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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-50440
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JEFFREY MATTHEWS,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
November 12, 2002
Before JONES, SMITH, and SILER,*
Although both sentences violate Apprendi v.
Circuit Judges.
New Jersey, 530 U.S. 466 (2000), these errors
are harmless under Chapman v. California,
JERRY E. SMITH, Circuit Judge:
386 U.S. 18 (1967), so we affirm.
For the second time, Jeffrey Matthews ap-
I.
peals his sentences for convictions of carjack-
A.
ing and conspiracy to commit carjacking.
We described the facts of Matthews's hei-
nous crimes in his first appeal, United States v.
Matthews, 178 F.3d 295, 297-98 (5th Cir.
*
1999) ("Matthews I"), so we review them only
Judge of the United States Court of Appeals
briefly here. Matthews and three other men
for the Sixth Circuit, sitting by designation.

stalked Terrie Dittman as she drove her van
we herein refer to these offenses as simple car-
home. When she pulled into her driveway,
jacking, § 2119(1); carjacking resulting in
Matthews took a gun from his co-defendant,
serious bodily injury, § 2119(2); and carjack-
Michael Cook, walked up to the van's driver-
ing resulting in death, § 2119(3).
side window, and pointed the gun at Dittman.
When she tried to drive away, Matthews shot
The maximum sentence for simple carjack-
at her five times and hit her three times, griev-
ing is fifteen years; for carjacking resulting in
ously injuring her and leaving her for dead.
serious bodily injury, twenty-five years; and
for carjacking resulting in death, life imprison-
A jury convicted Matthews of carjacking in
ment or death. "[T]he serious bodily injury as-
violation of 18 U.S.C. § 2119, conspiracy to
pect of § 2119(2) was not included in the in-
commit carjacking in violation of 18 U.S.C.
dictment or presented to the jury," Matthews I,
§ 371, and using or carrying a firearm during
178 F.3d at 301, because Matthews's trial and
a carjacking in violation of 18 U.S.C. § 924(c).
sentencing preceded Jones. Nevertheless,
(Cook was convicted of similar crimes.) The
Matthews received the benefit of Jones on his
district court sentenced Matthews to
direct appeal, so "we vacate[d] Matthews'
(1) twenty-five years' imprisonment for car-
sentence for carjacking and remand[ed] to the
jacking, which included a ten-year enhance-
district court for re-sentencing consistent with
ment because he inflicted serious bodily injury,
Jones and the lower maximum imprisonment
18 U.S.C. § 2119(2); (2) seven years for
of § 2119(1)." Id.
conspiracy, which included a two-year en-
hancement under the criminal street gangs stat-
On the other hand, we affirmed the two-
ute, 18 U.S.C. § 521; and (3) five years for the
year enhancement of Matthews's conspiracy
firearms violation. The court ordered the
sentence under the criminal street gangs stat-
sentences to run consecutively, for a total of
ute, 18 U.S.C. § 521. Section 521(b) states
thirty-seven years.
that "[t]he sentence of a person convicted of
an offense described in subsection (c) shall be
In Matthews I, this court affirmed
increased by up to 10 years if the offense is
Matthews's convictions on all three counts and
committed under the circumstances described
affirmed his conspiracy and firearms sentences,
in subsection (d)."2 Subsection (d) identifies
but vacated his carjacking sentence. After the
three facts necessary to increase a defendant's
district court sentenced Matthews but before
sentence under subsection (b): The defendant
we had decided Matthews I, the Court held in
(1) "participates in a criminal street gang with
Jones v. United States, 526 U.S. 227 (1999),
knowledge that its members engage in or have
that the carjacking statute, 18 U.S.C. § 2119,
stated three separate offenses, not one offense
with three possible sentences.1 For simplicity,
(...continued)
eventual holding of Apprendi. Indeed, the Supreme
Court has observed that Apprendi "was fore-
shadowed by our opinion in Jones." Apprendi,
1 Jones rested partly on ordinary principles of
530 U.S. at 476 (citation omitted).
statutory interpretation, 526 U.S. at 232-39, but
also on the canon of constitutional doubt, 526 U.S.
2 Matthews does not dispute that both car-
at 239-52. These doubts were identical to the
jacking and conspiracy to commit carjacking are
(continued...)
qualifying § 521(c) offenses.
2

engaged in a continuing series of offenses de-
to reconsider the § 521 enhancement of the
scribed in subsection (c)," (2) "intends to pro-
conspiracy sentence because the Supreme
mote or further t he felonious activities of the
Court had decided Apprendi after our decision
criminal street gang or maintain or increase his
in Matthews I but before the district court
or her position in the gang," and (3) "has been
resentenced him. He argued that
convicted within the past 5 years" of a crime
Apprendi was an intervening change of law
within several listed categories.3 18 U.S.C.
that effectively overruled our holding in
§ 521(d).
