IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-30557 Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
EUGENE TROY ELLIS
Defendant - Appellant
-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 99-CR-161-ALL-J -------------------- January 23, 2001
Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
A jury convicted Eugene Troy Ellis on all three counts of an
indictment charging him with being a felon in possession of a
firearm, possession with intent to distribute cocaine, and using
a firearm in connection with a drug-trafficking crime. The
district court sentenced Ellis to 120 months’ imprisonment on
Count 1, 240 months on Count 2, and 60 months on Count 3, the
last to run consecutively to the other two terms. The court also
sentenced Ellis to three years of supervised release on Counts 1
and 3 and five years of supervised release on Count 2. The five-
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-30557 -2-
year term of supervised-release was based on drug quantity
pursuant to 21 U.S.C. § 841(b)(1)(a). The district court sua
sponte increased Ellis’s offense level by two points for
obstruction of justice, based on a finding that Ellis committed
perjury when he testified on his own behalf at trial. On
appeal, Ellis challenges the five-year term of supervised release
and the two-level increase for obstruction of justice.
Ellis argues that the five-year term of supervised release
exceeds the statutory maximum term and therefore is improper
under Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000),
because the sentence was based on a drug amount that was neither
set forth in the indictment nor found by the jury beyond a
reasonable doubt. Ellis concedes that his trial counsel did not
object to the five-year term and that his claim is therefore
subject only to “plain error” review. See United States v.
Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc); United
States v. Meshack, 225 F.3d 556, 575 (5th Cir. 2000), petition
for cert. filed, (U.S. Nov. 26, 2000) (No. 00-7246).
On “plain error” review, this court may correct forfeited
errors only when the appellant shows that (1) there is an error
(2) that is clear or obvious and (3) that affects his substantial
rights. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.
725, 731-37 (1993); Calverley, 37 F.3d at 162-64. If these
factors are established, the decision to correct the forfeited
error remains within the court’s sound discretion, which the
court will not exercise unless the error seriously affects the No. 00-30557 -3-
fairness, integrity, or public reputation of judicial
proceedings. Olano, 507 U.S. at 735-36.
“Other than the fact of a prior conviction, 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.” Apprendi, 120 S. Ct. at 2362-63. Apprendi
applies when drug quantity is used to increase the statutory
maximum sentence beyond that provided for in 21 U.S.C.
§ 841(b)(1)(c), the penalty provision of 21 U.S.C. § 841 that
does not refer to drug quantity. See United States v. Keith, 230
F.3d 784, 786-87 (5th Cir. 2000). Under Apprendi it was error to
use drug quantity as the basis for sentencing Ellis to more than
three years of supervised release on Count 2, a Class C felony.
See 18 U.S.C. §§ 3559(a)(3) (Class C felonies), and 3583(b)(2)
(“not more than three years” of supervised release for Class C
felonies); 21 U.S.C. § 841(b)(1)(C) (“supervised release of at
least 3 years”); Meshack, 225 F.3d at 578 (three-year term of
supervised release). The five-year term of supervised release is
“error”. United States v. Doggett, 230 F.3d 160, 165, n.2 (5th
Cir. 2000).
“Clear,” or “obvious” error means an error which was clear
under current law at the time of the appeal. Johnson v. United
States, 520 U.S. 461, 468 (1997). Apprendi’s application to drug
crimes under 21 U.S.C. § 841 is now clearly established. See
Doggett, 230 F.3d at 163-64; Keith, 230 F.3d at 786-87. Thus,
the error was plain. Johnson, 530 U.S. at 468. No. 00-30557 -4-
The error resulted in Ellis being sentenced to an overlong
term of supervised release. Therefore it affected his
“substantial rights”. See Meshack, 225 F.3d at 578 (correcting
overlong terms of supervised release under plain-error review).
Declining to give Ellis the benefit of well-established law would
reflect adversely on the fairness and integrity of the judicial
proceedings. Olano, 507 U.S. at 735-36. The five-year term of
supervised release does not survive plain-error review.
