United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 11, 2003
Charles R. Fulbruge III
Clerk
No. 01-41254
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD DAVID GORDON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:00-CR-135-2
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Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Richard David Gordon appeals his guilty-plea conviction and
sentence for conspiracy to possess with intent to distribute
marijuana. He argues that the indictment was defective because
it alleged a drug-quantity range rather than a specific drug
amount. The indictment which alleged that Gordon conspired to
possess with intent to distribute between 100 and 1000 kilograms
of marijuana was sufficient to satisfy the requirements 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that this opinion should not be published and is not precedent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. 01-41254
-2-
Apprendi v. New Jersey, 530 U.S. 466 (2000). See United States
v. DeLeon, 247 F.3d 593, 597 (5th Cir. 2001). Regardless,
because Gordon’s sentence was below the statutory maximum
sentence for an offense involving an unspecified amount of
marijuana, Apprendi is inapplicable. See United States
v. Deville, 278 F.3d 500, 510 (5th Cir. 2002).
Gordon also argues that the district court erroneously
included as relevant conduct the 33.11 kilograms of marijuana
seized from him in November 2000 after the conspiracy ended.
Because Gordon did not raise this issue in the district court,
review is limited to plain error. See United States v. Gore,
298 F.3d 322, 324 (5th Cir. 2002). Because the offenses were
similar, Gordon was acting as a courier on a regular basis, and
the offenses occurred within a period of ten months, Gordon has
not demonstrated that the district court’s inclusion of the 33.11
kilograms of marijuana as relevant conduct was plain error. See
United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000).
Gordon’s motions for withdrawal of counsel and appointment
of new counsel and for leave to amend the appellate brief are
DENIED.
AFFIRMED; MOTIONS DENIED.