UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20795
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
ANTHONY MORECI,
Defendant - Appellant.
Appeal from the United States District Court
For the Southern District of Texas
February 13, 2002
Before JONES, WIENER, and PARKER, Circuit Judges
ROBERT M. PARKER, Circuit Judge:
Appellant appeals his sentence and the length of time ordered
by the district court for his supervised release. We affirm with
one modification.
I. BACKGROUND.
Anthony Moreci was indicted in a two-count indictment along
with four codefendants for possession with intent to distribute
"more than 50 kilograms" of marijuana (Count One) and for
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conspiracy to possess with intent to distribute "more than 50
kilograms" of marijuana (Count Two). Moreci pleaded guilty to both
counts of the indictment without a written plea agreement.
According to the district probation department’s Presentence
Report ("PSR"), special agents of the DEA investigating drug
trafficking activity between Houston, Texas, and New Orleans,
Louisiana, observed a black Saturn, driven by codefendant Ismael
Garcia Ramirez, stop at a Texaco station and meet with codefendants
Kelly Landry, Rafael Ochoa-Perez, and Raul Flores, who were driving
a red Chevrolet Tahoe. Landry, who owned the Saturn, then followed
the Tahoe in that vehicle to a Fiesta Food Store, where the group
met with Moreci, who was driving a blue Dodge Neon in which his
girlfriend and codefendant Erin Williams was also seated. The
Saturn and the Neon then departed east on Interstate 10, where DEA
agents stopped both vehicles. Landry gave written consent to
search the Saturn, and DEA agents discovered 149.2 pounds of
marijuana.
Landry, Williams, and Moreci subsequently provided statements
to the agents describing their drug trafficking between Houston and
New Orleans. Moreci recruited Landry to drive from New Orleans to
Houston to pick up the marijuana from some "Mexicans." Landry,
Williams, and Moreci each described how the three traveled to
Houston and met with Ramirez, Ochoa-Perez, and Flores, and they
explained the process by which they waited while the "Mexicans"
loaded Landry’s car with the marijuana before they departed for the
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return trip to New Orleans.
Williams and Landry also gave statements describing two prior
trips to Houston for the purpose of obtaining marijuana. On one of
these trips, Moreci and Williams drove to Houston with a friend of
Williams’s named Michelle and picked up approximately 50 pounds of
marijuana. The second trip occurred a few days later when Moreci,
Williams, and Landry obtained another 46 pounds of marijuana for
transportation to New Orleans.
The PSR determined that Moreci should be held accountable for
a total of 245.2 pounds (111.2 kilograms) of marijuana, which
included the 149.2 pounds seized by the DEA from Landry’s car and
the two previous loads of 50 and 46 pounds described by Landry and
Williams. The PSR calculated Moreci’s total offense level as 26,
his criminal history score as II, and his guideline range as 70 to
87 months. Moreci filed an objection to the PSR, arguing that he
should be accountable only for the amount of drugs actually seized
by the DEA, or 149.2 pounds, because the description of the other
loads by Landry and Williams were self-serving statements designed
to cast more blame on him. The district court overruled the
objection. The court sentenced Moreci to 70 months in prison, 5
years of supervised release, and a $7,500 fine, and ordered Moreci
to pay a $200 special assessment. Moreci filed a timely notice of
appeal.
Counsel appointed to represent Moreci filed a motion to
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withdraw with a brief pursuant to Anders v. California, 386 U.S.
738 (1967). Moreci filed a response to the Anders brief in which
he moved this court for permission to file a pro se brief. We
denied counsel’s motion to withdraw and ordered briefing on the
issue of whether Moreci’s sentence of imprisonment and term of
supervised release are improper in light of Apprendi v. New Jersey,
530 U.S. 466 (2000). Counsel was directed to address whether 21
U.S.C. § 841(b)(1)(C) sufficiently provides the statutory maximum
for Moreci’s offense to avoid an Apprendi sentencing error, given
the amount of marijuana alleged in the indictment and whether the
district court erred in imposing a five-year term of supervised
release.
