                    UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT

                          _______________________

                               No. 00-30862

                          _______________________

                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                   VERSUS

                               JERRY WILTZ,

                                                     Defendant-Appellant.


         Appeal from the United States District Court for the
                     Eastern District of Louisiana
                             (99-CR-20-1-T)

                                May 9, 2001

Before JONES, DeMOSS and BENAVIDES, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

     Defendant    Jerry    Wiltz   challenges   several   aspects    of   his

sentence following a guilty plea.           First, he contends that the

district court did not comply with the requirements of Federal Rule

of Criminal Procedure 11 during the guilty plea colloquy. Second,

he argues that, in light of Apprendi v. New Jersey, 530 U.S. 466,

120 S.Ct. 2348 (2000), his supervised release term should be

modified. Finding that the defendant was prejudiced by the Rule 11


     *
            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opinion should not be published and is not precedent except under the limited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.
error, we remand his guilty plea as to count 13.                   We also modify

his supervised release term in accordance with this circuit’s post-

Apprendi case law.

                                      BACKGROUND

     Defendant     Jerry    Wiltz       was   involved     in   various     crimes,

including conspiracy to distribute drugs, possession of firearms by

a felon, and assault on an officer.                On separate occasions, the

police   found   both    drugs    and     firearms    on   Wiltz    after   either

conducting   surveillance        or    receiving    tips   about    illegal   drug

transactions.1

     Wiltz   and   his     co-defendant       Atiba   Pilart     were    initially

indicted in January of 1999 by a grand jury on four counts for

violations of the Federal Gun Control Act, the Federal Controlled

Substances Act, and for assaulting a federal officer.                   He pled not

guilty to each of these crimes.               A superseding indictment was

returned on November 19, 1999, charging both with additional




     1
          For example, in 1997, police officers saw Wiltz sell
cocaine, and then upon obtaining a search warrant they confiscated
firearms, approximately 400 grams of crack cocaine and cocaine
powder. In the summer of 1998, the police confiscated $154 and 20
grams of crack cocaine from him.      In October 1998, the police
detained Wiltz and three other men, and subsequently found 43 grams
of crack cocaine in a nearby backyard. In January of 1999, the
police received tips that Wiltz was selling heroin out of his home.
After obtaining a search warrant, they arrested Wiltz. During the
arrest, Wiltz assaulted a FBI special agent.       They found 1/4
kilogram of heroin, $9,000, a .45 caliber submachine gun and a
Lorcin 9mm semi automatic pistol, among other weapons.

                                          2
crimes.2   One month later, Wiltz once again entered a not guilty

plea on all counts.        At the same time, Wiltz and the government

were negotiating the terms of a plea agreement.

      In early 2000, Wiltz agreed to plead guilty to counts 1, 2, 4,

13, 14 and 15.      The remaining counts were dismissed.             Before

accepting the guilty plea, the district court advised Wiltz about,

and   ascertained   that    he   understood,   the   maximum   and   minimum

penalties for each of the counts.         The district court judge asked

Wiltz whether he needed the judge to further review the indictment.

      The district court erred in its discussion of count 13, which

charges that the defendants “did knowingly use and carry two

firearms, to wit: a Lorcin 9mm semiautomatic pistol, serial number

L102137, and a .45 caliber semi-automatic submachine gun, serial


      2
          The counts in the indictment relating to Wiltz are as
follows: (count 1) conspiracy to distribute cocaine hydrochloride
and cocaine base, 21 U.S.C. § 841(a)(1), 21 U.S.C. § 846; (count 2)
conspiracy to distribute heroine, 21 U.S.C. § 841(a)(1), 21 U.S.C.
§ 846; (count 3) possession with intent to distribute cocaine
hydrochloride and cocaine base, 21 U.S.C. § 841(a)(1); (count 4)
felon in possession of six firearms, 18 U.S.C. § 922(g)(1) and
924(a)(1); (count 5) knowingly using and carrying six firearms
during a drug trafficking crime, 21 U.S.C. § 841(a)(1), 18 U.S.C.
§ 924(c)(1); (count 6) distribution of heroin, 21 U.S.C. §
841(a)(1) and 2; (count 9) possession with intent to distribute
cocaine hydrochloride and cocaine base, 21 U.S.C. § 841(a)(1);
(count 10) possession with intent to distribute cocaine
hydrochloride and cocaine base, 21 U.S.C. § 841(a)(1); (count 11)
possession with intent to distribute heroin, 21 U.S.C. § 841(a)(1)
and (2); (count 12) distribute of cocaine hydrochloride and cocaine
base, 21 U.S.C. § 841(a)(1) and (2); (count 13) knowingly using and
possessing two firearms during a drug trafficking crime; (count 14)
felon in possession of two firearms, 18 U.S.C. § 922(g)(1) and
924(a)(2); (count 15) assault of a federal officer, 18 U.S.C. §
111.