The Government asserts that, regardless of drug quantity,
Ellis had undisputed prior-felony convictions that subjected him
to an increased statutory maximum sentence of more than three
years of supervised release under 21 U.S.C. § 841(b)(1)(C). “The
only convictions the court may rely upon for enhancement are
those enumerated in the government’s ‘Information of Prior
Conviction,’ filed pursuant to 21 U.S.C. § 851.” See United
States v. Steen, 55 F.3d 1022, 1025 (5th Cir. 1995). “If the
prosecution fails to comply with § 851’s procedural requirements,
a district court cannot enhance a defendant’s sentence.” Id.;
United States v. Puig-Infante, 19 F.3d 929, 947, n.10 (5th Cir.
1994). The Government sought unsuccessfully to have Ellis’s
sentence enhanced under 21 U.S.C. § 851 for two prior convictions
that would have made Ellis eligible for life imprisonment and
more than three years of supervised release. Because the
district court determined that it had “no jurisdiction to
consider the enhancement under the bill of information” that
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-30557 Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
EUGENE TROY ELLIS
Defendant - Appellant
-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 99-CR-161-ALL-J -------------------- January 23, 2001
Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
A jury convicted Eugene Troy Ellis on all three counts of an
indictment charging him with being a felon in possession of a
firearm, possession with intent to distribute cocaine, and using
a firearm in connection with a drug-trafficking crime. The
district court sentenced Ellis to 120 months’ imprisonment on
Count 1, 240 months on Count 2, and 60 months on Count 3, the
last to run consecutively to the other two terms. The court also
sentenced Ellis to three years of supervised release on Counts 1
and 3 and five years of supervised release on Count 2. The five-
* 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. 00-30557 -2-
year term of supervised-release was based on drug quantity
pursuant to 21 U.S.C. § 841(b)(1)(a). The district court sua
sponte increased Ellis’s offense level by two points for
obstruction of justice, based on a finding that Ellis committed
perjury when he testified on his own behalf at trial. On
appeal, Ellis challenges the five-year term of supervised release
and the two-level increase for obstruction of justice.
Ellis argues that the five-year term of supervised release
exceeds the statutory maximum term and therefore is improper
under Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000),
because the sentence was based on a drug amount that was neither
set forth in the indictment nor found by the jury beyond a
reasonable doubt. Ellis concedes that his trial counsel did not
object to the five-year term and that his claim is therefore
subject only to “plain error” review. See United States v.
Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc); United
States v. Meshack, 225 F.3d 556, 575 (5th Cir. 2000), petition
for cert. filed, (U.S. Nov. 26, 2000) (No. 00-7246).
On “plain error” review, this court may correct forfeited
errors only when the appellant shows that (1) there is an error
(2) that is clear or obvious and (3) that affects his substantial
rights. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.
725, 731-37 (1993); Calverley, 37 F.3d at 162-64. If these
factors are established, the decision to correct the forfeited
error remains within the court’s sound discretion, which the
court will not exercise unless the error seriously affects the No. 00-30557 -3-
fairness, integrity, or public reputation of judicial
proceedings. Olano, 507 U.S. at 735-36.
“Other than the fact of a prior conviction, 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.” Apprendi, 120 S. Ct. at 2362-63. Apprendi
applies when drug quantity is used to increase the statutory
maximum sentence beyond that provided for in 21 U.S.C.
§ 841(b)(1)(c), the penalty provision of 21 U.S.C. § 841 that
does not refer to drug quantity. See United States v. Keith, 230
F.3d 784, 786-87 (5th Cir. 2000). Under Apprendi it was error to
use drug quantity as the basis for sentencing Ellis to more than
three years of supervised release on Count 2, a Class C felony.
See 18 U.S.C. §§ 3559(a)(3) (Class C felonies), and 3583(b)(2)
(“not more than three years” of supervised release for Class C
felonies); 21 U.S.C. § 841(b)(1)(C) (“supervised release of at
least 3 years”); Meshack, 225 F.3d at 578 (three-year term of
supervised release). The five-year term of supervised release is
“error”. United States v. Doggett, 230 F.3d 160, 165, n.2 (5th
Cir. 2000).
