United States v. Amos ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30259
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK E. AMOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 98-CR-146-1-R
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December 19, 2000
Before DAVIS, JONES, & DeMOSS, CIRCUIT JUDGES.
PER CURIAM:*
Mark E. Amos has appealed the sentence he received on his
guilty plea of conspiracy to possess cocaine with intent to
distribute it, and possession of marijuana with intent to
distribute it. Amos received two concurrent 238-month prison
sentence, five years of supervised release for the cocaine offense,
and a three-year concurrent supervised-release term for the
marijuana offense; he also was fined $10,000. We MODIFY Amos’s
five-year supervised-release term by reducing it to three
years. In all other respects, the district court’s judgment
is AFFIRMED.
*
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that this opinion should not be published and is not precedent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. 00-30259
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Amos contends that the district court reversibly erred by
imposing a five-year supervised-release term on Count 2, the
cocaine conspiracy, because it exceeds the statutory maximum for
the offense. The Government agrees that this court should reduce
the term to three years. No objection was raised in the district
court to this portion of Amos’s sentence. However, this court
corrects overlong terms of supervised release under plain-error
review. United States v. Meshack, 225 F.3d 556, 578 (5th Cir.
2000).
As in Meshack, Amos’s indictment does not allege any
quantity of cocaine as having been the subject of the Count 2
conspiracy. Accordingly, the Meshack court held that it was
necessary to reduce the defendants’ supervised-release “terms to
the maximum allowable by statute for crack cocaine possession which
does not require some showing of drug amount, which for both
defendants is three years.” 225 F.3d at 578.
The Meshack court relied on “18 U.S.C. § 3583(b)(2)
(providing, in the default supervised release statute, for a term
of supervised release of ‘not more than three years’ for Class C
felonies); 21 U.S.C. § 841(b)(1)(C) (providing for ‘a term of
supervised release of at least 3 years’);” and United States v.
Kelly, 974 F.2d 22, 24-25 (5th Cir. 1992). Meshack, 225 F.3d at
578.
Amos’s cocaine offense, with no allegation of quantity in
the indictment, is a Class C felony, because it is punishable by a
prison term of no more than 20 years. See 21 U.S.C. §§ 841(b)(1)(C)
and 846; 18 U.S.C. §§ 3583(b)(2) and 3559(a)(3). On similar facts,
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this court recently modified a defendant’s supervised-release term
“to the statutorily mandated three-year term.” United States v.
Doggett,___ F.3d ___, ___ n.2 (5th Cir. Oct. 6, 2000, No. 99-
50380), 2000 WL 1481160 at *4. Therefore, this court now reduces
Amos’s supervised-release term on Count 2 to three years.
Amos contends that the district court reversibly erred in
calculating the quantity of cocaine attributable to him for the
purpose of determining his base offense level under the sentencing
guidelines. He asserts that “[t]he only amount of cocaine which
the conspirators themselves intended to purchase and the only
amount that they were reasonably able to purchase was the single
kilogram they attempted to buy on March 17, 1999.”
“The district court’s determination of the amount of
drugs attributable to a defendant is a finding of fact reviewed for
clear error.” United States v. Posada-Rios, 158 F.3d 832, 878 (5th
Cir. 1998). “Findings of the district court after an evidentiary
hearing, including credibility choices made by the district court,
are reviewed by this court under a clearly erroneous standard.”
Id. at 866. The court has also stated: “We will not second guess
the district court’s factual findings as to the credibility of
witnesses.” United States v. Garza, 118 F.3d 278, 283 (5th Cir.
1997). Moreover, “the defendant[-appellant] has the burden of
showing that information that the district court relied on in
sentencing is materially untrue.” United States v. Puig-Infante,
19 F.3d 929, 943 (5th Cir. 1994).
The district court’s reasons for its finding of the
cocaine quantity are supported by the report of the undercover
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agent as stated in the PSR, and to a considerable extent by Amos’s
own testimony at his sentencing hearing.
Amos relies on this quotation from United States v.
Mergerson, 4 F.3d 337, 346 (5th Cir. 1993): “Mere proof of the
amounts ‘negotiated’ with the undercover agents . . . would not
count toward the quantity of heroin applicable to the conspiracy
count.” Amos argues that “[t]he conspirators in this case [Amos
and Searls] only intended to purchase one kilogram and were only
reasonably capable of purchasing one kilogram.”
Amos’s argument lacks merit because it assumes that he
and Searls were the only conspirators. The indictment charges that
these two conspired with each other “and with others known and
unknown to the grand jury.” The undercover agent stated that
during the course of the negotiations, Amos referred to others with
whom he was conspiring to obtain cocaine from the agent. This
included one person with $100,000; also Amos’s representation that
he had buyers waiting for the cocaine. Accordingly, the district
court’s finding that at least five kilograms of cocaine was
attributable to Amos is not clearly erroneous.
The district court’s judgment is MODIFIED by reducing
Amos’s supervised-release term on Count 2 to three years. In all
other respects the district court’s judgment is AFFIRMED.
AFFIRMED AS MODIFIED.