Matthews I that the necessary facts for a § 521
enhancement need not be pleaded in the
Matthews challenged the § 521 enhance-
indictment and proven to a jury beyond a
ment as a violation of his Fifth and Sixth
reasonable doubt. Further, for the same
Amendment rights. "Matthews argue[d] that
reasons, he argued against the government's
§ 521 is a separate offense that must be
requested § 521 enhancement of the carjacking
charged by indictment, proven beyond a rea-
sentence.4
sonable doubt, and submitted to a jury for its
verdict as required by the Fifth and Sixth
The district court accepted the govern-
Amendments." Matthews I, 178 F.3d at 302.
ment's arguments and resentenced Matthews
Using the ordinary tools of statutory
to fifteen years for simple carjacking under
interpretation, we agreed with the district
§ 2119(1) but added a ten-year enhancement
court that § 521 is a sentence enhancement
under § 521 based on its earlier factual
statute, not a separate offense the elements of
findings. The court declined to reconsider its
which must be pleaded in the indictment and
earlier two-year § 521 enhancement of the
proven to a jury beyond a reasonable doubt.
conspiracy sentence, thus achieving its original
Id. Thus, we affirmed the two-year
sentencing intent of twenty-five years for the
enhancement of the conspiracy sentence based
carjacking offense and thirty-seven total years.
on evidence presented by the government
"during the sentencing phase of the trial." Id.
II.
at 303.
Matthews appeals the § 521 enhancements
of the carjacking and the conspiracy sentences.
B.
The enhancements rest on identical factual
On remand, both parties sought more than
findings and thus pose one underlying legal
a ministerial resentencing order. The
question, namely, the validity, after Apprendi,
government urged the court not only to
of a § 521 enhancement based on facts not
sentence Matthews to fifteen years for simple
pleaded in the indictment and not proven to a
carjacking under § 2119(1), but also to
jury beyond a reasonable doubt.
enhance this sentence by ten years under § 521
based on the court's earlier factual findings for
Before we reach the merits of this question,
the § 521 enhancement of the conspiracy
however, we must address two procedural
sentence. Matthews, however, urged the court
questions. Matthews argues that the doctrine
3 Matthews does not dispute that his long crim-
4 He also argued that the requested § 521 en-
inal record includes several crimes within these
hancement for the carjacking sentence would ex-
categories.
ceed our mandate from Matthews I.
3

of law of the case permitted the district court
violate." Becerra, 155 F.3d at 752. The doc-
to reconsider and vacate its § 521
trine has three exceptions: (1) The evidence at
enhancement of his conspiracy sentence and
a subsequent trial is substantially different;
prohibited the court from enhancing his
(2) there has been an intervening change of
carjacking sentence under § 521. We agree
law by a controlling authority; and (3) the
with the former but not the latter. Thus, we
earlier decision is clearly erroneous and would
may review both § 521 enhancements.
work a manifest injustice. Id. at 752-53.
A.
These observations about law of the case
"Under the law of the case doctrine, an is-
extend as well to the so-called mandate rule,
sue of fact or law decided on appeal may not
which is but a specific application of the gen-
be reexamined either by the district court on
eral doctrine of law of the case. That rule
remand or by the appellate court on a
"provides that a lower court on remand must
subsequent appeal." Tollett v. City of Kemah,
implement both the letter and the spirit of the
285 F.3d 357, 363 (5th Cir. 2002) (citation
appellate court's mandate and may not
omitted), cert. denied, 2002 U.S. App. LEXIS
disregard the explicit directives of that court."
6495 (U.S. Oct. 7, 2002). Without this
Id. at 753 (internal alterations and quotation
doctrine, cases would end only when obstinate
marks omitted). The mandate rule, however,
litigants tire of re-asserting the same
has the same exceptions as does the general
arguments over and over again. Moreover,
doctrine of law of the case; these exceptions,
the doctrine discourages opportunistic litigants
if present, would permit a district court to ex-
from appealing repeatedly in hopes of
ceed our mandate on remand. Id.
obtaining a more sympathetic panel of this
court. United States v. Becerra, 155 F.3d
B.
740, 752 (5th Cir. 1998). The doctrine of law
The district court could have reconsidered,
of the case, in other words, is essential to the
and this court can review, the § 521
orderly administration of justice.
enhancement of the conspiracy sentence,
because Apprendi was an intervening change
At the same time, law of the case is not a
of law that effectively overruled our decision
jurisdictional rule, but a discretionary practice.
affirming this enhancement in Matthews I. In
The doctrine "merely expresses the practice of
his first appeal, Matthews presciently
courts generally to refuse to reopen what has
anticipated the eventual ruling in Apprendi.
been decided, not a limit to their power."
He squarely argued that the necessary facts for
Messenger v. Anderson, 225 U.S. 436, 444
a § 521 enhancement "must be charged by
(1912).5 Law of the case therefore "is not in
indictment, proven beyond a reasonable doubt,
and submitted to a jury for its verdict as
required by the Fifth and Sixth Amendments."
Matthews I, 178 F.3d at 302.
5 "The courts are understandably reluctant to
reopen a ruling once made. . . . Reluctance, how-
ever, does not equal lack of authority. The con-
straint is a matter of discretion. So long as a case
remains alive, there is power to alter or revoke
5(...continued)
earlier rulings." WRIGHT, MILLER & COOPER,
FEDERAL PRACTICE AND PROCEDURE: JURISDIC-
(continued...)
TION 2D § 4478, at 637 (2002).