II. STANDARD OF REVIEW.
In general, we "examine the sentence to ascertain if it was
imposed in violation of law, as a result of a misapplication of the
sentencing guidelines, or if it was outside of the guideline range
and was unreasonable." United States v. Fair, 979 F.2d 1037, 1040
(5th Cir. 1992). Because Moreci raises his Apprendi argument for
the first time on appeal, this court reviews the issue for plain
error. See United States v. Miranda, 248 F.3d 434, 443 (5th Cir.),
cert. denied, ___ U.S. ___, 122 S. Ct. 410 (2001); United States v.
DeLeon, 247 F.3d 593, 597 (5th Cir. 2001). Plain error is defined
as "(1) an error; (2) that is clear or plain; (3) that affects the
defendant’s substantial rights; and (4) that seriously affects the
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fairness, integrity or public reputation of judicial proceedings."
United States v. Vasquez, 216 F.3d 456, 459 (5th Cir.), cert.
denied, 531 U.S. 972 (2000).
Inasmuch as Moreci’s claim may be viewed as a challenge to the
sufficiency of the indictment itself, we review such a challenge de
novo. United States v. Cabrera-Teran, 168 F.3d 141, 144 (5th Cir.
1999). An indictment’s failure to charge an offense constitutes a
jurisdictional defect. A defendant may at any time raise an
objection to the indictment based on failure to charge an offense,
and the defect is not waived by a guilty plea. If an objection is
raised for the first time on appeal and the appellant does not
assert prejudice, the indictment is to be read with maximum
liberality and found sufficient unless it is so defective that by
any reasonable construction, it fails to charge the offense for
which the defendant is convicted. Id. (citations omitted). Here,
an insufficiency in the indictment relating to the quantity of
drugs alleged could lead to an Apprendi sentencing error if the
sentence exceeded the statutory maximums supported by the charges
as worded.
III. ANALYSIS.
The issue here is whether the identification of “over 50
kilograms” without an explicit upper range quantity in Moreci’s
indictment sufficiently alleges a drug quantity so as to avoid an
Apprendi error.
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Under Apprendi, “other 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, 530 U.S. at 490;
United States v. Doggett, 230 F.3d 160, 162 (5th Cir. 2000). We
have held that for the purposes of § 841(b)(1), the quantity of
drugs is such a fact. Id. Where drug quantity is not stated in an
indictment, and therefore not charged to a jury, the statutory
maximum sentence to which a defendant can be sentenced is that
listed under 21 U.S.C. § 841(b)(1)(D) (e.g., five years’
imprisonment for a defendant not convicted of a prior felony drug
offense). See United States v. Garcia, 242 F.3d 593, 599-600 (5th
Cir. 2001). Here, Moreci pleaded guilty to both counts of the
indictment and no jury trial was required.
We begin by examining the language of the indictment dated
March 27, 2000. As to Count One, the government alleged that,
[Moreci] did unlawfully, knowingly and intentionally
possess with the intent to distribute more than 50
kilograms of a mixture and substance containing a
detectable amount of marijuana, a Schedule I controlled
substance.
In violation of Title 21, United States Code, Sections
841(a)(1) and 841(b)(1)(C) and Title 18, United States
Code, Section 2.
As to Count Two, the government alleged that,
[Moreci and his co-defendants] did unlawfully, knowingly
and intentionally, combine, conspire, confederate and
agree together with others unknown to the Grand Jury, to
possess with intent to distribute more than 50 kilograms
of a mixture and substance containing a detectable amount
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of marijuana, a Schedule I Controlled Substance.
In violation of Title 21, United States Code, Section
841(a)(1), 841(b)(1)(C) and Title 21, United States Code,
Section 846.
Therefore, in each count, the government charged Moreci with
possessing or conspiring to possess “more than 50 kilograms” of a
marijuana mixture and identified 21 U.S.C. § 841(b)(1)(C) as the
statute governing the permissible range of punitive enhancements.
The question is, whether this is sufficient to inform a defendant
of the specific charges made against him, including the quantity of
drugs alleged for the purpose of sentencing enhancements and what
those enhancements may be, in satisfaction of Apprendi. This is an
issue of first impression in this circuit.
