United States v. Cruz ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit November 8, 2002
Charles R. Fulbruge III
Clerk
No. 00-41183
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RAY ANTHONY CRUZ; MARCUS CRUZ,
Defendants-Appellants.
Appeal from the United States District Court
For the Southern District of Texas
November 8, 2002
Before DAVIS, BARKSDALE and DENNIS, Circuit Judges.
PER CURIAM:1
Ray and Marcus Cruz challenge their convictions and sentences
on drug trafficking charges on several grounds all related to the
government’s failure to allege in the indictment the drug quantities
involved in the offenses.
The only Apprendi v. New Jersey, 530 U.S. 466 (2000) error that
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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opinion should not be published and is not precedent except under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.
occurred was in relation to the drug conspiracy charge. The court
properly imposed prison sentences within the limit provided in 18
U.S.C. § 841(b)(l)(C), the baseline sentencing provision for cocaine
related offenses. However, the five year term of supervised release
the court imposed exceeds the baseline maximum sentence of three
years. See United States v. Doggett, 230 F.3d 160, 165 n.2. (5th
Cir. 2000). We must therefore reduce the term of supervised release
from five years to three years to bring the sentence within the
baseline sentencing limit. As modified, the sentence complies with
Apprendi and U.S. v. Cotton, 122 S. Ct. 1781 (2002).
Appellants also argue that because the indictment failed to
allege drug quantities, it did not state an offense. We agree with
the government that the indictment stated an offense. See Cotton.
The effect of the government’s failure to allege drug quantities in
the indictment was to limit appellants’ sentences to the penalty
provided in 18 U.S.C. § 841(b)(l)(C) and (D).
Neither did the district court err in denying the Cruzes’
motion for a bill of particulars. The district court’s decision on
this issue is reviewed for abuse of discretion. To prevail the
Cruzes must establish that the denial caused surprise at trial and
resulted in prejudice to substantial rights. United States v.
Moody, 923 F.2d 341, 351 (5th Cir. 1991). Appellants do not allege
surprise or any specific harm they suffered from the court’s ruling.
When the information sought by the bill is made available to the
defendants in other ways, for example by the use of “open file”
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discovery as was done in this case, the district court need not
order the bill. United States v. Vasquez, 867 F.2d 872, 874 (5th
Cir. 1989).
The Cruzes also argue that the district court constructively
amended their indictments by instructing the jury to make specific
findings as to the quantity of drugs involved in the conspiracy.
“A constructive amendment occurs when the jury is permitted to
convict the defendant upon a factual basis that effectively modifies
an essential element of the offense charged.” United States v.
Holley, 23 F.3d 902, 912 (5th Cir. 1994)(internal quotation and
citation omitted). A constructive amendment violates the defendants
right under the Fifth Amendment to a grand jury indictment.
But once appellants’ sentences are corrected to come within the
penalty provided by the baseline provisions, the findings of drug
quantity by the jury are surplusage. Even if the findings of the
jury amount to an amendment of the indictment, so long as the
sentence does not depend on those findings, the error is harmless.
F.R.C.P. 52(a); Neder v. United States, 527 U.S. 1 (1999).
We therefore affirm the appellants’ convictions. We also
affirm appellants’ sentences, except to modify the terms of their
supervised release from five years to three years.
AFFIRMED as modified.
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