4

In Apprendi, the Court adopted this
acceptance of responsibility and his role as a
position almost verbatim: "[A]ny fact (other
minor participant in a conspiracy, and remand-
than a prior conviction) that increases the
ed for resentencing. On remand, the defendant
maximum penalty for a crime must be charged
challenged an unappealed aspect of his initial
in an indictment, submitted to a jury, and
sentence, namely, an enhancement for
proven beyond a reasonable doubt."
obstruction of justice, but the court declined to
Apprendi, 530 U.S. at 476 (quoting Jones,
reconsider this enhancement. Marmolejo II,
526 U.S. at 243 n.6). As we explain in greater
139 F.3d at 529. The defendant argued on ap-
detail, infra part III.A, Apprendi repudiates
peal that a resentencing hearing should be de
Matthews I. Law of the case therefore did not
novo, and the district court should be able to
prevent the district court from reconsidering
(re)consider every legal and factual ground for
the § 521 enhancement of the conspiracy sen-
every aspect of his sentence for every count.
tence, nor does it prevent us from entertaining
Id. at 530.
Matthews's challenge in this appeal.
Although noting that a majority of the cir-
C.
cuits had adopted this view, we rejected it and
Though unenthusiastic about law of the
took the minority view that "only those
case on his conspiracy sentence, Matthews un-
discrete, particular issues identified by the
derstandably is an ardent defender of the man-
appeals court for remand are properly before
date rule on his carjacking sentence. The man-
the resentencing court." Id.
date in Matthews I stated that "we vacate
Matthews'[s] sentence for carjacking and re-
The only issues on remand properly be-
mand to the district court for re-sentencing
fore the district court are those issues
consistent with Jones and the lower maximum
arising out of the correction of the
imprisonment of § 2119(1)." Matthews I, 178
sentence ordered by this court. In short,
F.3d at 301. Matthews argues that this
the resentencing court can consider
mandate prohibited the court from enhancing
whatever this court directsSSno more,
his carjacking sentence under § 521. We
no less. All other issues not arising out
disagree, concluding that the district court did
of this court's ruling and not raised
not exceed our mandate from Matthews I.
before the appeals court, which could
have been brought in the original appeal,
To determine whether the district court
are not proper for reconsideration by the
complied with the mandate rule, we must de-
district court below.
termine the meaning of the Matthews I
mandate. This court has adopted a restrictive
Id. at 531. Thus, we affirmed the district
rule for interpreting the scope of the mandate
court's refusal to reconsider its initial
in the criminal resentencing context. United
enhancement for obstruction of justice,
States v. Marmolejo, 139 F.3d 528 (5th Cir.
because the defendant had not appealed that
1998) ("Marmolejo II").
enhancement in Marmolejo I and it did not
arise out of our mandate in Marmolejo I.
In United States v. Marmolejo, 106 F.3d
1213 (5th Cir. 1997) ("Marmolejo I"), we re-
At first blush, Marmolejo II seems to pro-
versed sentence reductions for the defendant's
hibit the § 521 enhancement for the carjacking
5

sentence. Although we discussed § 521 as we
respectively, § 2119(1), (2), and (3), what we
reviewed Matthews's conspiracy sentence,
have called simple carjacking, carjacking
Matthews I, 178 F.3d at 301-03, we did not
resulting in serious bodily injury, and
mention the statute as we reviewed his car-
carjacking resulting in death.
jacking sentence, id. at 301. Moreover, our
mandate did not refer to § 521: "[W]e vacate
Matthews was sentenced initially as if he
Matthews'[s] sentence for carjacking and re-
had been convicted of carjacking resulting in
mand to the district court for re-sentencing
serious bodily injury under § 2119(2). Jones
consistent with Jones and the lower maximum
undermined this conviction, because the gov-
imprisonment of § 2119(1)." Id. Matthews
ernment had not pleaded or proved the serious
therefore appears on solid ground when he ar-
bodily injury element. Thus, when we vacated
gues that the court exceeded the scope of our
the sentence and remanded in Matthews I, we
mandate (even though he does not cite Mar-
did not merely vacate a sentence; instead, we
molejo II).
vacated Matthews's entire conviction of the
aggravated offense of carjacking resulting in
At second glance, however, this argument
seriously bodily injury, and remanded for sen-
misunderstands the effect of Jones on § 2119
tencing on the lesser included offense of simple
and the nature of our mandate in Matthews I.
carjacking.
Without the aid of Jones, the grand jury
indicted Matthews for, and the petit jury con-
When the case is understood in this light,
victed him of, a single abstract crime known as
Matthews had never been sentenced for the
"carjacking" under § 2119. The district court,
lesser included offense of simple carjacking.
also without the aid of Jones, enhanced
Likewise, the district court had never conduct-
Matthews's sentence by ten years under
ed a full de novo sentencing hearing on this
§ 2119(2) because he had caused "serious
conviction or allowed the parties to argue for
bodily injury" to Dittman. We vacated this
enhancements or reductions in the sentence for
sentence because "the [Supreme] Court
this conviction. Thus, the necessary and log-
construed § 2119(1), (2), & (3) `as
ical implication of our mandate in Matthews I
establishing three separate offenses by the
was to authorize the district court to conduct
specification of distinct elements, each of
just such a hearing. This implication takes this
which must be charged and proven by
case outside the realm of Marmolejo II, which
indictment, proven beyond a reasonable doubt,
dealt only with resentencing on the same
and submitted to a jury for its verdict.'"
conviction, and makes the § 521 enhancement
Matthews I, 178 F.3d at 301 (quoting Jones,
of the simple carjacking sentence on remand
526 U.S. at 252).
perfectly appropriate.
