                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                         F I L E D
                            UNITED STATES COURT OF APPEALS
                                                                                           May 18, 2005
                                     FIFTH CIRCUIT
                                                                                     Charles R. Fulbruge III
                                        _________________                                    Clerk
                                           No. 04-20005
                                        _________________


UNITED STATES OF AMERICA,


                                Plaintiff - Appellee,

versus


KENNETH WILLIAMS,


                                Defendant - Appellant.



                            Appeal from the United States District Court
                                For the Souther District of Texas
                                    USDC No. 4:03-CR-154-1



Before GARWOOD, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

         Kenneth Williams appeals his conviction following a guilty plea to conspiracy to possess with

intent to distribute crack cocaine, and aiding and abetting the possession of crack cocaine with intent

to distribute.




         *
               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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
        A grand jury indicted Williams on four counts. Count one of the indictment charged Williams

with conspiracy to possess with intent to distribute 50 grams or more of crack cocaine, in violation

of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(iii). Count two charged Williams with aiding and

abetting the possession with intent to distribute 5 grams or more of crack cocaine, in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii) and 18 U.S.C. § 2. Counts three and four each charged

Williams with aiding and abetting the possession with intent to distribute 50 grams or more of crack

cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i ii) and 18

U.S.C. § 2.1

        Williams pleaded not guilty before a United States magistrate judge. He then reversed course

and pleaded guilty to counts one through four of the indictment, and the district court accepted his

plea. A presentence report recommended that Williams be held accountable for 152.5 grams of crack

cocaine. Based on the uncontested drug quantities involved, the probation officer recommended a

base offense level of 34, citing section 2D1.1(c)(3) of the Sentencing Guidelines, and a three level

reduction for acceptance of responsibility, resulting in a total offense level of 31. The district court

adopted the presentence report and sentenced Williams to 168 months imprisonment, to be followed

by five years of supervised release, a fine of $5,000, and a special assessment of $400.

        Williams raises two arguments on appeal. First, Williams contends that his guilty plea was

involuntary because he was no t informed that the exact amount of crack cocaine involved was an

element of the offense that the government was required to prove to a jury beyond a reasonable

doubt. Second, Williams argues that the indictment was deficient because it omitted an element of



        1
          Count five of the indictment did not name Williams, but charged others with aiding and
abetting the possession of 5 grams or more of crack cocaine with intent to distribute.

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the offense, namely the specific quantity of crack cocaine involved in the offense. Williams claims

that this omission violated his Fifth Amendment right to a grand jury indictment and protection

against double jeopardy, as well as his Sixth Amendment right to a jury trial.

        Williams raises these issues for the first time on appeal. Therefore, we review for plain error.

United States v. Cotton, 535 U.S. 625, 631 (2002). We may not correct an error that the defendant

failed to raise in the district court under the plain error standard unless “there is (1) error, (2) that is

plain, and (3) that affects substantial rights.” Id. For an error to affect substantial rights, it must be

shown that it “affected the outcome of the district court proceedings.” United States v. Olano, 507

U.S. 725, 734 (1997). The defendant bears the burden of persuasion with respect to prejudice. Id.

“If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited

error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Cotton, 535 U.S. at 631.

        Williams contends that Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v.

Washington, 124 S.Ct. 2531 (2004) stand for the proposition that the true statutory maximum under

a mandatory sentencing scheme such as the Sentencing Guidelines is whatever the judge may impose

based on the facts found by the jury beyond a reasonable doubt. Therefore, Williams argues that his

plea was not knowing and voluntary under FED. R. CRIM. P. 11 since the district court failed to

inform him that the jury would have to find a specific drug quantity, but instead simply informed him

that the government would have to prove that the offense involved at least 50 grams (counts one,

three, and four) or at least 5 grams (count two) of crack cocaine. Because he was not informed that

the exact amount of drugs involved was an essential element of the offense, Williams argues his plea

was involuntary.


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        This court’s holding in United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004), that Blakely

does not apply to the federal guidelines, obviously has been superceded by United States v. Booker,

125 S.Ct. 738, 746, which held that “the Sixth Amendment as construed in Blakely does apply to the

sentencing guidelines.” Even if we assume that Booker requires that the district court specify precise

drug quantities (or at least specify ranges under the guidelines) in a Rule 11 proceeding and that the

failure t o do so is an “error” and “plain,” Williams still cannot establish the final element for plain

error, that it affected his substantial rights.

        All of Williams’ claims hinge on his contention that his indictment failed to allege a specific

drug quantity. The specific quantity of drugs was never in dispute in this case and was agreed upon

by all parties. In fact, Williams admitted that more crack cocaine was involved than the quantity for

which he was ultimately sentenced. Williams was sentenced based on the involvement of 152.5 grams

of crack cocaine in his offenses. In his statement accepting responsibility for his offense, “Williams

disclosed he sold a total 157 grams of crack cocaine to an undercover officer.” Williams did not

object to this statement in the presentence report. Because Williams specifically admitted to selling

over 150 grams of crack cocaine, the district court could, and did, set his base offense level at 34.

Similarly, Williams admitted to a quantity of drugs over 150 grams during his rearraignment and failed

to object to the findings made in the presentence report that the amount was over 152.5 grams.

        Whatever imperfections of the indictment may exist under Booker, it is beyond dispute that

the grand jury indicted Williams for being involved with at least 155 grams of crack cocaine and that

his guilty plea and sentence only held him accountable for 152.5 grams. Therefore, Williams cannot

show any prejudice from any error, nor can he demonstrate that the fairness of judicial proceedings

would be seriously affected if this court were to deny relief. Cotton, 535 U.S. at 631. Williams’


                                                  -4-
remaining claims, that his indictment was constitutionally defective under the Fifth and Sixth

Amendments, fail for the same reason, he cannot demonstrate that it affected his substantial rights.

       For the above stated reasons, we AFFIRM the district court’s judgment.




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