 F.3d 24, 26-27 (D.C. Cir. 1998); United States v. Toms, 136 F.3d 176, 186-87 (D.C. Cir. 1998); United States v. Kwong-Wah,

966 F.2d 682, 688 (D.C. Cir. 1992). Other circuits have

rejected a heightened burden of proof. United States v.

Thompson, 51 F.3d 122, 125 (8th Cir. 1995); United States v.

Johnson, 32 F.3d 265, 268 n.1 (7th Cir. 1994). But see, e.g.,

United States v. Jordan, 256 F.3d 922, 927-29 (9th Cir. 2001);

United States v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999).

The Third Circuit, which pioneered the heightened standard,

see United States v. Kikumura, 918 F.2d 1084, 1098-102 (3d

Cir. 1990), has refused to apply it in cases similar to Graham's

case, see United States v. Paulino, 996 F.2d 1541, 1545 & n.4

(3d Cir. 1993); see also United States v. Mack, 229 F.3d 226,

234 (3d Cir. 2000) (listing cases). Indeed, where the in-

creased punishment is based solely on the charged and con-

victed conduct, such as in drug cases (like the instant case)

where drug quantity determines the offense level and there-

fore the guidelines range, and where no upward departure

from the guidelines range is contemplated, courts have been

less likely to apply a heightened standard. See, e.g., Toms,

136 F.3d at 187; Kwong-Wah, 966 F.2d at 688; see also

Jordan, 256 F.3d at 928; United States v. Behler, 14 F.3d 1264, 1272 (8th Cir. 1994); Paulino, 996 F.2d at 1545 & n.4.

Given the lack of clarity concerning the standard, even as-

suming error by the district court in applying the preponder-

ance of evidence standard, any error was neither a "clear" nor

"obvious" error.

Graham further contends that the district court failed to

determine the scope of his involvement in the conspiracy.

See United States v. Childress, 58 F.3d 693, 722 (D.C. Cir.

1995). Graham had argued that the evidence showed he was

simply a small-time drug dealer who only had a direct rela-

tionship with Gray and was not part of the larger conspiracy:

"[T]here is no indication that Mr. Graham assisted Mr. Gray

in any way other than the distribution of these piddling

amount of drugs; that is, the 40 grams or so of heroin." The

district court ruled that even accepting Graham's argument

that he should only be held responsible for the drugs that he

personally distributed, Graham was nonetheless responsible

for 62 grams of cocaine base and more than a kilogram of

heroin.

In so ruling, the district court rejected defense counsel's

challenge to the factual conclusion in the presentence report

regarding the amount of drugs that Graham personally dis-

tributed. Moreover, contrary to Graham's position on appeal,

the record shows that the district court understood that the

attributable drugs had to be reasonably foreseeable to Gra-

ham and within the scope of his agreement to join the Gray

conspiracy. Cf. Childress, 58 F.3d at 723. That the district

court's analysis was sparse is not determinative; the district

court focused on Graham's arguments contesting factual con-

clusions and rejected them, and referred to the 62 grams of

cocaine base that the evidence indicated was given to Gra-

ham. The district court thus made more than a generalized

or conclusory finding of Graham's involvement. United

States v. Badru, 97 F.3d 1471, 1478 (D.C. Cir. 1996); see

United States v. Thomas, 114 F.3d 228, 256-57, 259-61 (D.C.

Cir. 1997).

Graham's challenge to the sufficiency of the evidence for

the drug quantities attributed to him fares no better. The

presentence report, in setting the quantity of attributable

drugs, relied on: (1) Andrews' testimony that Gray gave

Graham thirty-one grams of cocaine base on two occasions;

(2) the intercepted telephone conversations between Graham

and Gray indicating that "Graham was involved in several

transactions of reselling of heroin for Kevin Gray," and that

after Graham was initially taken into custody on May 26, he

requested help from Gray by telephone; (3) Dixon's testimo-

ny that he observed Gray handing to Graham fourteen grams

of heroin wrapped in tissue paper, that Graham had given

Gray money for the heroin after Gray told Graham that

$1,400 was owed, and that Graham regularly called Gray; and

(4) Andrews' testimony that Graham regularly asked Gray for

heroin and cocaine to sell because Graham needed money,

that Gray regularly gave Graham drugs to resell, involving

sixty to seventy bags of pre-cut heroin initially, and later un-

cut heroin, and that Graham sold drugs regularly at Arthur

Capers. As noted, the final presentence report concluded

that the proper amount of drugs attributable to Graham was

one to three kilograms of heroin, and 50 to 150 grams of

cocaine base.

