* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-50798

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MONTGOMERY ALLEN WILLIAMSON,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. EP-00-CR-492-1-DB

--------------------

March 12, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Appellant Williamson plead guilty to possession of marijuana

with intent to distribute, in violation of 21 U.S.C. § 841(a)(1),

and importation of marijuana, in violation of 21 U.S.C. § 952(a). 

Because Williamson had a prior felony drug conviction the

statutory maximum sentences for the possession and importation

offenses was 10 years’ imprisonment. See 21 U.S.C. §§

841(b)(1)(D), 960(b)(4) and 962. Absent the felony drug

conviction, offenses involving less than 50 kilograms of
No. 00-50798 

-2-

marijuana carry a statutory maximum sentence of 5 years’

imprisonment. See 21 U.S.C. §§ 841(b)(1)(D), 960(b)(4). The

prescribed range under the Federal Sentencing Guidelines was 77-

96 months’ imprisonment. The district court sentenced Williamson

to two concurrent terms of 87 months’ imprisonment. 

Williamson’s indictment did not allege that he had a prior

felony drug conviction. Williamson contends that a prior felony

drug conviction, because its raises the statutory maximum

sentence, is an element of the enhanced drug offenses. See

Apprendi v. United States, 120 S.Ct. 2348, 2359 n.10 (2000)

(“[F]acts that expose a defendant to a punishment greater than

that otherwise legally prescribed [are] by definition ‘elements’

of a separate legal offense.”). Therefore, his 87-month

sentences, which exceed the five-year maximum for the offenses

alleged in the indictment, violate due process. Williamson

acknowledges that his argument is foreclosed by the Supreme

Court’s ruling in Almendarez-Torres v. United States that the

fact of a prior conviction is not an element of the offense, even

if it increases the statutory maximum. 523 U.S. 224 (1998). 

Williamson brings this claim because of the doubt cast on

Almendarez-Torres’ holding in Apprendi. See Apprendi, 120 S.Ct.

at 2362 (finding it “arguable that Almendarez-Torres was

incorrectly decided”).

Despite this uncertainty, Williamson also concedes that our

controlling caselaw dictates an affirmance of his sentence. See
No. 00-50798 

-3-

1 Even if Almendarez-Torres is overturned, it is

questionable whether Williamson would receive any practical

relief. His applicable sentencing guideline range will remain

77-96 months’ imprisonment. See Doggett, 230 F.3d at 166 n.3

(“Apprendi does not affect [judicial determinations] in

formulating the appropriate sentencing range under the

Guidelines”). Within that prescribed range, the district court

determined the appropriate punishment to be 87 months’

imprisonment. While the statutory maximum on each count will be

lowered from 10 years’ to 5 years’ imprisonment, §5G1.2 of the

Guidelines, governing sentencing on multiple counts of

conviction, would require the sentences to be run consecutively

to the extent necessary to achieve the “total punishment” of 87

months’ imprisonment.

United States v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000)

(Almendarez-Torres stills controls prior conviction enhancements

under 21 U.S.C. § 841); United States v. Dabeit, 231 F.2d 979,

984 (5th Cir. 2000)(affirming that Almendarez-Torres is still

controlling law), cert. denied, 2001 U.S. Lexis 1889 (U.S. Feb.

26, 2001) (No. 00-8299). Williamson brings this appeal merely

to preserve the issue for possible Supreme Court review. 

Accordingly, the Government’s motion for summary affirmance is

granted and the judgment of the district court is AFFIRMED.1