                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT



                               NO. 00-10380




                        UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                   VERSUS

                        ROBERT A. MACKAY, also known as
                        Fatman, also known as Fat Boy

                                                      Defendant-Appellant.




            Appeal from the United States District Court
                 for the Northern District of Texas
                       Cr. No. 3:97-CR-208-01

                          May 28, 2002
Before EMILIO M. GARZA and PARKER, Circuit Judges and HINOJOSA*,
District Judge.

      Per Curiam:**

      Defendant-appellant, Robert A. Mackay (Mackay) appeals the

 final judgment of the United States District Court, Northern



      *
         District Judge of the Southern District of Texas, sitting by
designation.
      **
        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opinion should not be published and is not precedent except under the limited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.
District of Texas, in his criminal case.     Mackay presents four

points of error related to his plea agreement and the district

court’s refusal to allow him to withdraw his guilty plea, issues

related to the quantity of the controlled substance used to

determine the sentence imposed, the use of sentence enhancements

factors under the sentencing guidelines not mentioned in the

indictment, and the admission at Mackay’s sentencing of a

transcript of testimony used at a co-conspirator’s sentencing

hearing.    For the reasons that follow, we affirm.



                           I.   Background

       On June 24, 1997, Mackay and 18 co-defendants were charged

in a single count indictment with conspiring to distribute and

possess with intent to distribute one thousand kilograms or more

of marijuana in violation of Title 21 U.S.C. §§ 841(a)(1),

841(b)(1)(vii) and 846.    A twenty-two count superseding

indictment was filed on August 28, 1997 naming Mackay and 21 co-

defendants.

       In the superseding indictment Mackay was charged in count

one with conspiracy to distribute and possess with intent to

distribute one thousand kilograms or more of marijuana in

violation of Title 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii) and

846.    Counts two, four and twenty charged Mackay with the use of

a communication facility during the commission of a drug


                                  2
trafficking crime in violation of Title 21 U.S.C. § 843(b) and in

count twenty-one, he was charged with conspiracy to commit money

laundering in violation of Title 18 U.S.C. §§ 1956(a)(1)(A)(i),

1956(a)(2)(A) and 1956(h).

     On January 5, 1998, Mackay plead guilty to the marijuana

conspiracy alleged in count one of the superseding indictment

pursuant to a plea agreement with the Government.   In the plea

agreement, among other matters, Mackay’s statutory sentencing

range was identified as between 10 years and life imprisonment.

Mackay agreed not to contest any forfeiture proceedings related

to three specific pieces of real property (constituting 475

acres, 350 acres, and 20 acres), a 1995 Lincoln Towncar, and

assorted jewelry.   In return, the Government agreed to return to

Mackay all other property the Government had seized which was

subject to forfeiture action but not among the previously listed

items.

     Unbeknownst to the Government’s trial attorneys, some of the

property that was to be returned to Mackay (which included two

Ford pick-up trucks, various weapons, and one Bel Aire Chevrolet)

had already been administratively forfeited by the Drug

Enforcement Administration (DEA) before the parties entered into

the plea agreement.   Mackay had not filed a petition for

remission with the DEA and had not preserved his rights with

regards to said property under the DEA administrative process.



                                 3
     In March 1998, Mackay moved to withdraw his guilty plea,

alleging that the Government had not returned all the property

under the agreement, specifically the items that were

administratively forfeited by the DEA.1         In an evidentiary

hearing before the district court in April, Mackay requested

either specific performance under contract law, or that

adjustments to the plea agreement be made in order that Mackay

could be “made whole either with a replacement item or

compensating value,” or in the alternative, Mackay wanted to

withdraw his plea.       Meanwhile, the Government had proceeded to

make available to Mackay the property listed in the agreement

except that which was administratively forfeited.

     In August of 1998, the Government explained to the district

court that the DEA had now received a petition for remission from

Mackay and would conduct an expedited review of the forfeiture

proceedings.    The Government also explained that in order for

Mackay to receive the administratively seized property he was

requesting, Mackay was required to pay $15,450.00 to the DEA.              As

a result, the Government suggested that Mackay could stipulate to

the forfeiture of a real estate property he had agreed to forfeit


     1
        The court notes that the Government’s responses to Mackay’s attempts
to withdraw his plea refer to an agreement made with his wife and co-
defendant, Kris Mackay, who was represented by a different attorney, had a
similar return-of-property clause in her plea agreement, and had requested
specific performance only. While explaining the proceedings surrounding the
performance of the plea agreement, this opinion will refer to dealings with
the Mackays as dealings with Mackay as Mackay is the only defendant in this
appeal

                                      4
and that the court could make Mackay a lien holder for $15,450.00

on that property and, thus, the sale of the property would make

Mackay whole.   The Government stated that said property was worth

about $500,000.00 and that pre-existing liens on the real

property totaled $185,000.00.   Mackay, however, objected

asserting, among other things, that it was unlikely that any

money would be left after the sale of said property to satisfy

the lien.

