IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-51182
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
ANASTACIO VASQUEZ-ZAMORA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
May 31, 2001
Before POLITZ and BARKSDALE, Circuit Vasquez-Zamora appeals his sentence
Judges, and FALLON, District Judge.* arguing that the district court erred in
imposing an enhanced penalty based on drug
FALLON, District Judge: quantity because the drug quantity was not
alleged in the indictment. We vacate and
remand for resentencing.
I.
* On October 26, 1998, Border Patrol
District Judge of the Eastern
agents arrested Anastacio Vasquez-Zamora
District of Louisiana, sitting by designation.
1
after discovering marijuana in the pickup him to sixty-five months imprisonment and a
truck he was driving. He was charged in a five year term of supervised release.
two count indictment. Count One charged Vasquez now appeals his sentence.
him with possession with intent to distribute II.
marijuana in violation of 21 U.S.C. § Vasquez challenges his sentence under
841(a)(1) and § 841(b)(1)(B), and Count Apprendi v. New Jersey, 530 U.S. 466, 120
Two charged him with conspiracy to possess S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its
with intent to distribute marijuana in progeny in this Circuit. He argues that the
violation of title 21 U.S.C. § § 841(a)(1), district court improperly sentenced him to a
841(b)(1)(B), and 846. Although the term of supervised release based on an
indictment referenced section 841(b)(1)(B) enhanced penalty because the government
to indicate an aggravated drug quantity, it failed to state a quantity of drugs in the
did not state a specific quantity of marijuana. indictment and prove it beyond a reasonable
Vasquez pled guilty to both counts pursuant doubt to a jury. Without any enhancement
to a plea agreement on December 20, 1999.2 for drug quantity, the appropriate term of
The presentence report stated that supervised release would not exceed three
Vasquez was responsible for 105 kilograms years and the period of incarceration would
of marijuana and recommended an enhanced not be greater than five years. See 21 U.S.C.
statutory penalty of five to forty years § 841(b)(1)(D); United States v. Garcia, 242
imprisonment and a five year term of F.3d 593, 599 (5th Cir. 2001).
supervised release because the offense Because Vasquez raises an Apprendi
involved more than 100 kilograms of issue for the first time on appeal, we review
marijuana. Vasquez objected to the his sentence for plain error. See United
recommendation for an enhanced penalty States v. Miranda, No. CIV.A. 98-11183,
arguing that the government used an 2001 WL 388088, at *5 (5th Cir. April 17,
unreliable method for weighing the 2001); United States v. Meshack, 225 F.3d
marijuana.3 556, 576 (5th Cir. 2000). Plain error requires
Finding by a preponderance of the Vasquez to show "(1) an error; (2) that is
evidence that the offenses involved 105 clear or plain; (3) that affects the defendant's
kilograms of marijuana, the district court substantial rights; and (4) that seriously
overruled Vasquez's objection and sentenced affects the fairness, integrity or public
reputation of judicial proceedings." Meshack,
225 F.3d at 576 (quoting United States v.
2
Both parties agree that the plea Vasquez, 216 F.3d 456, 459 (5th Cir. 2000)).
agreement does not preclude Vasquez from A.
appealing his sentence on the basis that it Vasquez and the government agree that
exceeds the statutory maximum. the five year term of supervised release was
erroneous. See Appellee's Br. at 12. In
3
The government explains that United States v. Doggett, we held that "if the
Vasquez dismissed this objection at government seeks enhanced penalties based
sentencing. See Appellee's Br. at 6. on the amount of drugs under 21 U.S.C. §
Whether or not presented to the district 841(b)(1)(A) or (B), the quantity must be
court, Vasquez does not raise this issue on stated in the indictment and submitted to a
appeal.
2
jury for a finding of proof beyond a 841(b)(1)(D). See Garcia, 242 F.3d at 600
reasonable doubt." 230 F.3d 160, 165 (5th (reducing sentence to sixty months when
Cir. 2000). Because Vasquez's five year marijuana amount was neither stated in the
term of supervised release represents an indictment nor proved to a jury).
enhanced penalty under 21 U.S.C. § The government concedes that Vasquez's
841(b)(1)(B), but a quantity of drugs was sixty-five month prison term violates
not stated in the indictment or submitted to a Apprendi, but it argues that the error is
jury for a finding of proof beyond a harmless because the district court could
reasonable doubt, we find plain error in have imposed consecutive rather than
Vasquez's sentence. See id. concurrent terms of imprisonment pursuant
We correct plain error only if that error to section 5G1.2(d) of the U.S. Sentencing
seriously affects the fairness of the judicial Guidelines.
proceedings and if correcting it would result While the district court could have
in a significantly reduced sentence for the imposed consecutive prison terms for each
defendant. See Miranda, 2001 WL 388088, count of the indictment, it found concurrent
at *6. In this case, Vasquez is entitled to a terms of sixty-five months incarceration for
corrected sentence because he may receive a both counts appropriate punishment for
term of supervised release between two and Vasquez. Because the district court has
three years. See 18 U.S.C. § 3583(b)(2); discretion under the applicable statutes and
U.S. Sentencing Guidelines Manual § sentencing guidelines to fashion a penalty
5D1.2(a)(2) (indicating a term of two to that combines terms of imprisonment with
three years supervised release). Accordingly, periods of supervised release, we vacate
we vacate Vasquez's term of supervised Vasquez's prison term and remand it for
release and remand for resentencing. resentencing with his term of supervised
B. release.
We also recognize that Vasquez's III.
sentence of sixty-five months imprisonment For the foregoing reasons, we VACATE
is erroneous under Apprendi even though he Vasquez's entire sentence and REMAND to
does not raise this issue on appeal.4 Because the district court for resentencing consistent
the government failed to state a quantity of with this opinion.
drugs in the indictment and prove it beyond a
reasonable doubt to a jury, Vasquez could be VACATE sentence; REMAND for
sentenced to no more than sixty months on resentencing.
each count pursuant to 21 U.S.C. §
4
As we noted in United States v.
Garcia, "it would be manifestly unjust under
the circumstances to ignore the clear-cut,
mechanical application of Apprendi to
Defendant's prison sentence simply because
Defendant did not ask for all the relief for
which he was entitled." 242 F.3d at 599,
n.5.
3