United States v. Lora , 26 F. App'x 149 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4559
WILFREDO GONZALEZ LORA,
Defendant-Appellant.

On Remand from the United States Supreme Court.
(S. Ct. No. 00-6354)
Submitted: October 24, 2001
Decided: December 13, 2001
Before WILKINS, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Joseph N. Bowman, Alexandria, Virginia, for Appellant. Thomas
More Hollenhorst, Assistant United States Attorney, Alexandria, Vir-
ginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. LORA
OPINION
PER CURIAM:
This case is on remand from the United States Supreme Court for
further consideration in light of Apprendi v. New Jersey, 530 U.S.
466, 490 (2000) (holding that "[o]ther than the fact of a prior convic-
tion, any fact that increases the penalty for a crime beyond the pre-
scribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt"). The Court decided Apprendi after a jury
convicted Wilfredo Gonzalez Lora of conspiracy to distribute and
possess with intent to distribute heroin and cocaine, in violation of 21
U.S.C.A. § 846 (West 1999), the district court sentenced him to a
292-month term of incarceration, and we affirmed the denial of his
motion for a new trial. United States v. Lora, No. 99-4559 (4th Cir.
Mar. 15, 2000) (unpublished), vacated, 121 S. Ct. 1071 (2001). We
grant Lora’s motion to file a pro se supplemental brief, and, after
reviewing his sentence for plain error in light of Apprendi, we affirm.
See United States v. Promise, 255 F.3d 150, 154 (4th Cir. 2001) (en
banc) (discussing plain error standard of review), petition for cert.
filed, Sept. 20, 2001 (No. 01-6398).
In applying Apprendi to drug offenses in § 846 and 21 U.S.C.A.
§ 841 (West 1999 & Supp. 2001), we recently held that "the specific
threshold [drug] quantity must be treated as an element of an aggra-
vated drug trafficking offense, i.e., charged in the indictment and
proved to the jury beyond a reasonable doubt." Promise, 255 F.3d at
156-57 (footnotes omitted). Here, drug quantity was charged in the
indictment but not submitted to the jury. We therefore find that there
was error and that the error was plain. Id. at 156-57, 160.
Although we find plain error, a defendant’s substantial rights are
not affected by the "failure to submit drug quantity to the jury . . . if
the trial produced ‘uncontested and overwhelming evidence’ of drug
quantity sufficient to sustain the sentence." United States v. Montgom-
ery, 262 F.3d 233, 252 (4th Cir. 2001) (quoting United States v. Stew-
art, 256 F.3d 231, 253 (4th Cir. 2001)), petition for cert. filed, Oct.
11, 2001 (No. 01-6767). Our review of the trial testimony discloses
that Lora received more than 600 kilograms of cocaine—120 times
the threshold amount necessary to sustain a sentence under 21
UNITED STATES v. LORA 3
U.S.C.A. § 841(b)(1)(A) (providing for ten-year-to-life sentence for at
least five kilograms of cocaine). Lora contends that the evidence was
not overwhelming because the Government’s witnesses’ testimony
was fabricated, but the trial testimony refutes his contention.
In addition, although Lora objected to drug quantity at sentencing
on the ground that the Government’s witnesses did not provide spe-
cific amounts or dates for the drug transactions, Lora did not dispute
that "there [were] a lot of drugs floating around." (Supplemental App.
at 5). We therefore find that Lora did not genuinely contest that the
amount of cocaine exceeded the five-kilogram threshold amount in
§ 841(b)(1)(A) and, therefore, that the evidence was uncontested. See
Montgomery, 262 F.3d at 252 & n.10; Stewart, 256 F.3d at 253 &
n.17. Because the evidence at trial was overwhelming and uncon-
tested, we hold, following Montgomery and Stewart, that the court’s
failure to submit drug quantity to the jury did not affect Lora’s sub-
stantial rights and that Lora is not entitled to resentencing after
Apprendi.
Lora also raises several other claims in his pro se supplemental
brief, none of which has merit. Contrary to Lora’s contention that the
indictment was constructively amended by the Government and the
district court, Lora’s claims are belied by the record. With regard to
his claims that the district court erred in submitting a general verdict
form to the jury* and violated his Fifth Amendment rights by submit-
ting the superseding indictment to the jury with the overt acts
redacted, we find that his claims are foreclosed by the mandate rule.
See United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993).
Accordingly, we affirm Lora’s conviction and 292-month sentence.
We deny Lora’s motion for clarification, motion requesting briefs
from other cases, and motion to file a courtesy copy of a motion he
filed in the district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
*See United States v. Rhynes, 196 F.3d 207 (4th Cir. 1999), vacated
in part on other grounds, 218 F.3d 310 (4th Cir.) (en banc), and cert.
denied, 530 U.S. 1222 (2000).