United States v. Barnes

United States Court of Appeals
For the First Circuit

No. 00-1331

UNITED STATES OF AMERICA,

Appellee,

v.

MARLA BARNES,

Defendant, Appellant.

___________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin and Campbell, Senior Circuit Judges.

Stephen B. Hrones, with whom Hrones & Garrity was on brief,
for appellant.
Jennifer Hay Zacks, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, and Heidi E.
Brieger, Assistant United States Attorney, were on brief, for
appellee.

May 30, 2001
 SELYA, Circuit Judge. On October 14, 1999, a jury

convicted defendant-appellant Marla Barnes of conspiracy to

import cocaine and unlawful use of a communications facility in

connection with that conspiracy. See 21 U.S.C. §§ 963, 843(b).

The district court imposed a 168-month incarcerative sentence,

to be followed by a five-year term of supervised release. The

appellant now challenges her conviction on various grounds.

Finding her arguments unpersuasive, we affirm the conviction.

The appellant also advances three assignments of error that

touch upon her sentence. We reject two of these, but accept the

third.

I. BACKGROUND

This appeal arises out of a joint trial at which both

the appellant and her brother, Reynaldo, were convicted.

Although we consolidated their ensuing appeals for briefing and

oral argument, we opted to dispose of the appeals separately.

This is the second of the two opinions.

Because the facts on which the convictions rest are not

central to the issues raised on this appeal, we begin by

rehearsing what we previously wrote in connection with

Reynaldo's appeal:

[T]he jury supportably could have found that
[Reynaldo Barnes], in an effort to expand
his ongoing trade in illegal narcotics, told

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 one of his quondam customers that his
sister, Marla Barnes, could provide the
sizable quantities of cocaine that the
customer professed to require. The
customer, in reality an undercover agent
employed by the federal Drug Enforcement
Administration (DEA), accepted the
invitation. He thereafter met with the
Barnes siblings, and Marla Barnes made
preliminary arrangements (or so she said)
for a large purchase of cocaine through her
connections in Panama.

As an initial step in the process,
Marla Barnes sold a one kilogram sample of
cocaine to the undercover agent. . . . For
a variety of reasons, the larger deal never
materialized.

United States v. Reynaldo Barnes, 244 F.3d 172, 175 (1st Cir.

2001).

The grand jury initially indicted both Barnes siblings

in what we sometimes shall call "Indictment No. 1." The charges

were severed, however, after Reynaldo indicated an intention to

plead guilty. Following Marla Barnes's separate trial on

Indictment No. 1, she was convicted of conspiracy to import

cocaine. On appeal, this court vacated the judgment and ordered

the indictment dismissed without prejudice as to Marla Barnes on

the ground that the prosecution had dallied impermissibly in

bringing her to trial. United States v. Barnes, 159 F.3d 4, 15-

18 (1st Cir. 1998) (Barnes I).

The grand jury promptly reindicted the appellant,

charging her, in what we sometimes shall call "Indictment No.

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2," not only with conspiracy to import cocaine but also with two

instances of unlawful use of a communications facility in the

course of drug-trafficking activities. At that time, Indictment

No. 1 was still pending against Reynaldo Barnes, who had moved

to withdraw his guilty plea. On March 19, 1999, the district

court (Tauro, J.) allowed the motion to withdraw. The

government then moved to dismiss Indictment No. 1 without

prejudice and Reynaldo moved to dismiss that indictment with

prejudice.

These motions were pending on May 19, 1999, when the

grand jury — one day before the appellant's speedy trial

deadline — superseded Indictment No. 2. The superseding

indictment added Reynaldo Barnes as a defendant in this case,

charging him with having committed the same offenses that it

previously had charged Marla Barnes with committing.1 Several

things then occurred. We mention two. On June 23, 1999, Judge

Tauro denied Reynaldo Barnes's motion to dismiss Indictment No.

1 with prejudice and granted the government's cross-motion for

dismissal without prejudice. The superseded version of

1The first and second indictments did not replicate one
another. Although both charged the defendants with conspiracy,
Indictment No. 1 included a criminal forfeiture count, see 21
U.S.C. § 853, which Indictment No. 2 omitted, and Indictment No.
2 (as initially brought and as superseded) included two
"communications facility" counts, see id. § 843(b), which
Indictment No. 1 omitted.

