United States v. Mouton ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30077
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT JAY MOUTON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 00-CR-20030-8
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September 4, 2001
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Robert Jay Mouton appeals the sentence imposed following his
guilty-plea conviction for distribution of cocaine base in
violation of 21 U.S.C. § 841. The district court’s application
of the sentencing guidelines is reviewed de novo and its factual
findings are reviewed for clear error. See United States v.
Mitchell, 166 F.3d 748, 751 (5th Cir. 1999).
Mouton argues that the consideration of additional drug
amounts not alleged in the indictment or proven beyond a
reasonable doubt led to an increase in his sentence in violation
*
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that this opinion should not be published and is not precedent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.
No. 01-30077
-2-
of Apprendi v. New Jersey, 530 U.S. 466 (2000). Mouton pleaded
guilty pursuant to 21 U.S.C. § 841(b)(1)(C), which provides for a
maximum penalty of 20 years’ imprisonment; Mouton was sentenced
to only 188 months’ imprisonment. Even if no drug amount had
been alleged in the indictment, a sentence which is less than the
statutory maximum provided by 28 U.S.C. § 841(b)(1)(C), the
“baseline” subsection, which does not specify any particular drug
amount, does not violate Apprendi. See United States v. Doggett,
230 F.3d 160, 165 (5th Cir. 2000), cert. denied, 121 S. Ct. 1152
(2001). We have also held that “[f]actual determinations made by
a district court, based on a preponderance of the evidence,
concerning drug amounts that simply dictate a sentence within the
statutorily allowed range are not called into question by
Apprendi.” United States v. Miranda, 248 F.3d 434, 444 (5th Cir.
2001).
Mouton also argues that the district court’s factual
findings regarding additional drug amounts were “clearly
erroneous.” Factual findings are not clearly erroneous so long
as they are “plausible in light of the record read as a whole.”
United States v. Whitlow, 979 F.2d 1008, 1011 (5th Cir. 1992).
Based on our review of the record, no error, clear or otherwise,
was made by the district court.
AFFIRMED.