IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50798
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MONTGOMERY ALLEN WILLIAMSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-00-CR-492-1-DB
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March 12, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Appellant Williamson plead guilty to possession of marijuana
with intent to distribute, in violation of 21 U.S.C. § 841(a)(1),
and importation of marijuana, in violation of 21 U.S.C. § 952(a).
Because Williamson had a prior felony drug conviction the
statutory maximum sentences for the possession and importation
offenses was 10 years’ imprisonment. See 21 U.S.C. §§
841(b)(1)(D), 960(b)(4) and 962. Absent the felony drug
conviction, offenses involving less than 50 kilograms of
*
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that this opinion should not be published and is not precedent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. 00-50798
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marijuana carry a statutory maximum sentence of 5 years’
imprisonment. See 21 U.S.C. §§ 841(b)(1)(D), 960(b)(4). The
prescribed range under the Federal Sentencing Guidelines was 77-
96 months’ imprisonment. The district court sentenced Williamson
to two concurrent terms of 87 months’ imprisonment.
Williamson’s indictment did not allege that he had a prior
felony drug conviction. Williamson contends that a prior felony
drug conviction, because its raises the statutory maximum
sentence, is an element of the enhanced drug offenses. See
Apprendi v. United States, 120 S.Ct. 2348, 2359 n.10 (2000)
(“[F]acts that expose a defendant to a punishment greater than
that otherwise legally prescribed [are] by definition ‘elements’
of a separate legal offense.”). Therefore, his 87-month
sentences, which exceed the five-year maximum for the offenses
alleged in the indictment, violate due process. Williamson
acknowledges that his argument is foreclosed by the Supreme
Court’s ruling in Almendarez-Torres v. United States that the
fact of a prior conviction is not an element of the offense, even
if it increases the statutory maximum. 523 U.S. 224 (1998).
Williamson brings this claim because of the doubt cast on
Almendarez-Torres’ holding in Apprendi. See Apprendi, 120 S.Ct.
at 2362 (finding it “arguable that Almendarez-Torres was
incorrectly decided”).
Despite this uncertainty, Williamson also concedes that our
controlling caselaw dictates an affirmance of his sentence. See
No. 00-50798
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United States v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000)
(Almendarez-Torres stills controls prior conviction enhancements
under 21 U.S.C. § 841); United States v. Dabeit, 231 F.2d 979,
984 (5th Cir. 2000)(affirming that Almendarez-Torres is still
controlling law), cert. denied, 2001 U.S. Lexis 1889 (U.S. Feb.
26, 2001) (No. 00-8299). Williamson brings this appeal merely
to preserve the issue for possible Supreme Court review.
Accordingly, the Government’s motion for summary affirmance is
granted and the judgment of the district court is AFFIRMED.1
1
Even if Almendarez-Torres is overturned, it is
questionable whether Williamson would receive any practical
relief. His applicable sentencing guideline range will remain
77-96 months’ imprisonment. See Doggett, 230 F.3d at 166 n.3
(“Apprendi does not affect [judicial determinations] in
formulating the appropriate sentencing range under the
Guidelines”). Within that prescribed range, the district court
determined the appropriate punishment to be 87 months’
imprisonment. While the statutory maximum on each count will be
lowered from 10 years’ to 5 years’ imprisonment, §5G1.2 of the
Guidelines, governing sentencing on multiple counts of
conviction, would require the sentences to be run consecutively
to the extent necessary to achieve the “total punishment” of 87
months’ imprisonment.