*After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without oral

argument.

F I L E D

United States Court of Appeals

Tenth Circuit

OCT 9 2001

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSEPH LUJAN,

Defendant-Appellant.

No. 00-2016

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. CR-99-13-JC)

Submitted on the briefs:*

Michael G. Katz, Federal Public Defender, and Jill M. Wichlens, Assistant Federal Public

Defender, Denver, Colorado, for Defendant-Appellant.

Norman C. Bay, United States Attorney, and Mary Catherine McCulloch, Assistant

United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

Before KELLY, HOLLOWAY and HENRY, Circuit Judges.

HOLLOWAY, Circuit Judge.
1The name “Joseph Lujan” is an alias, a fact which was learned before sentencing. 

Because the district court’s judgment and sentence is under the assumed name, we also

use it in this opinion.

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Defendant-appellant Joseph Lujan,1 along with four others, was indicted on three

counts arising from his attempt to sell approximately three pounds of methamphetamine

to an undercover officer. Mr. Lujan entered into a plea agreement with the prosecution

and pleaded guilty to count one of the indictment. That count charged him with

conspiring with the other named defendants to possess more than 50 grams of

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

841(b)(1)(A), and 846. Mr. Lujan was sentenced to 120 months’ imprisonment, to be

followed by five years’ supervised release, and a $100.00 assessment. He now appeals

his sentence.

I

Because the charges against Mr. Lujan were resolved by the plea bargain and

guilty plea, the underlying facts as reflected in the record may be briefly stated. The

following basic facts are found in the transcript of the change of plea hearing, conducted

in accordance with Fed. R. Crim. P. 11, in which the Government gave a brief summary

of the evidence it would anticipate presenting if the case were to go to trial. 

Lujan had arranged with one of the co-defendants, Frias, to sell methamphetamine. 

Frias set up a sale to a buyer who was an undercover agent. A sale of eight pounds of
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methamphetamine was planned. Frias met with the undercover agent and provided him a

sample. When the agent approved the sample and indicated that he wanted to purchase a

quantity of the drug, Frias said that he needed to call his cousins. III R. 7.

Frias made a telephone call, and minutes later Lujan and another co-defendant

appeared at the scene with one pound of methamphetamine. After some discussion about

price and payment, and after the agent had shown the sellers that he indeed had the money

for the requested purchases, Lujan agreed to supply more methamphetamine. Lujan

eventually brought more methamphetamine, and the agent left the scene, purportedly to

get the money. Other officers then converged on the scene and executed a search

warrant. Approximately three pounds of methamphetamine were seized, which was the

basis for the three charges in the indictment. III R. 7-8. In entering his plea of guilty, Mr.

Lujan admitted that he delivered the methamphetamine to Frias’s house, that he knew

what it was, and that he was to be paid $200 per pound for his part in the sale. Id. at 8-9.

At sentencing, the district court calculated the range under the Sentencing

Guidelines to be 108 to 135 months. The judge indicated that he would impose a

sentence of 108 months. The probation officer pointed out, however, that under 21

U.S.C. § 841(b)(1)(A) the defendant was subject to a mandatory minimum sentence of ten

years. The court then imposed a sentence of ten years, inter alia. Defendant Lujan brings

this appeal from his sentence.

II
2Although Apprendi was decided after final judgment had been entered in the

district court, it is “to be applied retroactively to all cases, state or federal, pending on

direct review or not yet final.” See Jones, 235 F.3d at 1235 (quoting Griffith v. Kentucky,

479 U.S. 314, 328 (1987)).

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A

On appeal, defendant raises a single issue, arguing that his sentence violates the

principle enunciated by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466

(2000). In Apprendi, the Court held: “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.” 530 U.S. at 490. Although

the defendant in Apprendi had been prosecuted under state law, we have held that the

constitutional holding in that case must be applied to federal prosecutions as well. United

