                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-2736
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the District
Ray Collins, Jr.,                        * of South Dakota.
Also Known as Devon Small,               *
Also Known as Ray Davis,                 *         [UNPUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: May 17, 2001

                                   Filed: June 22, 2001
                                    ___________

Before MORRIS SHEPPARD ARNOLD and BYE, Circuit Judges, and GAITAN,1
      District Judge.
                         ___________

PER CURIAM.

       Following his convictions by a jury for conspiring to distribute and to possess
with the intent to distribute cocaine base, see 21 U.S.C. § 841(a)(1), § 846, and for
aiding and abetting the possession of cocaine base with the intent to distribute it, see


      1
      The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri, sitting by designation.
21 U.S.C. § 841(a)(1), 18 U.S.C. § 2(a), Ray Collins, Jr., was sentenced to 360 months
in prison. Mr. Collins appeals, and we affirm.

      The district court, rather than the jury, determined the amount of drugs that
Mr. Collins was involved in distributing, and Mr. Collins therefore argues that he was
sentenced in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi, 530
U.S. at 490, held that any fact, other than a prior conviction, that increases the
maximum penalty to which a criminal defendant is exposed must be submitted to and
determined by a jury. Because his thirty-year sentence exceeds the twenty-year
maximum for the offense simpliciter, see 21 U.S.C. § 841(b)(1)(C), Mr. Collins
maintains that he is entitled to be resentenced.

       We have held, however, that if the proof at a defendant's trial was such that no
rational jury, if the matter had been submitted to it, could have failed to find the
defendant responsible for the quantity of drugs necessary to subject him to the sentence
that he received, then an Apprendi error is harmless. See, e.g., United States v.
Anderson, 236 F.3d 427, 429 (2001) (per curiam). Our examination of the record
convinces us that there is no reasonable likelihood that a properly instructed jury would
have found that Mr. Collins was responsible for less than five grams of cocaine base,
and thus he would have been subject to a maximum penalty of forty years under
21 U.S.C. § 841(b)(1)(B). There was overwhelming evidence at trial that Mr. Collins
was involved in a conspiracy that dealt crack cocaine in kilogram quantities.

      We therefore affirm the judgment of the district court.




                                          -2-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                           -3-
