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

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 00-5083
                                                   (D.C. No. 99-CR-66-C)
    LUIS MANUEL GONZALEZ, a/k/a                         (N.D. Okla.)
    Luis Gonzalez, f/k/a Sergio Loera,
    a/k/a Auren Valesco, a/k/a Guero,
    a/k/a Luis,

                Defendant-Appellant.


                            ORDER AND JUDGMENT           *




Before SEYMOUR , BALDOCK , and LUCERO , Circuit Judges.


         On October 1, 1999, defendant Luis Manuel Gonzalez pled guilty to one

count of conspiracy to possess with intent to distribute and distribution of

methamphetamine and cocaine in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A)(ii) and (viii). On April 28, 2000, defendant was sentenced to life



*
      The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
in prison. Defendant appeals, asserting that (1) pursuant to the recent Supreme

Court case of Apprendi v. New Jersey , 120 S. Ct. 2348 (2000), his case should be

remanded for resentencing, and (2) the sentencing court did not follow the

procedures of Fed. R. Crim. P. 11 in accepting his guilty plea. We have

jurisdiction pursuant to 18 U.S.C. § 3742, and we affirm.

                 I. Allegation of Drug Quantity in the Indictment

       In Apprendi , the Supreme Court 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. Noting that the            Apprendi Court left undecided the

question of whether a factor increasing a defendant’s sentence beyond the

statutory maximum was to be considered an element of the crime which must be

alleged in the indictment, in   United States v. Jones , 235 F.3d 1231, 1236

(10th Cir. 2000), we held that

       the quantity of drugs involved in a violation of § 841 is an essential
       element of the offense if that fact exposes the defendant to a
       heightened maximum sentence under § 841(b)(1)(A) or (B). A
       district court may not impose a sentence in excess of the maximum
       set forth in 21 U.S.C. § 841(b)(1)(C) unless the benchmark quantity
       of cocaine base for an enhanced penalty is alleged in the indictment
       in addition to being submitted to the jury and proven beyond an
       reasonable doubt.

       We further clarified this principle in         United States v. Jackson , 240 F.3d

1245, 1248 (10th Cir. 2001), holding that “after           Apprendi , a trial court may not

                                                -2-
utilize §§ 841(b)(1)(A) and 841(b)(1)(B) for sentencing without the drug quantity

being charged in the indictment.” When drug quantity has not been charged,

a defendant may be sentenced only under § 841(b)(1)(C), which sets forth the

“penalties for offenses involving [schedule I or II controlled substances] without

reference to drug quantity, and limits the sentence to not more than twenty years

for defendants who have not previously been convicted of a felony drug offense,

and thirty years if the defendant has a prior felony drug conviction.”         Id.

       Contrary to defendant’s assertion, his sentence of life imprisonment did not

violate Apprendi . The first count of defendant’s superseding indictment charged

him with conspiracy with intent to distribute cocaine and methamphetamine in

violation of § 841(a)(1) and (b)(1)(A)(ii) and (viii).     1
                                                               In a lengthy recitation of the

overt acts committed by defendant and his co-conspirators in furtherance of the

conspiracy, the indictment alleged defendant directed the distribution of four

pounds of methamphetamine “on or about April             24, 1998.” (I R. Doc. 97 at 5.)

In addition, the indictment alleged that on or about October 13, 1998, “a person

known to the Grand Jury” purchased one half pound of methamphetamine from

defendant and a co-conspirator for $4,500, (        id. at 7); on or about October 14,



1
       Section 841(b)(1)(A)(viii) provides for a sentence of imprisonment ranging
from not less than ten years to not more than life when at least fifty grams of pure
methamphetamine or at least 500 grams of a mixture containing methamphetamine
is involved.

                                              -3-
1998, “a person known to the Grand Jury possessed eight (8) ounces of

methamphetamine which had been obtained from [defendant],” (       id. ); about

November 1998, a co-conspirator “ordered one pound of methamphetamine from

[defendant],” ( id. at 8); on or about November 8, 1998, “a person known to the

Grand Jury” purchased one pound of methamphetamine from two co-conspirators

who had transported the drug “from California to Oklahoma for distribution at the

direction of [defendant],” ( id. ); about December 1998, and again about January

1999, a co-conspirator ordered one pound of methamphetamine from defendant

which was delivered to another co-conspirator at the direction of defendant; on

or about January 22, 1999, “a person known to the Grand Jury met with . . .

[defendant] and was solicited by defendant to buy “multi-kilo quantities of

methamphetamine,” ( id. at 11); and about February or March 1999, defendant

delivered one pound of methamphetamine to a co-conspirator. Without a plea

agreement, defendant pled guilty to this count of the indictment. Therefore,

contrary to defendant’s argument on appeal, the drug quantity was alleged with

specificity in the superseding indictment, and the amount was proved beyond

a reasonable doubt by defendant’s guilty plea to the indictment.   See Jackson ,

240 F.3d at 1248.

       Defendant also challenges the sentencing court’s consideration when

sentencing defendant of such factors as possessing a firearm, importing listed


                                            -4-
chemicals, being an organizer of five or more participants, using children to avoid

detection, obstruction of justice, and failing to accept responsibility. Not all facts

that affect a defendant’s sentence are essential elements requiring prosecutorial

proof and jury finding. The    Apprendi court noted that judges may still “exercise

discretion—taking into consideration various factors relating to both offense

and offender—in imposing a judgment within the range prescribed by statute.”