States v. Jones, 235 F.3d 1231, 1235 (10th Cir. 2000). We have also held that drug

quantities under the federal statutes involved in this case are to be treated as elements of

the offense, subject to the Apprendi rule and that such facts must be pleaded in the

indictment. Id. at 1236.2

Mr. Lujan raised no objection in the district court to the indictment or the sentence,

so our review is only for plain error. Before an appellant in a criminal case is entitled to

relief under the plain error doctrine, he must meet these requirements:

To notice plain error under Fed. R. Crim. P. 52 (b), the error must (1) be an

actual error that was forfeited; (2) be plain or obvious; and (3) affect

substantial rights . . . . Where the law was settled at the time of trial and

clearly contrary to the law on appeal, it is sufficient if the error is plain on
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appeal. . . . . Given plain error that affects substantial rights, an appellate

court should exercise its discretion and notice such error where it either (a)

results in the conviction of one actually innocent, or (b) “seriously affect[s]

the fairness, integrity or public reputation of judicial proceedings.”

United States v. Keeling, 235 F.3d 533, 538 (10th Cir. 2000) (internal citations omitted)

(quoting United States v. Olano, 507 U.S. 725, 736 (1993)).

In the instant case, Mr. Lujan does not meet the first requirement. His case does

not reveal a violation of the Supreme Court’s new rule in Apprendi. Unlike some other

drug prosecutions, see, e.g., United States v. Jackson, 240 F.3d 1245 (10th Cir. 2001), the

indictment in this case did specify a drug quantity. Nor is this a case in which the

sentence was based on a quantity greater than that alleged in the indictment, with the

greater quantity having been established during sentencing proceedings by the court using

the preponderance of the evidence standard. Therefore, Mr. Lujan must resort to

imploring this court to extend, rather than merely apply, the principle of Apprendi.

For Mr. Lujan to prevail, he must convince us first to modify the rule of Apprendi

by making it applicable to the mandatory minimum sentence established by a particular

statute. Even such an extension of the Apprendi rule would not be enough to entitle him

to relief in this case, however. Instead, for Mr. Lujan to prevail we would also have to

interpret the indictment’s specification of the quantity of methamphetamine involved here

in a way that no case from our circuit has yet done. It should be obvious that, whatever

the merits of Mr. Lujan’s arguments might be in another context, we cannot adopt these

two new rules of law and then declare that the imposition of sentence in this case was
3The two statutory factors which increase the punishment ranges but which are not

applicable in this case are (1) a resulting death or serious bodily injury, and (2) a previous

conviction for a felony drug offense. 21 U.S.C. § 841(b).

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plain error for being inconsistent with such new rules. Even if we were to assume,

arguendo, that the district court erred, we would be unable to say that the errors were

obvious. Accordingly, we decline to address the arguments on the merits, leaving the

issues for another day. Our reasoning follows.

B

To understand the defendant’s Apprendi argument, it is necessary first to examine

the penalty provisions of the applicable statute. The statutory penalty scheme for drug

violations establishes three layers of penalty ranges for drug crimes, with escalating

ranges of minimum and maximum sentences depending on, inter alia, the quantity of

drugs involved in the violation. As applicable to drug crimes involving

methamphetamine, and excluding two factors not applicable in this case,3

 the ranges are

as follows:

‚ minimum 10 years, maximum life if the quantity is “50 grams or

more of methamphetamine, its salts, isomers, and salts of its isomers

or 500 grams or more of a mixture or substance containing a

detectable amount of methamphetamine, its salts, isomers, or salts of

its isomers;” 21 U.S.C. § 841(b)(1)(A)(viii)

‚ minimum 5 years, maximum 40 years, if the quantity is “5 grams or

more of methamphetamine . . . or 50 grams or more of a mixture or

substance containing a detectable amount of methamphetamine . . . .” 

Id. at § 841(b)(1)(B)(viii)
4Although it is immaterial to our analysis, we note that a divided panel of the Sixth

Circuit has recently stated that the court has not decided whether Apprendi requires that a

drug quantity triggering a statutory minimum sentence must be pleaded in the indictment. 