Although the failure to cite any quantity of drugs in an
indictment imposes the default penalty of § 841(b)(1)(D) under
Apprendi, we have held that Apprendi is satisfied when an
indictment alleges a range of drug quantity rather than a specific
amount. See DeLeon, 247 F.3d at 597. In DeLeon, the indictment
alleged that the defendant possessed “‘more than 100 kilograms, but
less than 1000 kilograms’” of marijuana. Id. Moreci correctly
notes that DeLeon is distinguishable to a degree from his case in
that the range included an explicit upper limit. That indictment
also cited § 841(b)(1)(B) as the statutory maximum penalty
enhancement corresponding to the range of more than 100 kilograms,
but less than the 1000 kilograms that would implicate a penalty
under § 841(b)(1)(A). Moreci argues that the defendant in that
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case knew his statutory maximum sentence from the beginning. He
asserts that the wording of the indictment herein only establishes
the lower boundary and could implicate a penalty enhancement under
any of §§ 841(b)(1)(A)-(C). Therefore, he argues, he could not
have known the maximum penalty when he pleaded guilty and that the
default penalty of § 841(b)(1)(D) must apply. We disagree.
In pertinent part, § 841(b)(1)(C) establishes that “[i]n the
case of a controlled substance in schedule I or II . . . except as
provided in subparagraphs (A), (B), and (D), such person shall be
sentenced to a term of imprisonment of not more than 20 years . .
. .” Marijuana is a Schedule I Controlled Substance. Section
841(b)(1)(A) explicitly governs possession with intent to
distribute 1000 kilograms or more of a mixture or substance
containing a detectable amount of marijuana, with a term of
imprisonment which is not less than 10 years nor more than life.
Section 841(b)(1)(B) explicitly governs the same for amounts of 100
kilograms or more of marijuana, with a term of imprisonment which
is not less than five years and not more than 40 years. Section
841(b)(1)(D) explicitly governs the same for amounts of less than
50 kilograms marijuana, with a term of imprisonment which is not
more than five years. Additional term enhancements are available
for individuals convicted of a prior felony drug charge. In these
terms, the specific applicability of each subparagraph of the
statute to a determined quantity of drugs is established.
Moreci argues that an indictment which does not specify an
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amount of drugs cannot serve as the basis for enhancing a sentence
even if it references an enhanced penalty statute. United States
v. Vasquez-Samora, 253 F.3d 211, 214 (5th Cir. 2001). In Vasquez-
Samora, the indictment merely referenced § 841(b)(1)(B) as a
sentence-enhancing statute, without any statement of fact to
justify its citation. We held such an indictment insufficient in
part because of the failure to specifically state a quantity of
drugs and remanded for sentencing pursuant to the “default”
enhancement statute, § 841(b)(1)(D). The indictment in this case,
however, did not fail to state a quantity of drugs. The quantity
it stated was “more than 50 kilograms.” Therefore, § 841(b)(1)(D)
explicitly does not apply to Moreci’s case because that section
only applies to amounts of marijuana less than 50 kilograms.
Having made that hurdle, by its language, § 841(b)(1)(C) governs
amounts of marijuana, except those specified in §§ 841(b)(1)(A)
(over 1000 kilograms), (B) (over 100 kilograms), and (D) (less than
50 kilograms). The indictment against Moreci cites only §
841(b)(1)(C) as the sole basis for establishing the appropriate
penalty.
It is true that the statute on which an indictment is founded
is to be determined from the facts charged in the indictment, and
the facts pleaded may bring the offense within a different statute
from that referred to in the indictment. United States v.
Kennington, 650 F.2d 544, 546 (5th Cir. 1981) (noting that an
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express charge of conspiracy under 21 U.S.C. § 841(a)(1) in the
body of the indictment was correctly invoked by the facts of the
indictment and put the defendant on notice of the charge even
though an incorrect statute had been referenced in the caption of
the indictment). Even so, a defect in the facts cited in an
indictment may be cured by reading the indictment with maximum
liberality. United States v. Fitzgerald, 89 F.3d 218, 222 (5th
Cir. 1996) (reference in caption of indictment to quantity of drugs
cured a failure to state the quantity in the body of the
indictment).
We need not read the indictment in this case with maximum
liberality to find it difficult to imagine how a defendant could
construe its language as meaning other than that he has been
indicted for possession with intent to distribute (with the
attendant conspiracy charge) an amount of more than 50 kilograms
but less than 100 kilograms, an amount excluded from the language
of § 841(b)(1)(C). There is no assertion that the government cited
§ 841(b)(1)(C) in error. That statute is not inclusive of
penalties in §§ 841(b)(1)(A) and (B); it is exclusive of them.
