1 Pursuant to 5 TH C IR

. 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opinion should not be published and is not precedent except under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 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

November 8, 2002

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 00-41183

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RAY ANTHONY CRUZ; MARCUS CRUZ,

Defendants-Appellants.

Appeal from the United States District Court

For the Southern District of Texas

November 8, 2002

Before DAVIS, BARKSDALE and DENNIS, Circuit Judges.

PER CURIAM: 1

Ray and Marcus Cruz challenge their convictions and sentences

on drug trafficking charges on s everal grounds all related to the

government’s failure to allege in the indictment the drug quantities

involved in the offenses.

The only Apprendi v. New Jersey

, 530 U.S. 466 (2000) error that2

occurred was in relation to the drug conspiracy charge. The court

properly im p osed prison sentences within the limit provided in 18

U.S.C. § 841(b)(l)(C), the baseline sentencing provision for cocaine

related offenses. However, the five year term of supervised release

the court imposed ex ceeds the baseline maximum sentence of three

years. S ee United States v. Doggett

, 230 F.3 d 160, 165 n.2. (5 t h

Cir. 2000). We must therefore reduce the term of supervised release

from five years to three years to bring the sentence within the

baseline sentencing limit. As modified, the sentence complies with

Apprendi and U.S. v. Cotton , 122 S.Ct. 1781 (2002).

Appellants also argue that b e cause the indictment failed to

allege drug quantities, it did not state an offense. We agree with

the gov e rnment that the indictment stated an offense. See Cotton

.

The effect of the government’s failure to allege drug quantities in

the indictment was to limit appellants’ sentences to the penalty

provided in 18 U.S.C. § 841(b)(l)(C) and (D).

Neither did the district court err i n denying the Cruzes’

motion for a bill of particulars. The district court’s decision on

this iss ue is reviewed for abuse of discretion. To prevail the

Cruzes must establish that the denial caused surprise at trial and

resulted in prejudice to substantial rights. U nited States v.

Moody

, 923 F.2d 341, 351 (5th Cir. 1991). Appellants do not allege

surprise or any specific harm they suffered from the court’s ruling.

When the information sought by the bill is made av ailable to the

defendants in other ways, for example by the use of “open file”3

discovery as was done in this case, the district cour t need not

order the b ill. U nited States v. Vasquez

, 867 F.2d 872, 874 (5th

Cir. 1989).

The Cruzes also argue that the distric t court constructively

amended their indictments by instructing the jury to make specific

findings as to the quantity of drugs involved in the conspiracy.

“A constructive amendment occurs when the jury is permitted to

convict the defendant upon a factual basis that effectively modifies

an essential elemen t of the offense charged.” U nited States v.

Holley , 23 F.3d 902, 912 (5 t h Cir. 1994)(internal quotation an d

citation omitted). A constructive amendment violates the defendants

right under the Fifth Amendment to a grand jury indictment.

But once appellants’ sentences are corrected to come within the

penalty provided by the baseline provisions, the findings of drug

quantity by the jury are surplusage. Even if the findings of the

jury amount to an amendment of the indictment, so long as the

sentence does not depend on those findings, the error is harmless.

F.R.C.P. 52(a); Neder v. United States , 527 U.S. 1 (1999).

We therefore affirmthe appellants’ convictions. We also

affirm appellants’ sentences, exce p t to modify the terms of their

supervised release from five years to three years.

AFFIRMED as modified.