UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 99-50956
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE GUADALUPE SALAZAR-FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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January 25, 2001
Before KING, Chief Judge, and REYNALDO G. GARZA, and PARKER,
Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
BACKGROUND
Jose Guadalupe Salazar-Flores was charged by indictment with
one count of possession with intent to distribute a quantity of
marijuana in violation of 21 U.S.C. § 841. The Government filed
with the indictment a “NOTICE OF ENHANCED PENALTY,” in which it
stated that it would seek an enhanced penalty upon Salazar-
Flores’s conviction because it believed the evidence would show
that the controlled substance involved in the offense was a
quantity of 50 kilograms or more of marijuana. Salazar-Flores
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filed a motion to dismiss the indictment, arguing that, pursuant
to the Supreme Court’s decision in Jones v. United States, 526
U.S. 227 (1999), the failure to allege the drug quantity in the
indictment as an element of the offense rendered the indictment
fundamentally defective.
Salazar-Flores subsequently pleaded guilty pursuant to a
written plea agreement to possession with intent to distribute a
quantity of marijuana in violation of § 841. At Salazar-Flores’s
rearraignment, the district court advised him that the maximum
possible sentence he could receive if the Government proved to
the court that the amount of marijuana exceeded 50 kilograms was
incarceration from zero to 20 years and a fine of zero to one
million dollars. Salazar-Flores stated that he understood the
maximum possible sentence. Salazar-Flores further stated that
the Government’s factual basis, which indicated that he had
possessed approximately 195 pounds of marijuana, was correct.
Salazar-Flores was sentenced to 30 months’ imprisonment, to be
followed by three years’ supervised release, and fined $2,000.
The district court subsequently denied Salazar-Flores’s motion to
dismiss the indictment as moot because Salazar-Flores had pleaded
guilty to the challenged indictment. Salazar-Flores filed a
timely notice of appeal from his judgment of conviction and
sentence.
ANALYSIS
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On appeal, Salazar-Flores initially argued, relying upon the
Supreme Court’s decision in Jones, that because his indictment
did not allege a drug quantity, it failed to state all of the
elements of the offense of possession of marijuana with the
intent to distribute. After briefing was completed, the Supreme
Court handed down Apprendi v. New Jersey, ___ U.S. ___, 120 S.
Ct. 2348 (2000), and the parties filed supplemental briefs
addressing its impact on this case. Salazar-Flores continues to
maintain that his conviction should be vacated because his
indictment failed to state an offense because it was silent
concerning the drug quantity he was alleged to have possessed.
The Supreme Court held in Apprendi 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.”
Apprendi, 120 S. Ct. at 2362-63. We have applied Apprendi to §
841 drug convictions and interpreted Apprendi to require the
Government, when it seeks to enhance penalties based on the
amount of drugs under § 841(b)(1)(A) or (B), to state the drug
quantity in the indictment and to submit the question of drug
quantity to a jury for a finding of proof beyond a reasonable
doubt. United States v. Doggett, 230 F.3d 160, 165 (5th Cir.
2000). However, Apprendi requires reversal of a conviction only
in those cases where a sentence exceeds the statutory maximum.
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United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000). A
fact used in sentencing that does not increase a penalty beyond
the statutory maximum need not be alleged in the indictment and
proved to a jury beyond a reasonable doubt. Id. We therefore
find that Salazar-Flores’s indictment alleged all the essential
elements of a violation of § 841 and reject his argument that we
must vacate his conviction and remand for the dismissal of his
indictment.
The statutory maximum under the facts of this case is “a
term of imprisonment of not more than 5 years, a fine not to
exceed . . . $250,000 if the defendant is an individual . . . or
both.” 21 U.S.C. § 841(b)(1)(D).1 Salazar-Flores was sentenced
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21 U.S.C. § 841(b)(1)(D) states in relevant part: “In
the case of less than 50 kilograms of marihuana, . . . such
person shall, except as provided in paragraphs (4) and (5) of
this subsection, be sentenced to a term of imprisonment of not
more than 5 years, a fine not to exceed . . . $250,000 if the
defendant is an individual . . . or both.” (emphasis added).
Section 841(b)(5) is inapplicable because it concerns the
cultivation of a controlled substance on federal property.
Section 841(b)(4) states: “Notwithstanding paragraph
(1)(D) of this subsection, any person who violates subsection (a)
of this section by distributing a small amount of marihuana for
no remuneration shall be treated as provided in section 844 of
this title.” (emphasis added). Section 844 elaborates that, for
an individual with no prior convictions, the maximum sentence is,
in part, “a term of imprisonment of not more than 1 year.”
However, § 841(b)(4) is also inapplicable.
Salazar-Flores admitted under oath at his sentencing
hearing that, among others, the following facts were correct:
Approximately 195 pounds of marijuana were discovered in his
vehicle, and he knew that his vehicle contained marijuana.
Therefore, the quantity of marijuana was uncontested. Cf. United
States v. Rios-Quintero, 204 F.3d 214, 219 (5th Cir. 2000)
(stating that because the defendant conceded the quantity before
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to thirty months imprisonment and a $2,000 fine. As such, his
sentence is within the statutory maximum and does not run afoul
of Apprendi.
The conviction and sentence of Salazar-Flores are
accordingly AFFIRMED.
the jury “the issue of quantity was undisputed”).
Thus, § 841(b)(4) does not apply because 195 pounds,
under any standard, does not qualify as a “small amount.”
Section 841(b)(1)(D) duly applies, with its five-year maximum
imprisonment and $250,000 maximum fine.
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