United States v. Rhea ( 2003 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                 October 22, 2003
    Charles R. Fulbruge III
    Clerk
    No. 03-30204
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    PAUL EDWARD RHEA, also known as Carlos Olmedo,
    also known as Country,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Western District of Louisiana
    USDC No. 02-CR-50045-ALL
    --------------------
    Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
    PER CURIAM:*
    Paul Edward Rhea, a/k/a Carlos Olmedo, a/k/a Country,
    appeals his sentence following a guilty plea for distribution of
    five grams or more of methamphetamine in violation of 
    21 U.S.C. § 841
    (a)(1).   Rhea argues that under the reasoning of Apprendi v.
    New Jersey, 
    530 U.S. 466
    , 490 (2000), his base offense level for
    sentencing purposes should have been determined with reference
    only to the drug quantity alleged in count one of his indictment,
    *
    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    that this opinion should not be published and is not precedent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. 03-30204
    -2-
    the count to which he pleaded guilty.     Rhea acknowledges that his
    argument is foreclosed by this court’s precedent but raises it to
    preserve the issue for possible Supreme Court review.
    Rhea does not dispute that his 135-month prison term and
    five-year term of supervised release are within the statutory
    maximum for his offense.   See 
    21 U.S.C. § 841
    (b)(1)(B)(viii); 
    18 U.S.C. §§ 3559
    (a)(2), 3583(b)(1).   Because Rhea’s sentence is
    within the statutory maximum, Apprendi is not implicated.     See
    United States v. Fort, 
    248 F.3d 475
    , 483 (5th Cir. 2001)
    (Apprendi not implicated where sentence was within relevant range
    for drug quantity alleged in indictment and stipulated to by
    defendant).   This court “has expressly rejected the argument that
    Apprendi applies to enhancements based upon the sentencing
    guidelines, whether tied to quantity or some other relevant fact,
    which do not cause the sentence to exceed the statutory range.”
    United States v. Clinton, 
    256 F.3d 311
    , 314 (5th Cir. 2001) (jury
    trial).
    AFFIRMED.
    

Document Info

Docket Number: 03-30204

Judges: King, Jolly, Stewart

Filed Date: 10/21/2003

Precedential Status: Non-Precedential

Modified Date: 10/19/2024