Matthews and the government still conceive
We acknowledge that our mandate in Mat-
of Matthews I as affirming a single abstract
thews I might have contributed to the parties'
crime known as "carjacking" under § 2119 and
confusion. Again, it stated: "[W]e vacate
remanding for resentencing for that crime.
Matthews'[s] sentence for carjacking and re-
This conception is wrong. After Jones, there
mand to the district court for re-sentencing
is no such crime as "carjacking" under § 2119.
consistent with Jones and the lower maximum
Rather, there are three distinct crimes under,
imprisonment of § 2119(1)." Matthews I, 178
6

F.3d at 301. The mandate does not refer to
effort.6 That we did not reverse and render
Matthews's conviction and does refer to his
indicates that we intended the district court to
"sentence" and to a remand for "re-
engage in a full de novo hearing on the
sentencing."
theretofore unsentenced conviction of the
lesser included offense of simple carjacking.
Yet, to be "consistent with" Jones and
Moreover, if we had not intended that court to
§ 2119(1), this mandate must be understood as
consider enhancements or reductions to the
vacating the conviction and the sentence for
sentence, we would have been more explicit,
carjacking resulting in serious bodily injury.
for example, by remanding "for resentencing
Moreover, our comment that we remanded for
for not more than fifteen-years as required by
"re-sentencing" merely reflects that Matthews
§ 2119(1)."7
still had a valid conviction for the lesser in-
cluded offense of simple carjacking, so the
To illustrate the point further, imagine a hy-
court did not need to hold a new trial on the
pothetical but nearly identical case. If Mat-
question of guilt.
thews committed these crimes today, i.e., after
Jones, the government likely would indict him
Furthermore, the district court "must
for carjacking resulting in serious bodily injury
implement the letter and the spirit" of our
under § 2119(2) and the lesser included of-
mandate, Becerra, 155 F.3d at 753 (citation
fense of simple carjacking under § 2119(1).
and internal quotation marks omitted), both of
Suppose that the jury convicted (with proper
which indicate that we intended the court to
instructions) on both counts, and the district
hold a full de novo hearing on the sentence for
court properly sentenced him for the
the lesser included offense of simple carjack-
aggravated offense but not the lesser included
ing, for which Matthews had never been sen-
offense. Suppose further that Matthews
tenced. First, there is no logical inconsistency
appealed his convictions for insufficient
between the Matthews I mandate and what the
evidence. On appeal, suppose finally that we
district court did on remand. We directed the
reversed the conviction for carjacking resulting
court to resentence consistent with Jones and
in serious bodily injury because insufficient
§ 2119(1), i.e., the lesser included offense of
evidence supported the element of serious
simple carjacking, the only crime for which
bodily injury, but we affirmed the conviction
Matthews was properly convicted. The court
for simple carjacking because sufficient
did just that, imposing the base fifteen-year
evidence supported the remaining elements.
sentence for simple carjacking under § 2119(1)
What would we then do?
and then enhancing the base sentence under §
521.
6
Second, if we had intended only a
See, e.g., United States v. Hernandez-Gue-
ministerial resentencing, we could have
vara, 162 F.3d 863, 878 (5th Cir. 1998) ("[W]e
need not waste judicial resources by remanding for
reversed and rendered the fifteen-year sentence
what undoubtedly would be a rote resentencing.").
to save everyone involved time, expense, and
7See, e.g., United States v. Bell, 470 F.2d 1178
(5th Cir. 1978) (vacating and remanding after dis-
trict court ignored a mandate that the new sentence
was "not to exceed six years").
7

We would vacate the conviction and the
In sum, our mandate in Matthews I
sentence for carjacking resulting in serious
authorized the district court to conduct a full
bodily injury, and we would remand for
de novo sentencing hearing on the conviction
sentencing on the lesser included offense of
of simple carjacking and to entertain any
simple carjacking, for which the defendant had
requests for enhancements or reductions in the
never been sentenced. Our mandate might
fifteen-year sentence authorized by § 2119(1).
even say that we remand "for resentencing
The court complied with our mandate. It
consistent with § 2119(1)." Under these cir-
therefore did not violate the mandate rule.
cumstances, no one would doubt that the dis-
trict court could, and indeed should, conduct
III.
a full de novo sentencing hearing for the simple
With these procedural matters settled, we
carjacking conviction.8 The only difference
reach the question whether Apprendi permits
between this hypothetical and this case is the
a § 521 enhancement based on facts not plead-
timing of Jones, which does not make a
ed in the indictment and not proven to a jury
difference to the meaning of our mandate in
beyond a reasonable doubt. Matthews mounts
Matthews I.
identical challenges to the § 521 enhancements
for the carjacking and the conspiracy
convictions.
8 Any other approach would unduly restrict the
prosecution's discretion and expose the criminal
The enhancements required three essential
defendant to unnecessarily harsh sentences. Where
factual findings: (1) participation in a criminal
a defendant is convicted of an aggravated and a
street gang with knowledge of its criminal ac-
lesser included offense, the prosecution may believe
tivities, (2) intent to promote or further these
that the maximum sentence for the aggravated
activities or to maintain or increase one's po-
offense is sufficiently long, but the maximum
sition in the gang, and (3) a prior conviction
sentence for the lesser included offense is too short.
for certain kinds of offenses. 18 U.S.C. § 521-
Because the defendant is sentenced only for the
(d). The district court found these facts by a
aggravated offense, the prosecution need not
request any enhancements. Yet, if the prosecution
preponderance of the evidence during the
feared that an appellate court might reverse the
sentencing hearing. Matthews argues that this
aggravated offense conviction or sentence and
procedure violates his Fifth Amendment right
remand for resentencing on the lesser included
to be charged by indictment with all the
offense without the possibility of enhancements, the
essential elements of his crime9 and his Sixth
prosecution likely will seek enhancements in the
Amendment right to require a jury finding of
initial sentencing despite its belief that the
guilt beyond a reasonable doubt on every ele-
enhancements are needlessly harsh. Cf. United
ment of the crime.10
States v. Campbell, 106 F.3d 64, 68 (5th Cir.
