United States v. Vasquez-Zamora

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

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

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

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