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Indictment No. 2 remained zoetic, with both Barnes siblings as

defendants. On October 4, 1999, Judge Gorton denied the

appellant's motion to dismiss that indictment under the Speedy

Trial Act, 18 U.S.C. § 3161 (the STA). The case eventually went

to trial and the jury convicted both defendants — Reynaldo on

all three counts and Marla on the conspiracy count and one of

the two "communications facility" counts (acquitting her on the

remaining count). This appeal followed.

Before us, the appellant advances three principal

arguments. First, she classifies the government as a repeat

offender, contending that it again violated her rights under the

STA. Second, she claims to have detected reversible error in

the district court's jury instructions. Third, she lodges a

multifaceted claim of sentencing error. We address these

asseverations sequentially.

II. ALLEGED SPEEDY TRIAL ACT VIOLATIONS

In invoking the prophylaxis of the STA, the appellant

makes three interrelated arguments. The lower court rejected

all of them, and so do we.

A. Commencement of the STA Time Line.

Typically, the speedy trial clock begins to run on the

later of (a) the filing date of the indictment or information,

or (b) the defendant's first appearance before a judicial

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officer. 18 U.S.C. § 3161(c)(1). In the event of a retrial,

however, the STA adds a special twist. It stipulates that, in

such an event, "the trial shall commence within seventy days

from the date the action occasioning the trial becomes final."

Id. § 3161(d)(2).

The appellant contends that this latter provision

governs her case, and that, therefore, the relevant date for

restarting the speedy trial clock was January 12, 1999 (the date

when our mandate issued in Barnes I). Because the second trial

did not commence within seventy non-excluded days of that date,

the appellant moved to dismiss the new indictment. The district

court refused to attach decretory significance to the January 12

date and, accordingly, denied the motion. Affording de novo

review, see United States v. Staula, 80 F.3d 596, 600 (1st Cir.

1996), we uphold the district court's ruling.

In arguing that this court's mandate qualifies as "the

action occasioning the trial" and thus governs the speedy trial

computation, the appellant relies almost exclusively on our

decision in United States v. Joost, 133 F.3d 125 (1st Cir.

1998). To be sure, we held there that the date of mandate

constituted the starting point for a renewed speedy trial

calculation. Id. at 130. But the circumstances were materially

different. In Joost, we had overturned the defendant's

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conviction based on parlous jury instructions, leaving the

indictment intact and setting the stage for a retrial on the

same indictment. Id. at 127.

The case at hand is cut from markedly different cloth.

Our decision in Barnes I resulted in dismissal of the then-

pending indictment, thereby precluding a further trial unless

the government obtained a new indictment. See United States v.

Taylor, 487 U.S. 326, 342 (1988) (explaining that dismissal

without prejudice under the STA forces the government to obtain

a new indictment if it chooses to reprosecute); United States v.

Brown, 770 F.2d 241, 243 (1st Cir. 1985) (similar). Thus, in

contrast to Joost, this case does not involve a retrial on the

same indictment, but, rather, a first trial on a new indictment.

For this reason, the issuance of mandate in connection with the

original appeal cannot be viewed as "the action occasioning the

trial," and section 3161(c)(1), not section 3161(d)(2),

controls.

That ends this aspect of the matter. The grand jury

handed up Indictment No. 2 on November 19, 1998. The

appellant's initial appearance before the court with respect to

that indictment took place on February 11, 1999. The latter

date, rather than the date of mandate in Barnes I, marks the

occasion for restarting the speedy trial clock.

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 B. Excludable Time.

Once the clock begins to tick, the STA contemplates

several situations in which delays may occur without

compromising the seventy-day limit. See 18 U.S.C. § 3161(h)(1)-

(9). The appellant challenges the district court's exclusion of

certain time, claiming that the court erred in granting a

continuance and a concomitant period of excludable delay, based

on the "ends of justice." Id. § 3161(h)(8)(A). We review the

district court's "ends of justice" determination for abuse of

discretion. United States v. Mitchell, 723 F.2d 1040, 1044 (1st

Cir. 1983). We discern none in this instance.