1997) (endorsing the "aggregate approach" when
evaluating a Pearce vindictive resentencing claim
because "[s]entencing is a fact-sensitive exercise
9 U.S. CONST. amend. V; United States v.
that requires district court judges to consider a
Hamling, 418 U.S. 87, 117 (1970).
wide array of factors when putting together a
`sentencing package'" and therefore "the district
10 U.S. CONST. amend. VI; United States v.
court's job on remand is to reconsider the entirety
Gaudin, 515 U.S. 506, 510 (1995); Sullivan v.
of the (now-changed) circumstances and fashion a
Louisiana, 508 U.S. 275, 278 (1993); In re Win-
sentence that fits the crime and the criminal").
ship, 397 U.S. 358, 364 (1974).
8

"The applicability of Apprendi to this case
than a prior conviction) that increases the
is a question of law that we review de novo."
maximum penalty for a crime must be charged
United States v. Stone, 306 F.3d 241, 243 (5th
in an indictment, submitted to a jury, and
Cir. 2002). Following Apprendi, we agree
proven beyond a reasonable doubt."
that this procedure violated Matthews's Fifth
Apprendi, 530 U.S. at 476 (quoting Jones,
and Sixth Amendment rights, but we also con-
526 U.S. at 243 n. 6).12 Apprendi repeatedly
clude that these errors were harmless. We
disparaged the distinction between a fact
therefore affirm both § 521 enhancements.
characterized as a sentencing factor and a fact
characterized as an element of a separate
A.
offense when the fact increases the statutory
In his first appeal, Matthews challenged the
maximum penalty.13
§ 521 enhancement of his conspiracy
conviction on an identical ground. "Matthews
argue[d] that § 521 is a separate offense that
11(...continued)
must be charged by indictment, proven beyond
facts increasing the minimum sentence." Ring v.
a reasonable doubt, and submitted to a jury for
Arizona, 122 S. Ct. 2428, 2441 n.5 (2002) (citing
its verdict as required by the Fifth and Sixth
Harris v. United States, 122 S. Ct. 2406, 2419
Amendments." Matthews I, 178 F.3d at 302.
(2002) (plurality)). But see Harris, 122 S. Ct. at
We rejected this challenge, "hold[ing] that §
2428 (Thomas, J., dissenting) (observing that "only
521 is a sentence enhancement statute rather
a minority of the Court embrac[es] the distinction"
than a separate offense." Id. We reached this
between facts increasing the statutory maximum
interpretation by carefully reviewing the text
penalty and the statutory minimum penalty).
and legislative history of § 521 and the
12
Sentencing Commission's treatment of § 521
There are actually two rules of Apprendi, be-
as a sentence enhancement provision. Id.
cause the Fifth Amendment's Grand Jury Clause,
alone among the Bill of Rights, has not been ap-
These sources, we thought then and still
plied to the states through the Fourteenth
believe, were "overwhelming evidence of Con-
Amendment's Due Process Clause. Thus, the rule
gress'[s] intent regarding § 521" as a sentence
of Apprendi as applied to the states is that "[o]ther
enhancement statute, not a separate criminal
than the fact of a prior conviction, any fact that
offense. Id. This distinction, we held in
increases the penalty for a crime beyond the pre-
Matthews I, permitted the district court to find
scribed statutory maximum must be submitted to a
the essential facts of a § 521 enhancement by
jury, and proved beyond a reasonable doubt."
a mere preponderance of the evidence. Id.
Apprendi, 530 U.S. at 490. We cite the federal
version of the rule here, because the Grand Jury
This distinction, however, is largely
Clause applies to Matthews's federal crime.
irrelevant after Apprendi11: "[A]ny fact (other
13 See, e.g., Apprendi, 530 U.S. at 492 (re-
jecting the argument that a finding of biased pur-
pose "is not an `element' of a distinct hate crime
11 We say the distinction is only "largely" in-
offense, but rather the traditional `sentencing fac-
stead of "wholly" irrelevant after Apprendi, be-
tor' of motive" as "nothing more than a dis-
cause "a majority of the [Supreme] Court con-
agreement with the rule we apply today"); id. at
cludes that the distinction between elements and
494 ("the relevant inquiry is one not of form, but of
sentencing factors continues to be meaningful as to
effectSSdoes the required finding expose the
(continued...)
(continued...)
