IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-51244
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BILLY BROOKS, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-00-CR-24-1
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Billy Brooks, Jr., appeals the sentence imposed following
his guilty plea conviction of possessing an unspecified amount of
cocaine base with the intent to distribute it in violation of 21
U.S.C. § 841(a)(1). Brooks contends that his sentence violates
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), because the
district court increased his base offense level and recommended
sentencing range under the United States Sentencing Guidelines
*
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that this opinion should not be published and is not precedent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. 00-51244
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based on a finding that his offense involved 58 grams of cocaine
base. Brooks contends that the facts relating to drug quantity
should have been alleged in his indictment because they increased
the maximum upper limit of his applicable guideline range. He
argues that Apprendi applies in his case because his applicable
sentencing guideline range limited the court’s sentencing
authority and, in effect, provided the statutory maximum term of
imprisonment available for his offense. Brooks acknowledges that
his argument is foreclosed by this court’s precedent. He raises
the issue to preserve it for possible Supreme Court review.
This court has repeatedly held that Apprendi does not
invalidate a sentencing court's factual findings (such as drug
quantity) for the purposes of determining the applicable
Sentencing Guidelines in cases where those findings cause a
defendant’s guideline range to shift only within the statutory
range. See United States v. Doggett, 230 F.3d 160, 166 (5th Cir.
2000); see also United States v. Randle, 304 F.3d 373, 378 (5th
Cir. 2002); United States v. Keith, 230 F.3d 784, 787 (5th Cir.
2000). An Apprendi violation occurs only if a fact not alleged
in the indictment, such as drug quantity, is used to increase a
sentence beyond the statutory maximum otherwise applicable for
the offense. See Keith, 230 F.3d at 787. Brooks’s argument is
indeed foreclosed.
Under this court’s precedent, no Apprendi violation occurred
in Brooks’s case. Notwithstanding the 58 grams of cocaine base
No. 00-51244
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that were considered by the district court in arriving at
Brooks’s 188-month sentence, the sentence does not exceed the 20-
year statutory maximum term of imprisonment that may be imposed
for possessing an unspecified amount of cocaine base. See 21
U.S.C. § 841(b)(1)(C). The judgment of the district court is
AFFIRMED.
The Government has moved for a summary affirmance in lieu of
filing an appellee's brief. In its motion, the Government asks
that an appellee's brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.