                                      3
number 50712, during and in relation to a drug trafficking crime .

. . .”      The judge advised Wiltz that “[t]he maximum possible

penalty on this is a term of imprisonment of five years” which

“must run consecutive to any other sentence that I impose upon

you.”     He also advised that Wiltz could be given a term of

supervised release for up to three years on this count.3                At

another point in the colloquy, the judge told the defendants that

there was no discretion regarding count 13: “I have to impose a

five year term of imprisonment consecutive to anything else I

impose.   Do each of you understand that?”

     The plea agreement, signed by the Assistant United States

Attorney, Wiltz, and his attorney, likewise states that “[t]he

defendant   further   understands   that   the   penalty   defendant   may

receive should his plea of guilty to count 13 be accepted is five

(5) years imprisonment.”

     In June of 2000, the district court sentenced Wiltz to a term

of 135 months on the drug conspiracy counts, 120 months on two of

the firearms possession counts, and 36 months on the assault count,

all to run concurrently.   He was also sentenced to a five year term

of supervised release for the conspiracy counts, three years for

     3
          The judge also explained to the defendants that they
reserved the right to appeal any punishment imposed in excess of
the statutory maximum and any punishment to the extent that it
constituted an upward departure from the guideline range deemed
most applicable by the judge. Likewise, they were advised that
they could appeal their convictions if they believed that their
guilty plea was unlawful or involuntary, or if there was some other
fundamental defect in the proceeding.

                                    4
the counts relating to firearms possession and one year for the

assault count, all to run concurrently.         On count 13, he was

sentenced to a term of 120 months, with the sentence to run

consecutively with the other counts.       This sentence lies at the

heart of the Rule 11 challenge, since the judge sentenced Wiltz to

five more years for count 13 than had been discussed at the plea

colloquy.   At sentencing, Wiltz’s attorney objected to this higher

sentence.     In   particular,   defense   counsel   objected    to   the

allegation in the pre-sentence report that Wiltz used an assault

rifle, because use and carrying of an assault rifle mandate a

consecutive sentence of ten years rather than five.             Defense

counsel maintained that Wiltz pled guilty only to possession of a

9mm handgun as this allegedly was the only firearm that witnesses

testified was in Wiltz’s possession.       As such, he requested that

the judge consider a downward departure from the pre-sentencing

report to the five year consecutive sentence, “which would be much

more consistent with the police reports and Mr. Wiltz and the

defense’s understanding of the factual basis and the reports.”

     The district court denied Wiltz’s motion, finding that the

factual basis, record, and history of the case indicate that the 10

year sentence was correctly calculated.       The judge stated that,

although he did not have any independent knowledge or specific

recollection of his colloquy with Mr. Wiltz, he knew that his

typical colloquy would have gone through these issues.          However,



                                   5
the judge indicated that he would reconsider his position if

provided with a transcript of the colloquy.

     Wiltz filed a timely notice of appeal.

                                 DISCUSSION

     On appeal, Wiltz challenges both his sentence for count 13 and

his term of supervised relief.    We review each challenge below.

A.   Count 13

     Wiltz argues on appeal that his guilty plea was neither

knowing nor voluntary because the district court misinformed him as

to the correct mandatory ten-year sentence for count 13.   As such,

the district court judge did not properly follow the procedures of

Rule 11(c)(1), which require that a district court “inform the

defendant of the nature of the charge, the mandatory minimum

penalty, the maximum possible penalty, any special parole or

supervised release term, and any applicable sentencing guidelines.”