Graham challenged whether there were any telephone con-

versations that supported the report's conclusion that he was

involved in reselling heroin on a daily basis, as well as Dixon's

testimony regarding the heroin transferred to Graham, noting

that Dixon had only testified that he saw Gray hand some-

thing wrapped in tissue paper to Graham and that it was

unclear from the testimony how many times Gray gave heroin

to Graham. Graham also challenged whether the testimony

supported the conclusion that Gray gave Graham thirty-one

grams of cocaine base on two occasions; on appeal, Graham

points to the contrary trial testimony that there was no

cocaine available in the District of Columbia at the relevant

time. Finally, Graham questioned how the report had devel-

oped its final drug amounts. In response, the government

pointed to Andrews' testimony on the amount of cocaine base

that Gray had given Graham and testimony from Andrews

and Dixon regarding transfers of heroin to Graham. The

district court adopted the drug quantity conclusions in the

presentence report, specifically referring to sixty-two grams

of cocaine base.

 Federal Rule of Criminal Procedure 32 requires that when

a defendant alleges any factual inaccuracy in the presentence

report, the district court should either make a finding resolv-

ing the controverted matter or determine that it will not

consider the controverted matter in sentencing the defendant.

United States v. Graham, 83 F.3d 1466, 1477 (D.C. Cir. 1996).

While the government maintains that Graham waived any

claim of error because he never asked the district court to

make specific findings, referencing waivers under Fed. R.

Crim. P. 12, see United States v. Caballero, 936 F.2d 1292,

1296 (D.C. Cir. 1991), and under 18 U.S.C. s 3553(c), see

United States v. McCabe, 270 F.3d 588, 590 (8th Cir. 2001),

cert. denied 122 S. Ct. 1588 (2002), it is unnecessary to decide

whether Graham made sufficient objection to the specificity of

the district court's factual findings on the sufficiency and

quality of the evidence supporting drug quantity. Compare

United States v. Edmond, 52 F.3d 1080, 1103-04 (D.C. Cir.

1995) with United States v. Yeh, 278 F.3d 9, 14 (D.C. Cir.

2002); In re Sealed Case, 246 F.3d 696, 702 (D.C. Cir. 2001);

United States v. Sobin, 56 F.3d 1423, 1428 (D.C. Cir. 1995).

Assuming no waiver, the record shows that the district court

sufficiently addressed Graham's challenges to the factual

basis for the conclusions in the presentence report. Although

the evidence as to the amount of heroin is sparse, Andrews'

testimony that Gray gave Graham cocaine base on at least

two occasions was specific as to quantity, and that amount,

from sixty-two to ninety-three grams, was sufficient to justify

the offense level of thirty-two, U.S. Sentencing Guidelines

s 2D1.1(c) (1998), at which Graham was sentenced. With

respect to the contrary testimony regarding the availability of

cocaine base in the District during the summer of 1999, the

district court referred Andrews' testimony in making its

ruling, implicitly indicating that it was crediting Andrews'

testimony. Moreover, the record allowed the district court to

resolve any contradiction in a number of alternative ways, by

concluding, for example, that the contrary testimony was

limited in either geographic or temporal scope. Inasmuch as

Graham never objected in the district court on the basis of

the contrary trial testimony, the district court's factual find-

ings were sufficient. Cf. United States v. Pinnick, 47 F.3d 434, 437-38 (D.C. Cir. 1995).

E.

Graham also contends that the district court erred by

denying his request for a downward adjustment. Section

3B1.2 of the Sentencing Guidelines provides for a two-level

adjustment if "the defendant was a minor participant in any

criminal activity." The corresponding application note states

that this adjustment is appropriate for "any participant who

is less culpable than most other participants, but whose role

could not be described as minimal." U.S. Sentencing Guide-

lines Manual s 3B1.2, cmt. 3 (1998).

