      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

          United States Court of Appeals
                     For the First Circuit


No. 00-1373

                        UNITED STATES,

                           Appellee,

                              v.

                      PATRICK M. VIGNEAU,

                     Defendant, Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

        [Hon. Ronald R. Lagueux, U.S. District Judge]


                            Before

                     Torruella, Chief Judge,
                Campbell, Senior Circuit Judge,
                   and Lipez, Circuit Judge.




     Patrick Vigneau on brief pro se.
     Margaret E. Curran, United States Attorney, Donald C.
Lockhart and Richard W. Rose, Assistant United States Attorneys,
on brief for appellee.




                        MARCH 13, 2001
                Per Curiam.    After a thorough review of the record

and of the parties’ multiple submissions, we adopt the

government’s recommendations.                We vacate the conviction on

Count 6, vacate the sentence on Counts 3 through 5, and

remand the matter for re-sentencing.                 In all other respects,

we affirm.

                Count 6 of the indictment charged conspiracy to

distribute        marijuana    in    violation      of    21    U.S.C.    §    846.

Because     the    same   conduct         supported      the    conviction      for

engaging in a continuing criminal enterprise, see 21 U.S.C.

§ 848, we must vacate the conviction under Count 6 as

violative of the double jeopardy clause.                       See Rutledge v.

United States, 517 U.S. 292, 296-307 (1996); United States

v. Escobar-DeJesus, 187 F.3d 148, 162 n. 8, 173 n. 24 (1st

Cir. 1999), cert. denied, 120 S. Ct. 1208 (2000).

                The sentences imposed under Counts 3, 4 and 5

exceeded the maximum sentence allowed by statute.                         See 21

U.S.C.      §    841(b)(1)(D)       (maximum        sentence      for    offense

involving        less   than   50   kilograms       of    marijuana      is    five

years).     Because appellant Patrick Vigneau’s (“Vigneau’s”)

sentence on these counts was well in excess of that maximum,

we   find       plain   error,      and    vacate     and      remand    for    re-

sentencing.
          In all other respects, Vigneau’s arguments lack

merit.   He waived all objections to the revised Pre-Sentence

Report to the extent the same information was included in

the original Pre-Sentence Report prepared for his first

sentencing.     See United States v. Ticchiarelli, 171 F.3d 24,

32 (1st Cir. 1999).         Thus, any alleged failure by the court

or probation to comply with Rule 32 or any related failures

cannot constitute plain error.            Further, we find no plain

error in the lower court’s failure to vacate the continuing

criminal enterprise conviction; the evidence was sufficient

to establish that Vigneau acted in a supervisory position

with respect to at least five participants.              This is so even

if the court does not count those individuals not convicted.

Vigneau’s argument that the evidence is insufficient to

support a sentencing enhancement under U.S.S.G. § 3B1.1 is

inapposite, given that he was not sentenced under that

provision.    Finally, we find his argument under             Apprendi v.

New   Jersey,    120   S.    Ct.   2348   (2000),   to   be   meritless.

Contrary to Vigneau’s assertion, Apprendi did not hold that

21 U.S.C. § 841 is unconstitutional             per se, and we see

nothing in the Supreme Court’s opinion or in subsequent case

law from which we could so infer, or which would justify us

in vacating any of the convictions here.


                                    -3-
          The conviction on Count 6 of the indictment is

vacated; the sentence on Counts 3, 4 and 5 is vacated

without   prejudice,   and   the   matter   is   remanded   for   re-

sentencing; in all other respects, the judgment is affirmed.




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