120 S. Ct. at 2358. In accordance with this principle, we have recently held that

“Apprendi does not apply to sentencing factors that increase a defendant’s

guideline range but do not increase the statutory maximum.”     United States v.

Sullivan , No. 00-8012, 2001 WL 273260, at *7 (10th Cir. Mar. 20, 2001).

       Defendant was sentenced to life imprisonment. He was not, however, given

a sentence greater than the maximum prescribed by statute for the crime for which

he was convicted. Because the indictment alleged a violation under 21 U.S.C.

§ 841(b)(1)(A) and set forth the specific quantities of drugs involved, and because

those allegations were proved beyond a reasonable doubt by defendant’s guilty

plea, see North Carolina v. Alford , 400 U.S. 25, 32 (1970) (holding that a guilty

plea is an “admission that [the accused] committed the crime charged against

him”), his sentence does not violate   Apprendi .




                                           -5-
                                II. Sufficiency of Plea

      Defendant asserts that the trial court failed to follow the procedure set forth

in Fed. R. Crim. P. 11 for taking his guilty plea. A district court has a duty to

ensure that a defendant’s guilty plea is knowing, intelligent, and truly voluntary.

See Fed. R. Crim. P. 11(d);   United States v. Gigot , 147 F.3d 1193, 1197

(10th Cir. 1998). “[W]hether the defendant’s plea was knowing, intelligent, and

voluntary[] is a question of law we review         de novo .” Gigot , 147 F.3d at 1197.

      On appeal, defendant alleges his plea was not knowing, intelligent, and

voluntary because he did not understand that he was pleading guilty to the

indictment and did not appreciate the full extent of the punishment he was facing.

Specifically, defendant contends that (1) he was prejudiced because he is not

fluent in English and the proceedings had to be conducted through an interpreter;

(2) he thought he was pleading guilty pursuant to an agreement rather than to the

indictment; (3) he was told by the prosecutor and his attorney that he would only

be sentenced to fourteen years in prison; and (4) there was no evidence that the

Spanish translation of the plea petition was an accurate representation of the

English version defendant signed. We determine that none of defendant’s

arguments has merit.   2




2
       The government has submitted additional evidence on appeal in the form of
an affidavit from the interpreter at defendant’s plea hearing. The affidavit is
                                                                      (continued...)

                                             -6-
       We have carefully read and reviewed the transcript of defendant’s plea

hearing, and we find no Rule 11 violations. Defendant was provided with an

interpreter who translated the entire proceeding into Spanish, his native language.

The trial court was thorough and clear in its explanation of defendant’s rights,

including his right to a jury trial. The court informed defendant of the charges in

the indictment and confirmed that he understood those charges. The court

advised him that his plea of guilty to the charges in the indictment could result in

a sentence of not less than ten years or more than life and that the court would

follow the sentencing guidelines. Defendant indicated his understanding without

hesitation. When asked whether his plea of guilty was being made freely and

voluntarily, defendant replied “Yes, Your Honor,” and he replied in the

affirmative when administered an oath of understanding before signing the plea

petition. (III R. at 8.) Defendant’s counsel informed the court that defendant had

been provided with a copy of the plea petition in Spanish and stated that she had

spent time with defendant answering his questions regarding the petition.



2
 (...continued)
dated after the district court proceedings at issue here and is attached to the
government’s response brief. Because the affidavit was not part of the trial court
record, we do not consider it as part of the appellate record.       See United States v.
Kennedy , 225 F.3d 1187, 1191 (10th Cir. 2000) (“This court will not consider
material outside the record before the district court.”),     cert. denied , 2001 WL
214120 (U.S. Mar. 26, 2001) (No. 00-1352). Therefore, defendant’s motion to
strike is denied as moot.

                                            -7-
      On appeal, defendant argues he did not understand that he was pleading

guilty to the first count of the indictment instead of a plea agreement. Defendant

bases his challenge on a colloquy in which the judge asked if he was correct in

stating that there was no plea agreement. Defense counsel answered, “That’s

correct, Your Honor,” and defendant replied, “No.” (     Id. ) Defendant argues on

appeal that his answer was ambiguous in that he could have been stating that the

court’s understanding was not correct and there was a plea agreement. We

believe this argument to be tenuous at best. There is no other instance during the

course of the hearing that would support defendant’s contention that he was under

the impression he was pleading guilty pursuant to a plea agreement. The court

clearly expressed the charges in the indictment and made a thorough effort to

secure defendant’s understanding that he was pleading guilty to those charges.

      Accordingly, we conclude that the trial court’s conduct of defendant’s plea

hearing was in conformity with Rule 11 and that defendant knowingly,

intelligently, and voluntarily pled guilty to the indictment as charged.

      The judgment of the district court is AFFIRMED.



                                                       Entered for the Court



                                                       Carlos F. Lucero
                                                       Circuit Judge

                                          -8-
