                                                              [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                            FILED
                                              U.S. COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
                                                    FEB 26 2001
                                                  THOMAS K. KAHN
                     ________________________          CLERK

                           No. 00-13347
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 98-00049-CR-HLM-4-5



UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

     versus


IGNASIO MALDENALDO SANCHEZ,


                                                 Defendant-Appellant.




                      ________________________

                           No. 00-13447
                       Non-Argument Calendar
                     ________________________

               D.C. Docket No. 98-00049-CR-06-HLM
UNITED STATES OF AMERICA,
                                                            Plaintiff-Appellee,

      versus


SANTIAGO GILBERTO SANCHEZ,


                                                            Defendant-Appellant.

                          __________________________

                Appeals from the United States District Court for the
                           Northern District of Georgia
                          _________________________
                               (February 26, 2001)

Before BIRCH, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

      Appellants Ignasio Sanchez and Santiago Sanchez pled guilty to and were

convicted of one count of conspiracy to distribute and possess with intent to distribute

methamphetamine and amphetamine, in violation of 21 U.S.C. §§ 841, 846. Ignasio

Sanchez appeals his 87-month sentence and Santiago Sanchez appeals his 108-month

sentence.

      Both Appellants assert that, in light of the rule announced in Apprendi v. New

Jersey, 530 U.S. 466 (2000), any fact that increases the penalty for an offense beyond

the prescribed statutory maximum must be charged in the indictment, submitted to the



                                           2
jury, and proved beyond a reasonable doubt. More specifically, appellants aver that

by extension of Apprendi principles to this case, because their original indictment

failed to allege the drug quantity in their offense, the judgment against them should

be vacated.

      The appellants also argue that the district court erred in enhancing their

sentence under U.S.S.G. § 2D1.1 for possession of a firearm in connection with a drug

transaction. They contend that the government witness’ testimony at their sentencing

hearing did not connect any weapons to the drug conspiracy. Further, the appellants

assert that, in light of Apprendi, the firearm enhancement must be proved beyond a

reasonable doubt.

      In addition, Ignasio Sanchez contends, for the first time on appeal, that his plea

was unintelligent and involuntary because the drug quantity was not alleged in the

indictment. He asserts that he should receive proper and adequate notice via a

superseding indictment and be allowed to plead anew.

      Santiago Sanchez likewise asserts, for the first time on appeal, that his plea is

defective and void for lack of proper notice because the drug quantity was not alleged

in the indictment.

      Because both appellants raise substantially the same issues on appeal, we




                                           3
address their claims simultaneously.1

                                  BACKGROUND

      A federal grand jury returned a single-count indictment against Ignasio, co-

defendant Santiago, and four other co-defendants, charging them with conspiracy to

distribute and possession with intent to distribute methamphetamine and

amphetamine, in violation of 21 U.S.C. §§ 841, 846.                  The quantity of

methamphetamine and amphetamine involved in the offense was not alleged in the

indictment. Ignasio filed a motion to dismiss the indictment for failing to include the

drug quantity, that was subsequently denied by the district court. In a written plea

agreement, Ignasio pled guilty to the single count of the indictment while reserving

the right to appeal the district court’s order denying Ignasio’s motion to dismiss the

indictment. Santiago pled guilty without a plea agreement and later adopted Ignasio’s

motion to dismiss. At the plea hearing, the district court advised both Ignasio and

Santiago that their sentences would be based on the amount of drugs for which they

were held responsible at sentencing.

      Ignasio, Santiago and the government submitted written objections to the

findings in the pre-sentence investigation reports (PSI). All parties objected to the

quantity of the distributed drugs. Ignasio and Santiago also objected to the PSI’s


      1
       The surname of Sanchez will be used to refer to both Ignasio and Santiago Sanchez
throughout this decision.

                                           4
recommendation that the offense level should be increased two levels for possessing

a firearm during the offense of conviction. At sentencing, appellants advised the

district court that they agreed to be held accountable for two pounds of

methamphetamine (which converts to a marijuana equivalency of 1,815.84 kilograms

of marijuana) and twelve pounds of amphetamine (which converts to a marijuana

equivalency of 1,087.2 kilograms of marijuana), totaling a marijuana equivalency of

2,903.04 kilograms. The district court then found them both accountable for a

marijuana equivalency of 2,903.04 kilograms.

      With regard to the PSI recommendation for a two-level firearm enhancement,

the government presented the testimony of Kenneth Green. Green described various

drug transactions he had with Ignasio and Santiago where Green delivered guns as

partial payments for the drugs he received from them. Green also testified that,

following his arrest, he took law enforcement authorities to a storage center where

Green had stored four or five rifles and shotguns. After hearing Green’s testimony,

the district court found Green to be credible and determined that both appellants

offense levels would be increased two levels for possessing a firearm during the

charged drug offense. The court then granted Ignasio a two-level “role in the offense”

reduction and a three-level downward adjustment for acceptance of responsibility.

The court sentenced Ignasio to 87 months’ imprisonment. Santiago received a 108-



                                          5
month sentence.

                                        DISCUSSION

                                               I.

