               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 00-50405
                         _____________________

     UNITED STATES OF AMERICA
                    Plaintiff - Appellee

          v.

     MIGUEL LONGORIA
                       Defendant - Appellant

                         _____________________

                              No. 00-50406
                         _____________________

     UNITED STATES OF AMERICA
                    Plaintiff - Appellee

          v.

     JUAN ADRIAN GONZALEZ
                    Defendant - Appellant

_________________________________________________________________

          Appeals from the United States District Court
                for the Western District of Texas
_________________________________________________________________

                             July 12, 2002

Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES,
STEWART, PARKER, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

     In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme

Court held: “Other 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 a jury, and proved beyond

a reasonable doubt.”   Id. at 490.   In the wake of Apprendi, this

court and all our sister circuits have unanimously agreed that

drug quantities triggering increased penalties under 21 U.S.C.

§ 841 are facts that must be submitted to a jury and charged in

an indictment under the Apprendi rule.    See United States v.

Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000).    One issue on

which post-Apprendi decisions have espoused differing views,

however, is the proper appellate treatment of sentences based on

a district court’s finding of a drug quantity that was not

alleged in the indictment.   In particular, courts have disagreed

as to (1) whether the error is “jurisdictional,” and (2) whether,

where such a sentence is challenged for the first time on appeal

and the appellate court is therefore applying a plain-error

standard, it is appropriate to consider the nature of the

evidence supporting the uncharged drug quantity in determining

whether to correct the sentence, or, as this court has held, to

consider only the difference between the defendant’s sentence and

the statutory maximum applicable to § 841 offenses involving an

unspecified drug quantity.   It was primarily in light of these

two questions that we decided to rehear en banc two companion

cases involving Apprendi sentencing challenges based on the

absence of drug quantity from the indictment.    In United States

v. Longoria, 259 F.3d 363, vacated and reh’g en banc granted, 262

F.3d 455 (5th Cir. 2001), and United States v. Gonzalez, 259 F.3d

                                 2
355, vacated and reh’g en banc granted, 262 F.3d 455 (5th Cir.

2001), the panels determined that the imposition of sentences

exceeding the statutory maximum for offenses involving

unspecified drug quantities was a “jurisdictional” error.

Longoria, 259 F.3d at 365; Gonzalez, 259 F.3d at 359-61, 360 n.3.

Both panels further held, without considering the evidence of

drug quantity, that it was proper to remand for resentencing

within the applicable statutory maximum notwithstanding the

defendants’ failures to object in the district court.     See

Longoria, 259 F.3d at 365; Gonzalez, 259 F.3d at 359-61.     We

consolidated the two cases for purposes of our rehearing en banc.

     Shortly before oral argument was scheduled to take place,

the Supreme Court granted the government’s petition for

certiorari to the Fourth Circuit in United States v. Cotton, 261

F.3d 397 (4th Cir. 2001), cert. granted, 122 S. Ct. 803 (2002), a

case that presented the principal questions motivating our

decision to rehear Gonzalez and Longoria en banc; namely, in

cases involving an indictment that does not allege a drug

quantity, (1) whether the imposition of a sentence that exceeds

the statutory maximum prescribed for offenses involving an

indeterminate drug quantity is a “jurisdictional” error, and (2)

whether it is proper to consider evidence of drug quantity in

determining whether correction of such a sentence is appropriate

under plain-error analysis.   We proceeded with oral argument,

but, concluding that the Supreme Court’s forthcoming opinion

                                 3
would undoubtedly provide much-needed clarification of the issues

raised by Gonzalez and Longoria, we deferred our en banc decision

pending issuance of that opinion.       On May 20, 2002, the Court

issued United States v. Cotton, 122 S. Ct. 1781 (2002), reversing

the Fourth Circuit panel’s decision to vacate the defendants’

sentences.     Id. at 1787.   As explained below, in light of Cotton,

we must affirm the sentences of Juan Adrian Gonzalez and Miguel

Longoria.

                              I. BACKGROUND

     Gonzalez and Longoria were charged in a single indictment as

co-conspirators who agreed to “possess with intent to distribute

a quantity of MARIJUANA.”     The indictment did not allege a

particular quantity of marijuana.       Both Gonzalez and Longoria

pled guilty to the charge pursuant to plea agreements.       Each

agreement stated that the defendant (1) had knowingly and

intentionally conspired to possess marijuana with intent to

distribute in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and

846, and (2) was subject to imprisonment for a minimum of five

years and a maximum of forty years and to a mandatory term of

supervised release of at least four years.       Under the agreements,

Longoria and Gonzalez waived “the right to appeal any sentence

imposed within the maximum provided in the statute of conviction,

whether on direct appeal to the Fifth Circuit or in a collateral

proceeding.”    The factual basis submitted in support of the plea



                                    4
agreements stated that Gonzalez, Longoria, and others “agreed to

deliver approximately 500 pounds of marijuana to DEA agents,” and

that “[t]he delivery was actually made on March 13, 1999 and the

weight of marijuana seized was approximately 593 pounds.”