“Clear,” or “obvious” error means an error which was clear
under current law at the time of the appeal. Johnson v. United
States, 520 U.S. 461, 468 (1997). Apprendi’s application to drug
crimes under 21 U.S.C. § 841 is now clearly established. See
Doggett, 230 F.3d at 163-64; Keith, 230 F.3d at 786-87. Thus,
the error was plain. Johnson, 530 U.S. at 468. No. 00-30557 -4-
The error resulted in Ellis being sentenced to an overlong
term of supervised release. Therefore it affected his
“substantial rights”. See Meshack, 225 F.3d at 578 (correcting
overlong terms of supervised release under plain-error review).
Declining to give Ellis the benefit of well-established law would
reflect adversely on the fairness and integrity of the judicial
proceedings. Olano, 507 U.S. at 735-36. The five-year term of
supervised release does not survive plain-error review.
The Government asserts that, regardless of drug quantity,
Ellis had undisputed prior-felony convictions that subjected him
to an increased statutory maximum sentence of more than three
years of supervised release under 21 U.S.C. § 841(b)(1)(C). “The
only convictions the court may rely upon for enhancement are
those enumerated in the government’s ‘Information of Prior
Conviction,’ filed pursuant to 21 U.S.C. § 851.” See United
States v. Steen, 55 F.3d 1022, 1025 (5th Cir. 1995). “If the
prosecution fails to comply with § 851’s procedural requirements,
a district court cannot enhance a defendant’s sentence.” Id.;
United States v. Puig-Infante, 19 F.3d 929, 947, n.10 (5th Cir.
1994). The Government sought unsuccessfully to have Ellis’s
sentence enhanced under 21 U.S.C. § 851 for two prior convictions
that would have made Ellis eligible for life imprisonment and
more than three years of supervised release. Because the
district court determined that it had “no jurisdiction to
consider the enhancement under the bill of information” that
alleged Ellis’s prior convictions, there are no cognizable prior
convictions on which to base an enhancement under 21 U.S.C. No. 00-30557 -5-
§ 841(b)(1)(C). Ellis’s five-year term of supervised release on
Count 2 is vacated, and the case is remanded for resentencing.
See Meshack, 225 F.3d at 578.
Ellis contends that the district court’s sua sponte
two-level increase in his total offense level for obstruction of
justice was not supported by adequate “independent findings to
establish a willful impediment to or obstruction of justice.” He
asserts that “there must be more than a simple finding that the
defendant lied” before the obstruction-of-justice increase may be
applied.
Section 3C1.1 of the sentencing guidelines provides for a
two-level increase if “‘the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration
of justice during the course of the investigation, prosecution,
or sentencing of the instant offense.’” United States v. Storm,
36 F.3d 1289, 1295 (5th Cir. 1994) (quoting § 3C1.1). The
guideline’s commentary specifically lists “committing, suborning,
or attempting to suborn perjury” as examples of conduct to which
the enhancement applies. § 3C1.1, comment. (n.4(b)).
Perjury occurs when “‘[a] witness testifying under oath or
affirmation . . . gives false testimony concerning a material
matter with the willful intent to provide false testimony, rather
than as a result of confusion, mistake or faulty memory.’”
United States v. Cabral-Castillo, 35 F.3d 182, 187 (5th Cir.
1994) (quoting United States v. Dunnigan, 507 U.S. 87, 94
(1993)). Although it is preferable for the district court to
make independent clear findings on each element of the alleged No. 00-30557 -6-
perjury, it is enough if the court’s finding “‘encompasses all of
the factual predicates for a finding of perjury.’” United States
v. Laury, 985 F.2d 1293, 1308 (5th Cir. 1993) (quoting Dunnigan,
507 U.S. at 95). The record indicates that the district court
did not err in finding that Ellis committed perjury. He
willfully and falsely denied possession of the gun and the
cocaine, facts obviously material to his case.
Ellis’s sentence to a five-year term of supervised release
on Count 2 is VACATED, and the case is REMANDED for resentencing.
In all other respects, the conviction and sentence are AFFIRMED.