       Ignasio and Santiago Sanchez assert that in light of Apprendi, the district court

erred in denying their motions to dismiss the indictment for failure to allege the drug

quantity.2 The applicability of Apprendi is a pure question of law that this Court

reviews de novo. See United States v. Shepard, 235 F.3d 1295, 1296 (11th Cir. 2000).

       In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to the jury, and proven beyond a reasonable

doubt.” Apprendi, 530 U.S. at __, 120 S.Ct. at 2362-63. The indictment in this case

charged appellants with violating 21 U.S.C. § 846 by knowingly and intentionally

conspiring to possess with intent to distribute an unspecified amount of

methamphetamine and amphetamine. The offenses set out in § 846, are punished

under § 841(b), which prescribes different maximum sentences depending on the type

and quantity of the controlled substance involved. See 21 U.S.C. §§ 846, 841(a), (b).

For methamphetamine and amphetamine, § 841(b)(1)(C) provides for a maximum

       2
         Both the Sanchez appellants were charged in the grand jury indictment with a violation of
21 U.S.C. § 846 conspiracy to possess and distribute methamphetamine and amphetamine in
violation of 21 U.S.C. § 841. The indictment does not specify under which subsection of section
841 the offense occurred. When the appellants entered into plea agreements, they preserved the
right to object to the alleged deficiencies in the indictment and the drug quantity.

                                                6
sentence of twenty years, regardless of the quantity involved in the offense. See 21

U.S.C. § 841(b)(1)(C). Section 841(b)(1)(B) provides for a sentence of not less than

five years and not more than forty years, where at least five (5) grams of pure

methamphetamine or at least 50 grams of a mixture containing a detectable amount

of methamphetamine is involved. See 21 U.S.C. § 841(b)(1)(B)(viii). Section

841(b)(1)(A) provides for a sentence of imprisonment ranging from not less than ten

years to not more than life, where at least 50 grams of pure methamphetamine or at

least 500 grams of a mixture containing methamphetamine is involved. See 21 U.S.C.

§ 841(b)(1)(A)(viii).

      We have held that, “drug quantity in sections 841(b)(1)(A) and 841(b)(1)(B)

cases must be charged in the indictment and proven to a jury beyond a reasonable

doubt.” United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir. 2000). Recently, we

found, however, that although the defendant’s indictment failed to allege drug

quantity, there was no prejudice because the defendant was sentenced below the

twenty-year maximum provided by § 841(b)(1)(C). See Shepard, 235 F.3d at 1297.

In the instant case, Ignasio was sentenced to 87 months, or 7 and 1/4 years, on the

single-count conspiracy indictment. Santiago received a sentence of 108 months or

9 years. Given this Court’s holding in Shepard, and because neither Sanchez was

sentenced to more than the statutory maximum of twenty years as set forth in



                                         7
§ 841(b)(1)(C), they suffered no prejudice under Apprendi. Thus, the district court’s

error, if any, was harmless. See Fed.R.Crim.P. 52(a).

                                          II.

      Both appellants claim, for the first time on appeal, that their pleas were

unintelligent and involuntary because the drug quantity was not alleged in the

indictment. They contend that, had the district court notified them of the attributable

amounts of controlled substances and the resulting sentencing ranges, they may have

proceeded to trial. The Sanchez appellants aver that they should receive proper and

adequate notice via a superseding indictment and be allowed to plead anew. The

government responds that neither appellants’ substantial rights were affected because

neither challenged the government’s factual basis for the plea. In his reply brief,

Ignasio asserts that it is not clear whether the absence of drug quantity in the

indictment results in a voluntary and knowing plea.

      A court accepting a plea of guilty must comply with Federal Rule of Criminal

Procedure 11, and in particular, address three “core concerns” by ensuring that: (1)

the guilty plea is voluntary, (2) the defendant understands the nature of the charges,

and (3) the defendant understands the consequences of his plea. See United States v.

Bell, 776 F.2d 965, 968 (11th Cir. 1985)(per curiam).            “Variance from the

requirements of Rule 11 should be disregarded unless substantial rights are affected.”



                                          8
United States v. McCarty, 99 F.3d 383, 386 (11th Cir. 1996)(per curiam) (citing

Fed.R.Crim.P. 11(h)). Furthermore, when a defendant fails to object to the district

court’s noncompliance with Rule 11, this Court reviews the issue for plain error only.

See United States v. Humphrey, 164 F.3d 585, 587 (11th Cir. 1999). Plain error is that

which is obvious and prejudicial, affecting substantial rights of the defendant. See

United States v. Ramsdale, 61 F.3d 825, 832 (11th Cir. 1995)(citation omitted).