     After conducting hearings, the court found that although the

Government might have been negligent in its original promises in

the plea agreement, it had “taken action in good faith to bring

about substantial compliance with the plea agreement.”     The court

concluded that the government complied with the agreement “for

all practical purposes” and that a withdrawal of the plea would

not be in the interest of justice.     Mackay refused to sign a

stipulation agreement as to the forfeiture of the property he had

agreed to forfeit and moved for reconsideration of the denial of

his motion to withdraw his plea.

     Mackay eventually did pay the DEA $15,450.00 for the release

of the administratively forfeited items, but Mackay told the

court that it did not constitute an admission that the plea

agreement had been met.   The Government then requested that the

court impose a lien, including the $15,450.00 to reimburse Mackay

for the DEA administratively released property, on a property



                                   5
which Mackay had agreed to forfeit.     As an alternative, the

Government ended up agreeing to dismiss the forfeiture of a 475

acre piece of property which Mackay had agreed to forfeit.       The

Government’s agreement would allow Mackay to recover his money in

lieu of a lien on the property and he would thus be reimbursed

for the $15,450.00.   The court then denied the request to

reconsider the denial of the motion for withdrawal of the guilty

plea and the case was set for sentencing.

     Mackay’s Pre-Sentence Report (PSR) calculated his offense

level at 40.   This included a base offense level of 34 for

5,208.81 kilograms of marijuana, an increase of 2 for possession

of a firearm, an increase of 4 for Mackay’s role in the offense,

an increase of 2 for obstruction of justice, and a decrease of 2

for acceptance of responsibility.     Mackay’s criminal history

category was calculated at III, and the resulting guideline level

was 360 months to life.

     During the sentencing hearing, the Government moved to

introduce the transcript of co-defendant Jose Rosales’ sentencing

hearing, which included the testimony of a deceased unindicted

co-conspirator, Larry Mears (Mears).     Mackay objected to the

introduction of Mears’ testimony stating there was no opportunity

for cross-examination.    The court overruled the objection stating

that Mears’ testimony was given under oath and that the court was

allowed to hear hearsay evidence during sentencing.



                                  6
     The court adopted the PSR findings regarding Mackay’s base

offense level, firearm enhancement, and role enhancement.    The

court rejected the enhancement for obstruction of justice and

also found that Mackay had not accepted responsibility.   On March

30, 2000 the district court, using the resulting guideline

calculation of 40 and criminal history category of III,

sentenced Mackay to life imprisonment.   Mackay’s sentence was

later reduced to 405 months because there was a miscalculation of

Mackay’s criminal history category.

     As stated previously, Mackay raises four issues on appeal.

First, he argues that the Government failed to perform as it was

required under the plea agreement and that he was entitled to

withdraw his guilty plea.   Second, Mackay maintains that the

factual resume at the time of the plea failed to list as an

element of the offense the drug quantity involved and that it

constitutes error under Apprendi v. New Jersey, 530 U.S. 466, 120

S.Ct. 2348, 147 L.Ed.2d 435 (2000).    Third, Mackay argues that

sentencing guideline enhancements imposed for possession of a

firearm and his role in the offense were plainly erroneous

because neither were alleged in the indictment nor proved beyond

a reasonable doubt as required under Apprendi.   Finally, Mackay

argues that the district court erred in admitting the transcript

of testimony presented at a related sentencing hearing because

Mackay was deprived of his right to cross-examine a witness.


                                 7
                     II.    Plea Agreement Claims

       Mackay’s first argument on appeal is that the government

violated the terms of his plea agreement by the DEA requiring him

to pay $15,450.00 to return property he was entitled under the

agreement.    This argument is made although the Government

subsequently released a forfeiture claim on a property which, in

effect, reimbursed Mackay for the $15,450.00.

       When interpreting terms of a plea agreement, this court

applies general principles of contract law.      United States v.

