IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50134
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAUL CORTEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-99-CR-192-ALL-FB
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February 15, 2001
Before SMITH, BENAVIDES, and DENNIS Circuit Judges.
PER CURIAM:*
Raul Cortez appeals his conviction and sentence following
his guilty-plea to possession with intent to distribute cocaine
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Cortez
argues that the waiver-of-appeal provision in his plea agreement
should not be enforced and that the district court failed to
comply with FED. R. CRIM. P. 11(d) and (e) at rearraignment. He
asserts that he should not have been sentenced as a career
offender, and he contends that the failure to allege drug
quantity and the sentencing enhancements in the indictment
*
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that this opinion should not be published and is not precedent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. 00-50134
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constitutes plain error under Apprendi v. New Jersey, 120 S. Ct.
2348 (2000).
We pretermit the waiver-of-appeal issue in light of United
States v. Robinson, 187 F.3d 516 (5th Cir. 1999), and address the
merits of Cortez’s claims. The plea agreement was disclosed and
discussed at rearraignment, and the district court confirmed that
the agreement resulted from prior discussions between the
parties. Therefore, the district court complied with FED. R.
CRIM. P. 11(d) and (e).
We review de novo the district court’s finding that Cortez’s
two prior convictions for possession with intent to distribute
marihuana were unrelated and thus justified imposition of the
career offender enhancement under U.S.S.G. § 4B1.1. United
States v. Ford, 996 F.2d 83, 85 (5th Cir. 1993). Cortez contends
that his prior convictions were related because they were part of
a “common scheme or plan.” Cortez was convicted in North
Carolina for his involvement with a shipment of 175 pounds of
marihuana from Texas to North Carolina in 1988. He was convicted
in Texas in 1989 after he was found at a residence containing
approximately 1,800 pounds of marihuana. Although Cortez
contends that the marihuana was coming from the same source in
Mexico and was traveling through the same channels to North
Carolina, the evidence at sentencing established that the large
amounts of marihuana stored in Texas were shipped to areas other
than North Carolina.
Similar crimes are not necessarily related. See United
States v. Robinson, 187 F.3d 516, 519 (5th Cir. 1999). Cortez’s
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contention that his prior convictions were related is without
merit because there is no evidence that the offenses were jointly
planned or that it was evident that the commission of one would
entail the commission of the other. See id. at 520; United
States v. Ford, 996 F.2d 83, 86 (5th Cir. 1993).
In Apprendi, the Supreme Court held that “[o]ther than the
fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury and proved beyond a reasonable doubt.”
Apprendi, 120 S. Ct. at 2362-63. To the extent that Cortez’s
sentence enhancements were based on prior convictions, this is
specifically excluded by Apprendi. Additionally, Cortez’s
indictment and plea agreement indicated a drug quantity, and his
sentence did not exceed the statutory maximum prescribed for his
cocaine offense without reference to a drug quantity. Therefore,
there was no error, plain or otherwise. See United States v.
Doggett, 230 F.3d 160 (5th Cir. 2000).
AFFIRMED.