                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                 FILED
                                                      U.S. COURT OF APPEALS
                             No. 10-12011               ELEVENTH CIRCUIT
                                                           AUGUST 5, 2011
                         Non-Argument Calendar
                                                             JOHN LEY
                       ________________________               CLERK

                  D.C. Docket No. 9:09-cr-80105-KLR-1

UNITED STATES OF AMERICA,

                                                          Plaintiff - Appellee,

                                 versus

CHARLES THOMAS O'NEIL,
a.k.a. Charles T. O'Neil,

                                                       Defendant - Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (August 5, 2011)

Before EDMONDSON, WILSON, and ANDERSON, Circuit Judges.


PER CURIAM:
       Charles O’Neil appeals his 262-month sentence for possession with intent to

distribute five kilograms or more of cocaine on board a vessel of the United States,

in violation of 46 U.S.C. § 70503(a)(1), (2). No reversible error has been shown;

we affirm.

       On appeal, O’Neil argues that the 21 U.S.C. § 851 sentencing enhancement

-- which increased his statutory mandatory minimum sentence from 10 to 20 years’

imprisonment -- did not apply to his section 70503 conviction. We review issues

of statutory interpretation de novo. United States v. Mazarky, 499 F.3d 1246,

1248 (11th Cir. 2007).

       The penalty provision for O’Neil’s section 70503 conviction -- 46 U.S.C. §

70506 -- states that a defendant convicted of a section 70503 offense shall be

punished as provided in 21 U.S.C. § 9601; but if the section 70503 offense is a

second offense, as provided in 21 U.S.C. § 962(b), defendant shall be punished

according to the enhanced penalties in section 962. That O’Neil had a prior felony

drug conviction and that his instant conviction qualified as a “second or

subsequent” felony drug offense under section 962(b) is undisputed. Section 962

       1
         Section 960 says that a person who possesses on board a vessel five kilograms or more
of cocaine “shall be sentenced to a term of imprisonment of not less than 10 years and not more
than life.” 21 U.S.C. § 960(a), (b)(1). But if such a violation comes after the person earlier had
been convicted of a felony drug offense, then the person “shall be sentenced to a term of
imprisonment of not less than 20 years and not more than life imprisonment.” 21 U.S.C. §
960(b)(1).

                                                 2
makes clear that “[s]ection 851 . . . shall apply . . . to any proceeding to sentence a

person under this section.” 21 U.S.C. § 962. Thus, the plain language of section

70506 (which directed that O’Neil be sentenced according to section 962) and

section 962 shows that the section 851 enhancement did apply to O’Neil’s section

70503 conviction.

      O’Neil argues that the plain language of section 962 indicates that it applies

only to an offense “under this subchapter”; and because he was not convicted

under a subchapter of section 962, the section 851 enhancement did not apply to

him. But because the instant drug offense was a second offense, section 70506

directed that O’Neil be sentenced under section 962. And Congress also intended

for the penalty provisions of section 960 to apply to violations of former 46 U.S.C.

§ 1903, which is now codified at section 70503. See United States v. Rodriguez-

Rodriguez, 863 F.2d 830, 830-31 (11th Cir. 1989) (explaining that Title 21 and

Title 46 “are both part of a larger legislative scheme aimed at increasing the

penalties for those violating the federal narcotics laws,” namely, the Anti-Drug

Abuse Act of 1986). O’Neil faced increased penalties for his second drug offense

pursuant to section 851.

      O’Neil also argues that the government did not prove the drug quantity

beyond a reasonable doubt, in violation of Apprendi v. New Jersey, 120 S.Ct.

                                           3
2348 (2000). He requested to have all of the alleged cocaine recovered by the

government -- 242 bricks -- tested. But the government informed O’Neil that all

but 10 of the bricks had been destroyed after 27 kilograms had been analyzed and

tested positive for cocaine. O’Neil contends that the government failed to prove

that he possessed over 150 kilograms (the amount used to determine his base

offense level under U.S.S.G. § 2D1.1(c)(1)), in violation of Apprendi and, thus,

that the district court erred in applying a base offense level of 38.

      We review the district court’s legal conclusions de novo. United States v.

Revolorio-Ramo, 468 F.3d 771, 774 (11th Cir. 2006). We review for clear error

the court’s determination of the drug quantity used to establish a base offense level

for sentencing purposes. United States v. Simpson, 228 F.3d 1294, 1298 (11th

Cir. 2000). The government bears the burden of establishing a disputed drug

amount by a preponderance of the evidence. United States v. Rodriguez, 398 F.3d

1291, 1296 (11th Cir. 2005).

      Because the government bore only a preponderance of the evidence burden

of proving drug quantity for sentencing purposes, O’Neil’s argument that the

government had to prove the quantity beyond a reasonable doubt pursuant to

Apprendi is misplaced. See id. And no Apprendi error exists in this case because

the government, with the 10 kilograms of retained cocaine, proved that O’Neil

                                           4
possessed more than 5 kilograms of cocaine as charged in the indictment, and

because O’Neil’s sentence fell below the statutory maximum of life imprisonment.

See United States v. Underwood, 446 F.3d 1340, 1345 (11th Cir. 2006)

(explaining that “an Apprendi constitutional error occurs only where a defendant

is sentenced beyond the statutory maximum for the offense”).

       And the district court committed no clear error in applying a base offense

level of 38. O’Neil admitted that (1) he was operating the vessel as its only

occupant, (2) nine open duffle bags containing kilogram-size packages of a

substance that field tested positive for cocaine were onboard the vessel, (3) the

packages were wrapped in cellophane, which was consistent with illegal drug

operations, and (4) O’Neil told officers that smuggling was his “long-term

retirement program.” Moreover, O’Neil does not dispute that the 27 tested bricks

contained cocaine. Given these facts and given that the presentence investigation

report stated that 238 kilograms of cocaine were onboard O’Neil’s vessel, the

district court did not clearly err in determining that O’Neil possessed at least 150

kilograms of cocaine.2

       2
         To the extent that O’Neil argues that his due process rights were violated by the
destruction of the rest of the cocaine, his argument is unavailing. O’Neil failed to demonstrate
that the destroyed cocaine would have had exculpatory value that was apparent before the
cocaine was destroyed, given that the remaining 10 kilograms were enough to prove that he
possessed 5 or more kilograms of cocaine as charged in the indictment. See Revolorio-Ramo,
468 F.3d at 774 (to show that the loss of evidence by the government constitutes a denial of due

                                                5
       Because O’Neil has not shown that the district court committed sentencing

error, we affirm.

       AFFIRMED.




process, “defendant must show that the evidence was likely to significantly contribute to his
defense”). In addition, nothing indicates that the government’s destruction was done in bad faith.
See id.

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