IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-51242
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAMMY MOODY, also known as Tammy Hope,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(SA-95-CR-296-ALL)
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June 29, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Tammy Moody appeals the sentence of
supervised release imposed following revocation of her original
supervised release. Moody had been indicted pursuant to 21 U.S.C.
§ 841(a)(1) for possession with the intent to distribute
methamphetamine, and the government had sought to enhance that
charge pursuant to 21 U.S.C. § 841(b)(1)(B). She subsequently
pleaded guilty to the enhanced charge, stipulating in her plea
agreement to possession of 142 grams of the substance. Invoking
Apprendi v. New Jersey, 530 U.S. 466 (2000), Moody now argues that
*
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that this opinion should not be published and is not precedent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.
the district court erred in resentencing her to a four-year term of
supervised release when the indictment had not charged her with
possession of a specific amount of methamphetamine.
We will uphold a sentence after revocation of supervised
release “‘unless it is in violation of law or is plainly
unreasonable.’" United States v. Stiefel, 207 F.3d 256, 259 (5th
Cir. 2000)(quoting United States v. Mathena, 23 F.3d 87, 89 (5th
Cir. 1994)). Even if we assumed arguendo that an Apprendi argument
can be raised in the appeal of a sentence imposed following
revocation of supervised release, Moody’s argument nevertheless
fails because in the plea agreement she stipulated to possessing
142 grams of methamphetamine. Apprendi is therefore inapplicable.
See,e.g., United States v. Harper, 246 F.3d 520, 529-31 (6th Cir.
2001). Based on the quantity of methamphetamine stipulated by
Moody in her plea, the district court could sentence her to a term
of supervised release “of at least 4 years.” See 21 U.S.C.
§ 841(b)(1)(B). The court was therefore authorized, pursuant to 18
§ U.S.C. 3583(h), to resentence her to a four-year term of
supervised release following revocation, and her Apprendi argument
is unavailing.
AFFIRMED.
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