                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                September 8, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-41819
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ROBERT H. CLARK, JR.,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Eastern District of Texas
                       USDC No. 1:03-CR-232-1
                        --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Robert H. Clark, Jr., pleaded guilty without a written plea

agreement to conspiracy to possess with intent to distribute 500

grams or more of a mixture or substance containing a detectable

amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1)

and 846.   Following United States v. Booker, 543 U.S. 220 (2005),

this court vacated Clark’s original sentence and remanded the

case for resentencing.   See United States v. Clark, No. 04-41565

(5th Cir. Aug. 8, 2005) (unpublished).   On remand, the district

court found by a preponderance of the evidence that 3246.07 grams

     *
       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this opinion should not be published and is not precedent except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. 05-41819
                                 -2-

(equivalent to 3.24 kilograms) of “ice” was attributable to Clark

and, after considering the advisory Sentencing Guidelines,

sentenced Clark to 360 months of imprisonment, to be followed by

five years of supervised release.

     Clark challenges the validity of his conviction, arguing

that he pleaded guilty to an offense involving methamphetamine;

that he was not charged with, and he did not knowingly and

voluntarily plea guilty to, an offense involving “ice”; and that

under Federal Rule of Criminal Procedure 11(b)(1)(G) and Apprendi

v. New Jersey, 530 U.S. 466 (2000), the district court was

required to inform Clark and determine that he agreed with the

“fundamental facts” of the offense to which he was pleading

guilty, such as the substance involved in the offense.

     A guilty plea involves the waiver of several constitutional

rights and, accordingly, must be knowing and voluntary.     Boykin

v. Alabama, 395 U.S. 238, 242-44 (1969); see FED. R. CRIM. P. 11.

Rule 11 explicitly requires that the district court “inform the

defendant of, and determine that the defendant understands ...

the nature of each charge to which the defendant is pleading.”

FED. R. CRIM. P. 11(b)(1)(G).   Where, as here, a defendant did not

object to Rule 11 error in the district court, we review for

plain error.   United States v. Vonn, 535 U.S. 55, 59 (2002).

     Rule 11(b)(1)(G)’s requirement regarding the nature of the

charge is fulfilled when the defendant is informed of the

elements of the offense charged.    See United States v. Lujano-
                             No. 05-41819
                                  -3-

Perez, 274 F.3d 219, 224 (5th Cir. 2001)).    The record shows that

the district court met this requirement; there was no Rule

11(b)(1)(G) error.    See Lujano-Perez, 274 F.3d at 225-26

       The gist of Clark’s argument is that the district court was

required to inform him and ensure that he understood that the

Government had to prove that the conspiracy involved “ice,” and

that, because Clark did not understand or agree regarding “ice,”

he did not knowingly and voluntarily plead guilty to the crime of

which he was convicted.    While 21 U.S.C. § 841(b)(1) provides

different statutory penalties for different quantities of

methamphetamine, it does not make a distinction between

methamphetamine and “ice.”    See § 841(b)(1)(A)(viii), (B)(viii),

(C).    Because the fact that the methamphetamine involved in

Clark’s offense was “ice” does not affect the statutory penalty

for his crime, that fact is not an “element” of the offense.      See

Apprendi v. New Jersey, 530 U.S. 466, 490, 494 n. 19 (2000);

United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000).

       The fact that the methamphetamine was “ice” does affect the

Sentencing Guidelines range of punishment.    See § 2D1.1(c).

However, when a defendant is resentenced post-Booker under an

advisory sentencing regime, as Clark was here, the sentencing

judge may continue to find by a preponderance of the evidence all

facts relevant to sentencing, even if those facts increase the

guideline sentencing range.    United States v. Johnson, 445 F.3d

793, 798 (5th Cir. 2006), cert. denied, 126 S. Ct. 2884 (2006).
                           No. 05-41819
                                -4-

Thus, the fact that Clark pleaded guilty to an offense involving

“methamphetamine” does not prohibit the district court from

finding, or the Government from arguing, that he be sentenced

based on “ice.”   See United States v. Smallwood, 920 F.2d 1231,

1239 (5th Cir. 1991).

     AFFIRMED.
