United States v. Burton

Opinion

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.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-97-CR-36-3 - - - - - - - - - - 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.