Our review of the district court's application of the Sentenc-

ing Guidelines to the facts of the case is for clear error,

United States v. Washington, 106 F.3d 983, 1015 (D.C. Cir.

1997), according "due deference to the district court's applica-

tion of the guidelines to the facts," United States v. Edwards,

98 F.3d 1364, 1371 (D.C. Cir. 1996) (quotation omitted). In

applying the minor offender provision of the Guidelines, the

court has pointed out that:

Before it may find that a defendant was a minor

participant in the offense, however, the evidence

available to the [district] court at sentencing must,

at a minimum, show (i) that the "relevant conduct"

for which defendant would, within the meaning of

section 1B1.3(a)(1), be otherwise accountable in-

volved more than one participant ... and (ii) that

the defendant's culpability for such conduct was

relatively minor compared to that of the other par-

ticipant(s).



Caballero, 936 F.2d at 1299. The district court may not rely

solely on the "status" of a defendant within a criminal organi-

zation, such as a courier or a salesman. Caballero, 936 F.2d

at 1299; see also Edwards, 98 F.3d at 1370. It is clear error

for a district court not to consider a downward adjustment

where the district court has found that the defendant had a

lower level of culpability than other participants in the con-

spiracy. United States v. Mitchell, 49 F.3d 769, 784-85 (D.C.

Cir. 1995). On appeal this court looks at the entire record.

Edwards, 98 F.3d at 1370-71. In determining whether there

is error, the court examines the defendant's culpability rela-

tive to others in the context of the relevant conduct that is

being considered for sentencing purposes. United States v.

Olibrices, 979 F.2d 1557, 1560-61 (D.C. Cir. 1992).

The determination of whether a defendant is eligible for a

downward adjustment under Section 3B1.2 depends in large

part on a determination of the amount of relevant conduct for

which the defendant is being held responsible; this relevant

conduct is the denominator for purposes of the Section 3B1.2

analysis. To the extent that Graham contends that this

denominator should be the totality of the conspiracy and not

his particular activity, as is reflected in Graham's position

that he was merely a low-level drug dealer and therefore

should be eligible for this downward adjustment, he makes a

flawed assumption about the proper denominator. As Gra-

ham would have it, his culpability for purposes of Section

3B1.2 would not depend on the relevant conduct for which he

is being held responsible, but on the unrelated conduct of

others in the conspiracy. Graham's interpretation of the

appropriate denominator is not reflected in the Sentencing

Guidelines or the application notes, and he cites no source of

authority to support his interpretation. Thus, while the

district court acknowledged that Graham "might have been a

lesser participant in the overarching conspiracy," it conclud-

ed, with respect to the relevant conduct for which Graham

was held responsible, that in view of "the kilo of heroin and

the 62 grams of crack, [Graham] didn't have a minor or

minimal role."

Graham faces an uphill battle challenging the deference

that this court owes to the district court's findings of fact. To

the extent that Graham's challenge attacks the district court's

conclusion that he was not a minor participant with respect to

the relevant conduct for which he was held responsible,

contrary to Graham's view, there is evidence that he was an

integral part of the Gray drug conspiracy. The wiretaps

revealed that he regularly sold drugs for Gray during a six-

week period in the summer of 1999. There was evidence that

Graham visited locations where Gray stored drugs, and that

Graham asked Gray for protection from another individual

who threatened him when they were competing for drug

sales. This evidence supports the district court's conclusion

that Graham was not less culpable than other individuals who

worked as retail drug salesmen for the Gray organization.

Contrary to Graham's view, it would not be inconsistent for

the district court to view the evidence, as does the govern-

ment, as showing that Graham is not a minor figure with

respect to his relevant conduct in the Gray conspiracy but

also showing increased attributed drug quantities with regard

to the scope of the conspiracy that Graham entered. The

district court could properly conclude from the evidence,

summarized above, that Graham was a significant cog in the

Gray machine, and not a minor participant, even taking into

account the substantial scope of the conspiracy in which he

was involved. To the extent that Graham contends that

"[t]he problem with the district court's reasoning ... is that

[he] was held responsible for far more drugs than the conduct

in which he participated," Appellant's Br. at 54, he is again

raising an unavailing challenge to the sufficiency of the

evidence for drug quantity attribution.

F.

