                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                        _______________________

                              No. 00-40590
                     Civil Docket # C-99-CR-305-1
                        _______________________


UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

FILIBERTO BARRIENTOS,

                                                     Defendant-Appellant.


_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________
                           June 11, 2001

Before KING, Chief Judge, REAVLEY and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

           Appellant Barrientos was arrested at the Texas-Mexican

border after an inspection revealed that he was carrying 2.9

kilograms of illegal drugs in his truck.           The indictment stated

that he possessed approximately 3 kilograms of cocaine in violation

of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).          Barrientos agreed to

plead guilty.     Subsequently, a laboratory analysis revealed that



     *
            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opinion should not be published and is not precedent except under the limited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.
the drugs were cocaine base and not cocaine.     This fact increased

his sentencing range.   See 21 U.S.C. § 841(b)(1)(A).      As a result,

his rearraignment was continued to give him additional time to

consider the guilty plea.    Barrientos pled guilty one month later.

He now challenges the indictment, the factual basis of his guilty

plea, and his sentence.     Finding no error, we affirm.

          Although Barrientos did not challenge the sufficiency of

the indictment in the trial court, the potential failure of an

indictment to charge an offense constitutes a jurisdictional defect

that may be raised by a defendant at any time.     United States v.

Cabrera-Teran, 168 F.3d 141, 143 (5th Cir. 1999).             When the

defendant objects to the indictment for the first time on appeal,

and he fails to demonstrate prejudice, this court will read the

indictment liberally and sustain its sufficiency unless it is so

defective that by any reasonable construction, it fails to charge

the offense for which the defendant was convicted.      United States

v. Wilson, 884 F.2d 174, 179 (5th Cir. 1989).

          Barrientos contends that since the indictment failed to

allege his illegal possession of cocaine base, rather than simple

cocaine, a material element of the offense is missing, and the

conviction should be reversed.    This contention is incorrect.    For

purposes of defining an offense, the federal illegal possession

statute draws no distinction between cocaine and cocaine base, 21

U.S.C. § 841(a)(1).       The distinction among types of drugs is

                                   2
statutorily relevant only for sentencing purposes, as the penalty

provisions,         contained          in   separate          statutory     subsections,

demonstrate.        See 21 U.S.C. § 841(b)(and subsections thereof).                       As

this court noted in United States v. Doggett, 230 F.3d 160, 166

(5th Cir. 2000), the Supreme Court has not overruled its decision

in Edwards, which held that the judge and not the jury determines

the   type    and       amount    of    controlled          substances    involved    in   a

violation of 21 U.S.C. § 841(a)(1).                         See id.(citing Edwards v.

United States, 523 U.S. 511, 118 S.Ct. 1475 (1998)).                              Thus, the

indictment sufficiently charged Barrientos with the offense of

possession of illegal drugs.

              Insofar as the prescribed sentences for possession of

cocaine and cocaine base are different under the statute, however,

a question of the indictment’s Apprendi1 sufficiency might have

existed      if   the     sentence      imposed        on    Barrientos    exceeded       the

statutory maximum for the offense of simple drug possession.                              But

it did not.         The maximum term of imprisonment for the offense

charged against appellant, a violation of § 841(b)(1)(B), is 40

years,    with      a    5-year    minimum       and    a     minimum    4-year    term    of

supervised release.          Barrientos’s term of 135 months imprisonment

and 5 years supervised release was well within this statutory

maximum range.          The Fifth Circuit’s established case law precludes



      1
              Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000).

                                             3
any Apprendi violation.          See United States v. Meshack, 225 F.3d 556

(2000).

            It   should    also     be     noted    that     Barrientos     has    not

established prejudice from the error in the indictment.                      He was

advised weeks before he pled guilty that the form of cocaine

involved was cocaine base.          The difference that would make in his

statutory range of punishment was well-known to him before he pled

guilty.     His sentence of 135 months imprisonment was well within

the maximum sentence available for this conviction of cocaine

possession.      For all these reasons, an interpretation of the

indictment with maximum liberality demonstrates its sufficiency to

charge     Barrientos     with     the    crime     that    he   pled     guilty    to

committing.2

            Barrientos additionally contends that the factual basis

of   his   guilty   plea    was     insufficient      and     that   there    was   a

“constructive amendment” of the indictment because the factual

basis for the plea centered on the cocaine base rather than the

charged     substance,     simple        cocaine.          Barrientos’s     argument

substantially overlaps with his sufficiency of the indictment claim

discussed     above.       Because       constructive        amendment     inquiries



      2
            Just as there is no Apprendi error in the sufficiency of the
indictment as to Barrientos’s term of imprisonment, because that term was well
within the statutory maximum with which he was charged, likewise we perceive no
infirmity in his 5-year term of supervised release. That term is also within the
indicted statutory range.

                                           4
typically are conducted in the context of jury trials and guilty

verdicts, not guilty pleas,3 the sufficiency of the indictment

analysis is the appropriate framework within which to analyze his

claim.

            Based   on   the   foregoing    discussion,     the   judgment    of

conviction and sentence imposed upon Barrientos are AFFIRMED.

            AFFIRMED.




      3
             See United States v. Robles-Vertiz, 155 F.3d 725, 727 (5th Cir.
1998)(“A constructive amendment occurs when the government changes its theory
during trial so as to urge the jury to convict on a basis broader than that
charged in the indictment, or when the government is allowed to prove ‘an
essential element of the crime on an alternative basis permitted by the statute
but not charged in the indictment.’”)(quoting United States. v. Salvatore, 110
F.3d 1131, 1145 (5th Cir. 1997)); United States v. Mikolajczyk, 137 F.3d 237, 243
(5th Cir. 1998)(“If the amendment contained an accurate description of the crime,
and that crime was prosecuted at trial, there is no constructive amendment.”);
United States v. Doucet, 994 F.2d 169, 172 (5th Cir. 1993)(stating that a
constructive amendment “occurs when the jury is permitted to convict the
defendant upon a factual basis that effectively modifies an essential element of
the offense charged”); United States v. Moree, 897 F.2d 1329, 1334 (5th Cir.
1990)(“[A] constructive amendment of the indictment is reversible error when ‘the
jury is permitted to convict the defendant upon a factual basis that effectively
modifies an essential element of the offense charged.’”)(quoting United States
v. Adams, 778 F.3d 1117, 1123 (5th Cir. 1985)). See also 4 W. LaFave, J. Israel,
& N. King Criminal Procedure § 19.6 (2d. Ed)(discussing constructive amendments
only in the context of jury trials); 1 C. Wright, A. Miller, Federal Practice and
Procedure § 127 (same).

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