United States v. Brown ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30263
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THERON DION BROWN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 99-CR-60039-3
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March 26, 2001
Before DAVIS, JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Theron Dion Brown was indicted on various drug and firearms
charges and pleaded guilty to two counts: making a false
statement in connection with the acquisition of a firearm, 18
U.S.C. § 922(a)(6); and possession with intent to distribute less
than five grams of cocaine base, 21 U.S.C. § 841(a)(1). Brown
was sentenced to 121 months’ imprisonment: 120 months on the
firearm charge and 121 months on the drug-possession charge, both
sentences to run concurrently.
*
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that this opinion should not be published and is not precedent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. 00-30263
-2-
Brown argues that the district court erred by sentencing him
to the 120-month statutory maximum on the firearm count. The
combined offense level for both counts resulted in a range of
121-151 months’ imprisonment. However, because the statutory
maximum was less than the minimum of the applicable guideline
range, the statutory maximum became the guideline sentence.
U.S.S.G. § 5G1.1(a). Because the statutory maximum on the
firearm count is ten years (or 120 months), the district court
did not err in sentencing Brown to 120 months on that count.
Brown also argues the district court erred by attributing
141.75 grams of cocaine base to him at sentencing based on the
allegedly unbelievable testimony of two witnesses. “If
information is presented to the sentencing judge with which the
defendant would take issue, the defendant bears the burden of
demonstrating that the information cannot be relied upon because
it is materially untrue, inaccurate or unreliable.” United
States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991).
The district court stated that it did not believe Brown’s
testimony. Although Brown also attacked the general credibility
of the other witnesses, the only discrepancy Brown showed
involved the specific location from which the money wires used to
pay for cocaine base were sent; Brown did not show that any other
testimony regarding the money wires was “materially untrue.” See
Angulo, 927 F.2d at 205. Thus, there was no “clear error” in the
district court’s determination that a preponderance of the
evidence supported a finding that Brown had sent these money
wires to pay for cocaine base.
No. 00-30263
-3-
Brown argues that the “limited” view of Apprendi v. New
Jersey, 120 S.Ct. 2348, 2262-63 (2000), articulated by this court
results in constitutional violations because relevant conduct
determined only by a preponderance of the evidence standard is
used to severely enhance the sentences of those who plead guilty
or are convicted. In his own case, Brown argues that he pleaded
guilty only to possession of .01 grams of cocaine base and would
never have pleaded guilty to possession of 141.75 grams; Brown
argues he is being convicted of a crime he did not plead guilty
to, a crime that was never presented to a grand jury, and a crime
that was not proved beyond a reasonable doubt.
However, Brown admits that prior decisions of the court
foreclose this argument. In United States v. Doggett, 230 F.3d
160 (5th Cir. 2000), this court said that if enhanced penalties
based on the amount of drugs are sought under 21 U.S.C.
§ 841(b)(1)(A) or (B), the amount must be stated in the
indictment and submitted to the trier of fact for a finding of
proof beyond a reasonable doubt. Id. at 164-65. However, if an
amount is not alleged in the indictment, a sentence of less than
the maximum provided by 21 U.S.C. § 841(b)(1)(C), the “baseline”
subsection which does not require any particular drug amount,
does not violate Apprendi. Id. at 165. Brown was convicted
under 21 U.S.C. § 841(b)(1)(C), which provides a maximum penalty
of twenty years, or 240 months’ imprisonment; because his
sentence of 121 months is less than that statutory maximum,
Apprendi does not apply.
AFFIRMED.