Finally, Graham contends that the district court improperly

sentenced him under s 841(b)(1)(A) contrary to the holding of

the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Because the presentence report referred to

his maximum sentence under s 841(b)(1)(A), and the district

court stated that it was adopting the recommendations of the

presentence report, Graham maintains that "in sentencing

[him] to the top of the [Guideline] range of 168-210 months,

the district court may well have been influenced by the wrong

belief that [he] faced a life maximum sentence" pursuant to

s 841(b)(1)(A). Appellant's Br. at 43. Graham further main-

tains, in light of his sentence to a five-year period of super-

vised release, that this portion of his sentence was based on

the mandatory minimum sentence under s 841(b)(1)(A), and

that he could not have been convicted of that offense because

the question of drug quantity was never submitted to the jury

as required by Apprendi. Because Graham's only claims in

the district court of sentencing error were a request for a

new trial and an objection to the term of imprisonment on the

ground that drug quantity had to be submitted to the jury

under Apprendi, our review of his challenge to the period of

supervised release is for plain error. See United States v.

Saro, 24 F.3d 283, 286-88 (D.C. Cir. 1994).

Under s 841(b)(1)(C), a defendant faces a maximum prison

sentence of twenty years and a mandatory minimum super-

vised release sentence of three years. By contrast,

s 841(b)(1)(A) sets a maximum term of imprisonment of life

and a mandatory minimum term of supervised release of five

years. Drug quantity amounts determine which of the two

provisions apply. The issue of drug quantity was not submit-

ted to the jury at Graham's trial, despite Graham's arguments

that Apprendi required it, because the district court agreed

with the government that drug quantity under s 841(b)

should only be a jury question where the government is

seeking a prison sentence of more than twenty years.

With respect to Graham's challenge to his term of impris-

onment, the district court sentenced Graham to less than the

maximum term of imprisonment allowable under

s 841(b)(1)(C). Hence, Graham cannot show Apprendi error,

for, in this circuit, "where the defendant was charged with

and convicted of ... an unspecified s 841(b) offense" without

a jury determination of drug quantity, as occurred in Gra-

ham's case, it "seems appropriate" that "because the defen-

dant was sentenced below (C)'s maximum, there was no

'Apprendi error' at all." United States v. Webb, 255 F.3d 890,

898 (D.C. Cir. 2001); see also United States v. Fields, 251 F.3d 1041, 1043-44 (D.C. Cir. 2001); In re Sealed Case, 246 F.3d at 698-99. Moreover, assuming Apprendi error, the

fact that Graham's sentence was less than the twenty years'

maximum under s 841(b)(1)(C) eliminates prejudice from the

error. See United States v. Samuel, 296 F.3d 1169, 1176

(D.C. Cir. 2002); Webb, 255 F.3d at 898.

 With respect to Graham's supervised release sentence, this

circuit, in light of McMillian v. Pennsylvania, 477 U.S. 79

(1986), has held that Apprendi does not apply to mandatory

minimum sentencing. United States v. Agramonte, 276 F.3d 594, 597-98 (D.C. Cir. 2001). Graham has not claimed that

there is any inconsistency between the sentencing provisions

of s 841(a)(1)(C) and the Sentencing Guidelines s 5D1.2,

which, given the classification of the drug offense as a Class C

felony, 18 U.S.C. s 3559(a), requires a supervised release

sentence between two and three years, 18 U.S.C. s 3559(a).

The question, therefore, is whether Graham's supervised re-

lease sentence was proper under s 841. However, because

neither the government nor the district court was specific

about the provision of s 841 under which Graham was con-

victed, the question becomes whether drug quantity is an

element of the offense defined in s 841, such that it must be

submitted to the jury to be determined beyond a reasonable

doubt, and a defendant must be convicted of violating a

particular subparagraph of s 841, as argued by Graham.

The alternative position, adopted by the government at sen-

tencing and on appeal, see Appellee's Br. at 48-51, is that

drug quantity is merely a sentencing factor, to be determined

by the district court at sentencing based on a preponderance

of the evidence, and that a defendant need only be convicted

of distributing some indeterminate amount of drugs under

s 841.

