United States v. Gordon

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 11, 2003
• Docket: 01-41254
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 11, 2003

Charles R. Fulbruge III Clerk No. 01-41254 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD DAVID GORDON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:00-CR-135-2 --------------------

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Richard David Gordon appeals his guilty-plea conviction and

sentence for conspiracy to possess with intent to distribute

marijuana. He argues that the indictment was defective because

it alleged a drug-quantity range rather than a specific drug

amount. The indictment which alleged that Gordon conspired to

possess with intent to distribute between 100 and 1000 kilograms

of marijuana was sufficient to satisfy the requirements of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41254 -2-

Apprendi v. New Jersey, 530 U.S. 466 (2000). See United States

v. DeLeon, 247 F.3d 593, 597 (5th Cir. 2001). Regardless,

because Gordon’s sentence was below the statutory maximum

sentence for an offense involving an unspecified amount of

marijuana, Apprendi is inapplicable. See United States

v. Deville, 278 F.3d 500, 510 (5th Cir. 2002).

Gordon also argues that the district court erroneously

included as relevant conduct the 33.11 kilograms of marijuana

seized from him in November 2000 after the conspiracy ended.

Because Gordon did not raise this issue in the district court,

review is limited to plain error. See United States v. Gore,

298 F.3d 322, 324 (5th Cir. 2002). Because the offenses were

similar, Gordon was acting as a courier on a regular basis, and

the offenses occurred within a period of ten months, Gordon has

not demonstrated that the district court’s inclusion of the 33.11

kilograms of marijuana as relevant conduct was plain error. See

United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000).

Gordon’s motions for withdrawal of counsel and appointment

of new counsel and for leave to amend the appellate brief are

DENIED.

AFFIRMED; MOTIONS DENIED.