9

The Supreme Court unequivocally re-enun-
penalty, it must be pleaded in the indictment
ciated this principle earlier this year. "As to
and found by a jury beyond a reasonable
elevation of the maximum punishment . . .
doubt, regardless of whether Congress intend-
Apprendi repeatedly instructs in that context
ed the fact to be a "sentencing factor" or an
that the characterization of a fact or
"element" of a separate offense. Section 521
circumstance as an `element' or a `sentencing
requires findings of just this kind of fact. Mat-
factor' is not determinative of the question
thews faced a statutory maximum of fifteen
`who decides,' judge or jury." Ring, 122 S.
years for his simple carjacking offense, 18
Ct. at 2441. "[T]he fundamental meaning of
U.S.C. § 2119(1), and a statutory maximum of
the jury-trial guarantee of the Sixth
five years for his conspiracy offense, 18 U.S.C.
Amendment is that all facts essential to
§ 371. Section 521 increased these maximum
imposition of the level of punishment that the
sentences by up to ten years each if he was
defendant receivesSSwhether the statute calls
found to have committed these offenses (1)
them elements of the offense, sentencing fac-
while participating in a criminal street gang
tors, or Mary JaneSSmust be found by the jury
with knowledge of its criminal activities, (2)
beyond a reasonable doubt." Id. at 2444
with intent to promote or further these
(Scalia, J., concurring).
activities or to maintain or increase his position
in the gang, and (3) with a prior conviction for
The import of Apprendi is inescapable: If
certain kinds of offenses. Without a finding of
a fact increases the statutory maximum
these facts, Matthews would have faced only
a fifteen- and a five-year sentence,
respectively, on each count.
(...continued)
Therefore, to the extent that Matthews I
defendant to a greater punishment than that au-
held that the district court could find these
thorized by the jury's guilty verdict?"); id. at 494
facts by a preponderance of the evidence and
n. 19 ("[W]hen the term `sentence enhancement' is
thereby increase Matthews's sentence under
used to describe an increase beyond the maximum
authorized statutory sentence, it is the functional
§ 521, Apprendi plainly overruled Matthews I.
equivalent of an element of a greater offense than
The essential facts for a § 521 enhance-
the one covered by the jury's guilty verdict."); id.
mentSSwhatever label one wishes to give
at 495 ("merely because the state legislature placed
themSSmust be pleaded in an indictment and
its hate crime sentence `enhancer' within the
found by a jury beyond a reasonable doubt.
sentencing provisions of the criminal code does not
mean that the finding of biased purpose to
The government more or less concedes this
intimidate is not an essential element of the
position, because it does not argue that § 521
offense") (internal quotation marks omitted); id. at
does not increase the statutory maximum pen-
501 (Thomas, J., concurring) ("[I]f the legislature
alty for Matthews's offenses or that the
defines some core crime and then provides for
distinction between a sentencing factor and an
increasing the punishment of that crime upon a
element of a separate offense is relevant for
finding of some aggravating fact . . . the core crime
this case. Instead, the government urges that
and the aggravating fact together constitute an
our ruling in Matthews I is law of the case. As
aggravated crime, just as much as grand larceny is
an aggravated form of petit larceny. The
should be obvious from the foregoing analysis,
aggravated fact is an element of the aggravated
Apprendi is an intervening change of law that
crime.").
10

overrules our earlier holding in this case.
(1) participation in a criminal street gang with
knowledge of its criminal activities and (2) in-
Perhaps realizing this, the government also
tent to promote or further these activities or to
argues that § 521 is a mere recidivist statute,
maintain or increase one's position in the gang.
the findings for which need not be pleaded in
18 U.S.C. § 521(d)(1)-(2). These two facts
an indictment or submitted to a jury. The
are unrelated to the fact of a prior conviction,
Court held in Almendarez-Torres v. United
but directly related to the current charged
States, 523 U.S. 224 (1998), that the fact of a
offense. They also resemble the element of
prior conviction can be used to enhance a sen-
mens rea, a classic criminal law finding
tence beyond the statutory maximum without
reserved for the jury. Apprendi, 530 U.S. at
pleading the fact in the indictment or
493 & n.8. They do not become exempt from
submitting it to a jury. Apprendi incorporates
the rule of Apprendi simply because they are
this holding by exempting from the rule of Ap-
located in the statute next to the finding of a
prendi the fact of a prior conviction. Appren-
prior conviction, especially given the command
di, 530 U.S. at 476, 490. The Court warned in
in Apprendi that the courts not unduly expand
Apprendi, however, that Almendarez-Torres
the Almendarez-Torres exception.
"represents at best an exceptional departure
from the historic practice," id. at 487, and
The government unpersuasively tries to an-
should be treated "as a narrow exception to
alogize § 521 to other recidivism enhancement
the general rule [of Apprendi]" id. at 490.
statutes, 18 U.S.C. §§ 924(e) and 3559, which
enhance a sentence for a prior conviction of a
The government undoubtedly is correct that
certain kind of offense, for example, a "serious
the fact of a prior co nviction of certain kinds
drug offense." The government leans heavily
of offenses is required for a § 521
on cases holding that a judge, not a jury,
enhancement, 18 U.S.C. § 521(d)(3), and that
should determine whether a prior conviction is
this fact need not be pleaded in the indictment
a qualifying offense under these statutes.15
or submitted to a jury under Almendarez-
"[A] fact of prior conviction includes not only
Torres.14 Yet, the government is woefully
the fact that a prior conviction exists, but also
incorrect that this required factual finding
a determination of whether a conviction is one
moves § 521 as a whole out of Apprendi and
of the enumerated types qualifying for the
into Almendarez-Torres.
sentence enhancement under section 3559."