      As stated above, in light of Apprendi, drug quantity is an element of the offense

that must be charged in the indictment. See Rogers, 228 F.3d at 1324. Here, the plea

colloquy was technically inadequate because the indictment did not contain drug

quantity, arguably resulting in Ignasio’s and Santiago’s failure to understand the

nature of the charges against them. See Bell, 776 F.2d at 968. Both, however, were

advised during the plea colloquy that they could face 40 years or life in prison,

depending on the quantity of drugs for which they were held responsible. Further, the

court advised them that their sentences would be based on the amount of drugs for

which they were found responsible at sentencing. Nevertheless, they pled guilty to

the indictment with that knowledge. Also, at the plea colloquy, the government

provided the district court with a factual basis for the offense conduct, which

contained information that the appellants had been involved in delivery of

methamphetamine weighing approximately one kilogram. Neither Ignasio nor



                                          9
Santiago contradicted the government’s allegations regarding the distribution of drugs.

Thus, their rights were not substantially affected. See Ramsdale, 61 F.3d at 832. As

such, we find once again that if any error was committed, it was harmless.

                                                III.

       The Sanchezes assert that the district court erred in enhancing their sentence

under U.S.S.G. § 2D1.1 for possession of a firearm in connection with a drug

transaction. Specifically, they argue that government witness Green’s testimony at

the sentencing hearing did not connect any weapons to the drug conspiracy. Finally,

they also contend that the firearm enhancement must be proved beyond a reasonable

doubt in light of Apprendi.3

       Possession of a firearm is a factual finding reviewed for clear error, while

application of the guidelines to the facts is reviewed de novo. See United States v.

Geffrard, 87 F.3d 448, 452 (11th Cir. 1996). Sentencing Guideline § 2D1.1(b)(1)

provides for a two-level enhancement in the case of possession of a firearm in

furtherance of the crime. The commentary explains that "[t]he adjustment should be

applied if the weapon was present, unless it is clearly improbable that the weapon was

connected with the offense." U.S.S.G. § 2D1.1(b)(1), comment. (n.3). This Court has



       3
        It should be noted that the government’s assertion that Sanchez did not preserve the firearm
enhancement issue on appeal is without merit. The government presented Green as a witness in
response to Ignasio’s argument that the enhancement should not apply.

                                                10
held that once the government shows by preponderance of the evidence that the

weapon was present at the site of the charged conduct, the burden shifts to the

defendant to show that the connection between the firearm and the offense is clearly

improbable. See United States v. Hall, 46 F.3d 62, 63 (11th Cir. 1995)(per curiam).

      In the instant case, government witness Green testified to various drug

transactions he had with Ignasio and Santiago, where Green delivered guns as partial

payments for the drugs he received from them. Green also testified that, following his

arrest, he took law enforcement authorities to a storage center where Green had stored

four or five rifles and shotguns. The district court specifically stated that it found

Green’s testimony credible. Neither Sanchez presented evidence or argument to

suggest that a connection between the firearms and the drug-conspiracy conviction

was clearly improbable, therefore the § 2D1.1(b)(1) enhancement was appropriate.

      Additionally, their argument that Apprendi requires that a reasonable doubt

standard apply to a firearm enhancement is without merit. Recently, in United States

v. Nealy, this Court stated that the Sentencing Guidelines are not subject to the

Apprendi rule. 232 F.3d 825, 829 n.3 (11th Cir. 2000) (finding that the Guidelines

allow a judge to consider relevant conduct to determine overall drug quantity).

Moreover, the decision in Apprendi does not suggest that the Supreme Court intended

its ruling to effect the Sentencing Guidelines. See Apprendi, 120 S.Ct. at 2366 n.21.



                                         11
The majority in Apprendi, in response to Justice O’Connor’s dissent, which expressed

concern as to the majority decision’s effect on the Sentencing Guidelines, stated that

its holding did not address the Guidelines. See id. The majority indicated that its

decision did not go beyond its ruling in Edwards v. United States, in which the

Supreme Court noted that the maximum sentence set by statute trumps a higher

sentence set forth in the Guidelines. See id.; Edwards v. United States, 523 U.S. 511,

515 (1998).

      Further, the Sentencing Guidelines clearly indicate that the Guidelines cannot

be used to increase the penalty beyond the statutory maximum. See U.S.S.G. §

5G1.1(a) (“[w]here the statutorily authorized maximum sentence is less than the

minimum of the applicable guideline range, the statutorily authorized maximum

sentence shall be the guideline sentence”). Because a finding under the Sentencing

Guidelines determines the sentence within the statutory range rather than outside it,

the decision in Apprendi, which addresses any increase in penalty for a crime outside

the statutory maximum, has no application to the Guidelines. Ignasio’s two-level

firearm enhancement placed him in a guideline range of 87-108 months. See 21

U.S.C. § 841(b)(1)(C). Santiago’s enhancement placed him within the range of 108-

135 months, both well within the statutory range of 20 years for their offense.

Accordingly, we affirm the district court’s application of the firearm enhancement.



                                         12
                                  CONCLUSION

      We find that because the appellants were not sentenced to more than the

statutory maximum of 20 years’ imprisonment as set forth in 21 U.S.C.

§ 841(b)(1)(C), there is no prejudice in light of Apprendi. Further, we conclude that,

because the appellants presented no evidence to suggest that a connection between the

firearms and the drug conspiracy was clearly improbable, the U.S.S.G. § 2D1.1(b)(1)

firearm enhancement was appropriate. The enhancement is also appropriate under

Apprendi because precedent in this Circuit indicates that the Sentencing Guidelines

are not subject to the rule enunciated in Apprendi.

AFFIRMED.




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