Cantu, 185 F.3d 298, 304 (5th Cir. 1999).      In order “to assess

whether a plea agreement has been violated, this court considers

‘whether the government’s conduct is consistent with the

defendant’s reasonable understanding of the agreement.’”      Cantu,

185 F.3d at 304 (quoting United States v. Valencia, 985 F.2d 758,

761 (5th Cir. 1993)).      “[T]he government is not permitted to

breach its part of a plea agreement in such a way that frustrates

the defendant’s reasonable understanding of the agreement.”

United States v. Asset, 990 F.2d 208, 216 (5th Cir. 1993).         The

defendant bears the burden to prove by a preponderance of the

evidence the underlying factors that establish the breach.

Cantu, 185 F.3d at 304-05.      Whether the Government violated the

plea agreement is a question of law reviewed de novo.      Id. at

305.     The underlying facts showing whether a breach occurred are


                                    8
reviewed for clear error.     United States v. Gibson, 48 F.3d 876,

878 (5th Cir. 1995).

     Mackay relies on Santobello v. New York, 404 U.S. 257, 262,

92 S.Ct. 495, 499, 30 L.Ed.2d 427,433 (1971) for the proposition

that the court erred in not allowing Mackay to withdraw his

guilty plea.    In Santobello, the Supreme Court vacated and

remanded a case back to state court because the Court found that

the government breached its agreement with the defendant.         Id. at

262-63.   The government in Santobello agreed not to recommend a

sentence to the trial judge in exchange for a plea of guilty to a

lessor included offense.      Id.   At the time of sentencing six

months later, however, a different prosecutor recommended that

the trial judge impose the maximum sentence.        Id.

     Santobello applies to cases in which the court must decide

what remedy to apply when the government breaches a plea

agreement.     United States v. Kurkculer, 918 F.2d 295, 299 (1st

Cir. 1990).    “The Santobello Court did not hold that the

government must fulfill every agreement or offer it makes.

Rather, as we have consistently recognized, the Court was

concerned with enforcing governmental promises that had induced

the defendant to plead guilty.”         United States v. Traynoff, 53

F.3d 168, 170-171 (7th Cir. 1995).        In order to reach Santobello,

we must find that the Government materially breached the plea

agreement.

                                    9
     A breach is material if the non-breaching party is deprived

of the benefit of the bargain.   United States v. Castaneda, 162

F.3d 832, 837 (5th Cir. 1998).   “The less the non-breaching party

is deprived of the expected benefits, the less material the

breach.”   Id.   “[I]f a party's ‘nonperformance ... is innocent,

does not thwart the purpose of the bargain, and is wholly dwarfed

by that party's performance,’ the breaching party has

substantially performed under the contract, and the non-breaching

party is not entitled to rescission.”   Id. at 838.

     As stated previously, Mackay agreed to plead guilty to the

first count of his indictment and to not contest any forfeiture

proceedings related to three specific pieces of real property

(constituting 475 acres, 350 acres, and 20 acres), a 1995 Lincoln

Towncar, and assorted jewelry.   In return, the Government

promised to return to Mackay all the property the Government had

seized which was subject to forfeiture action but not among the

listed items.

     The alleged breach arose when the Government later

discovered that several items (including two Ford pick-up trucks,

various weapons, and one Bel Aire Chevrolet) had before the

parties entered into the plea agreement been administratively

forfeited by the DEA.   In an attempt to resolve the situation,

the Government made offers to make Mackay whole on the $15,450.00

it would cost to release the items from the DEA.   The Government


                                 10
was diligent in returning all other property, and eventually

effectively reimbursed Mackay the $15,450.00 by not proceeding

with the forfeiture of a 475 acre piece of property which Mackay

was allowed to keep although he had agreed to forfeit said

property.

     Although the Government was delayed in returning all the

property due Mackay, the Government substantially complied with

the plea agreement.    Mackay bargained for the return of all his

property the Government had seized except for three specific

pieces of real property (constituting 475 acres, 350 acres, and

20 acres), a 1995 Lincoln Towncar, and assorted jewelry.    The

only obstacle the Government encountered was the return of

several items that the DEA administratively forfeited due to

Mackay’s failure to preserve his rights under the administrative

process.    Once the problem with returning the items was

discovered, the Government proposed a plan to the court in which

Mackay would receive the full benefit of his bargain.    We hold

that the Government substantially performed the plea agreement.