The rudiments are clear. When a judge bases a

continuance on an explicit finding that the ends of justice

outweigh the collective interest in a speedy trial, the

resulting period of delay may be excluded under section

3161(h)(8) of the STA. United States v. Santiago-Becerril, 130

F.3d 11, 16 (1st Cir. 1997). Gaining such an exclusion involves

a balancing of the interests of the prosecution, the defendant,

and the public. Mitchell, 723 F.2d at 1043. To ensure the

appropriateness of this balance, the trial court ordinarily must

elucidate its reasons for approving such a continuance, United

States v. Doran, 882 F.2d 1511, 1515 (10th Cir. 1989); United

States v. Pringle, 751 F.2d 419, 432 (1st Cir. 1984), save for

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cases in which those reasons are readily apparent from the

circumstances.

A trial court's discretion to authorize an "ends of

justice" continuance is relatively circumscribed, and

continuances should not be granted cavalierly. Mitchell, 723

F.2d at 1044. The STA sets out a non-exhaustive list of

considerations that the court should bear in mind in deciding

whether to grant or deny a continuance on this basis. See 18

U.S.C. § 3161(h)(8)(B) (mentioning, inter alia, the demands of

justice, the complexity of the case, and the timing of relevant

antecedent events). At the close of the day, however,

reasonableness serves as the touchstone of an "ends of justice"

analysis.

Against this backdrop, we turn to the relevant facts.

On February 11, 1999, a magistrate judge excluded the period

from that date to March 11 pursuant to 18 U.S.C. § 3161(h)(8).

The magistrate judge made an explicit "ends of justice"

determination designed, he said, to provide the defense with a

reasonable period of time within which to determine whether to

proceed under automatic discovery rules (and if so, a further

period to accommodate compliance). The magistrate judge also

advised the parties that they had ten days within which to file

objections to the order. No one objected.

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 The order (and, hence, the challenged exclusion of

time) is fully consistent with the policies underlying the STA.

See Mitchell, 723 F.2d at 1044 (explaining that Congress

"recognized that the time limit requirements of the [STA] must

be flexible enough to accommodate the practicalities of our

adversary system"). Moreover, it seems perfectly reasonable as

a case-management device. Cf. Santiago-Becerril, 130 F.3d at 17

(excluding the time reasonably required to schedule a new trial

date under the "ends of justice" rubric); United States v.

Edwards, 627 F.2d 460, 461 (D.C. Cir. 1980) (per curiam)

(upholding "ends of justice" continuance based in part on

scheduling conflicts). After all, the magistrate judge's

explicit references to section 6(b)(8) of the district court's

Speedy Trial Plan and Local Rule 112.2(A)(2) make manifest that

he intended to create a window of opportunity to permit

automatic discovery to take place and motions to be filed.

Since the appellant neither objected to the magistrate judge's

order at the time nor explained in her brief how the judge's

seemingly innocuous effort to facilitate discovery plausibly can

be labeled an abuse of discretion, we approve the exclusion.

In a belated effort to turn the tables, the appellant

points out that she filed a notice on February 16, 1999, in

which she waived automatic discovery pursuant to Local Rule

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116.1(B). She asserts that once she made this election, the

court should have amended its earlier order and truncated the

period of excludable delay accordingly. But the appellant did

not make a timely request to that effect in the district court.

Trial judges are not expected to be mind readers, nor are they

obliged to review case records sua sponte in order to determine

whether changed circumstances warrant the revision of orders

entered at an earlier date. The appellant, had she wished to

explore the feasibility of shortening the previously announced

period of excludable delay, should have so moved. Her failure

to do so constituted a waiver of the claim that she now attempts

to advance. See, e.g., Santiago-Becerril, 130 F.3d at 18

(noting significance of lack of timely objection in evaluating

reasonableness of exclusions of time under the STA); United

States v. Baskin-Bey, 45 F.3d 200, 203-04 (7th Cir. 1995)

(ruling that defendant's failure to object contemporaneously to

a period of excludable delay amounted to a waiver).

We hold, therefore, that the district court did not

abuse its discretion in excluding the one-month period from

February 11 to March 11 to satisfy the ends of justice.

C. Effect of the Superseding Indictment.

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 The appellant's final invocation of the STA implicates

the advent of the superseding indictment. The grand jury

returned that indictment on May 19, 1999 — the day before the

appellant's speedy trial deadline. As we have said, the bill

added a new (albeit previously known) defendant but left the

array of charges intact. The district court restarted the

speedy trial clock at that point and overrode the appellant's

ensuing protest.

