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United States v. Vise , 21 F. App'x 827 ( 2001 )


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  •                                                                         F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 17 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 01-6028
v.                                            (Western District of Oklahoma)
(D.C. No. 98-CR-81-M)
EWING HIRATA VISE,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY, BRISCOE, and MURPHY, Circuit Judges.
I. INTRODUCTION
Appellant Ewing Hirata Vise pleaded guilty to drug and firearm charges.
Vise challenges his sentencing under the United States Sentencing Guidelines on
the ground that Apprendi v. New Jersey requires all facts relevant to sentencing
under the guidelines be submitted to a jury and proved beyond a reasonable doubt.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Because a panel of this court has already rejected the applicability of Apprendi to
the Sentencing Guidelines, we affirm the sentence.
II. FACTS
Ewing Hirata Vise pleaded guilty to manufacturing methamphetamine, in
violation of
    21 U.S.C. § 841
    (a)(1) and
    18 U.S.C. § 2
    , and possession of a firearm
as a felon, in violation of
    18 U.S.C. § 922
    (g)(1). On the drug count, he was given
a life sentence under the mandatory sentencing provisions of
    21 U.S.C. § 841
    (b),
in part based on the quantity of drugs involved in prior drug convictions. Mr.
Vise received a concurrent ten year sentence on the firearm count.
Vise appealed the sentence. During the pendency of the appeal, this court
decided in United States v. Santos that the mandatory sentencing provisions of
    21 U.S.C. § 841
    (b) apply only by consideration of the drug amount for the current
conviction, not “relevant conduct” drug quantities.
    195 F.3d 549
     (10th Cir. 1999).
Vise’s drug sentence was vacated and the case remanded to the district court for
resentencing. United States v. Vise,
    211 F.3d 1279
    ,
    2000 WL 485174
     (10th Cir.
2000) (unpublished).
Just after remand, the United States Supreme Court issued its opinion in
Apprendi v. New Jersey,
    120 S.Ct. 2348
     (2000). Apprendi held that “any fact
which increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to the jury, and proved beyond a reasonable doubt.” 120 S.Ct.
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at 2362. The district court ordered briefing on the impact of Apprendi on Vise’s
sentencing. Vise did not provide the district court with briefing.
The district court resentenced Vise. The guideline sentence range was 155-
188 months. Vise received 188 months in prison and 6 years supervised release
on the drug charge.
Vise contends that Apprendi requires that any factor which increases his
guideline sentence range be alleged in the indictment, submitted to the jury, and
proved beyond a reasonable doubt.
III. DISCUSSION
Vise did not present this argument to the district court. Normally, failing to
make below a specific objection to sentencing precludes appellate review. United
States v. Gilkey,
    118 F.3d 702
    , 704 (10th Cir. 1997). Because, however, the
applicability of Apprendi to the sentencing guidelines is “‘a legal question
involving application’” of the guidelines, we review the sentence for plain error.
    Id.
     (quoting United States v. Ciaponi,
    77 F.3d 1247
    , 1252 (10th Cir. 1996)).
In United States v. Sullivan, this court held that Apprendi “does not apply
to sentencing factors that increase a defendant’s guideline range but do not
increase the statutory maximum.”
    255 F.3d 1256
    , 1265 (10th Cir. 2001). Vise
concedes that Sullivan is dispositive, but wishes to raise the question of the
applicability of Apprendi to preserve the issue for appeal to the United States
-3-
Supreme Court. This panel can not overrule circuit precedent. Berry v. Stevinson
Chevrolet,
    74 F.3d 980
    , 985 (10th Cir. 1996). Accordingly, the sentence was not
in error.
The sentence imposed by the United States District Court for the Western
District of Oklahoma is AFFIRMED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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