                        III.   Apprendi Claims

     Mackay next contends that the court committed two errors

under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000).    First, Mackay argues that the district court

committed error under Apprendi because the factual resume at the


                                  11
time of his guilty plea did not list the drug quantity involved

as an element of the offense charged.    Second, Mackay argues that

the district court’s sentencing enhancements imposed for

possession of a firearm and role in the offense constitute error

under Apprendi because they were not alleged in the indictment

nor proved beyond a reasonable doubt.    Mackay makes these

objections for the first time on appeal.

     An Apprendi issue raised for the first time on appeal is

reviewed for plain error.   United States v. Virgen-Moreno, 265

F.3d 276, 297 (5th Cir. 2001), United States v. Barton, 257 F.3d

433, 440 (5th Cir. 2001).   Plain error review requires Mackay 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."   United States v. Vasquez-Zamora, 253 F.3d 211, 213

(5th Cir. 2001) (quoting United States v. Vasquez, 216 F.3d 456,

459 (5th Cir. 2000)).

     Mackay first maintains that the district court erred under

Apprendi because it failed to list the drug quantity as an

element of the offense on the factual resume.    In United States

v. Keith, we held in light of Apprendi that “to the extent that

the drug quantity increases a sentence beyond the statutory

maximum, it must be alleged in the indictment and proved to a

jury beyond a reasonable doubt.”     United States v. Keith, 230

                                12
F.3d 784, 786-87(5th Cir. 2000).     Furthermore, “Apprendi is

‘limited to facts which increase the penalty beyond the statutory

maximum, and does not invalidate a court’s factual finding for

the purposes of determining the applicable Sentencing

Guidelines.’”   United States v. Keith, 230 F.3d 784, 787 (5th

Cir. 2000) (quoting United States v. Doggett, 230 F.3d 160, 166

(5th Cir. 2000)).

     Mackay pled guilty to count one of the superseding

indictment which charges Mackay did “knowingly, intentionally,

and unlawfully, combine, conspire, confederate, and agree . . .

to distribute and possess with the intent to distribute one

thousand kilograms or more of substance containing a detectable

amount of marijuana, a Schedule I controlled substance, in

violation of Title 21, United States Code, Sections 841 (a)(1)

and 841 (b)(1)(A)(vii).”   At the rearraignment, Mackay was read

the indictment and was informed of the range of punishment for

his offenses.   Mackay then stated under oath that the facts set

forth in his factual resume were true.    The signed factual resume

states that Mackay “knowingly, intentionally, and unlawfully, did

combine, conspire, confederate, and agree together. . . to

distribute and possess with the intent to distribute at least one

thousand kilograms of marijuana, a Schedule I controlled

substance.”




                                13
     Mackay pled guilty to violation of Title 21 U.S.C. § 846

which carries a range of punishment prescribed in the underlying

offense (Title 21 U.S.C. §§ 841 (a)(1) and 841 (b)(1)(A)(vii)).

Pursuant to Title 21 U.S.C. 841 (b)(1)(A)(vii), the statutory

maximum punishment is life imprisonment for “1000 kilograms or

more of a mixture or substance containing a detectible amount of

marijuana.”   Although Mackay was charged and pled guilty to more

than 1000 kilograms, the court found that Mackay was responsible

for 5,208.81 kilograms of marijuana for sentencing purposes.      The

405 month sentence imposed was still within the statutory maximum

of life imprisonment.   The district court committed no error

under Apprendi.

     Mackay next argues that the increase in his sentence for

possession of a firearm and his role in the offense constitutes

error under Apprendi because neither were alleged in the

indictment nor proved beyond a reasonable doubt.   In United

States v. Slaughter, 238 F.3d 580 (5th Cir. 2001), we held that

in light of Apprendi, “a fact used in sentencing that does not

increase the penalty beyond the statutory maximum for the crime

charged and proven need not be alleged in the indictment and

proved to a jury beyond a reasonable doubt.”   Id. at 583.   As

stated above, Apprendi is “limited to facts which increase the

penalty beyond the statutory maximum, and does not invalidate a




                                14
court’s factual finding for the purposes of determining the

applicable Sentencing Guidelines.”      Keith, 230 F.3d at 787.

     The court’s guideline sentencing enhancements for possession

of a firearm and role in the offense amounts to an upper limit

guideline sentence which did not exceed the statutory maximum of

life imprisonment.    Thus, Mackay’s sentence increase due to

possession of a firearm and role in the offense does not violate

Apprendi because the resulting sentence was still within the

statutory maximum.



