                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                                                                        March 12, 2007
                             FOR THE FIFTH CIRCUIT
                                                                    Charles R. Fulbruge III
                                                                            Clerk

                                   No. 05-40468



UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

versus

JORGE VALENCIA FARIAS; ADRIAN VALENCIA FARIAS,

                                             Defendants-Appellants.

                             ______________________

             Appeal from the United States District Court
                   for the Eastern District of Texas
                        USDC No. 5:03-CR-50038-1
                         ______________________

                           ON PETITION FOR REHEARING

Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

      Adrian Farias is correct that there is a misstatement in our

opinion, but that misstatement is of no moment.                  We stated that

“the indictment charged, and the jury found Adrian guilty of, §

841(b)(1)(A),      not   §   841   in    general,   triggering    the   ten-year

minimum,”    but    more     precisely    put,   the   indictment     alleged      a

conspiracy under § 846 to violate § 841(a),1 listing as an overt



      1
        Under § 846, “[a]ny person who attempts or conspires to commit any
offense defined in this subchapter [including § 841] shall be subject to the same
penalties as those prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.”
act involvement with the quantities and types of drugs yielding a

ten-year minimum under § 841(b)(1)(A).2           It remains that the judge

had no discretion to “choose” a mandatory minimum because the jury

found Adrian responsible for an amount of drugs yielding the ten-

year minimum under § 841(b)(1)(A), the critical fact.              There is no

Booker problem because the indictment alleged it and the jury, not

a judge, found it to be so with a sound instruction upon reasonable

doubt.

      Adrian argues that a drug quantity and type are not elements

of the offense of § 841(a), or conspiracy to commit the offense of

§ 841(a), under United States v. Becerra.3             And so, the argument

must go, the jury’s quantity and type finding here was gratuitous,

hence the judge should have found the relevant quantity and amount,

and post-Booker he had discretion which of two quantities to use

(pure methamphetamine or methamphetamine mixture), each yielding a

different mandatory minimum.4             But this argument turns Booker on

      2
        There is one exception. The first line of the quantities and types lists
“Amphetamine” without a quantity, and      “Amphetamine” doesn’t appear in §
841(b)(1)(A). Adrian might, but doesn’t, argue that he lacked notice of the ten-
year minimum because of this.      But that argument would fail because the
indictment also listed an amount of methamphetamine yielding the ten-year
minimum, an amount the jury found. Likewise, the addition of “Amphetamine” does
not violate Booker’s requirement that facts increasing the sentence be alleged
in the indictment because the operative fact here - a certain quantity of
methamphetamine - was alleged.
      3
          155 F.3d 740 (5th Cir. 1998).
      4
        Again, however, this argument confuses the mandatory minimums and the
Guidelines. Although post-Booker judges have discretion to sentence outside of
the Guidelines range, nothing in Booker suggests that they have discretion to
select the statutory mandatory minimum, which appears in the text of the criminal
statute itself and not in the Guidelines. Booker was about the Guidelines, not
substantive criminal law.

                                          2
its head by giving a critical fact question to the judge, not the

jury.     Indeed,    multiple    courts    have   upheld   mandatory-minimum

sentences, including in conspiracy cases, against Booker challenges

on the basis that juries found the required amount and type under

§ 841(b).5     A quantity and amount finding in mandatory minimum

cases may have been “gratuitous” before Booker, but now it solves

the Sixth Amendment problem; to the extent Becerra holds otherwise,

Booker abrogates it.6

      PETITION DENIED.




      5
        See, e.g., United States v. Payton, 405 F.3d 1168, 1172-73 (10th Cir.
2005) (upholding § 841(b) mandatory minimum against Booker challenge because
defendant plead guilty to § 846 for conspiring to violate § 841(a) with facts
yielding mandatory minimum); United States v. Vieth, 397 F.3d 615, 620 (8th Cir.
2005) (same); see also United States v. Sepulveda-Rodriguez, 2005 WL 3420112, at
*1 (5th Cir. 2005) (unpublished) (upholding application of a § 841(b)(1)(A)
minimum against a Booker challenge, noting that the defendant provided no
authority that Booker affected the minimums).
      6
        See United States v. Ching Tang Lo, 447 F.3d 1212, 1234 & n.15 (9th Cir.
2006) (rejecting argument that Booker affects mandatory minimums and construing
minimums to require that quantity and type be alleged in indictment).

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