Just as the facts of the case in Kennington demonstrated that the
statute in the body of the indictment was the correct one, we hold
that a charge of “more than 50 kilograms” takes an indictment out
of the “default” statute of § 841(b)(1)(D), into § 841(b)(1)(C),
and, without more, operates to exclude the penalties of §§
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841(b)(1)(A) and (B).
In an abundance of caution following the Apprendi decision and
then-unsettled case law of this circuit, the district judge did
conduct a rearraignment establishing that the full quantity of
drugs for which Moreci could be held responsible according to the
PSR was 111.2 kilograms, including the amounts attributed to him in
prior endeavors during which he was not caught. Moreci
acknowledged responsibility for that amount. However, because the
Grand Jury in this case cited § 841(b)(1)(C), the maximum 20 year
penalty for “more than 50 kilograms” applied even though Moreci’s
acknowledgment of responsibility for 111.2 kilograms of marijuana
would otherwise have made him eligible for the higher penalties of
§ 841(b)(1)(B). Moreci was informed of the maximum 20 year penalty
on several occasions.
Having acknowledged responsibility, Moreci pleaded guilty to
both counts of the indictment, which obviated a jury’s
determination of the quantity of the drugs. As we have noted, a
guilty plea will not waive a defect in an indictment. Cabrera-
Teran, 168 F.3d at 144. We have found no defect in the indictment
herein and find that it would support a charge to a jury sufficient
to satisfy Apprendi.
Having established that the indictment was not infirm, we look
to the actual sentence the district court imposed. The court
sentenced Moreci to 70 months in prison, 5 years of supervised
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release, and a $7,500 fine. Seventy months, or five and eight-
tenths years, is within the maximum 20 years’ imprisonment allowed
under § 841(b)(1)(C). The fine of $7,500 is also within the
maximum of $1,000,000 allowed under the same statute. Because
Moreci’s term of imprisonment does not exceed the statutory maximum
permitted by § 841(b)(1)(C), Apprendi does not affect his sentence.
See Doggett, 230 F.3d at 165.
There is an error in the term of supervised release. The
district court orally sentenced Moreci to 5 years of supervised
release. The written judgment provides for only a three-year term
of supervised release. When there is a conflict between a written
sentence and an oral pronouncement, the oral pronouncement
controls. If, however, there is merely an ambiguity between the
two, the entire record must be reviewed to determine the intent of
the court. See United States v. Martinez, 250 F.3d 941, 942 (5th
Cir. 2001). The difference in the term of supervised release
reflected here is a conflict, not an ambiguity. Therefore, to the
extent that his oral and written sentences conflict, Moreci faces
a five-year term of supervised release. Id.
Section 841(b)(1)(C) provides that the term of supervised
release shall be "at least 3 years." Regardless, Moreci’s offense
is a Class C felony for which supervised release may not exceed 3
years. See § 841(b)(1)(C)(providing a maximum penalty of 20 years’
imprisonment); 18 U.S.C. § 3559(a)(3) (classifying an offense as a
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Class C felony if the maximum term of imprisonment is less than 25
years but more than 10 years); 18 U.S.C. § 3583(b)(2)(limiting term
of supervised release for class C felonies to "not more than three
years"). See also Doggett, 230 F.3d at 165 n.2 (“[s]ince the
elements found by the jury satisfied only a conviction under §
841(b)(1)(C), a Class C felony, [the defendant’s] term of
supervised release could not exceed three years”). Therefore, the
sentence of five years’ supervised release is plain error. We
correct plain error only if that error seriously affects the
fairness of judicial proceedings and if correcting it would result
in a significantly reduced sentence for the defendant. Vasquez-
Zamora, 253 F.3d at 214. A difference of two years of supervised
release meets those criteria. Accordingly, we modify Moreci’s
supervised release to the statutorily mandated three-year term.
Doggett, 230 F.3d at 165 n.2 (modifying defendant’s five-year term
of supervised release after conviction for a Class C felony to the
statutorily mandated three-year term).
IV. CONCLUSION.
For the reasons stated herein, Moreci’s sentence is AFFIRMED
and his term of supervised release is AFFIRMED AS MODIFIED.
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