United States v. Vasquez-Bernal, 197 F.3d 169, 170 (5th Cir. 1999).

See also Fed. Rule of Crim. Proc. 11(c)(1).

     When reviewing challenges to a district court’s compliance

with the requirements of Rule 11 in the plea colloquy, we “conduct

a straightforward, two-question ‘harmless error’ analysis: (1) Did

the sentencing court in fact vary from the procedures required by

Rule 11, and (2) if so, did such variance affect substantial rights

of the defendant?”   United States v. Johnson, 1 F.3d 296, 298 (5th

Cir. 1993)(en banc).


                                   6
     There is no question here that the district court varied from

the Rule 11 procedures by improperly advising Wiltz about the

maximum sentence for count 13.              See United States v. Still, 102

F.3d 118, 122-23 (5th Cir. 1996)(holding that “the district court

varied from the procedures required by Rule 11 when it failed to

inform [the defendant] of the mandatory minimum sentence to which

he would be subject under” one of the counts).

     The     substantial      rights    prong      is   violated      when    “‘the

defendant’s knowledge and comprehension of the full and correct

information would have been likely to affect his willingness to

plead guilty.’”         United States v. Suarez, 155 F.3d 521, 524 (5th

Cir. 1998)(quoting Johnson, 1 F.3d at 302).                The variance affected

Wiltz’s    substantial      rights     because     he   was       given   erroneous

information regarding his sentence and therefore did not fully

understand the consequences of his plea.                Still, 102 F.3d at 123

(“[The defendant’s] rights were substantially affected by the

erroneous information regarding the mandatory minimum sentence

applicable to count one.”); United States v. Whyte, 3 F.3d 129,

130-31    (5th   Cir.   1993)(holding       that   where    the    district   court

affirmatively misstated a minimum sentencing requirement, and the

plea agreement made the same error, the risk of prejudice to the

defendant was too great and the error was not harmless).                   We note,

however, that both the colloquy and the indictment stated that

Wiltz was pleading guilty to knowingly using and carrying both a



                                        7
9mm    semi-automatic       pistol   and        a     .45   caliber     semi-automatic

submachine gun.         Likewise, the factual basis to which Wiltz pled

guilty and which he signed, states that the police found both

weapons.      The only error was in the district court’s recitation of

the required penalty.         Compounded with an identical error in the

plea agreement, however, the “risk of prejudice--that [Wiltz] was

misled by the court's error--is too great.”                    Whyte, 3 F.3d at 130.4

       The parties’ only dispute lies in the appropriate remedy for

this       violation.      Wiltz   asks        this      court    to   order   specific

performance of the original plea bargain terms, i.e., to impose the

five year consecutive sentence for count 13.                       He argues that his

guilty plea rested significantly both on the Government’s promise

and agreement of a five year sentence on count 13, and on the plea

colloquy itself.

       Conceding the Rule 11 error, the Government suggests that it

invalidates      Wiltz’s    guilty   plea           to   his     firearms   offense   as

described in Count 13.        The Government argues that the appropriate

remedy for a rearraignment sentencing error is a remand for new

Rule 11 proceedings as to the count in question.                       We agree.



       4
          The Government, defense counsel, and the district court
could have easily corrected this error by turning to the
appropriate provision in the statute cited in count 13 of the
indictment.    See 18 U.S.C. § 924(c)(1)(B)(I)(“If the firearm
possessed by a person convicted of a violation of this
subsection–i) is a short-barreled rifle, short-barreled shotgun, or
semiautomatic assault weapon, the person shall be sentenced to a
term of imprisonment of not less than 10 years.”).

                                           8
      The plea to count 13 must be vacated and the case remanded so

that Wiltz may replead.     See Still, 102 F.3d at 123 (“As a result,

[the defendant’s] plea to count one must be vacated and the case

remanded to enable [the defendant] to plead to this count again.”).

      Wiltz implicitly argues that the partially incorrect plea

colloquy infected the entirety of his plea agreement and thus

requires specific performance of the five-year sentence.               The

defendant in Still similarly argued that the district court’s

misstatement regarding his sentence “infected” his plea to another

count “because ‘the mandatory minimum sentence [he] faced clearly

was a material factor that affected his decision to plead guilty’

. . . .”   Id.   As discussed in Still, “Rule 11(c) by its terms does

not contemplate overlap of the counts, but rather speaks in terms

of individual ‘charge[s] to which plea[s] [are] offered.’”             Id.

