*

Honorable Lloyd D. George, United States District Judge for the District of Nevada, sitting by

designation. 

UNITED STATES of America, Plaintiff-Appellee,

v.

Alphonso SHEPARD, Defendant-Appellant.

No. 00-10653.

United States Court of Appeals,

Eleventh Circuit.

Dec. 14, 2000.

Appeal from the United States District Court for the Southern District of Florida, (No. 99-06159-CR-KLR),

Kenneth L. Ryskamp, Judge.

Before BARKETT and WILSON, Circuit Judges, and GEORGE*

, District Judge.

BARKETT, Circuit Judge:

Alphonso Shepard appeals his sentence of 188 months imprisonment after pleading guilty to

knowingly and intentionally possessing crack cocaine with the intent to distribute in violation of 21 U.S.C.

§ 841(a)(1). Shepard seeks reversal of his sentence arguing that because drug quantity was not alleged in the

indictment his sentence violated the rule announced in Apprendi v. New Jersey, --- U.S. ----, 120 S.Ct. 2348,

147 L.Ed.2d 435 (2000). Notwithstanding that the indictment did not allege drug quantity, because we do

not find that this error prejudiced Shepard, we affirm.

 The applicability of Apprendi v. New Jersey is a pure question of law that we review de novo. See

Doe v. Chiles, 136 F.3d 709, 713 (11th Cir.1998). Because Shepard objected at sentencing to the

enhancement of his sentence on the basis of drug quantity, which was not contained in the indictment, the

issue is properly before this Court on review. United States v. Rogers, 228 F.3d 1318 (11th Cir.2000).

DISCUSSION

The indictment in this case charged Shepard with violating 21 U.S .C. § 841(a)(1) by knowingly and

intentionally possessing an unspecified amount of crack cocaine. While section 841(b)(1)(C) defines

penalties for violations of section 841(a) when no drug quantities are specified, section 841(b)(1)(A) and (B)

establish penalties for violations of section 841(a) depending upon drug quantity and drug type (among other

factors which are not relevant to this case). Section 841(b)(1)(A) provides for a sentence of imprisonment

ranging from not less than ten years and not more than life. Section 841(b)(1)(B) provides for a sentence
between not less than five years and not more than forty years. Section 841(b)(1)(C) provides for a sentence

between zero and not more than 20 years.

Based on the Presentence Investigation Report (PSI) finding Shepard responsible for at least 50 grams

of cocaine base, the district court considered and sentenced Shepard under section 841(b)(1)(B). Shepard

objected at sentencing on the ground that the indictment failed to allege the requisite quantity of cocaine to

fall within 841(b)(1)(B)'s sentencing range of 5 to 40 years. Therefore, he argued that his sentence was

controlled by § 841(b)(1)(C) which contains no mandatory minimum and a maximum term of 20 years.

 We agree with Shepard that Apprendi dictates, as we stated in United States v. Rogers, 228 F.3d

1318 (11th Cir.2000), that "drug quantity in section 841(b)(1)(A) and section 841(b)(1)(B) cases must be

charged in the indictment and proven to a jury beyond a reasonable doubt ...." Id. at 1324. As the Court in

Apprendi noted: "Put simply, facts that expose a defendant to a punishment greater than that otherwise

legally prescribed were by definition 'elements' of a separate legal offense." Apprendi, 120 S.Ct. at 2359, n.

10. As an element of the offense, drug quantity must be charged in the indictment. See Russell v. United

States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (The indictment must "contain[ ] the elements of

the offense intended to be charged, 'and sufficiently apprise[ ] the defendant of what he must be prepared to

meet' ") (citations omitted); United States v. Gayle, 967 F.2d 483, 485(11th Cir.) ("A criminal conviction will

not be upheld if the indictment upon which it is based does not set forth the essential elements of the

offense"). As we explained in Gayle, "this rule serves two purposes. First, it informs the defendant of the

nature and cause of the accusation as required by the Sixth Amendment. Second, it fulfills the Fifth

Amendment's indictment requirement, ensuring that a grand jury only return an indictment when it finds

probable cause to support all the necessary elements of the crime." Id., 967 F.2d at 485. Because the

indictment failed to allege drug quantity, Shepard's sentence was controlled by section 841(b)(1)(C) and the

district court's application of section 841(b)(1)(B) violates Apprendi.

 Nonetheless, we affirm Shepard's sentence and find no need to remand because the district court

sentenced Shepard below the twenty year maximum provided by section 841(b)(1)(C). It is arguable that

under Apprendi, a remand is mandated. Apprendi does note that although the actual sentence imposed in the

Apprendi case was within the range authorized by the indictment, a reversal was warranted. The Court first

noted that:

the State has argued that even without the trial judge's finding of racial bias, the judge could have

imposed consecutive sentences on counts 3 and 18 that would have produced the 12-year term of
imprisonment that Apprendi received; Apprendi's actual sentence was thus within the range

authorized by statute for the three offenses to which he pleaded guilty.

Apprendi, 120 S.Ct. at 2354. However, the Court found that the sentences on counts 3 and 22 were irrelevant

to a determination of whether the sentence on count 18 was constitutional. The Court reversed and remanded,

making it clear that constitutional error occurs when the sentence imposed for the crime charged exceeds the

permissible range for that offense:

The constitutional question, however, is whether the 12-year sentence imposed on count 18 was

permissible, given that it was above the 10-year maximum for the offense charged in that count. The

finding is legally significant because it increased—indeed, it doubled—the maximum range within

which the judge could exercise his discretion, converting what otherwise was a maximum 10-year

sentence on that count into a minimum sentence. The sentences on counts 3 and 22 have no more

relevance to our disposition than the dismissal of the remaining 18 counts.

Id.

This, however, is not the situation before us. The count charged in the indictment, a violation of

section 841(a)(1) without reference to quantity, authorized a sentence of not more than 20 years. Shepard's

sentence of 188 months imprisonment falls below the maximum sentence authorized for that count. Because

Shepard's sentence falls within the authorized range, we find no prejudice. Accordingly, we

AFFIRM.