No. 99-40770
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40770
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN AARON PRUETT,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:98-CR-47-15
--------------------
February 11, 2000
Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.
PER CURIAM:*
John Aaron Pruett pleaded guilty to conspiracy to
distribute heroin and cocaine and to the knowing and intentional
distribution of heroin “which resulted in the death of the user”
in violation of 21 U.S.C. §§ 841 and 846. Pruett argues that 21
U.S.C. § 841 is unconstitutional because it lists as sentencing
considerations factors which should be substantive elements of
the offense. Specifically, Pruett asserts that whether the death
of a user was caused by the drug distribution is more than a mere
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-40770
-2-
sentencing consideration. Pruett relies on a recent Supreme
Court case which construed the federal carjacking statute, 18
U.S.C. § 2119, as establishing three separate offenses due to its
specification of different punishments based on the level of
injury suffered by the victim. Jones v. United States, 526 U.S.
227, ___, 119 S. Ct. 1215, 1218-28 (1999). In Jones, the Supreme
Court held that increased penalties imposed for increased injury
to the victim could only be imposed if the injury were alleged in
the indictment and proved at trial. Jones, 119 S.Ct. at 1228.
Assuming without deciding, that Pruett is correct in his
argument that the level of injury to a victim must be pleaded as
part of an offense rather than treated as a mere sentencing
factor, the facts of his case are fatal to his claim for relief.
The record shows that the indictment did charge him with the
death of a user and that he admitted the same both in his plea
agreement and in open court. This satisfies the requirement of
Jones, that an offense based on the level of injury to the victim
must be pleaded and proved. See Jones, 119 S.Ct. at 1228.
AFFIRMED.