Because the district court complied with the Rule 11 procedures

regarding a second count, there was no error on that count.

Applying the same reasoning, we hold that the error as to count 13

does not infect the entire plea agreement and decline to order the

extraordinary remedy of specific performance.       Such a remedy would

be   inconsistent   with   the   statute   proscribing   the   appropriate

punishment for this offense.

B.    Supervised Release

      Wiltz contends that the district court erred in imposing a

five-year term of supervised release, arguing that this was greater


                                     9
than the statutory maximum applicable to the offense charged in the

indictment and therefore invalid under Apprendi v. New Jersey, 530

U.S. 466, 120 S.Ct. 2348 (2000). In particular, Wiltz asserts that

his five-year term of supervised release on counts 1 and 2 was

plainly erroneous because the sentence was based on drug quantities

not set forth in the indictment.

      Because the defendant raises this argument for the first time

on appeal, we review the issue for plain error.        United States v.

Meshack, 225 F.3d 556, 578 (5th Cir. 2000).     Under the plain error

standard, Wiltz is required to demonstrate “(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.”      Meshack, 225 F.3d at

575   (internal   quotations   omitted)   (quoting   United   States   v.

Vasquez, 216 F.3d 456, 459 (5th Cir. 2000)).         “Under plain error

review, we correct overlong terms of supervised release.” Meshack,

225 F.3d at 578.    “However, we need only adjust overlong terms of

supervised release down to what would be the longest term had

supervised release been calculated in accordance with Apprendi.”

Id.

      Supervised release terms are reduced “to the maximum term

allowable by statute for [drug] possession which does not require

some showing of drug amount . . .”         Meshack, 225 F.3d at 578.

Absent a specific drug quantity, Wiltz should have received a



                                   10
maximum supervised release term of three years on counts 1 and 2.

Ordinarily, we would modify his supervised release term to three

years.   See id; 21 U.S.C. § 841(b)(1)(C)(providing for a “term of

supervised    release     of    at     least   3     years”);     18    U.S.C.   §

3583(b)(2))(providing, in the default supervised release statute,

for a term of supervised release of “not more than three years” for

Class C felonies); United States v. Doggett, 230 F.3d 160, 165 n.2

(5th Cir. 2000)(“Since the elements found by the jury satisfied only

a conviction under §        841(b)(1)(C), a Class C felony, Doggett's

term of supervised release could not exceed three years.”); United

States v. Kelly, 974 F.2d 22, 24-25 (5th Cir. 1992)(reducing a term

of   supervised   release      to    three   years   in   a   similar    case    by

harmonizing the three-year minimum in § 841(b)(1)(C) with the

three-year maximum in § 3583(b)).

      The   Government,   however,       argues    that   under    21   U.S.C.   §

841(b)(1)(C) a defendant faces at least six years of supervised

release when he has a prior felony drug conviction.               Because Wiltz

pled guilty to attempted possession of cocaine in the 24th Judicial

District Court of Jefferson Parish and received a two and one-half

year sentence, the Government maintains that his term of supervised

release is not statutorily excessive regardless of drug quantity.

The Government is correct that, typically, a defendant with a prior




                                        11
felony drug conviction faces six years of supervised release.5

     However, we are troubled by the Government’s argument for

several reasons.     First, the Government raises this point for the

first time on appeal, as it did not seek the heightened penalty

during plea negotiations or sentencing.           Likewise, the district

court did not take the prior conviction into account at sentencing

as Wiltz’s term of imprisonment for these counts was not enhanced

as a result of the prior conviction.         If the enhanced penalty of 21

U.S.C. §   841(b)(1)(C) had been applied to Wiltz’s sentencing, he

could not receive the five-year term.              He would have to be

sentenced to a supervised release term of at least six years.

Adopting the Government’s position would require that we affirm a

supervised release term that is inconsistent with the statute.

Indeed, it is   curious that the Government advocates this position

at this late stage when they did not seek this sentence at the

appropriate time.

