*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this opinion should not be published and is not precedent except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. 00-40637

Summary Calendar

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LEE BATES, also known as

Sally Bates, also known

as Minnie Lee Bates, also

known as Lee Ashley Bates,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Texas

USDC No. C-00-CR-26-1

_________________________________________________________________

January 31, 2001

Before JOLLY, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

The assistant federal public defender who represents Lee Bates

filed a motion and supporting brief for leave to withdraw as

counsel pursuant to Anders v. California, 386 U.S. 738 (1967).

Bates has filed a response.

Our independent review of the appellate record and of the

possible issues raised by counsel and by Bates reveals no
2

nonfrivolous issue. We nevertheless address the issues raised by

Bates. 

Bates contends that her guilty plea is infirm under Fed. R.

Crim. P. 11 because the district court failed to inform her that,

by pleading guilty, she risked the loss of her social security

benefits. Under the literal language of Rule 11, the district

court is not required to ensure that a defendant understands this

possible collateral consequence from a guilty plea. Collateral

consequences of a guilty plea, such as civil disenfranchisement or

the possibility of deportation, need not be addressed during a Rule

11 colloquy as long as the defendant is informed of the critical

consequences from the plea. United States v. Osiemi, 980 F.2d 344,

349 (5th Cir. 1993); see United States v. Morse, 36 F.3d 1070, 1072

(11th Cir. 1994). No variance with the dictates of Rule 11 is

evident.

Bates contends that she entered her guilty plea unknowingly,

involuntarily, and with an unclear state of mind. Her answers at

rearraignment indicate the contrary.

Bates argues that the indictment was defective in the light of

Apprendi v. New Jersey, 120 S.Ct. 2348, 2362-63 (2000), which held

that “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.” Under Apprendi, the quantity of
3

drugs in a 21 U.S.C. § 841 prosecution is an element of the

offense, not a sentencing factor, which must be alleged in the

indictment and proved beyond a reasonable doubt. United States v.

Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000). However, “a fact

used in sentencing that does not increase a penalty beyond the

statutory maximum need not be alleged in the indictment and proved

to a jury beyond a reasonable doubt.” United States v. Keith, 230

F.3d 784, 787 (5th Cir. 2000). Section 841(b)(1)(B)(vii) requires

at least 100 kilograms of marijuana for a defendant to be subject

to a sentence from five years’ to forty years’ imprisonment.

Bates’s indictment alleged that she possessed more than 100

kilograms of marijuana and specifically alleged approximately 204

kilograms of marijuana.

Bates asserts that the indictment is defective because it

fails to allege the manner and means of the crime as well as

failing to allege any overt acts. Bates was not charged with

conspiracy but with possession with the intent to distribute over

100 kilograms of marijuana. “Generally, an indictment which

follows the language of the statute under which it is brought is

sufficient to give a defendant notice of the crime of which [s]he

is charged.” United States v. Ramirez, 233 F.3d 318, 323 (5th Cir.

2000). The indictment was not defective. See United States v.

Cabrera-Teran, 168 F.3d 141, 143 (5th Cir. 1999).
4

Bates raises several challenges to her sentence. First, she

argues that the base offense level of 26 is error. She contends

that she should be responsible for only 85 pounds of marijuana, the

amount for which she was being paid to transport to Florida. The

relevant drug quantity determined by the district court, by

adopting the presentence report (PSR), is supported by the record

and is not clearly erroneous. See United States v. Maseratti, 1

F.3d 330, 340 (5th Cir. 1993).

Bates asserts that her criminal history category should have

been category I. This issue, raised for the first time on appeal,

is reviewed for plain error. See United States v. Meshack, 225

F.3d 556, 575 (5th Cir. 2000), petition for cert. filed, (Nov. 25,

2000) (No. 00-7246). No error, plain or otherwise, is detected.

See United States v. Calverley, 37 F.3d 160, 162-64 (1994) (en

banc).

Bates contends that she should have received home confinement.

Her failure to request it at sentencing results in review only for

plain error. See Meshack, 225 F.3d at 575. The defendant carries

the burden under plain error in demonstrating that the unobjectedto error affected the defendant’s substantial rights. See United

States v. Olano, 507 U.S. 725, 734 (1993). Bates fails to carry

her burden.
5

Bates contends that she should have received a reduction in

her sentence based on her substantial assistance. “Absent a motion

for downward departure made by the Government, a sentencing court

is without authority to grant a downward departure on the basis of

substantial assistance under [U.S.S.G.] § 5K1.1.” United States v.

Price, 95 F.3d 364, 367 (5th Cir. 1996). Because the government

retained in the plea agreement its discretion to determine whether

Bates had provided substantial assistance, the government’s failure

to move for a downward departure pursuant to U.S.S.G. § 5K1.1 is

not reviewable. See United States v. Solis, 169 F.3d 224, 226,

226-27 (5th Cir.), cert. denied, 528 U.S. 843 (1999).

Bates asserts that she was improperly denied bond. To the

extent that Bates challenges her detention, both pretrial and

before sentencing, her challenge is moot. To the extent that she

wants release pending this appeal, there is no nonfrivolous issue

for appeal.

In conclusion, the motion for leave to withdraw is GRANTED,

and counsel is excused from further responsibilities herein.

Bates’s appeal is DISMISSED. See 5TH CIR. R. 42.2.