     The district court adopted the presentence reports’ findings

attributing 777.01 grams of marijuana to Gonzalez and Longoria,

and sentenced Gonzalez to seventy-eight months’ imprisonment,

Longoria to sixty-nine months’ imprisonment, and both defendants

to five years of supervised release.1   Both defendants appealed.

     Longoria appealed his sentence to this court under 18 U.S.C.

§ 3742, arguing that his sentence was illegal because it exceeded

the applicable statutory maximum.2   He maintained that this

appeal was not precluded by the plea agreement because he had

waived his right to appeal his sentence only if it was within the

statutory maximum.   Specifically, Longoria contended that because

he was indicted for a § 841 offense involving an unspecified

quantity of marijuana, the applicable statutory maximum penalty

was that prescribed in § 841(b)(1)(D).3   Pointing to

     1
        The district court sentenced Gonzalez and Longoria before
the Supreme Court issued its Apprendi opinion.
     2
        Under § 3742, “[a] defendant may file a notice of appeal
in the district court for review of an otherwise final sentence
if the sentence . . . was imposed in violation of law.” 18
U.S.C. § 3742(a)(1) (2000).
     3
        Subsection 841(b)(1)(D) states that in cases involving
“less than 50 kilograms” of marijuana, “such person shall . . .
be sentenced to a term of imprisonment of not more than 5 years.”
21 U.S.C. § 841(b)(1)(D) (2000). In contrast, § 841(b)(1)(B),

                                 5
§ 841(b)(1)(D)’s maximum penalty of five years’ imprisonment and

three years of supervised release, Longoria argued that

resentencing was required because the district court was without

statutory authority to impose his sentence of sixty-nine months’

imprisonment and five years of supervised release.   Acknowledging

that he failed to raise this sentencing challenge in the district

court, Longoria maintained that plain-error review was not

applicable because his sentence exceeded the district court’s

statutory authority, and, in the alternative, that he was

entitled to resentencing under plain-error review because such a

sentence affects the fairness, integrity, and public reputation

of judicial proceedings.

     The Longoria panel did not address Longoria’s claim that he

did not waive the right to appeal a sentence that exceeded the

statutory maximum.   Rather, noting that a defendant does not

waive jurisdictional defects by pleading guilty, the panel

vacated Longoria’s sentence and remanded for resentencing because

the district court did not have “jurisdiction to sentence

Longoria under any provision other than § 841(b)(1)(D).”

Longoria, 259 F.3d at 365.




the provision cited in Gonzalez’s and Longoria’s plea agreements,
states that in cases involving specified quantities of different
types of Schedule I and II controlled substances (including 100
kilograms or more of marijuana), “such person shall be sentenced
to a term of imprisonment which may be not less than 5 years and
not more than 40 years.” Id. § 841(b)(1)(B).

                                 6
     Gonzalez appealed his conviction as well as his sentence,

but, unlike Longoria, Gonzalez did not invoke Apprendi in

challenging his sentence.4   Rather, the government called

Longoria’s Apprendi argument to the panel’s attention and pointed

out that Gonzalez’s sentence may be erroneous because the

indictment did not allege a quantity of marijuana.        See Gonzalez,

259 F.3d at 359.

     Applying plain-error review, the Gonzalez panel determined

that the four prongs of the plain-error standard were present in

the case, i.e., there was “(1) an error; (2) that is clear or

plain; (3) that affects the defendant’s substantial rights; and

(4) that seriously affects the fairness, integrity or public

reputation of judicial proceedings.”        Id. at 359 (quoting United

States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000)).       The panel

determined that Gonzalez’s sentence was “plainly erroneous”

because it “obviously exceeds” the applicable § 841(b)(1)(D)

maximum.   Id.   The panel also concluded “that the additional 18

months’ imprisonment and 2 years’ supervised release affects

Gonzalez’s substantial rights.”       Id.   Finally, the panel

     4
        On appeal, Gonzalez argued that he did not knowingly and
voluntarily waive his right to appeal the district court’s
determination of the applicable sentencing range under the
Sentencing Guidelines and, thus, that he should be permitted to
challenge that determination. See Gonzalez, 259 F.3d at 357-58.
In the alternative, Gonzalez contended that his guilty plea
should be vacated as uninformed and involuntary. See id. at 358.
The panel determined these arguments to be without merit and
affirmed Gonzalez’s conviction. See id. at 358, 361. We
reinstate this portion of the Gonzalez opinion.

