                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-2400
                                     ___________

United States of America,                 *
                                          *
                    Appellee,             * Appeal from the United States
                                          * District Court for the District
      v.                                  * of Nebraska.
                                          *
Devoil Stanley Hicks,                     *      [UNPUBLISHED]
                                          *
                    Appellant.            *
                                     ___________

                                Submitted: December 12, 2000

                                    Filed: December 22, 2000
                                     ___________

Before LOKEN, HEANEY, and FAGG, Circuit Judges.
                            ___________

PER CURIAM.

       Devoil Stanley Hicks pleaded guilty to conspiracy to distribute and possess with
intent to distribute crack cocaine. See 21 U.S.C. § 841(a), 846 (1994). The district
court accepted Hicks's plea after conducting a proper hearing under Federal Rule of
Criminal Procedure 11. Hicks then obtained new counsel and filed a motion to
withdraw his guilty plea, alleging his first attorney told him his sentence would be no
longer than ten years. In denying Hicks's motion, the district court said, "[Hicks] knew
what he was doing at the time he entered that plea of guilty. There's absolutely no
question in my mind about that. He wasn't confused. He knew what the penalty was."
Hicks now appeals his conviction and his thirty-year sentence.

       Hicks first argues the district court abused its discretion in denying his motion
to withdraw his guilty plea. Hicks failed to meet his burden to show any fair and just
reason to withdraw his plea, however. Contrary to his assertion, Hicks knew the
potential penalties for the conspiracy charge. The minimum sentence of ten years and
the maximum sentence of life imprisonment were specified in Hicks's plea agreement
and his petition to plead guilty, and explained by the district court during the Rule 11
hearing. See United States v. Enriquez, 205 F.3d 345, 348 (8th Cir. 2000). Further,
the district court explained Hicks's rights and the consequences of pleading guilty,
Hicks said he understood them and had no questions about them, and said he had no
defense to the conspiracy charge. We thus conclude Hicks's plea was knowing and
voluntary. We do not consider Hicks's claim that his first attorney's assistance was
constitutionally deficient because it is more properly raised in collateral proceedings.
See id.

      Hicks next asserts the district court should not have enhanced his sentence for
possession of a gun during the conspiracy. See U.S.S.G. § 2D1.1(b)(1). According
to Hicks, it is clearly improbable that he possessed any guns in connection with the
crime. We disagree. Testimony at the sentencing hearing showed that during the
conspiracy, guns were present and were connected with the criminal activity. See
Brown v. United States, 169 F.3d 531, 532 (8th Cir. 1999). Indeed, Hicks himself
possessed at least three, and had one mailed to California with drug money.

      Hicks also contends he is less culpable than most of the other participants in the
conspiracy, and thus, the district court should not have increased his base offense level
by four points for his aggravating role as an organizer or leader of criminal activity that
involved five or more participants, see U.S.S.G. § 3B1.1(a), and instead should have
given him a reduction for his mitigating role as a minor participant, see id. § 3B1.2(b).

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We conclude the district court properly assessed Hicks's role. Evidence at the
sentencing hearing showed Hicks's had authority and control over the conspiracy.

       After the district court sentenced Hicks to thirty years in prison, the United
States Supreme Court decided Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). In
Apprendi, the Court held that other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
charged in the indictment and proved to a jury beyond a reasonable doubt. See id. at
2362-63. Hicks's indictment contains no allegation of drug quantity and a jury did not
find drug quantity beyond a reasonable doubt. Nevertheless, we have held sentences
"within the statutory range authorized by § 841(b)(1)(C) without reference to drug
quantity are permissible under Apprendi . . . even where the drug quantity was not
charged in the indictment or found by the jury to have been beyond a reasonable
doubt." United States v. Aguayo-Delgado, 220 F.3d 926, 934 (8th Cir.), cert. denied,
2000 WL 1634209 (U.S. Nov. 27, 2000). Statutory sentencing ranges corresponding
to specific drug quantities are provided in §§ 841(b)(1)(A) and 841(b)(1)(B).
Maximum sentences regardless of drug quantity are provided in § 841(b)(1)C). Section
841(b)(1)(C) generally allows a twenty year maximum sentence. If the defendant
committed his current drug offense "after a prior conviction for a felony drug offense
has become final," however, the maximum sentence is thirty years. See id. It is unclear
from oral argument and the record whether Hicks had an earlier felony drug conviction
when he committed the current offense. If so, his thirty-year sentence does not exceed
the maximum sentence provided in § 841(b)(1)(C), and thus is permissible under
Apprendi. If Hicks does not have an earlier felony drug conviction, the district court
should resentence Hicks. In doing so, the district court should permit the parties to
raise issues, including the consequences, if any, of Hicks's stipulation in the plea
agreement that he should be held responsible for 1.5 kilograms of crack cocaine.

      We thus affirm Hicks's conviction, but remand for further proceedings regarding
Hicks's sentence.

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A true copy.

      Attest:

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




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