United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 8, 2006
Charles R. Fulbruge III
Clerk
No. 05-41819
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT H. CLARK, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-232-1
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Robert H. Clark, Jr., pleaded guilty without a written plea
agreement to conspiracy to possess with intent to distribute 500
grams or more of a mixture or substance containing a detectable
amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1)
and 846. Following United States v. Booker, 543 U.S. 220 (2005),
this court vacated Clark’s original sentence and remanded the
case for resentencing. See United States v. Clark, No. 04-41565
(5th Cir. Aug. 8, 2005) (unpublished). On remand, the district
court found by a preponderance of the evidence that 3246.07 grams
*
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this opinion should not be published and is not precedent except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. 05-41819
-2-
(equivalent to 3.24 kilograms) of “ice” was attributable to Clark
and, after considering the advisory Sentencing Guidelines,
sentenced Clark to 360 months of imprisonment, to be followed by
five years of supervised release.
Clark challenges the validity of his conviction, arguing
that he pleaded guilty to an offense involving methamphetamine;
that he was not charged with, and he did not knowingly and
voluntarily plea guilty to, an offense involving “ice”; and that
under Federal Rule of Criminal Procedure 11(b)(1)(G) and Apprendi
v. New Jersey, 530 U.S. 466 (2000), the district court was
required to inform Clark and determine that he agreed with the
“fundamental facts” of the offense to which he was pleading
guilty, such as the substance involved in the offense.
A guilty plea involves the waiver of several constitutional
rights and, accordingly, must be knowing and voluntary. Boykin
v. Alabama, 395 U.S. 238, 242-44 (1969); see FED. R. CRIM. P. 11.
Rule 11 explicitly requires that the district court “inform the
defendant of, and determine that the defendant understands ...
the nature of each charge to which the defendant is pleading.”
FED. R. CRIM. P. 11(b)(1)(G). Where, as here, a defendant did not
object to Rule 11 error in the district court, we review for
plain error. United States v. Vonn, 535 U.S. 55, 59 (2002).
Rule 11(b)(1)(G)’s requirement regarding the nature of the
charge is fulfilled when the defendant is informed of the
elements of the offense charged. See United States v. Lujano-
No. 05-41819
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Perez, 274 F.3d 219, 224 (5th Cir. 2001)). The record shows that
the district court met this requirement; there was no Rule
11(b)(1)(G) error. See Lujano-Perez, 274 F.3d at 225-26
The gist of Clark’s argument is that the district court was
required to inform him and ensure that he understood that the
Government had to prove that the conspiracy involved “ice,” and
that, because Clark did not understand or agree regarding “ice,”
he did not knowingly and voluntarily plead guilty to the crime of
which he was convicted. While 21 U.S.C. § 841(b)(1) provides
different statutory penalties for different quantities of
methamphetamine, it does not make a distinction between
methamphetamine and “ice.” See § 841(b)(1)(A)(viii), (B)(viii),
(C). Because the fact that the methamphetamine involved in
Clark’s offense was “ice” does not affect the statutory penalty
for his crime, that fact is not an “element” of the offense. See
Apprendi v. New Jersey, 530 U.S. 466, 490, 494 n. 19 (2000);
United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000).
The fact that the methamphetamine was “ice” does affect the
Sentencing Guidelines range of punishment. See § 2D1.1(c).
However, when a defendant is resentenced post-Booker under an
advisory sentencing regime, as Clark was here, the sentencing
judge may continue to find by a preponderance of the evidence all
facts relevant to sentencing, even if those facts increase the
guideline sentencing range. United States v. Johnson, 445 F.3d
793, 798 (5th Cir. 2006), cert. denied, 126 S. Ct. 2884 (2006).
No. 05-41819
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Thus, the fact that Clark pleaded guilty to an offense involving
“methamphetamine” does not prohibit the district court from
finding, or the Government from arguing, that he be sentenced
based on “ice.” See United States v. Smallwood, 920 F.2d 1231,
1239 (5th Cir. 1991).
AFFIRMED.