                                  7
determined that it was appropriate to exercise its discretion to

correct the error, noting that “[w]e have elsewhere corrected

sentences that exceeded the statutory maximum by an even smaller

margin than the margin of difference presented in this case.”

Id. at 360-61 (citing United States v. Vasquez-Zamora, 253 F.3d

211, 214 (5th Cir. 2001)).          The panel stated that further

justification for correcting the error was provided by the fact

that correction would require only resentencing, and not a new

trial.   Id. at 361.

      In a footnote, the panel asserted that the “unstated”

premise underlying this court’s correction of Apprendi error in

cases involving an indictment that fails to allege a drug

quantity is that “the district court lacks the jurisdiction to

impose a sentence exceeding the statutory maximum of the offense

alleged in the indictment.”          Id. at 360 n.3.     According to the

panel, this “jurisdictional nature of the error” accounts for

this court’s correction of the sentencing error “in our Apprendi

cases in which the indictment fails to allege drug quantity.”

Id.

          II. THE IMPACT   OF THE   SUPREME COURT’S DECISION   IN   COTTON

      Initially, the Supreme Court confirmed the unanimous

conclusion of the circuit courts that in federal cases, Apprendi

requires that facts that increase the statutory maximum penalty

must be stated in the indictment as well as submitted to the



                                         8
jury.    Cotton, 122 S. Ct. at 1783.5   Further, the Court agreed

with the conclusion of the Fourth Circuit panel that plain-error

review is applicable where an Apprendi challenge based on the

absence of a statutory-maximum-triggering fact in the indictment

is raised for the first time on appeal.     Id. at 1785.    However,

the Court disapproved of the Fourth Circuit’s application of

plain-error review to the extent that the Fourth Circuit (1)

relied on the notion that the lack of drug quantity in the

indictment had “jurisdictional” significance, see id. at 1784-85,

and (2) determined that the evidence of drug quantity was

irrelevant to the fourth prong of plain-error review, see id. at

1786.

A.   The “Jurisdictional” Conception of Indictments

     The Supreme Court recognized that the Fourth Circuit’s

conception of the allegations in an indictment as

“jurisdictional” originated in Ex parte Bain, 121 U.S. 1 (1887),

in which the Court held that the trial court’s amendment of the

indictment meant that “the jurisdiction of the offence [was]

gone, and the court [had] no right to proceed any further in the

progress of the case for want of an indictment.”     Cotton, 122 S.

Ct. at 1784 (quoting Bain, 121 U.S. at 13) (alterations in

original).    This aspect of the Bain decision, the Court

     5
        The Apprendi Court did not address the indictment issue
because the Presentment Clause of the Fifth Amendment has not
been made applicable to the states via the Fourteenth Amendment.
See Apprendi, 530 U.S. at 477 n.3.

                                  9
explained, is an anachronistic remnant of an era in which the

Supreme Court had authority to review only “jurisdictional”

errors and thus found it necessary to develop an “elastic concept

of jurisdiction” in order “to correct obvious constitutional

violations” in criminal cases.   Id. at 1784-85.   The Court

determined that in its cases since Bain, it (1) has limited the

term “jurisdiction” to “the courts’ statutory or constitutional

power to adjudicate the case,” and (2) made clear “that defects

in an indictment do not deprive a court of its power to

adjudicate a case.”   Id. at 1785 (internal quotations and

citations omitted).   Accordingly, the Cotton Court held that

“[i]nsofar as it held that a defective indictment deprives a

court of jurisdiction, Bain is overruled.”   Id.

     In light of the Cotton Court’s rejection of the notion that

an Apprendi error stemming from the absence of drug quantity in

an indictment is “jurisdictional,” it was improper for this court

to analyze this type of Apprendi error as “jurisdictional” in

Gonzalez and Longoria.   We have used similar language in a number

of other non-Apprendi opinions relating to indictments that are

defective because of the failure to allege an element of the

offense involved in the case.6   To the extent that these decisions

     6
        See, e.g., United States v. Ramirez, 233 F.3d 318, 322
(5th Cir. 2000) (claim that the indictment failed to allege the
form of assault with which the defendant was charged under 18
U.S.C. § 111); United States v. Richards, 204 F.3d 177, 191 (5th
Cir. 2000) (claim that the indictment for mail and wire fraud
failed to allege the element of materiality); United States v.

