FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS (D.C. NO. 5:13-CR-40060-DDC-14)
Christopher M. Joseph, Joseph, Hollander & Craft LLC,
Topeka, Kansas, for Appellant.
A. Brown, Assistant United States Attorney (Thomas A. Beall,
United States Attorney, with him on the brief), Topeka,
Kansas, for Appellee.
BACHARACH, McKAY, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
convicted Karen Johnson of conspiring to distribute cocaine
base. See 21 U.S.C. §§ 841, 846. Johnson
asserts the district court violated the Sixth Amendment when
it imposed on her the 120-month minimum sentence mandated in
21 U.S.C. § 841(b)(1)(A)(iii) without submitting the
drug-quantity issue to the jury for determination under the
beyond-a-reasonable doubt standard. Cf. Alleyne v. United
States, 133 S.Ct. 2151, 2155 (2013). Assuming she
prevails on her Sixth Amendment claim, Johnson argues a
separate drug-quantity finding made by the district court, a
finding made solely for purposes of calculating a sentencing
range under the Sentencing Guidelines, is not supported by
sufficient evidence. Finally, she contends her conviction
must be set aside because the district court used an improper
evidentiary standard in allowing the government to adduce at
trial intercepted cell phone communications. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742, this court rejects Johnson's challenges to
her conviction and to the drug-quantity determination made by
the district court for purposes of the Sentencing Guidelines.
The district court did, however, plainly err in applying the
mandatory minimum set out in § 841(b)(1)(A)(iii) without
submitting the quantity issue to the jury for resolution
under the beyond-a-reasonable-doubt standard. Accordingly,
the district court is affirmed in part and
reversed in part and the matter is
remanded to the district court to vacate
Johnson's sentence and resentence her without regard to
the mandatory minimum set out in § 841(b)(1)(A)(iii).
jury instruction conference, Johnson asked the district court
to submit the issue of drug-quantity to the jury as part of
Instruction 12, an elements instruction. The district
court refused this request and, instead, submitted the matter
of drug quantity to the jury in the form of a special verdict
question, Question 2. Of particular note, Question 2 did not
require that the jury make its drug-quantity finding by using
the beyond-a-reasonable-doubt standard. The jury found
Johnson guilty and decided the conspiracy involved at least
280 grams of cocaine base. Thereafter, over her objection,
the district court sentenced Johnson to a minimum mandatory
term of 120 months' imprisonment. See 21 U.S.C.
§ 841(b)(1)(A)(iii). Johnson asserts the district court
violated her Sixth Amendment rights when it sentenced her to
a mandatory minimum sentence on the basis of a jury finding
that was not made under the beyond-a-reasonable-doubt
standard. See Alleyne, 133 S.Ct. at 2155.
Standard of Review
brief on appeal, the government asserts Johnson's claim
is not preserved for appellate review because she did not
object to Question 2 on the ground it was inconsistent with
Alleyne before the case was submitted to the jury.
This court need not decide whether Johnson's objections
below preserved her Alleyne claim for de novo review
because she is entitled to relief even under the rigorous
plain error standard applicable to unpreserved claims of
Under the plain error standard, a defendant must establish
(1) error, (2) that is plain, which (3) affects substantial
rights, and which (4) seriously affects the fairness,
integrity, or public reputation of judicial proceedings.
Plain error affects a defendant's substantial rights if
there is a reasonable probability that, but for the error
claimed, the result of the proceeding would have been
different. A ...