     Second,    it   unclear   from    the    record   whether    the   prior

conviction qualified as a basis for the enhancement.             All that we

know from the presentence report is that Mr. Wiltz pled guilty to

attempted possession of cocaine and that the prior conviction

qualified for one point under the sentencing guidelines.                 See

4A1.1(c); 4A1.2(e)(2). Count 4 of the indictment, to which he pled


     5
          A prior conviction is only a sentencing factor and need
not be alleged in the indictment.    Almendarez-Torres v. United
States, 523 U.S. 224, 227, 118 S.Ct. 1219 (1998).

                                      12
guilty, explains that Wiltz, “having previously been convicted of

a crime punishable by imprisonment for a term exceeding one year,

to wit: a conviction on October 31, 1996, in the Twenty-Fourth

Judicial District Court, Jefferson Parish, State of Louisiana, for

attempted   possession    of    cocaine,   in   violations   of   LA   R.S.

40:(969)(967(c)(2) . . .”

     We do not know, however, whether the United States Attorney

filed an information and followed the mandatory notice procedures

of 21 U.S.C. § 851.      “If the prosecution fails to comply with §

851's procedural requirements, a district court cannot enhance a

defendant’s sentence.”    United States v. Steen, 55 F.3d 1022, 1025

(5th Cir. 1995).   See also United States v. Levay, 76 F.3d 671, 674

(5th Cir. 1996)(“Failure on the part of the government to file,

before trial or before entry of a guilty plea, an information

stating the previous convictions, prevents a court from enhancing

a sentencing under the statute.”).         “The statutory scheme . . .

contemplates two distinct categories of repeat offenders for each

possible crime.”   United States v. LaBonte, 520 U.S. 751, 759, 117

S.Ct. 1673, 1678 (1997).       Simply put, those who receive notice are

subject to the enhanced penalty, and those who do not are subject

to the unenhanced penalty.       See id. at 759-60, 117 S.Ct. at 1678.

     Likewise, for the purposes of § 841(b)(1)(C), a court may only

enhance a sentence for a prior conviction that is final, meaning

that it “is no longer subject to examination on direct appeal.”


                                     13
United States v. Puig-Infante, 19 F.3d 929, 947 (5th Cir. 1994).

See also United States v. Hass, 150 F.3d 443, 450(5th Cir. 1998)

(“The “enhancement is authorized only if the commission of the §

841 offense occurs after the prior felony drug offense[s] has

become final.”).    Because the statute related to the felon in

possession count, which references the prior conviction, does not

contain the same requirements as § 841, it does not provide a

sufficient guarantee either that the conviction was final or that

the proper notice was given.

     In similar cases where courts have found no prejudice under

plain error review, because the defendants could have received an

enhancement for their prior convictions, the courts specifically

noted that informations were filed.        See e.g. United States v.

Wilson, Nos. 99-6348, 99-6358, 99-6383, 2001 WL 303650,(10th Cir.

2001)6; United States v. Jones, No. 00-2531, 2001 WL 294306, *3 (7th

Cir. 2001).

     Because   it   is   unclear   from   the   record   and   from   the



     6
             In Wilson, for example, the sentencing judge had
enhanced the defendant’s sentence based on drug quantity. The jury
was instructed that it need only find that he had possessed a
“measurable amount” of crack cocaine. This was an Apprendi error
if the drug quantity increased the sentence beyond the statutory
maximum for possession of a measurable amount under 21 U.S.C. §
841(b)(1)(C). The Tenth Circuit concluded that the defendant’s
sentence fell within the enhanced statutory maximum of §
841(b)(1)(C) when taking into consideration the defendant’s prior
drug convictions. Id. at *6. The court specifically noted that
the government filed an information before trial in compliance with
§ 851. Id. at *5.

                                   14
Government’s brief why Wiltz’s supervised release term was not

enhanced as a result of his prior conviction, we decline to hold

that Wiltz was not prejudiced by the five-year supervised release

term.    As discussed supra, his sentence must be modified to three

years.

     For   these   reasons,   Wiltz’s   guilty   plea   for   count   13   is

vacated, and the district court’s judgment is REMANDED in part and

MODIFIED in part.




                                   15