                                 10
hold that “a defective indictment deprives a court of

jurisdiction,” they are overruled by Cotton.       122 S. Ct. at 1785.

B.   Relevancy of Evidence in the Application of the Fourth Prong
     of Plain-Error Analysis

     The Cotton defendants were charged with and convicted of

conspiracy offenses involving an unspecified amount of cocaine

base.    See 122 S. Ct. at 1783.7    As the Court noted, such offenses

are subject to a maximum of twenty years’ imprisonment under

§ 841(b)(1)(C).    Id.   However, at sentencing, the district court

attributed over fifty grams of cocaine base to the defendants,

the threshold amount for which § 841(b)(1)(A) prescribes a

maximum of life imprisonment.       See id. at 1783-84.   Invoking its

analysis of the fourth plain-error prong in Johnson v. United

States, 520 U.S. 461 (1997), the Court determined that the error

committed by the district court in basing the defendants’

sentences on a drug quantity not alleged in the indictment had


Ramirez-Gamez, 171 F.3d 236, 239 (5th Cir. 1999) (claim that the
indictment failed to state the “arrest” element of an illegal-
reentry offense); United States v. Cabrera-Teran, 168 F.3d 141,
143 (5th Cir. 1999) (same claim as that at issue in Ramirez-
Gamez); United States v. Rivera, 879 F.2d 1247, 1251 (5th Cir.
1989) (claim that the indictment omitted the scienter element of
the offense of transporting undocumented immigrants within the
United States in furtherance of their illegal immigration
status); United States v. Morales-Rosales, 838 F.2d 1359, 1361-62
(5th Cir. 1988) (same claim as that at issue in Rivera, except
involving an information rather than an indictment).
     7
        The district court instructed the jury that “as long as
you find that a defendant conspired to distribute or posses[s]
with intent to distribute these controlled substances, the
amounts involved are not important.” Cotton, 122 S. Ct. at 1783
(alteration in original).

                                    11
not “seriously affect[ed] the fairness, integrity or public

reputation of judicial proceedings” because “[t]he evidence that

the conspiracy involved at least 50 grams of cocaine base was

‘overwhelming’ and ‘essentially uncontroverted.’” Id. at 1786

(quoting Johnson, 520 U.S. at 470).8   In particular, the Court

pointed out that well over fifty grams of cocaine base had been

seized by officers in the course of investigating the conspiracy

and arresting the conspirators.    See id.   In light of the

evidence, the Court concluded that “[s]urely the grand jury,

having found that the conspiracy existed, would have also found

that the conspiracy involved at least 50 grams of cocaine base.”

Id.

      Accordingly, under Cotton, Gonzalez’s and Longoria’s

Apprendi sentencing challenges, which were raised for the first

time on appeal, are subject to plain-error review.    To this

extent, our Apprendi cases are consistent with Cotton: this court

has regularly applied plain-error review to sentencing challenges

that the defendant failed to raise in the district court.       See,

e.g., United States v. Smith, 264 F.3d 518, 520 (5th Cir. 2001);

United States v. Miranda, 248 F.3d 434, 444-46 (5th Cir. 2001);


      8
        In applying the four-prong plain-error test, the Supreme
Court noted the government’s concession of the first two prongs,
i.e., that (1) the indictment’s failure to allege a fact, drug
quantity, that increased the statutory maximum sentence rendered
the defendants’ sentences erroneous under Apprendi, and (2) this
omission was a plain error. Cotton, 122 S. Ct. at 1785 (citing
Johnson, 520 U.S. at 467-68).

                                  12
United States v. DeLeon, 247 F.3d 593, 597-98 (5th Cir. 2001);

United States v. McWaine, 243 F.3d 871, 875 (5th Cir. 2001).

However, this court has not considered evidence of drug quantity

to be relevant to plain-error analysis in Apprendi cases

involving a sentencing challenge based on an indictment that does

not allege drug quantity.   See, e.g., Gonzalez, 259 F.3d at 359-

61, 360 n.3; United States v. Vasquez-Zamora, 253 F.3d 211, 214

(5th Cir. 2001); McWaine, 243 F.3d at 875-76; United States v.