Davis, 260 F.3d at 969.
In addition to the fact of a prior conviction,
§ 521 requires two additional factual findings:
15See United States v. Santiago, 268 F.3d 151,
156 (2d Cir. 2001), cert. denied, 122 S. Ct. 1946
14 The Almendarez-Torres exception extends
(2002) (applying Almendarez-Torres exception to
beyond the question whether a prior conviction
18 U.S.C. § 924(e)); United States v. Davis, 260
exists and to the question whether it is a qualifying
F.3d 965, 969 (8th Cir. 2000), cert. denied, 122 S.
conviction under the statute. Stone, 306 F.3d at
Ct. 909 (2002) (applying Almendarez-Torres ex-
243 (sustaining 18 U.S.C. § 924(e) against an
ception to 18 U.S.C. § 3559); United States v.
Apprendi challenge). This question is not at issue
Gatewood, 230 F.3d 186, 191-92 (6th Cir. 2000)
here, because Matthews concedes that his prior
(en banc), cert. denied, 122 S. Ct. 911 (2002)
convictions qualified under § 521(d)(3).
(same).
11

This proposition, however, does not
B.
support the government's attempt to shoehorn
We now apply the Chapman harmless error
§ 521 into Almendarez-Torres. Unlike
analysis. Matthews alleges a general Apprendi
§§ 924(e) and 3559, § 521 requires additional
error, which is really two specific kinds of
factual findings unrelated to the nature of the
constitutional error, i.e., a defective indictment
prior conviction, i.e., participation with knowl-
and a defective jury instruction. Neither
edge and intent. 18 U.S.C. § 521(d)(1)-(2).
belongs in the "limited class of fundamental
The government overlooks this critical
constitutional errors that `defy analysis by
distinction.
harmless error standards.'" Neder v. United
States, 527 U.S. 1, 8 (1999) (quoting Arizona
Section 521 is a relatively new statute, and,
v. Fulminante, 499 U.S. 279, 309 (1991)).
as far as we can tell, Matthews I is the only
The Supreme Court has applied harmless error
case interpreting it. We therefore want to be
analysis to a jury instruction that omits an es-
unambiguous: We do not conclude that § 521
sential element. Id. at 10. This court has ap-
is unconstitutional, but only that Apprendi re-
plied harmless error analysis to an indictment
quires the facts of (1) participation in a
that omits an essential element. United States
criminal street gang with knowledge of its
v. Baptiste, 2002 U.S. APP. LEXIS 20745, at
criminal activities and (2) intent to promote or
*6-7 (5th Cir. Oct. 2, 2002). In short,
further these activities or to maintain or
Apprendi error is susceptible to harmless error
increase one's position in the gang, 18 U.S.C.
analysis. United States v. Virgen-Moreno, 265
§ 521(d)(1)-(2), to be charged in the
F.3d 276, 297 (5th Cir. 2001), cert. denied,
indictment, submitted to a jury, and proven
534 U.S. 1095, and cert. denied, 122 S. Ct.
beyond a reasonable doubt before a court may
1452 (2002).
enhance a sentence under § 521(b).
"An otherwise valid conviction will not be
In this case, the indictment did not charge,
set aside if the reviewing court may confident-
and the jury did not find beyond a reasonable
ly say, on the whole record, that the
doubt, either fact. Instead, the court found
constitutional error was harmless beyond a
both facts (plus the fact of a qualifying prior
reasonable doubt." Delaware v. Van Arsdall,
conviction) by a preponderance of the
475 U.S. 673, 681 (1986). "The standard for
evidence. This procedure violated Matthews's
determining harmlessness when a jury is not
Fifth and Sixth Amendment rights.16
instructed as to an element of an offense is
whether the record contains evidence that
could rationally lead to a contrary finding with
respect to the omitted element." Virgen-Mo-
16 In finding these errors, we do not disparage
reno, 265 F.3d at 297 (citation and internal
the district court. It initially sentenced Matthews
quotation marks omitted). After a careful re-
before the Supreme Court decided Jones, much less
view of the whole record, we are convinced
Apprendi. Although resentencing occurred after
that any rational grand jury, when presented
Apprendi, we expressly approved, in Matthews I,
with a proper indictment, would have charged,
the procedure used to enhance Matthews's sentence
and any rational petit jury, when presented
under § 521. Throughout this long and
complicated case, the district court conscientiously
with a proper jury instruction, would have
tried to follow this rapidly changing area of law,
found beyond a reasonable doubt, that
and we commend its diligent and dutiful efforts.
12

Matthew committed the offenses of carjacking
grand jury), he was closely associated with
and conspiracy to commit carjacking while
many of them, including Matthews and Cook.
participating in a criminal street gang with
knowledge of its activities and with the intent
Again, Matthews tried only to exclude, not
either to promote or further the gang's
to controvert, this testimony. The jury
felonious activities or to increase his position
obviously credited Nicholson's testimony as
in the gang.
well, because he was the only person present
for the carjacking who identified Matthews as
The evidence at trial was extensive,
the shooter.
overwhelming, and essentially uncontradicted
on these issues. The government's main
The jury also heard the testimony of
witnesses, Pamela Douglas and Teana
investigating officers Robert Morales and
Williams, testified that Matthews confessed to
James Rickhoff, who testified that Cook
them to shooting Dittman and that Matthews
admitted, during their investigation, that all
belonged to the Crips, a violent criminal street
four men in the car that eveningSSMatthews,
gang. They based this testimony not only on
Cook, Nicholson, and BrunsonSSbelonged to
direct observation of Matthews's interaction
the Crips. Rickhoff also testified that Cook
with fellow gang members, but also on his
refused to identify the shooter because he
boasts to them of membership in the Crips.
would not betray his fellow gang member.