The issue raised by the appellant involves 18 U.S.C.

§ 3161(h)(7), which permits a reasonable period of excludable

delay "when the defendant is joined for trial with a codefendant

as to whom the time for trial has not run and no motion for

severance has been granted." The Supreme Court has interpreted

this proviso to mean that when a joint trial is in prospect, the

speedy trial clock seeks the longest available span of time.

Henderson v. United States, 476 U.S. 321, 323 n.2 (1986)

(providing, in general, that all defendants who are joined for

trial fall within the most generous speedy trial period

available to any one of them). In other words, the time line

for the last defendant joined usually becomes the time line for

all defendants. Id. The court below adhered to this rule.

The appellant resists a rote application of the

Henderson rule. She notes that the Court has held that a

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superseding indictment does not restart the speedy trial clock

if it makes only minor changes to the charging document. See

United States v. Rojas-Contreras, 474 U.S. 231, 237 (1985)

(holding that correction of a date by way of a superseding

indictment does not justify restarting the speedy trial clock).

Building on this foundation, she then observes that this court,

in discussing the latter tenet, stated that a superseding

indictment which added two new defendants "did not restart [the

original defendant's] STA's [sic] clock because [the superseding

indictment] was based on the original charges." Santiago-

Becerril, 130 F.3d at 19. The appellant posits that the quoted

language in Santiago-Becerril is controlling here.

We reject this postulate. Read literally, the quoted

words from Santiago-Becerril would contradict the Supreme

Court's decision in Henderson (and, thus, would not command our

allegiance). Equally as important, that statement forms no part

of the holding in Santiago-Becerril. Indeed, the court there

concluded that, even without resetting the speedy trial clock

upon the return of the superseding indictment, no STA violation

had occurred. 130 F.3d at 23. Hence, the language which the

appellant embraces is classic dictum — it can be removed from

the opinion without either impairing the analytical foundations

of the court's holding or altering the result reached — and we

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do not consider ourselves bound by it. See, e.g., Dedham Water

Co. v. Cumberland Farms Dairy, Inc., 972 F.2d 453, 459 (1st Cir.

1992) ("Dictum constitutes neither the law of the case nor the

stuff of binding precedent."). Thus, we disavow it in order to

avoid confusion over its proper scope.

Putting the disavowed Santiago-Becerril dictum to one

side, Henderson is the beacon by which we must steer. There,

the Court specifically interpreted section 3161(h)(7) to mean

that "[a]ll defendants who are joined for trial generally fall

within the speedy trial computation of the latest codefendant."

476 U.S. at 323 n.2. This case comes within the Henderson rule.

Resetting the clock upon the return of the superseding

indictment synchronized the original defendant (Marla) with the

newly-joined defendant (Reynaldo) for purposes of the STA. This

sort of adjustment helps to ensure that the STA will not become

a vehicle for altering existing rules of joinder and severance

by compelling the government to prosecute properly joined

defendants piecemeal. See United States v. Tobin, 840 F.2d 867,

869 (11th Cir. 1988); see also United States v. Pena, 793 F.2d

486, 489 (2d Cir. 1986) (explaining how resetting the STA clock

after the addition of a new defendant serves to husband judicial

resources and avoid duplicative proceedings).

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 Nor does the Rojas-Contreras doctrine demand a

different result. The superseding indictment here added a new

defendant, an important development that distinguishes this case

from those in which a grand jury employs a superseding

indictment as a means of correcting a minor error in an extant

indictment. E.g., Rojas-Contreras, 474 U.S. at 236-37 (holding

STA clock not restarted upon return of a superseding indictment

that merely changed an incorrect date); United States v.

Reynolds, 781 F.2d 135-37 (8th Cir. 1986) (holding to like

effect when superseding indictment simply recharacterized a

witness's role). Given the substantial nature of the change

conveyed by the superseding indictment in this case, it seems

entirely appropriate to allow all parties extra time to prepare

adequately for trial. See, e.g., United States v. Spring, 80

F.3d 1450, 1457 (10th Cir. 1996).