Prior to Apprendi, the circuit courts, including this circuit,

held that the various provisions of s 841(b) established sen-

tencing factors based on drug quantity. See Kwong-Wah,

966 F.2d at 685. After Apprendi, and after Graham was

sentenced, this court interpreted s 841 as a tripartite statute

establishing three separate offenses, with different maximum

sentences based on drug quantity, and not a unitary statute

with drug quantity as a sentencing factor. Webb, 255 F.3d at

895-96 (citing Fields, 242 F.3d at 396); accord In re Sealed

Case, 246 F.3d at 699. The defendant in Webb, a career

offender whose sentence had been enhanced on recidivism

grounds, had challenged his thirty-year sentence under s 841

on the grounds that drug quantity and the question of his

prior conviction had not been submitted to the jury. Webb,

255 F.3d at 893. In the course of rejecting defendant's

Apprendi challenge, the court also had to address the role of

a Sentencing Guidelines provision whose application depended

on whether the defendant had been convicted of

s 841(b)(1)(A), (B), or (C). Id. at 899. In addressing that

question, the court read this circuit's opinion in Fields as

having implicitly treated s 841 as a tripartite statute in light

of the government's concession in Fields that the issue of

drug quantity had to be submitted to the jury in order to

increase the maximum sentence that could be imposed under

s 841. Id. at 896. The court concluded in Webb that the

district court erred in ruling that Webb could be guilty of a

violation of s 841(b)(1)(A) and (B) when the issue of drug

quantity had not been decided by the jury. Id. at 900. "[A]

conviction for the (A) or (B) offense is not proper unless the

relevant drug threshold has been stated in the indictment,

submitted to the jury, and proven beyond a reasonable

doubt." Id.

Consequently, in light of Webb, and perhaps even in light of

Fields, the district court, in sentencing Graham, could not

treat subparagraphs (A) and (C) of s 841 as mere sentencing

factors, and to the extent it did it erred. The question

remains whether the error was "plain." As noted, prior to

Webb and Fields, "well-established precedent in this circuit

held that" s 841 was a unitary statute, Webb, 255 F.3d at 894,

and therefore the government did not need to prove drug

quantity in order to establish a conviction with a maximum

prison sentence of life. See Kwong-Wah, 966 F.2d at 685.

Apprendi itself, while decided prior to Graham's trial and

prompting Graham to raise objections to the failure to submit

drug quantity to the jury, "did not address the interpretation

or constitutionality of s 841" nor predetermine whether s 841

was a unitary or tripartite statute. See Webb, 255 F.3d at

895-96. "In evaluating whether an error is 'plain,' ... where

the law has changed since the time of trial, 'it is enough that

an error be "plain" at the time of appellate consideration.' "

Webb, 255 F.3d at 897 (quoting Johnson v. United States, 520 U.S. 461, 468 (1997)). Thus, even though Webb and Fields

were decided after Graham's sentencing, the error of law is

plain.

Under the circumstances, we conclude that Graham's sub-

stantial rights were affected and a remand is required. It is

true that even if Graham had been convicted only of violations

of s 841(b)(1)(C), the five-year supervised release sentence

could have been imposed, because (C) only sets a three-year

mandatory minimum requirement for supervised release.

However, the presentence report and the district court judg-

ment indicate that Graham was to receive a five-year super-

vised release sentence under Count 1 of the indictment, under

which Graham was to be sentenced pursuant to

s 841(b)(1)(A), and a three-year supervised release under

Count 14 of the indictment, under which Graham was to be

sentenced pursuant to s 841(b)(1)(C). In other words, the

district court in sentencing Graham appears to have tracked

the mandatory minimum sentencing provisions of s 841, and

thus may have applied s 841(b)(1)(A), which increased Gra-

ham's supervised release period by two years. In such a

situation, "we will not permit our result to be guided by idle

speculation as to the sentence that might be imposed by the

district court on remand." Fields, 251 F.3d at 1046 (quoting

United States v. Jones, 235 F.3d 1231, 1238 (10th Cir. 2000)).

Consequently, a remand is appropriate for resentencing of

the term of supervised release under s 841(b)(1)(C). See

Saro, 24 F.3d at 288, 291-92.

Accordingly, we affirm the judgment of conviction except

we remand the case for resentencing under s 841(b)(1)(C)

with respect to the term of Graham's supervised release.