United States v. Smith

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 15, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-30103
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMIE SMITH,
also known as Papoose,
also known as Pap,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 01-CR-50070-2
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jamie Smith appeals his conviction and 360-month sentence
for conspiracy to possess with intent to distribute specified
quantities of cocaine and crack cocaine, and an unspecified
amount of marijuana and ecstasy. He contends that his sentence
was improperly increased under Blakely v. Washington, 124 S. Ct.
2531, 2537 (2004), due to relevant-conduct drug quantity and his
role in the conspiracy, factors not specifically alleged in his

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No. 04-30103
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indictment. As he concedes, this contention is foreclosed by
United States v. Pineiro, 377 F.3d 464, 466 (5th Cir. 2004),
petition for cert. filed, (U.S. July 14, 2004) (No. 04-5263).
Smith also contends that his sentence was improperly
increased due to prior felony convictions that were not alleged
in his indictment. As Smith concedes, this contention is also
foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224
(1998); Apprendi v. New Jersey, 530 U.S. 466 (2000).
Smith contends that a $100 special assessment was wrongly
imposed on Count 24 of his indictment. The Government concedes
that Count 24 is not a count of conviction but that it merely
advised Smith of the possibility of an increased sentence based
on a prior state felony conviction. See 21 U.S.C. § 851; 18
U.S.C. § 3013(a).
The judgment is AFFIRMED in all respects except for the
imposition of the $100 special assessment on Count 24. That part
of the judgment is MODIFIED to reflect a conviction on Count 1
only and a special assessment of only $100. Any money paid by
Smith toward the erroneous special assessment should be refunded.
AFFIRMED IN PART; MODIFIED IN PART.

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