To sum up, Henderson controls. Thus, the district

court did not err in clearing the appellant's speedy trial clock

upon the return of the superseding indictment. See United

States v. Baker, 40 F.3d 154, 159 (7th Cir. 1994) (noting that

the STA clock begins to run anew on the date of the last

codefendant's arraignment); Pena, 793 F.2d at 489 (noting that

"cases involving multiple defendants are governed by a single

speedy trial clock, which begins to run with the clock of the

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most recently added defendant"). We do, however, add a

cautionary note. Although we find that the government complied

with the STA, we are concerned that the government stretched the

clock so far: after once violating the appellant's STA rights,

the government filed the superseding indictment only one day

before the clock was to expire again, thereby laying claim to

yet another seventy days.

We recognize that extenuating circumstances existed

here and that Reynaldo's vacillation about whether to plead

guilty likely contributed both to the delay and to the

prosecution's last-minute decision to re-indict the siblings

together. Nevertheless, in other, less exigent circumstances,

the clock may not prove to be so elastic. The Henderson rule

anticipates exceptions, see 476 U.S. at 323 n.2 (noting that

codefendants "generally" fall within the latest defendant's

computation), and we think it generally advisable, even absent

a violation of the STA, for a court faced with such a belated

joinder to consider specifically how much time is "reasonable"

for trial preparation rather than automatically restarting the

clock. See 18 U.S.C. § 3161(h)(7) (excluding a "reasonable

period of delay when the defendant is joined for trial with a

codefendant as to whom the time for trial has not run"); id. §

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3161(c)(2) (setting thirty days as the minimum trial preparation

time guaranteed a defendant).

III. ALLEGED INSTRUCTIONAL ERRORS

The appellant's next assignment of error implicates the

district court's jury instructions on the law of conspiracy.

She maintains that the court erred in its definition of

"agreement" and, to make a bad situation worse, failed properly

to instruct as to the object of the conspiracy.

We turn first to the court's definition of a

conspiratorial agreement (reprinted in the margin).2 The

appellant takes issue with this definition, criticizing

especially the court's indication that "shar[ing] a general

understanding about the crime" would be sufficient to show the

requisite agreement.

2The court stated in pertinent part:
Now, a conspiracy is an agreement, spoken or
unspoken. The conspiracy does not have to
be a formal agreement or plan in which
everyone involved sat down together and
worked out all of the details. It does not
even have to be a successful plan. But the
government must prove beyond a reasonable
doubt that those who were involved shared a
general understanding about the crime. Mere
similarity of conduct among various people,
or the fact that they may have associated
with each other or discussed common aims and
interests, does not necessarily establish
proof of existence of a conspiracy, but you
may consider such factors.

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 We dismiss this argument out of hand. We review jury

instructions that involve an explanation of the law de novo.

See United States v. Pitrone, 115 F.3d 1, 4 (1st Cir. 1997).

Reading the court's instructions as a whole, see United States

v. Cintolo, 818 F.2d 980, 1003 (1st Cir. 1987), they constitute

a fair statement of the applicable law. No more is exigible.

See United States v. Rivera-Alicia, 205 F.3d 480, 484 (1st

Cir.), cert. denied, 121 S. Ct. 256 (2000); United States v.

McGill, 953 F.2d 10, 13 (1st Cir. 1992).

The appellant nonetheless contends that the challenged

instruction is less than she deserved because she specifically

requested that the court tell the jurors that a "meeting of the

minds" was a necessary prerequisite to a conspiratorial

agreement.3 The fact that the appellant made such an entreaty

does not change the equation, even if the requested charge was

substantially correct. There is no exact formula for converting

legal principles into lay language — and the choice of what

words are to be used belongs, within wide margins, to the trial

judge. It is apodictic that "[t]he trial court's refusal to

give a particular instruction constitutes reversible error only

3The appellant asked the district court to charge the jury
that "[a] meeting of the minds between or among the members of
the conspiracy is required" to show an agreement, and that
"[t]here must be a meeting of the minds . . . to commit the
unlawful act."

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if the requested instruction was (1) correct as a matter of

substantive law, (2) not substantially incorporated into the

charge as rendered, and (3) integral to an important point in

the case." McGill, 953 F.2d at 13.

In this case, the charge that the court gave covered

substantially the same terrain as the proffered "meeting of the

minds" language. Although there were linguistic differences,

they were more matters of style than of substance. We fail to

see how the court's definition of an agreement varied in a

material way from the definition espoused by the appellant.

