                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 22, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-30204
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

PAUL EDWARD RHEA, also known as Carlos Olmedo,
also known as Country,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                     USDC No. 02-CR-50045-ALL
                       --------------------

Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

     Paul Edward Rhea, a/k/a Carlos Olmedo, a/k/a Country,

appeals his sentence following a guilty plea for distribution of

five grams or more of methamphetamine in violation of 21 U.S.C.

§ 841(a)(1).   Rhea argues that under the reasoning of Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000), his base offense level for

sentencing purposes should have been determined with reference

only to the drug quantity alleged in count one of his indictment,


     *
        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that this opinion should not be published and is not precedent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.
                           No. 03-30204
                                -2-

the count to which he pleaded guilty.     Rhea acknowledges that his

argument is foreclosed by this court’s precedent but raises it to

preserve the issue for possible Supreme Court review.

     Rhea does not dispute that his 135-month prison term and

five-year term of supervised release are within the statutory

maximum for his offense.   See 21 U.S.C. § 841(b)(1)(B)(viii); 18

U.S.C. §§ 3559(a)(2), 3583(b)(1).   Because Rhea’s sentence is

within the statutory maximum, Apprendi is not implicated.     See

United States v. Fort, 248 F.3d 475, 483 (5th Cir. 2001)

(Apprendi not implicated where sentence was within relevant range

for drug quantity alleged in indictment and stipulated to by

defendant).   This court “has expressly rejected the argument that

Apprendi applies to enhancements based upon the sentencing

guidelines, whether tied to quantity or some other relevant fact,

which do not cause the sentence to exceed the statutory range.”

United States v. Clinton, 256 F.3d 311, 314 (5th Cir. 2001) (jury

trial).

     AFFIRMED.
