253 F.3d 211 (5th Cir. 2001)
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEEv.ANASTACIO VASQUEZ-ZAMORA, DEFENDANT-APPELLANT
No. 99-51182
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
May 31, 2001

1
Appeal from the United States District Court for the Western District of Texas


2
Before Politz and Barksdale, Circuit Judges, and Fallon, District Judge.1

Fallon, District Judge

3
Vasquez-Zamora appeals his sentence arguing that the district court erred in imposing an enhanced penalty           based on drug quantity because the drug quantity was not alleged in the indictment. We vacate and remand           for resentencing.

I.

4
On October 26, 1998, Border Patrol agents arrested Anastacio Vasquez-Zamora after discovering           marijuana in the pickup truck he was driving. He was charged in a two count indictment. Count One           charged him with possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and §           841(b)(1)(B), and Count Two charged him with conspiracy to possess with intent to distribute marijuana in           violation of title 21 U.S.C. § § 841(a)(1), 841(b)(1)(B), and 846. Although the indictment referenced           section 841(b)(1)(B) to indicate an aggravated drug quantity, it did not state a specific quantity of           marijuana. Vasquez pled guilty to both counts pursuant to a plea agreement on December 20, 1999.2


5
The presentence report stated that Vasquez was responsible for 105 kilograms of marijuana and           recommended an enhanced statutory penalty of five to forty years imprisonment and a five year term of           supervised release because the offense involved more than 100 kilograms of marijuana. Vasquez objected           to the recommendation for an enhanced penalty arguing that the government used an unreliable method for           weighing the marijuana.3


6
Finding by a preponderance of the evidence that the offenses involved 105 kilograms of marijuana, the           district court overruled Vasquez's objection and sentenced him to sixty-five months imprisonment and a           five year term of supervised release. Vasquez now appeals his sentence.

II.

7
Vasquez challenges his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147           L.Ed.2d 435 (2000), and its progeny in this Circuit. He argues that the district court improperly sentenced           him to a term of supervised release based on an enhanced penalty because the government failed to state a           quantity of drugs in the indictment and prove it beyond a reasonable doubt to a jury. Without any           enhancement for drug quantity, the appropriate term of supervised release would not exceed three years           and the period of incarceration would not be greater than five years. See 21 U.S.C. § 841(b)(1)(D);           United States v. Garcia, 242 F.3d 593, 599 (5th Cir. 2001).


8
Because Vasquez raises an Apprendi issue for the first time on appeal, we review his sentence for plain           error. See United States v. Miranda, No. CIV.A. 98-11183, 2001 WL 388088, at *5 (5th Cir. April 17,           2001); United States v. Meshack, 225 F.3d 556, 576 (5th Cir. 2000). Plain error requires Vasquez to           show "(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           576 (quoting United States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000)).

A.

9
Vasquez and the government agree that the five year term of supervised release was erroneous. See           Appellee's Br. at 12. In United States v. Doggett, we held that "if the government seeks enhanced penalties           based on the amount of drugs under 21 U.S.C. § 841(b)(1)(A) or (B), the quantity must be stated in the           indictment and submitted to a jury for a finding of proof beyond a reasonable doubt." 230 F.3d 160, 165           (5th Cir. 2000). Because Vasquez's five year term of supervised release represents an enhanced penalty           under 21 U.S.C. § 841(b)(1)(B), but a quantity of drugs was not stated in the indictment or submitted to a           jury for a finding of proof beyond a reasonable doubt, we find plain error in Vasquez's sentence. See id.


10
We correct plain error only if that error seriously affects the fairness of the judicial proceedings and if           correcting it would result in a significantly reduced sentence for the defendant. See Miranda, 2001 WL           388088, at *6. In this case, Vasquez is entitled to a corrected sentence because he may receive a term of           supervised release between two and three years. See 18 U.S.C. § 3583(b)(2); U.S. Sentencing Guidelines           Manual § 5D1.2(a)(2) (indicating a term of two to three years supervised release). Accordingly, we vacate           Vasquez's term of supervised release and remand for resentencing.

B.

11
We also recognize that Vasquez's sentence of sixty-five months imprisonment is erroneous under Apprendi           even though he does not raise this issue on appeal.4  Because the government failed to state a quantity of           drugs in the indictment and prove it beyond a reasonable doubt to a jury, Vasquez could be sentenced to           no more than sixty months on each count pursuant to 21 U.S.C. § 841(b)(1)(D). See Garcia, 242 F.3d at           600 (reducing sentence to sixty months when marijuana amount was neither stated in the indictment nor           proved to a jury).


12
The government concedes that Vasquez's sixty-five month prison term violates Apprendi, but it argues that           the error is harmless because the district court could have imposed consecutive rather than concurrent           terms of imprisonment pursuant to section 5G1.2(d) of the U.S. Sentencing Guidelines.


13
While the district court could have imposed consecutive prison terms for each count of the indictment, it           found concurrent terms of sixty-five months incarceration for both counts appropriate punishment for           Vasquez. Because the district court has discretion under the applicable statutes and sentencing guidelines to           fashion a penalty that combines terms of imprisonment with periods of supervised release, we vacate           Vasquez's prison term and remand it for resentencing with his term of supervised release.

III.

14
For the foregoing reasons, we VACATE Vasquez's entire sentence and REMAND to the district court for           resentencing consistent with this opinion.


15
VACATE sentence; REMAND for resentencing.



Notes:


1
  District Judge of the Eastern District of Louisiana, sitting by designation.


2
  Both parties agree that the plea agreement does not preclude Vasquez from appealing his sentence on           the basis that it exceeds the statutory maximum.


3
   The government explains that Vasquez dismissed this objection at sentencing. See Appellee's Br. at 6.           Whether or not presented to the district court, Vasquez does not raise this issue on appeal.


4
  As we noted in United States v. Garcia, "it would be manifestly unjust under the circumstances to           ignore the clear-cut, mechanical application of Apprendi to Defendant's prison sentence simply because           Defendant did not ask for all the relief for which he was entitled." 242 F.3d at 599, n.5.