                    IV.   Sentencing Hearing Claims

     Mackay’s last argument on appeal is that the district court

erred in admitting the transcript testimony of co-defendant Jose

Rosales during Mackay’s sentencing hearing.     Although the

testimony was given at a related sentencing hearing, Mackay’s

objection is that the transcript included the testimony of a

deceased co-conspirator who Mackay did not have the opportunity

to cross-examine.    We review a district court’s ruling on the

admissibility of testimony for abuse of discretion.      United

States v. Matthews, 178 F.3d 295, 303 (5th Cir. 1999).

     “For sentencing purposes, the district court may consider

any relevant evidence ‘without regard to its admissibility under

the rules of evidence applicable at trial, provided that the

information has sufficient indicia of reliability to support its


                                   15
probable accuracy.’"    United States v. Davis, 76 F.3d 82, 84 (5th

Cir. 1996) (quoting U.S. SENTENCING GUIDELINES MANUAL § 6A1.3(a)

(2000)).    Facts, for sentencing purposes, have "some indicia of

reliability" where they are "reasonably reliable."      Davis, 76

F.3d at 84 (citing U.S. v. Shacklett, 921 F.2d 580, 585 (5th Cir.

1991)).    “Even uncorroborated hearsay evidence may be

sufficiently reliable.”    United States v. Gaytan, 74 F.3d 545,

558 (5th Cir. 1996) (citing United States v. West, 58 F.3d 133,

138 (5th Cir. 1995)).    "The defendant bears the burden of

demonstrating that information the district court relied on in

sentencing is 'materially untrue.'"     Davis, 76 F.3d at 84

(quoting United States v. Vela, 927 F.2d 197, 201 (5th Cir.

1991)).

     Although several portions of co-defendant Rosales’

sentencing hearing transcript were introduced by the Government

containing testimony of more that one witness, Mackay only

challenges the introduction of co-conspirator Mears’ testimony.

Mears testified about his relationship to Rosales and Mackay, the

method Rosales and Mackay used to transport marijuana, and the

estimated quantity of marijuana Rosales and Mackay transported.

The district court implicitly found that Mears’ testimony

provided sufficient indicia of reliability to be used at Mackay’s

sentencing hearing because it was permissible to consider hearsay

evidence and because it was given under oath at Rosales’


                                  16
sentencing hearing.   In addition, the record shows that Mears’

testimony was cumulative.      Testimony by agents and examination of

Rosales’ ledgers at Mackay’s sentencing hearing also indicated

that Mackay and Rosales were leaders of the conspiracy and were

responsible for transporting more than 5,000 kilograms of

marijuana.

     Mackay first argues that United States v. Jackson, 990 F.2d

251 (6th Cir. 1993), should control in Mackay’s situation.        In

Jackson, the Sixth Circuit stated that “[t]o sentence a defendant

based on facts established at someone else’s trial . . . violates

due process.”    Id. at 254.    The Sixth Circuit, however, has

clarified Jackson by stating “Jackson simply emphasizes that a

district court must be clear as to the source of the evidence on

which it bases its factual finding, and that the source may not

be from an unrelated proceeding.”       Logan v. United States, 208

F.3d 541, 544-45 (6th Cir. 2000).       Jackson is not applicable to

Mackay’s case.

     Mackay’s second argument is that under Apprendi and its

predecessor Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215,

143 L.Ed.2d 311 (1999), constitutional rights apply in sentencing

hearings and should require the right to confrontation and cross

examination of witnesses whose testimony is being used to

establish factual elements.




                                   17
     Apprendi and Jones do not apply in this case.    As stated

previously, the Supreme Court in Apprendi held that “[o]ther than

the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt.”

120 S.Ct. at 2362-63.   “Apprendi is ‘limited to facts which

increase the penalty beyond the statutory maximum, and does not

invalidate a court’s factual finding for the purposes of

determining the applicable Sentencing Guidelines.’”    United

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

United States v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000)).

In Mackay’s case, Mackay was sentenced within the statutory

guideline for the offense charged.    Apprendi and Jones are thus

not applicable to Mackay’s case.



                          V.   Conclusion

     For the foregoing reasons, we conclude that Mackay’s

conviction and sentence imposed by the United States District

Court for the Northern District of Texas should be AFFIRMED.




                                 18
