United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 00-3178

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the District

v. * of Nebraska.

*

Robert A. Pollard, * [PUBLISHED]

*

Appellant. *

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Submitted: April 19, 2001

Filed: May 2, 2001

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Before BOWMAN, FAGG, and LOKEN, Circuit Judges.

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PER CURIAM.

A jury convicted Robert A. Pollard of conspiracy to distribute methamphetamine

in violation of 21 U.S.C. §§ 841(a)(1) and 846. Based on the district court's drug

quantity finding, the district court was required to sentence Pollard to imprisonment for

five to forty years, and to supervised release for at least four years. See id. §

841(b)(1)(B). Without the drug quantity finding, Pollard would have faced up to

twenty years in prison and at least three years of supervised release. See id. §
*The Honorable Richard G. Kopf, Chief Judge, United States District Court for

the District of Nebraska.

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841(b)(1)(C). The district court* sentenced Pollard to eighty-seven months in prison

and five years of supervised release. Because the indictment, jury instructions, and

verdict form did not specify a drug quantity, Pollard contends his sentence violates

Apprendi v. New Jersey, 530 U.S. 466 (2000) (other than the fact of an earlier

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).

We disagree. Pollard's prison sentence is less than the twenty-year statutory maximum

allowable for conspiracy to distribute methamphetamine regardless of drug quantity in

21 U.S.C. § 841(b)(1)(C). Thus, Pollard's contention is foreclosed by our decision in

United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir.), cert. denied, 121 S. Ct. 600

(2000), where we held sentences "within the statutory range authorized by §

841(b)(1)(C) without reference to drug quantity are permissible under Apprendi . . .

even where the drug quantity was not charged in the indictment or found by the jury .

. . beyond a reasonable doubt." Id. at 934. Likewise, Pollard's five-year term of

supervised release does not exceed the life term authorized under § 841(b)(1)(C), and

thus does not violate Apprendi. See Aguayo-Delgado, 220 F.3d at 933; United States

v. Scott, 243 F.3d 1103, 1108 (8th Cir. 2001). Pollard contends Aguayo-Delgado was

wrongly decided, but one panel of this court must follow the decision of an earlier panel

until overturned by the court en banc. See United States v. Ortega, 150 F.3d 937, 947

(8th Cir. 1998). 

Last, Pollard raises concerns for the first time about the possible prison sentence

he could receive if his supervised release is revoked. Because the district court

sentenced Pollard according to drug quantity under § 841(b)(1)(B), Pollard contends

he was convicted of a Class B felony and would face a term of three years in prison if

the court revokes his supervised release. See 18 U.S.C. § 3583(e)(3). Pollard argues

that if he had been sentenced without regard to drug quantity, he would have been
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convicted of a Class C felony and would face not more than two years in prison if

supervised release is revoked. See id. Pollard's asserts a sentence exceeding two years

upon revocation of supervised release would violate Apprendi. As we have already

explained, under Apprendi, Pollard could not have been sentenced to more than twenty

years of imprisonment specified in 21 U.S.C. § 841(b)(1)(C). This default maximum

corresponds to a Class C felony, permitting only a two year sentence if supervised

release is revoked. See United States v. Rodgers, No. 00-1030, 2001 WL 355620, at

*5 (7th Cir. Apr. 5, 2001). We need not decide whether Pollard could be sentenced to

more than two years in prison upon revocation of supervised release, however. At this

point, we do not know whether Pollard will violate the terms of his supervised release

or whether, if he does, he will be sentenced to more than two years in prison for the

violation. We thus decline to consider Pollard's assertion, which is speculative and not

ripe for our review, and affirm Pollard's sentence.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.