[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1373
UNITED STATES,
Appellee,
v.
PATRICK M. VIGNEAU,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Patrick Vigneau on brief pro se.
Margaret E. Curran, United States Attorney, Donald C.
Lockhart and Richard W. Rose, Assistant United States Attorneys,
on brief for appellee.
MARCH 13, 2001
Per Curiam. After a thorough review of the record
and of the parties’ multiple submissions, we adopt the
government’s recommendations. We vacate the conviction on
Count 6, vacate the sentence on Counts 3 through 5, and
remand the matter for re-sentencing. In all other respects,
we affirm.
Count 6 of the indictment charged conspiracy to
distribute marijuana in violation of 21 U.S.C. § 846.
Because the same conduct supported the conviction for
engaging in a continuing criminal enterprise, see 21 U.S.C.
§ 848, we must vacate the conviction under Count 6 as
violative of the double jeopardy clause. See Rutledge v.
United States, 517 U.S. 292, 296-307 (1996); United States
v. Escobar-DeJesus, 187 F.3d 148, 162 n. 8, 173 n. 24 (1st
Cir. 1999), cert. denied, 120 S. Ct. 1208 (2000).
The sentences imposed under Counts 3, 4 and 5
exceeded the maximum sentence allowed by statute. See 21
U.S.C. § 841(b)(1)(D) (maximum sentence for offense
involving less than 50 kilograms of marijuana is five
years). Because appellant Patrick Vigneau’s (“Vigneau’s”)
sentence on these counts was well in excess of that maximum,
we find plain error, and vacate and remand for re-
sentencing.
In all other respects, Vigneau’s arguments lack
merit. He waived all objections to the revised Pre-Sentence
Report to the extent the same information was included in
the original Pre-Sentence Report prepared for his first
sentencing. See United States v. Ticchiarelli, 171 F.3d 24,
32 (1st Cir. 1999). Thus, any alleged failure by the court
or probation to comply with Rule 32 or any related failures
cannot constitute plain error. Further, we find no plain
error in the lower court’s failure to vacate the continuing
criminal enterprise conviction; the evidence was sufficient
to establish that Vigneau acted in a supervisory position
with respect to at least five participants. This is so even
if the court does not count those individuals not convicted.
Vigneau’s argument that the evidence is insufficient to
support a sentencing enhancement under U.S.S.G. § 3B1.1 is
inapposite, given that he was not sentenced under that
provision. Finally, we find his argument under Apprendi v.
New Jersey, 120 S. Ct. 2348 (2000), to be meritless.
Contrary to Vigneau’s assertion, Apprendi did not hold that
21 U.S.C. § 841 is unconstitutional per se, and we see
nothing in the Supreme Court’s opinion or in subsequent case
law from which we could so infer, or which would justify us
in vacating any of the convictions here.
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The conviction on Count 6 of the indictment is
vacated; the sentence on Counts 3, 4 and 5 is vacated
without prejudice, and the matter is remanded for re-
sentencing; in all other respects, the judgment is affirmed.
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