United States v. Burton

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20395
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY JOE BURTON, JR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CR-36-3
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December 11, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Bobby Joe Burton, Jr., appeals his sentence on remand from a
jury trial and conviction for various drug trafficking offenses.
Burton argues that (1) the indictment failed to allege a drug
quantity in violation of Apprendi v. New Jersey, 530 U.S. 466
(2000); (2) 21 U.S.C. § 841(b) is unconstitutional; (3) the
sentence enhancement based on a prior felony drug conviction
violated Apprendi because the prior felony was not alleged in the
indictment; and (4) the sentence under the guidelines violated
Apprendi because the indictment did not allege a leadership role.
*
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that this opinion should not be published and is not precedent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. 01-20395
-2-
Although Burton’s indictment did not allege a drug quantity
or leadership role, he was not sentenced in excess of the 30-year
statutory maximum under 21 U.S.C. § 841(b)(1)(C). Consequently,
there was no Apprendi violation. United States v. Doggett, 230
F.3d 160, 166 (5th Cir. 2000), cert. denied, 121 S. Ct. 1152
(2001); United States v. Keith, 230 F.3d 784, 787 (5th Cir.
2000), cert. denied, 121 S. Ct. 1163 (2001). Apprendi does not
invalidate a court’s factual findings for purposes of determining
the applicable Sentencing Guidelines. Id. Likewise, the
indictment need not allege a prior felony conviction under
Apprendi. See Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998); see also United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000)(noting that the Supreme Court in Apprendi
expressly declined to overrule Almendarez-Torres), cert. denied,
121 S. Ct. 1214 (2001). The constitutionality of 21 U.S.C.
§ 841(b) has been upheld by this court. See United States v.
Slaughter, 238 F.3d 580 (5th Cir.), cert. denied, 121 S. Ct. 2015
(2001). Accordingly, Burton’s sentence is AFFIRMED.