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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 99-40844
Summary Calendar
___________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
MIKE SMITH, JR.,
Defendant - Appellant.
Appeal from the United States District Court for
the Eastern District of Texas
August 28, 2001
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.
PER CURIAM:
This case comes to us on remand from the Supreme Court for
further consideration in light of Apprendi v. New Jersey, 530
U.S. 46 (2000). Based on our conclusion that the district court
committed plain error in sentencing Smith under § 841(b)(1)(A)
rather than § 841(b)(1)(C), we vacate Smith's sentence and remand
for resentencing.
I.
A superseding indictment charged defendant Mike Smith, Jr.
with conspiracy to distribute cocaine and possession with intent

to distribute cocaine. Count one of the indictment charged that
Smith and others violated 21 U.S.C. § 841(a)(1) and § 846 when
they conspired to distribute an unspecified amount of cocaine
base. Count two of the indictment charged that Smith violated
§841(a)(1) when he possessed with intent to distribute cocaine
base. Neither count specified what penalty subsection of §
841(b) was applicable, but did provide that the applicable
penalty was not less than five years but not more than forty
years.
Shortly after the superseding indictment was filed, the
government filed, pursuant to 21 U.S.C. § 851, an "amended notice
and information of prior conviction for purpose of increased
punishment" regarding Smith. The notice provided that as Smith
had three prior convictions for drug related offenses, he was
subject to increased punishment under § 841(b)(1)(B). Section
841(b)(1)(B)(iii), 21 U.S.C., provides that any person who
commits a specified drug offense involving 5 grams or more of a
mixture containing cocaine base and who has a prior conviction
shall be sentenced to a term of imprisonment of not less than 10
years and not more than life.
Smith pled guilty to count two, the possession count, and
was found guilty following a jury trial on count one, the
conspiracy count. The district court followed the recommendation
of the presentence report and sentence Smith to a mandatory life
sentence under § 841(b)(1)(A) on count one and to 235 months of

imprisonment on count two, with the sentences to run
concurrently. Under § 841(b)(1)(A), any person who commits a
specified drug offense involving 50 grams or more of a mixture
containing cocaine base and who has two or more prior felony drug
convictions shall be sentenced to a mandatory sentence of life
imprisonment.
On appeal, Smith challenged his life sentence on two
grounds. This court rejected both arguments in an opinion filed
May 31, 2000. Smith filed a petition for writ of certiorari in
the Supreme Court. The Supreme Court granted Smith's petition
and remanded the case to this court for "further consideration in
light of Apprendi", which was decided after this court's original
decision. Smith v. United States, 121 S.Ct. 874 (2001).
II.
In Apprendi, the Supreme Court held that "other than the
fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to the jury, and proved beyond a reasonable doubt."
530 U.S. at 466. Accordingly, the government may not seek
enhanced penalties based on drug quantities under 21 U.S.C. §
841(b)(1)(A) or (B) unless that quantity is charged in the
indictment, submitted to the jury and proved beyond a reasonable
doubt. See United States v. Doggett, 230 F.3d 160, 164-65 (5th
Cir. 2000), cert. denied, 121 S.Ct. 1152 (2001). In this case,
the indictment contained no reference to drug quantity and the

question of drug quantity was not submitted to the jury. Thus,
the applicable statute is § 841(b)(1)(C), which provides for a
30-year maximum sentence for a defendant with a prior felony drug
conviction. United States v. Meshack, 225 F.3d 556 (5th Cir.
2000), cert. denied, 121 S.Ct. 834 (2001), amended in part on
rehearing by Meshack, 244 F.3d 367 (5th Cir. 2001). The
government concedes that § 841(b)(1)(C) is the correct statute to
apply to this case. However it argues that Smith is not entitled
to relief in this case under the plain error standard of review
because the evidence of drug quantity in excess of 5 grams of
crack cocaine was overwhelming. The plain error standard applies
because Smith did not raise these arguments in the district
court. United States v. Miranda, 248 F.3d 434, 443 (5th Cir.
2001).
We affirmed a sentence under the plain error standard in
United States v. Slaughter, but in Slaughter the indictment
contained an express allegation of the type and quantity of
controlled substance involved. Although the court did not
instruct the jury that the quantities were elements of the
offense on 3 of 4 counts, the record satisfied us that the jury
had the indictment in the jury room during deliberations and that
the government presented no evidence that could rationally lead a
jury to the conclusion that the quantity of drugs stated in the
indictment was not correct. United States v. Slaughter, 238 F.3d
580 (5th Cir. 2000). However, we decline to extend that holding

to the situation presented here, where neither the indictment nor
the jury instructions presented the issue of drug quantity to the
jury.
III.
Accordingly, we VACATE Smith's sentence and REMAND for
resentencing. On remand, the district court must resentence
Smith on count one pursuant to 21 U.S.C. § 841(b)(1)(C).
VACATED AND REMANDED.