                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3563
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * Eastern District of Missouri.
                                        *
Shawn Sherman,                          *      [UNPUBLISHED]
                                        *
             Appellant.                 *
                                   ___________

                          Submitted: May 1, 2003
                              Filed: May 16, 2003
                                   ___________

Before LOKEN, Chief Judge, BOWMAN, and WOLLMAN, Circuit Judges.
                             ___________

PER CURIAM.

       Shawn Sherman appeals from the final judgment entered in the District Court1
after a jury found him guilty of possessing with intent to distribute over five grams
of a mixture or substance containing cocaine base. On appeal, counsel has moved to
withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing
that the District Court erred in failing to instruct the jury that it must find that




      1
       The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
Sherman intended to distribute at least five grams of cocaine base as required by
Apprendi v. New Jersey, 530 U.S. 466 (2000). We reject this argument and affirm.

       The indictment charged a specific drug quantity, and the jury found Sherman
guilty pursuant to instructions that referenced that quantity. As such, we find no
abuse of discretion. See United States v. Beckman, 222 F.3d 512, 520–21 (8th Cir.
2000) (using abuse-of-discretion standard of review to determine “whether the
instructions, taken as a whole and viewed in light of the evidence and applicable law,
fairly and adequately submitted the issues in the case to the jury,” and finding no
abuse of discretion where district court’s instructions accurately and thoroughly
provided elements and definition of crimes charged) (internal citations omitted).
Even if the drug quantity had not been established in the jury instructions, Sherman’s
ninety-month sentence is not subject to an Apprendi challenge because it does not
exceed the twenty-year statutory maximum under 21 U.S.C. § 841(b)(1)(C) (2000)
that is applicable to drug-trafficking offenses without regard to drug quantity. See
United States v. Aguayo-Delgado, 220 F.3d 926, 932 (8th Cir.), cert. denied, 531 U.S.
1026 (2000). Sherman also cannot rely on Apprendi to challenge the five-year
statutory minimum under 21 U.S.C. § 841(b)(1)(B). See Harris v. United States, 536
U.S. 545, 557 (2002) (explaining that Apprendi does not prohibit judges from
deciding facts that increase mandatory minimum sentence).

      Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), including the sufficiency of the evidence, we find no nonfrivolous issues.
Accordingly, we affirm, and we grant counsel’s motion to withdraw.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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