1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-51182

 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee

VERSUS

ANASTACIO VASQUEZ-ZAMORA,

Defendant-Appellant

 

Appeal from the United States District Court

for the Western District of Texas

 

May 31, 2001

Before POLITZ and BARKSDALE, Circuit

Judges, and FALLON, District Judge.*

FALLON, District Judge:

Vasquez-Zamora appeals his sentence

arguing that the district court erred in

imposing an enhanced penalty based on drug

quantity because the drug quantity was not

alleged in the indictment. We vacate and

remand for resentencing.

I.

On October 26, 1998, Border Patrol

agents arrested Anastacio Vasquez-Zamora

*

 District Judge of the Eastern

District of Louisiana, sitting by designation.
2

after discovering marijuana in the pickup

truck he was driving. He was charged in a

two count indictment. Count One charged

him with possession with intent to distribute

marijuana in violation of 21 U.S.C. §

841(a)(1) and § 841(b)(1)(B), and Count

Two charged him with conspiracy to possess

with intent to distribute marijuana in

violation of title 21 U.S.C. § § 841(a)(1),

841(b)(1)(B), and 846. Although the

indictment referenced section 841(b)(1)(B)

to indicate an aggravated drug quantity, it

did not state a specific quantity of marijuana. 

Vasquez pled guilty to both counts pursuant

to a plea agreement on December 20, 1999.2 

The presentence report stated that

Vasquez was responsible for 105 kilograms

of marijuana and recommended an enhanced

statutory penalty of five to forty years

imprisonment and a five year term of

supervised release because the offense

involved more than 100 kilograms of

marijuana. Vasquez objected to the

recommendation for an enhanced penalty

arguing that the government used an

unreliable method for weighing the

marijuana.3 

Finding by a preponderance of the

evidence that the offenses involved 105

kilograms of marijuana, the district court

overruled Vasquez's objection and sentenced

him to sixty-five months imprisonment and a

five year term of supervised release. 

Vasquez now appeals his sentence.

II.

Vasquez challenges his sentence under

Apprendi v. New Jersey, 530 U.S. 466, 120

S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its

progeny in this Circuit. He argues that the

district court improperly sentenced him to a

term of supervised release based on an

enhanced penalty because the government

failed to state a quantity of drugs in the

indictment and prove it beyond a reasonable

doubt to a jury. Without any enhancement

for drug quantity, the appropriate term of

supervised release would not exceed three

years and the period of incarceration would

not be greater than five years. See 21 U.S.C.

§ 841(b)(1)(D); United States v. Garcia, 242

F.3d 593, 599 (5th Cir. 2001).

Because Vasquez raises an Apprendi

issue for the first time on appeal, we review

his sentence for plain error. See United

States v. Miranda, No. CIV.A. 98-11183,

2001 WL 388088, at *5 (5th Cir. April 17,

2001); United States v. Meshack, 225 F.3d

556, 576 (5th Cir. 2000). Plain error requires

Vasquez to show "(1) an error; (2) that is

clear or plain; (3) that affects the defendant's

substantial rights; and (4) that seriously

affects the fairness, integrity or public

reputation of judicial proceedings." Meshack,

225 F.3d at 576 (quoting United States v.

Vasquez, 216 F.3d 456, 459 (5th Cir. 2000)).

A.

Vasquez and the government agree that

the five year term of supervised release was

erroneous. See Appellee's Br. at 12. In

United States v. Doggett, we held that "if the

government seeks enhanced penalties based

on the amount of drugs under 21 U.S.C. §

841(b)(1)(A) or (B), the quantity must be

stated in the indictment and submitted to a

2

 Both parties agree that the plea

agreement does not preclude Vasquez from

appealing his sentence on the basis that it

exceeds the statutory maximum.

3

 The government explains that

Vasquez dismissed this objection at

sentencing. See Appellee's Br. at 6. 

Whether or not presented to the district

court, Vasquez does not raise this issue on

appeal.
3

jury for a finding of proof beyond a

reasonable doubt." 230 F.3d 160, 165 (5th

Cir. 2000). Because Vasquez's five year

term of supervised release represents an

enhanced penalty under 21 U.S.C. §

841(b)(1)(B), but a quantity of drugs was

not stated in the indictment or submitted to a

jury for a finding of proof beyond a

reasonable doubt, we find plain error in

Vasquez's sentence. See id.

We correct plain error only if that error

seriously affects the fairness of the judicial

proceedings and if correcting it would result

in a significantly reduced sentence for the

defendant. See Miranda, 2001 WL 388088,

at *6. In this case, Vasquez is entitled to a

corrected sentence because he may receive a

term of supervised release between two and

three years. See 18 U.S.C. § 3583(b)(2);

U.S. Sentencing Guidelines Manual §

5D1.2(a)(2) (indicating a term of two to

three years supervised release). Accordingly,

we vacate Vasquez's term of supervised

release and remand for resentencing.

B.

We also recognize that Vasquez's

sentence of sixty-five months imprisonment

is erroneous under Apprendi even though he

does not raise this issue on appeal.4 Because

the government failed to state a quantity of

drugs in the indictment and prove it beyond a

reasonable doubt to a jury, Vasquez could be

sentenced to no more than sixty months on

each count pursuant to 21 U.S.C. §

841(b)(1)(D). See Garcia, 242 F.3d at 600

(reducing sentence to sixty months when

marijuana amount was neither stated in the

indictment nor proved to a jury). 

The government concedes that Vasquez's

sixty-five month prison term violates

Apprendi, but it argues that the error is

harmless because the district court could

have imposed consecutive rather than

concurrent terms of imprisonment pursuant

to section 5G1.2(d) of the U.S. Sentencing

Guidelines. 

While the district court could have

imposed consecutive prison terms for each

count of the indictment, it found concurrent

terms of sixty-five months incarceration for

both counts appropriate punishment for

Vasquez. Because the district court has

discretion under the applicable statutes and

sentencing guidelines to fashion a penalty

that combines terms of imprisonment with

periods of supervised release, we vacate

Vasquez's prison term and remand it for

resentencing with his term of supervised

release.

III.

For the foregoing reasons, we VACATE

Vasquez's entire sentence and REMAND to

the district court for resentencing consistent

with this opinion. 

VACATE sentence; REMAND for

resentencing. 

4

 As we noted in United States v.

Garcia, "it would be manifestly unjust under

the circumstances to ignore the clear-cut,

mechanical application of Apprendi to

Defendant's prison sentence simply because

Defendant did not ask for all the relief for

which he was entitled." 242 F.3d at 599,

n.5.