Meshack, 225 F.3d 556, 577-78 (5th Cir. 2000).9   We must change

this approach, as the Cotton Court made clear that it is proper

to assess the evidence of drug quantity in such cases for the

purpose of determining whether the error seriously affects the

integrity, fairness, or public reputation of judicial



     9
        Rather, in our Apprendi cases involving indictments that
do not allege drug quantity, we have assessed the defendant’s
sentencing challenge under plain-error review in the same way
that we assess sentencing challenges in non-Apprendi contexts,
i.e., by considering the difference between the defendant’s
sentence and the applicable statutory maximum. See, e.g.,
Meshack, 225 F.3d at 577 (“Apprendi allows for only a sentencing
challenge, not a challenge to the underlying conviction, and in
sentencing cases we have generally determined prejudice by
considering whether the alleged error resulted in an increased
sentence for the defendant.”); see also Gonzalez, 259 F.3d at 360
n.3 (“[T]he case at bar is best viewed as one in which the
indictment was without error, the plea was without error, and the
error occurred at sentencing.”); cf. United States v. Fletcher,
121 F.3d 187, 193-94 (5th Cir. 1997) (determining that the
defendant’s sentence exceeded the statutory maximum authorized
for the federal bank-robbery offense alleged in the indictment,
and thus that resentencing was necessary notwithstanding that the
jury was properly instructed on the elements of the offense for
which his sentence was authorized).

                                13
proceedings.   See Cotton, 122 S. Ct. at 1786-87.10   We turn now to

apply plain-error analysis to Gonzalez’s and Longoria’s sentences

as instructed by the Cotton Court.

     Gonzalez’s and Longoria’s presentence reports (“PSRs”) based

the finding of 777.01 kilograms of marijuana (adopted by the

district court) on the information obtained during the DEA sting

operation that led to Gonzalez’s and Longoria’s arrests: DEA

agents (1) seized 232.69 kilograms of marijuana that they had

agreed to purchase in the course of negotiations with both

defendants, and (2) discussed the potential transport of 544.32

kilograms of marijuana with Gonzalez and Longoria.    Both

Gonzalez’s sentence of seventy-eight months’ imprisonment and

five years of supervised release and Longoria’s sentence of

sixty-nine months’ imprisonment and five years of supervised

release are authorized under § 841(b)(1)(B) for offenses

involving 100 kilograms or more of marijuana.   See 21 U.S.C.

§ 841(b)(1)(B) (2000) (prescribing five to forty years’

imprisonment and at least four years of supervised release).    The

     10
        This court does consider evidence of drug quantity in
applying the plain-error standard to Apprendi sentencing
challenges based on the failure to submit drug quantity to the
jury. See, e.g., United States v. Green, 246 F.3d 433, 436-37
(5th Cir. 2001); United States v. Slaughter, 238 F.3d 580, 583-84
(5th Cir. 2001); Miranda, 248 F.3d at 445-46; cf. DeLeon, 247
F.3d at 598 (concluding that the failure to instruct the jury
that it must find a particular quantity of marijuana beyond a
reasonable doubt “cannot be plain error . . . where as here, the
defendant stipulated at trial that the substance seized was [the
amount] of marijuana” necessary to trigger the increased
statutory maximum penalty).

                                 14
232.69 kilograms of marijuana that was seized —— which was

included in the factual basis submitted in support of Gonzalez’s

and Longoria’s plea agreements —— is alone sufficient to trigger

this 100-kilogram threshold.11   There was uncontroverted evidence

that Gonzalez and Longoria were directly involved in the

negotiations with the DEA agents regarding the agents’ purchase

of the 232.69 kilograms of marijuana.    Further, Longoria was

present and assisting in the transaction at the time that the

agents seized the marijuana, and the agents’ investigation

revealed that Gonzalez negotiated the purchase of the 232.69

kilograms from Jesus Carvajal, a co-defendant who regularly

transported large quantities of marijuana across the border from

Mexico.   We find this evidence linking Gonzalez and Longoria to

the 232.69 kilograms of seized marijuana to be at least as strong

as that which the Cotton Court deemed sufficient to preclude a

determination that the error affected the integrity, fairness, or

public reputation of judicial proceedings.    Thus, correction of

Gonzalez’s and Longoria’s sentences is not warranted under plain-

error review.

                           III. CONCLUSION

     For the foregoing reasons, we AFFIRM Gonzalez’s conviction

and Gonzalez’s and Longoria’s sentences.

     11
        Gonzalez and Longoria objected to the PSRs’ drug-
quantity finding only to the extent that it was based on the
544.32 kilograms of marijuana allegedly discussed with DEA
agents.

                                 15
