                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 30 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-8054
                                                    (D.C. No. 99-CR-136-3)
    JOHNNY TODD ALLEN,                                     (D. Wyo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before SEYMOUR , BRORBY , and BRISCOE , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant Johnny Todd Allen appeals his conviction and sentence based

on the United States Supreme Court’s recent decision in    Apprendi v. New Jersey ,

530 U.S. 466 (2000). We affirm defendant’s conviction and remand the case

with directions to vacate defendant’s sentence and to resentence him pursuant to

21 U.S.C. § 841(b)(1)(C).

      Defendant was charged in a multi-count indictment with conspiring to

possess with intent to distribute methamphetamine, marijuana, and cocaine.

Although the counts themselves did not identify the precise amount of drugs

attributed to defendant, the “MANNER AND MEANS” section of the indictment

stated that defendant and his coconspirators “possessed with intent to distribute,

and distributed, in excess of one-half kilogram of methamphetamine, one

kilogram of cocaine, and hundreds of pounds of marijuana.” R., Vol. I, doc. 26

at 5. The jury was instructed that the government need not prove the actual

amount of drugs alleged in the indictment. Defendant was convicted and was

sentenced to 268 months’ incarceration.

      After defendant’s conviction, the Supreme Court issued its decision in

Apprendi , holding 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.” 530 U.S. at 490.

In United States v. Jones , 235 F.3d 1231, 1236 (10th Cir. 2000), we held that in


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a drug prosecution under 21 U.S.C. § 841, the quantity of drugs is an essential

element of the crime which must be specified in the indictment and determined

by a jury in order to sentence a defendant under § 841(b)(1)(A) or (B). Further,

if a specific quantity of drugs is not charged in the indictment and determined by

a jury, the defendant can only be sentenced to a maximum of twenty years

pursuant to § 841(b)(1)(C).   Id. at 1236-37.

      Defendant argues that because he is challenging both his conviction and his

sentence, unlike the defendant in   Jones , his conviction must be reversed based on

the indictment’s failure to allege an essential element of the offense. In response,

the government argues that the indictment did set forth the amount of drugs

attributable to defendant, and that in any event the indictment was sufficient to

charge an offense punishable by § 841(b)(1)(C).

      We review a challenge to the sufficiency of an indictment         de novo . United

States v. Thompson , 237 F.3d 1258, 1261 (10th Cir. 2000). Here, the government

argues that the grand jury’s identification of specific quantities in the “MANNER

AND MEANS” section of the indictment sufficiently described the quantity

element so as to support a conviction punishable by § 841(b)(1)(A) or (B). There

is no reason to decide this issue, however, because the jury did not determine the

amount of drugs attributable to defendant, and therefore a conviction for the

quantities identified in § 841(b)(1)(A) or (B) cannot be upheld under       Apprendi .


                                           -3-
As the indictment was clearly sufficient to allege a violation punishable by

§ 841(b)(1)(C), defendant’s conviction itself is not infirm.      See United States v.

Heckard , 238 F.3d 1222, 1236 (10th Cir. 2001) (holding failure of indictment to

cite the correct penalty subparagraph was harmless error).

       Defendant argues, and the government concedes, that his sentence must be

vacated under Apprendi . Because the jury did not determine the quantity of drugs

attributable to defendant beyond a reasonable doubt, the district court erred in

sentencing him beyond the twenty-year maximum authorized by § 841(b)(1)(C)

for offenses involving an unspecified amount of drugs.         See Jones , 235 F.3d

at 1238. Therefore, the case must be remanded to allow the district court to

resentence defendant within the statutory range authorized by § 841(b)(1)(C).         2




2
       Citing the Ninth Circuit decision in  United States v. Nordby , 225 F.3d
1053, 1062 (9th Cir. 2000), the government argues that the appropriate remedy is
to allow the government “a brief period of time to elect whether it accepts a
resentencing of the defendant to the lesser term permitted by the jury’s findings,”
or whether it wishes to retry defendant. Because we have held that defendant’s
conviction itself is not infirm, we see no reason to offer the government this
choice. Cf. id. (stating the choice was not available when defendant’s conviction
had been accepted as final). In any event, the government has informed us
several times that if it were given the choice, it would choose to accept
resentencing of defendant.     See Appellee’s Br. at 3 n.1, 4, 14 n.4.

                                             -4-
      For the reasons stated, defendant’s conviction is AFFIRMED, and the case

is REMANDED with directions to vacate defendant’s sentence and to resentence

him within the statutory range authorized by 21 U.S.C. § 841(b)(1)(C).



                                                  Entered for the Court



                                                  Wade Brorby
                                                  Circuit Judge




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