United States v. Gonzalez

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS April 18, 2003 FOR THE FIFTH CIRCUIT ____________________ Charles R. Fulbruge III Clerk No. 02-41067 Summary Calendar ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DIONICIO GONZALES, JR.,

Defendant-Appellant. ____________________

Consolidated with No. 02-41073 ____________________

DIONICIO GONZALEZ,

Defendant-Appellant. _________________________________________________________________

Appeals from the United States District Court for the Southern District of Texas (B-02-CR-77-2 c/w B-95-CR-245-1) _________________________________________________________________

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent In two separate, consolidated appeals, Gonzalez contends: (1)

the sentence imposed upon the revocation of his supervised release

exceeded the statutory maximum; and (2) his conviction for

violation of 18 U.S.C. § 841 is unconstitutional. We VACATE AND

REMAND the former and AFFIRM the latter.

In No. 02-41073, Gonzales challenges the sentence imposed

following the revocation of his supervised release from his 1996

conviction for possession with intent to distribute more than 50

kilograms of marijuana. For the first time on appeal, Gonzales

contends that the 33 month sentence exceeded the statutory maximum

sentence.

Because Gonzales failed to raise this issue in district court,

we would normally review only for plain error. See United States

v. Salter, 241 F.3d 392, 394 (5th Cir. 2001). “However, because a

sentence which exceeds the statutory maximum is an illegal sentence

and therefore constitutes plain error, our review of the issue

presented in this appeal will be de novo.” United States v. Sias,

227 F.3d 244, 246 (5th Cir. 2000).

Because the maximum sentence for Gonzales’ 1996 conviction was

20 years, the conviction was for a Class C felony. See 21 U.S.C.

§ 841(b)(1)(C); 18 U.S.C. § 3559(a)(3). The statutory maximum

sentence for the revocation of supervised release following such a

except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

2 conviction is two years. 18 U.S.C. § 3583(e)(3). Accordingly, the

33 month sentence exceeded the statutory maximum and was illegal.

The Government concedes that Gonzales’ sentence was illegal and

joins his request that we vacate the sentence and remand for

resentencing.

In No. 02-41067, Gonzales challenges his guilty-plea

conviction for possession with intent to distribute more than 100

kilograms of marijuana. For the first time on appeal, he contends

that 21 U.S.C. § 841(a) and (b) are facially unconstitutional in

the light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

Gonzales concedes his claim is foreclosed by United States v.

Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert. denied, 532

U.S. 1045 (2001). He raises the issue only to preserve it for

possible Supreme Court review.

Accordingly, in No. 02-41073, the sentence is VACATED and the

case is REMANDED for resentencing; in No. 02-41067, the judgment is

AFFIRMED.