United States v. Gonzalez ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41300
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-00-CR-110-3
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October 25, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Anthony Gonzalez appeals the 235-month sentence and five-
year term of supervised release imposed following his guilty plea
to Count One of the superseding indictment. Gonzalez contends
that the district court did not admonish him in accordance with
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that the
quantity of methamphetamine was an element of the offense that
the Government had to prove beyond a reasonable doubt. Gonzalez
contends also that the district court’s finding that he did not
withdraw from the conspiracy was clearly erroneous.
*
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that this opinion should not be published and is not precedent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. 00-41300
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Apprendi requires the reversal of a conviction “only in
those cases where a sentence exceeds the statutory maximum.”
United States v. Salazar-Flores, 238 F.3d 672, 673 (5th Cir.
2001) (citation omitted).
Gonzalez concedes that he pleaded guilty to Count One of
the superseding indictment that charged him with conspiracy to
possess with intent to distribute “more than five hundred (500)
grams of a mixture or substance containing methamphetamine,” in
violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(A), and
21 U.S.C. § 846. Section 841(b)(1)(A), 21 U.S.C., provides that
a person convicted for involvement with 500 grams or more of a
mixture or substance containing a detectable amount of
methamphetamine shall be imprisoned to a minimum term of ten
years’ imprisonment and a maximum term of life imprisonment.
Gonzalez’s 235-month term of imprisonment is within the statutory
maximum and does not violate Apprendi. See Salazar-Flores, 238
F.3d at 674. Gonzalez’s maximum penalty of life imprisonment
subjected him to a five-year term of supervised release. See 18
U.S.C. § 3559(a)(1); 18 U.S.C. § 3583(b)(1).
Gonzalez bore the burden of showing that the information on
which the court relied at sentencing is “materially untrue.”
See United States v. Ocana, 204 F.3d 585, 593 (5th Cir. 2000)
(internal quotation and citation omitted). Gonzalez has not
shown that the district court’s determination of his credibility
and its finding that he did not withdraw from the conspiracy were
clearly erroneous. See Ocana, 204 F.3d at 593; United States v.
No. 00-41300
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Hill, 42 F.3d 914, 916 (5th Cir. 1995). Accordingly, the
judgment of the district court is AFFIRMED.