	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

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
Vasquez-Zamora appeals his sentence
Judges, and FALLON, District Judge.*
arguing that the district court erred in
imposing an enhanced penalty based on drug
FALLON, District Judge:
quantity because the drug quantity was not
alleged in the indictment. We vacate and
remand for resentencing.
I.
*
On October 26, 1998, Border Patrol
District Judge of the Eastern
agents arrested Anastacio Vasquez-Zamora
District of Louisiana, sitting by designation.
1

after discovering marijuana in the pickup
him to sixty-five months imprisonment and a
truck he was driving. He was charged in a
five year term of supervised release.
two count indictment. Count One charged
Vasquez now appeals his sentence.
him with possession with intent to distribute
II.
marijuana in violation of 21 U.S.C. §
Vasquez challenges his sentence under
841(a)(1) and § 841(b)(1)(B), and Count
Apprendi v. New Jersey, 530 U.S. 466, 120
Two charged him with conspiracy to possess
S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its
with intent to distribute marijuana in
progeny in this Circuit. He argues that the
violation of title 21 U.S.C. § § 841(a)(1),
district court improperly sentenced him to a
841(b)(1)(B), and 846. Although the
term of supervised release based on an
indictment referenced section 841(b)(1)(B)
enhanced penalty because the government
to indicate an aggravated drug quantity, it
failed to state a quantity of drugs in the
did not state a specific quantity of marijuana.
indictment and prove it beyond a reasonable
Vasquez pled guilty to both counts pursuant
doubt to a jury. Without any enhancement
to a plea agreement on December 20, 1999.2
for drug quantity, the appropriate term of
The presentence report stated that
supervised release would not exceed three
Vasquez was responsible for 105 kilograms
years and the period of incarceration would
of marijuana and recommended an enhanced
not be greater than five years. See 21 U.S.C.
statutory penalty of five to forty years
§ 841(b)(1)(D); United States v. Garcia, 242
imprisonment and a five year term of
F.3d 593, 599 (5th Cir. 2001).
supervised release because the offense
Because Vasquez raises an Apprendi
involved more than 100 kilograms of
issue for the first time on appeal, we review
marijuana. Vasquez objected to the
his sentence for plain error. See United
recommendation for an enhanced penalty
States v. Miranda, No. CIV.A. 98-11183,
arguing that the government used an
2001 WL 388088, at *5 (5th Cir. April 17,
unreliable method for weighing the
2001); United States v. Meshack, 225 F.3d
marijuana.3
556, 576 (5th Cir. 2000). Plain error requires
Finding by a preponderance of the
Vasquez to show "(1) an error; (2) that is
evidence that the offenses involved 105
clear or plain; (3) that affects the defendant's
kilograms of marijuana, the district court
substantial rights; and (4) that seriously
overruled Vasquez's objection and sentenced
affects the fairness, integrity or public
reputation of judicial proceedings." Meshack,
225 F.3d at 576 (quoting United States v.
2 Both parties agree that the plea
Vasquez, 216 F.3d 456, 459 (5th Cir. 2000)).
agreement does not preclude Vasquez from
A.
appealing his sentence on the basis that it
Vasquez and the government agree that
exceeds the statutory maximum.
the five year term of supervised release was
erroneous. See Appellee's Br. at 12. In
3 The government explains that
United States v. Doggett, we held that "if the
Vasquez dismissed this objection at
government seeks enhanced penalties based
sentencing. See Appellee's Br. at 6.
on the amount of drugs under 21 U.S.C. §
Whether or not presented to the district
841(b)(1)(A) or (B), the quantity must be
court, Vasquez does not raise this issue on
stated in the indictment and submitted to a
appeal.
2

jury for a finding of proof beyond a
841(b)(1)(D). See Garcia, 242 F.3d at 600
reasonable doubt." 230 F.3d 160, 165 (5th
(reducing sentence to sixty months when
Cir. 2000). Because Vasquez's five year
marijuana amount was neither stated in the
term of supervised release represents an
indictment nor proved to a jury).
enhanced penalty under 21 U.S.C. §
The government concedes that Vasquez's
841(b)(1)(B), but a quantity of drugs was
sixty-five month prison term violates
not stated in the indictment or submitted to a
Apprendi, but it argues that the error is
jury for a finding of proof beyond a
harmless because the district court could
reasonable doubt, we find plain error in
have imposed consecutive rather than
Vasquez's sentence. See id.
concurrent terms of imprisonment pursuant
We correct plain error only if that error
to section 5G1.2(d) of the U.S. Sentencing
seriously affects the fairness of the judicial
Guidelines.
proceedings and if correcting it would result
While the district court could have
in a significantly reduced sentence for the
imposed consecutive prison terms for each
defendant. See Miranda, 2001 WL 388088,
count of the indictment, it found concurrent
at *6. In this case, Vasquez is entitled to a
terms of sixty-five months incarceration for
corrected sentence because he may receive a
both counts appropriate punishment for
term of supervised release between two and
Vasquez. Because the district court has
three years. See 18 U.S.C. § 3583(b)(2);
discretion under the applicable statutes and
U.S. Sentencing Guidelines Manual §
sentencing guidelines to fashion a penalty
5D1.2(a)(2) (indicating a term of two to
that combines terms of imprisonment with
three years supervised release). Accordingly,
periods of supervised release, we vacate
we vacate Vasquez's term of supervised
Vasquez's prison term and remand it for
release and remand for resentencing.
resentencing with his term of supervised
B.
release.
We also recognize that Vasquez's
III.
sentence of sixty-five months imprisonment
For the foregoing reasons, we VACATE
is erroneous under Apprendi even though he
Vasquez's entire sentence and REMAND to
does not raise this issue on appeal.4 Because
the district court for resentencing consistent
the government failed to state a quantity of
with this opinion.
drugs in the indictment and prove it beyond a
reasonable doubt to a jury, Vasquez could be
VACATE sentence; REMAND for
sentenced to no more than sixty months on
resentencing.
each count pursuant to 21 U.S.C. §
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.
3