IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20138
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAYMOND DELEON ALUISO, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-176-4
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April 6, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
The attorney appointed to represent Raymond DeLeon Aluiso,
Jr. (“Aluiso”) has moved for leave to withdraw and has filed a
brief as required by Anders v. California, 386 U.S. 738 (1967).
Aluiso has filed a response.
Our independent review of the appellate record and of the
possible issues raised by counsel and by Aluiso reveals no
nonfrivolous issues. We separately address the following issue
raised by Aluiso.
*
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that this opinion should not be published and is not precedent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. 00-20138
-2-
Aluiso contends that his sentence is illegal in light of
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
This court held, in light of Apprendi, “that if the government
seeks enhanced penalties based on the amount of drugs under 21
U.S.C. § 841(b)(1)(A) or (B), the quantity must be stated in the
indictment and submitted to a jury for a finding of proof beyond
a reasonable doubt.” United States v. Doggett, 230 F.3d 160,
164-65 (5th Cir. 2000), cert. denied, 121 S. Ct. 1152 (2001).
This court specifically concluded that failure to state the
quantity of drugs in the indictment limited the term of
supervised release to a maximum of three years, under 21 U.S.C.
§ 841(b)(1)(C) and 18 U.S.C. § 3583(b)(2). See id. at 165 n.2.
Aluiso argues that the Government’s failure to allege drug
quantity in his indictment should have limited the supervised
release portions of his sentence to a maximum term of three
years. Because he did not raise his argument before the district
court, review is for plain error. See United States v. Meshack,
225 F.3d 556, 577 (5th Cir. 2000), cert. denied, 121 S. Ct. 834
(2001). Under plain-error review, this court may address the
issue only if (1) there is an error, (2) the error is clear or
obvious, and (3) the error affects substantial rights. See
United States v. Olano, 507 U.S. 725, 732 (1993); United States
v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc).
“[I]n most cases the affecting of substantial rights requires
that the error be prejudicial; it must affect the outcome of the
proceeding.” Calverley, 37 F.3d at 164. If the above conditions
are satisfied, the court may correct the error, but only if it
No. 00-20138
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“seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Olano, 507 U.S. at 732 (alteration in
original) (internal quotation marks and citations omitted).
The district court erred in imposing supervised release
terms in excess of three years with respect to Counts Four and
Five of the indictment. The district court sentenced Aluiso,
pursuant to 21 U.S.C. § 841(b)(1)(B)(iii), to concurrent terms of
five years’ supervised release on Counts Four and Five. The
Government failed to allege the amount of drugs in Counts Four
and Five.
The district court did not, however, commit plain error in
imposing supervised release terms in excess of three years with
respect to Counts Four and Five of the indictment. The “affects
substantial rights” element of the plain error test “generally
requires the defendant to establish prejudice.” Meshack, 225
F.3d at 577. The Government stated a quantity of drugs in Count
Six. The district court did not err in imposing a term of five
years’ supervised release on that count. See Doggett, 230 F.3d
at 165 n.2. Because Aluiso would still be required to serve five
years’ supervised release under Count Six, he cannot show that
the district court’s errors prejudiced him. See Meshack, 225
F.3d at 577.
The motion for leave to withdraw is GRANTED, counsel is
excused from further responsibilities herein, and the APPEAL IS
DISMISSED. See 5TH CIR. R. 42.2.