United States v. Bates ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-40637
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEE BATES, also known as
Sally Bates, also known
as Minnie Lee Bates, also
known as Lee Ashley Bates,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
USDC No. C-00-CR-26-1
_________________________________________________________________
January 31, 2001
Before JOLLY, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
The assistant federal public defender who represents Lee Bates
filed a motion and supporting brief for leave to withdraw as
counsel pursuant to Anders v. California, 386 U.S. 738 (1967).
Bates has filed a response.
Our independent review of the appellate record and of the
possible issues raised by counsel and by Bates reveals no
*
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this opinion should not be published and is not precedent except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.
nonfrivolous issue. We nevertheless address the issues raised by
Bates.
Bates contends that her guilty plea is infirm under Fed. R.
Crim. P. 11 because the district court failed to inform her that,
by pleading guilty, she risked the loss of her social security
benefits. Under the literal language of Rule 11, the district
court is not required to ensure that a defendant understands this
possible collateral consequence from a guilty plea. Collateral
consequences of a guilty plea, such as civil disenfranchisement or
the possibility of deportation, need not be addressed during a Rule
11 colloquy as long as the defendant is informed of the critical
consequences from the plea. United States v. Osiemi, 980 F.2d 344,
349 (5th Cir. 1993); see United States v. Morse, 36 F.3d 1070, 1072
(11th Cir. 1994). No variance with the dictates of Rule 11 is
evident.
Bates contends that she entered her guilty plea unknowingly,
involuntarily, and with an unclear state of mind. Her answers at
rearraignment indicate the contrary.
Bates argues that the indictment was defective in the light of
Apprendi v. New Jersey, 120 S.Ct. 2348, 2362-63 (2000), which held
that “any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Under Apprendi, the quantity of
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drugs in a 21 U.S.C. § 841 prosecution is an element of the
offense, not a sentencing factor, which must be alleged in the
indictment and proved beyond a reasonable doubt. United States v.
Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000). However, “a fact
used in sentencing that does not increase a penalty beyond the
statutory maximum need not be alleged in the indictment and proved
to a jury beyond a reasonable doubt.” United States v. Keith, 230
F.3d 784, 787 (5th Cir. 2000). Section 841(b)(1)(B)(vii) requires
at least 100 kilograms of marijuana for a defendant to be subject
to a sentence from five years’ to forty years’ imprisonment.
Bates’s indictment alleged that she possessed more than 100
kilograms of marijuana and specifically alleged approximately 204
kilograms of marijuana.
Bates asserts that the indictment is defective because it
fails to allege the manner and means of the crime as well as
failing to allege any overt acts. Bates was not charged with
conspiracy but with possession with the intent to distribute over
100 kilograms of marijuana. “Generally, an indictment which
follows the language of the statute under which it is brought is
sufficient to give a defendant notice of the crime of which [s]he
is charged.” United States v. Ramirez, 233 F.3d 318, 323 (5th Cir.
2000). The indictment was not defective. See United States v.
Cabrera-Teran, 168 F.3d 141, 143 (5th Cir. 1999).
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Bates raises several challenges to her sentence. First, she
argues that the base offense level of 26 is error. She contends
that she should be responsible for only 85 pounds of marijuana, the
amount for which she was being paid to transport to Florida. The
relevant drug quantity determined by the district court, by
adopting the presentence report (PSR), is supported by the record
and is not clearly erroneous. See United States v. Maseratti, 1
F.3d 330, 340 (5th Cir. 1993).
Bates asserts that her criminal history category should have
been category I. This issue, raised for the first time on appeal,
is reviewed for plain error. See United States v. Meshack, 225
F.3d 556, 575 (5th Cir. 2000), petition for cert. filed, (Nov. 25,
2000) (No. 00-7246). No error, plain or otherwise, is detected.
See United States v. Calverley, 37 F.3d 160, 162-64 (1994) (en
banc).
Bates contends that she should have received home confinement.
Her failure to request it at sentencing results in review only for
plain error. See Meshack, 225 F.3d at 575. The defendant carries
the burden under plain error in demonstrating that the unobjected-
to error affected the defendant’s substantial rights. See United
States v. Olano, 507 U.S. 725, 734 (1993). Bates fails to carry
her burden.
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Bates contends that she should have received a reduction in
her sentence based on her substantial assistance. “Absent a motion
for downward departure made by the Government, a sentencing court
is without authority to grant a downward departure on the basis of
substantial assistance under [U.S.S.G.] § 5K1.1.” United States v.
Price, 95 F.3d 364, 367 (5th Cir. 1996). Because the government
retained in the plea agreement its discretion to determine whether
Bates had provided substantial assistance, the government’s failure
to move for a downward departure pursuant to U.S.S.G. § 5K1.1 is
not reviewable. See United States v. Solis, 169 F.3d 224, 226,
226-27 (5th Cir.), cert. denied, 528 U.S. 843 (1999).
Bates asserts that she was improperly denied bond. To the
extent that Bates challenges her detention, both pretrial and
before sentencing, her challenge is moot. To the extent that she
wants release pending this appeal, there is no nonfrivolous issue
for appeal.
In conclusion, the motion for leave to withdraw is GRANTED,
and counsel is excused from further responsibilities herein.
Bates’s appeal is DISMISSED. See 5TH CIR. R. 42.2.
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