Mindful that a party generally has no right to insist that the

trial court parrot particular language in its jury instructions,

United States v. Nivica, 887 F.2d 1110, 1124 (1st Cir. 1989), we

reject the appellant's assignment of error.

The appellant has yet another string to her bow. She

maintains that the district court failed to instruct the jury

that the conspirators must reach agreement as to the object of

the conspiracy. See, e.g., United States v. Sepulveda, 15 F.3d

1161, 1173 (1st Cir. 1993); United States v. Rivera-Santiago,

872 F.2d 1073, 1079 (1st Cir. 1989). This criticism reads the

court's charge too narrowly. The court told the jurors that, in

order to convict, they "must find that the defendants conspired

with each other to import cocaine into the United States"

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(emphasis supplied). We think that this reference, taken in

context, sufficed both to describe the object of the conspiracy

and to delineate the jury's obligation.

IV. ALLEGED SENTENCING ERRORS

The district court sentenced the appellant to a 168-

month incarcerative term, to be followed by a five-year period

of supervised release. The appellant attacks her prison

sentence on three grounds.

First, the appellant contends that the district court

clearly erred in its drug-quantity finding (and, therefore, in

its determination of the guideline sentencing range). We do not

linger over this contention. We dispatched an identical

argument in deciding the codefendant's appeal. See United

States v. Reynaldo Barnes, 244 F.3d at 176-77. The outcome here

necessarily is the same. Accordingly, we reject the appellant's

complaint about the district court's drug-quantity determination

for the reasons stated in our earlier opinion. See id.

The appellant's second argument suffers the same fate.

She asserts that the length of her sentence offends the rule

established in Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63

(2000) (holding that "[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt"). This argument,

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too, was previously made and rejected. See United States v.

Reynaldo Barnes, 244 F.3d at 177-78 (citing United States v.

Robinson, 241 F.3d 115, 119 (1st Cir. 2001)). Here, as in

Reynaldo's case, we discern no Apprendi error in respect to the

prison sentence imposed.

Once again, we need not tarry. An incarcerative

sentence of no greater than twenty years for importing, or

conspiring to import, any quantity of cocaine falls below the

default statutory maximum for such an offense,4 and therefore

does not violate Apprendi. Id. That is dispositive here. "No

Apprendi violation occurs when the district court sentences a

defendant below the default statutory maximum, even though drug

quantity, determined by the court under a preponderance-of-the-

evidence standard, influences the length of the sentence

imposed." Robinson, 241 F.3d at 119.

As to the five-year supervised release term, the

appellant benefits from the fact that the penalty statute, 21

U.S.C. § 960(b)(3), provides explicitly for a supervised release

term of three years for violations of the importation statute

involving less than 500 grams of cocaine. See United States v.

Reynaldo Barnes, 244 F.3d at 177-78 (explaining this point).

4 As we explained in our earlier opinion, the default
statutory maximum applicable to violations of 21 U.S.C. § 963
(the statute criminalizing importation or attempted importation
of any detectable quantity of cocaine) is contained in 21 U.S.C.
§ 960(b)(3). See United States v. Reynaldo Barnes, 244 F.3d at
177.

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Given this court's previous holding that supervised release

terms set out in particular sections of the drug laws establish

the maximum terms for violations of those sections, see Suveges

v. United States, 7 F.3d 6, 10 (1st Cir. 1993) (construing 21

U.S.C. § 841(b)), we think that here, as in the companion

appeal, Apprendi requires that this aspect of the appellant's

sentence be reduced to three years, see United States v.

Reynaldo Barnes, 244 F.3d at 178.5 This reduction can, of

course, be accomplished without either disturbing the remainder

of the sentence or reconvening the disposition hearing. See id.

V. CONCLUSION

We need go no further. After careful consideration of

the record, we conclude that the government did not violate the

Speedy Trial Act and that the lower court committed no

reversible error in charging the jury. We therefore affirm the

appellant's conviction. We also affirm her sentence, except for

one particular. To repair that defect, we instruct the district

court, on remand, to reduce the supervised release term

previously imposed from five years to three years.

It is so ordered.

5
Given the idiosyncratic facts, we treated this Apprendi
error as "plain" in Reynaldo's case, and we do the same here.

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