Moreover, Douglas and Williams testified that
They stated that Cook called himself a leader
Cook belonged to the Crips, again based on
of the Crips.
direct observation and Cook's boasting. Fi-
nally, they stated that Matthews bragged about
Cook did not testify at trial, but these state-
the shooting to his fellow gang members.
ments were admitted as non-hearsay
admissions of a party-opponent. See FED. R.
Matthews tried to exclude, but did not con-
EVID. 801(d)(2). Though these statements
trovert, this testimony. The jury obviously
would be inadmissible hearsay to prove
credited it, because they were the only
Matthews's membership in the Crips, they did
witnesses who testified to Matthews's
help establish the other three men's
confession.
membership, which is directly relevant to the
scope and criminal purposes of the Crips. Yet
Ronald Nicholson, a juvenile who was rid-
again, Matthews did not controvert this
ing with Cook and Matthews during the car-
testimony.
jacking, also testified against Matthews. Ni-
cholson identified Matthews and Cook as
Though we conclude this trial evidence
members of the Crips, and Cook as a leading
demonstrates that the Apprendi error was
figure in the gang. He also testified that the
harmless, additional evidence offered at the
fourth person in the car, Marlin Brunson, be-
sentencing hearing further supports this
longed to the Crips. Moreover, he stated that
conclusion.17 The government offered the testi
Cook passed the gun used in the carjacking to
Matthews when Matthews asked for it.
Finally, he admitted that, if he did not belong
17 We may review evidence offered at the
to the Crips (which he had admitted before the
sentencing hearing for two reasons. First, the
(continued...)
13

mony of John Dyer, a longtime officer in the
phrase identified Matthews as a gang member
San Antonio Police Department with
who had committed murder.
widespread experience with gangs in San
Antonio and nationwide. Dyer offered very
Third, Matthews has three small teardrop
damaging testimony.
tattoos under his right eye. According to Dy-
er, these teardrops have three possible
Dyer observed that Matthews and Cook
meanings, none of them good. The most
regularly wore blue clothing, the traditional
common meaning of teardrops are the number
color of the Crips. He also identified and ex-
of victims one has murdered. A less common
plained several gang-related tattoos on
meaning is the number of dead fellow gang
Matthews. First, Matthews has the numeral
members or time spent in prison or jail.18
"187" tattooed on his neck. Dyer explained
that "187" refers to the California penal code
Next, Dyer explained that the San Antonio
section for first-degree murder, CAL. PENAL
Police Department maintains an elaborate da-
CODE § 187, and is a common euphe-
tabase on gang activity in the San Antonio area
mismSSmore accurately, a callous dysphem-
that reflected the large size of the Crips in San
ismSSfor murder in gang culture. Second,
Antonio, much larger than the requisite five
Matthews has the phrase "killa, killa" tattooed
members under § 521(a). Moreover, the
on his neck. Dyer explained (not that
database indicated that Matthews, Cook,
explanation here was really necessary) that this
Brunson, and Nicholson belonged to the Crips.
In particular, Matthews had six separate
incidents of documented gang-related activities
in the database. These documented incidents
17(...continued)
stretched back as far as January 1993, more
Court in Neder authorized harmless error review of
than two years before Matthews committed
evidence "the jury did not actually consider."
the crimes in this case. Finally, Dyer testified
Neder, 527 U.S. at 17. More importantly, any er-
that, based on his long experience with gangs
ror in excluding this evidence was invited. See
United States v. Solis, 299 F.3d 420, 452 (5th Cir.
and individual gangsters, he believed that
2002) (applying the doctrine of invited error to an
Matthews's crimes were gang-related, not
Apprendi error).
mere crimes of opportunity.
Matthews went to great lengths to exclude evi-
Matthews was riding in a car with three fel-
dence of his gang activities. He filed a motion in
low Crips. He obtained the gun used in the
limine. He requested, and received, a court order
crimes from Cook, a leading member of the
requiring the parties to give the district court notice
Crips. Matthews boasted of his crimes to fel-
at a sidebar before they referred to gang activities.
low Crips. He had a long and documented his-
He objected every time the government or a witness
tory of gang activity with the Crips. Any ra-
referred to gang activity. He successfully moved to
tional grand or petit jury, when presented with
exclude the testimony of the government's gang
this evidence, could not and would not reach
expert, who testified instead at the sentencing
hearing. Matthews "clearly induced the erroneous
omission" of evidence related to the § 521
enhancement. Id. at 453. He therefore cannot
18 We note that Matthews had not spent three
complain now that we consider this evidence on
years in prison or jail before these offenses were
harmless error review.
committed.
14

"a contrary finding with respect to the omitted
element[s]," Virgen-Moreno, 265 F.3d at 297
(citation and internal quotation marks
omitted), namely, that Matthew committed his
crimes while participating in the Crips with
knowledge of its criminal activities and with
the intent either to promote or further these
activities or to increase his position in the
Crips. The Apprendi errors in this case were
harmless.
AFFIRMED.
15