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‚ no minimum and 20 year maximum if the quantity is unspecified or

less than the amounts specified in § 841(b)(1)(B)(viii). Id. at §

841(b)(1)(C).

In the instant case, the indictment alleged that defendant’s violation involved more

than 50 grams of methamphetamine. Therefore, the maximum penalty for his offense is

life imprisonment. Lujan’s sentence of ten years is well under that statutory maximum. 

Indeed, the sentence is less than the 20 year maximum provided under section

841(b)(1)(C) for offenses with no specified quantity of methamphetamine.

Mr. Lujan’s argument, however, is that the rationale of Apprendi compels its

extension to a mandatory minimum term of imprisonment. Mr. Lujan contends that

because the drug quantity increased the minimum sentence with which he was faced, the

Apprendi reasoning should lead to the conclusion that the drug quantity must have been

pleaded in order for the higher minimum sentence to be valid. Even though Apprendi

expressly did not overrule McMillan v. Pennsylvania, 477 U.S. 79 (1986), which held that

judges may find by a preponderance of the evidence facts that trigger mandatory

minimum penalties, one circuit has held (without mentioning McMillan) that Apprendi

mandates that drug quantities which trigger mandatory minimums must be pleaded in the

indictment and submitted to the jury. United States v. Strayhorn, 250 F.3d 462, 468-71

(6th Cir. 2001).4

 But see United States v. Hill, 252 F.3d 919, 921-22 (7th Cir. 2001)
United States v. Stafford, 258 F.3d 465, 477 n.8 (6th Cir. 2001).

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(rejecting reasoning of Strayhorn and pointing out that the Seventh Circuit and four other

circuits had previously declined to extend Apprendi to mandatory minimum sentences).

Even if we were to follow Strayhorn and extend the rationale of Apprendi to

mandatory minimum sentences, however, that alone would not entitle Lujan to relief in

the circumstances presented here. The indictment here did allege possession of a quantity

sufficient for the mandatory minimum sentence that was imposed, and by pleading guilty

to Count 1 of the indictment Mr. Lujan of course waived the right to have that fact

determined by a jury.

Lujan, however, asks that we adopt another rule extending Apprendi beyond its

actual holding. This argument is based on the specific language employed in the statute

with respect to offenses involving methamphetamine. As noted supra, the statutory

scheme for methamphetamine lists two quantities at each level of offense, rather than one. 

Defendant was indicted and sentenced under section 841(b)(1)(A)(viii), which applies

when the offense involves 50 grams or more of methamphetamine or 500 grams or more

of a mixture or substance containing a detectable amount of methamphetamine. 

Defendant contends that the language in the indictment is ambiguous because it could be

construed to mean either 50 grams of pure methamphetamine or 50 grams of a mixture

containing a detectable amount of methamphetamine. If the indictment were construed

the latter way, then the mandatory minimum sentence would be five years instead of ten.
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Lujan did not challenge the indictment in the district court, so we review only for

plain error. When an indictment is attacked for the first time on appeal, we liberally

construe the indictment in favor of its validity. United States v. Willis, 102 F.3d 1078,

1081 (10th Cir. 1996). Under that standard, we conclude that “50 grams or more of

methamphetamine” should be construed as meaning what it says, rather than meaning

what it does not say, i.e., “50 grams or more of a mixture or substance containing a

detectable amount of methamphetamine.” We therefore hold that there was no plain error

in sentencing Mr. Lujan under section 841(b)(1)(A)(viii). Because we construe the

indictment in this way, the mandatory minimum sentence imposed by the district court

was proper under section 841(b)(1)(A)(viii). It is therefore unnecessary for us to consider

Mr. Lujan’s argument that the holding of Apprendi should be extended to apply to

statutory minimums, as well as statutory maximums: His sentence would be proper even

if we had adopted such a rule.

Accordingly, the sentence is AFFIRMED.