* 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that this opinion should not be published and is not precedent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. 00-30263

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THERON DION BROWN,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 99-CR-60039-3

--------------------

March 26, 2001

Before DAVIS, JONES and DeMOSS, Circuit Judges.

PER CURIAM:*

Theron Dion Brown was indicted on various drug and firearms

charges and pleaded guilty to two counts: making a false

statement in connection with the acquisition of a firearm, 18

U.S.C. § 922(a)(6); and possession with intent to distribute less

than five grams of cocaine base, 21 U.S.C. § 841(a)(1). Brown

was sentenced to 121 months’ imprisonment: 120 months on the

firearm charge and 121 months on the drug-possession charge, both

sentences to run concurrently.
No. 00-30263

-2-

Brown argues that the district court erred by sentencing him

to the 120-month statutory maximum on the firearm count. The

combined offense level for both counts resulted in a range of

121-151 months’ imprisonment. However, because the statutory

maximum was less than the minimum of the applicable guideline

range, the statutory maximum became the guideline sentence. 

U.S.S.G. § 5G1.1(a). Because the statutory maximum on the

firearm count is ten years (or 120 months), the district court

did not err in sentencing Brown to 120 months on that count.

Brown also argues the district court erred by attributing

141.75 grams of cocaine base to him at sentencing based on the

allegedly unbelievable testimony of two witnesses. “If

information is presented to the sentencing judge with which the

defendant would take issue, the defendant bears the burden of

demonstrating that the information cannot be relied upon because

it is materially untrue, inaccurate or unreliable.” United

States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991). 

The district court stated that it did not believe Brown’s

testimony. Although Brown also attacked the general credibility

of the other witnesses, the only discrepancy Brown showed

involved the specific location from which the money wires used to

pay for cocaine base were sent; Brown did not show that any other

testimony regarding the money wires was “materially untrue.” See

Angulo, 927 F.2d at 205. Thus, there was no “clear error” in the

district court’s determination that a preponderance of the

evidence supported a finding that Brown had sent these money

wires to pay for cocaine base.
No. 00-30263

-3-

Brown argues that the “limited” view of Apprendi v. New

Jersey, 120 S.Ct. 2348, 2262-63 (2000), articulated by this court

results in constitutional violations because relevant conduct

determined only by a preponderance of the evidence standard is

used to severely enhance the sentences of those who plead guilty

or are convicted. In his own case, Brown argues that he pleaded

guilty only to possession of .01 grams of cocaine base and would

never have pleaded guilty to possession of 141.75 grams; Brown

argues he is being convicted of a crime he did not plead guilty

to, a crime that was never presented to a grand jury, and a crime

that was not proved beyond a reasonable doubt.

However, Brown admits that prior decisions of the court

foreclose this argument. In United States v. Doggett, 230 F.3d

160 (5th Cir. 2000), this court said that if enhanced penalties

based on the amount of drugs are sought under 21 U.S.C. 

§ 841(b)(1)(A) or (B), the amount must be stated in the

indictment and submitted to the trier of fact for a finding of

proof beyond a reasonable doubt. Id. at 164-65. However, if an

amount is not alleged in the indictment, a sentence of less than

the maximum provided by 21 U.S.C. § 841(b)(1)(C), the “baseline”

subsection which does not require any particular drug amount,

does not violate Apprendi. Id. at 165. Brown was convicted

under 21 U.S.C. § 841(b)(1)(C), which provides a maximum penalty

of twenty years, or 240 months’ imprisonment; because his

sentence of 121 months is less than that statutory maximum,

Apprendi does not apply.

AFFIRMED.