                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                                                          F I L E D
                IN THE UNITED STATES COURT OF APPEALS                    November 12, 2003
                        FOR THE FIFTH CIRCUIT
                                                                      Charles R. Fulbruge III
                                                                              Clerk

                                No. 03-30408
                              Summary Calendar



                         UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                     versus

                             EDWARD MARTIN BASS,

                                                        Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                 for the Western District of Louisiana
                         USDC No. 02-CR-50023-1
                          --------------------

Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:1

     Edward     Martin      Bass    pleaded    guilty    to        conspiracy       to

import     controlled    substances     specifically      Ecstasy,         and    was

sentenced to 135 months’ imprisonment and five years’ supervised

release.     Bass argues that under U.S.S.G. § 1B1.3(a)(1)(B), his

sentence    should   have    been    calculated   based       on    ecstasy,      the

substance which was within the scope of the conspiracy and which

was reasonably foreseeable to Bass.           He contends that he agreed to


     1
        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that this opinion should not be published and is not precedent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 importation of ecstasy only, and that Sollenberger’s conduct in

shipping methamphetamine was not reasonably foreseeable to him.

      The section of the guidelines concerning relevant conduct

which   Bass    argues    is   at    issue,    §    1B1.3(a),    provides    that   a

defendant’s sentence

           shall be determined            on       the   basis   of    the
           following:

           (1)(A) all acts and omissions committed,
           aided, abetted, counseled, commanded, induced,
           procured,   or   willfully   caused   by   the
           defendant; and

           (B) in the case of a jointly undertaken
           criminal activity (a criminal plan, scheme,
           endeavor, or enterprise undertaken by the
           defendant in concert with others, whether or
           not charged as a conspiracy), all reasonably
           foreseeable acts and omissions of others
           in furtherance of the jointly undertaken
           criminal activity,

           that occurred during the commission of the
           offense of conviction, in preparation for that
           offense, or in the course of attempting to
           avoid detection or responsibility for that
           offense.

§   1B1.3(a).     These    are      separate   and       independent    grounds   for

imposing sentencing accountability.                  United States v. Carreon,

11 F.3d 1225, 1237 (5th Cir. 1994).

      The commentary to § 1B1.3 provides as follows:

           With respect to offenses involving contraband
           (including    controlled   substances),    the
           defendant is accountable for all quantities of
           contraband with which he was directly involved
           and, in the case of a jointly undertaken
           criminal activity, all reasonably foreseeable
           quantities of contraband that were within the


                                         2
            scope of the criminal activity that he jointly
            undertook.

            The requirement of reasonable foreseeability
            applies only in respect to the conduct
            (i.e., acts and omissions) of others under
            subsection (a)(1)(B).   It does not apply to
            conduct   that   the   defendant   personally
            undertakes, aids, abets, counsels, commands,
            induces, procures, or willfully causes; such
            conduct   is   addressed   under   subsection
            (a)(1)(A)

§ 1B1.3, comment. (n.2).          Carreon and the commentary make it clear

that the relevant conduct mentioned in § 1B1.3(a)(1)(B), which

contains the reasonable foreseeability requirement, applies in the

instances in which the defendant is not directly involved in the

drug transaction.        11 F.3d at 1232-33, 1237.

     The    concept      of    reasonable   foreseeability   does   not    apply

in   this   case    because       Bass   personally   participated    in     the

importation. Bass met with Sollenberger and recruited him to go to

Belgium to obtain the ecstasy; he provided Sollenberger with the

money to purchase the tablets; he provided Sollenberger with the

addresses to which the drugs should be mailed; and he actually

received    and    had    in    his   possession   two   parcels    containing

methamphetamine which were mailed by Sollenberger to Bass from

Belgium.    In the words of § 1B1.3(a)(1)(A), Bass, by his actions,

personally “aided, abetted, induced and procured” the importation

of a controlled substance which turned out to be methamphetamine.

The district court did not err in holding Bass

accountable for the quantity of methamphetamine which was actually


                                            3
involved in the transaction in which Bass personally participated

regardless of his lack of knowledge that methamphetamine was the

drug actually imported.              See United States v. Valencia-Gonzales,

172 F.3d 344, 345-46 (5th Cir. 1999); United States v. Gamez-

Gonzalez,    391    F.3d      695,    700    (5th       Cir.   2003);     United   States

v. Strange, 102 F.3d 356, 360-61 (8th Cir. 1996); United States v.

Salazar,     5   F.3d    445,    446-47      (9th       Cir.   1993);   United     States

v. Lockhart, 37 F.3d 1451, 1454 (10th Cir. 1994); United States v.

Corral-Ibarra, 25 F.3d 430, 437-38 (7th Cir. 1994).

      Bass argues that after Apprendi v. New Jersey, 530 U.S. 466

(2000), due process requires that a defendant convicted of a

narcotics conspiracy be sentenced according to the substance that

was actually the object of the conspiracy.                         He contends that

because the type of substance is an element of the offense, and

because the statutory penalties are directly dependent on the type

of substance involved in the offense, he should have been sentenced

based on ecstasy because that was the drug for which he was charged

and to which he pleaded guilty to conspiring to import.                                He

acknowledges that his sentence did not exceed the statutory maximum

for   ecstasy,     but   he     contends         that   his    sentence    nevertheless

violates due process because it is unfair.

      Bass   acknowledges        that       he    did    not   raise    this   issue   in

the district court, and so this court reviews for plain error.

United States v. Olano, 507 U.S. 725, 730-37 (1993).



                                             4
     This court rejected a similar argument in Gamez-Gonzalez,

holding that knowledge of drug type and quantity was not relevant

to the penalty, that the penalty was based solely on the type and

quantity involved in the unlawful act in 21 U.S.C. § 841’s strict

liability punishment scheme. 319 F.3d at 699-700. If knowledge of

the type of drug is not an element for purposes of the conviction,

it is likewise not relevant to the sentence.

     Bass acknowledged at his plea hearing that he understood that

it was possible that the district court would base his sentence on

the quantity of methamphetamine actually involved in the offense,

rather than the ecstasy that was the intended object of the

conspiracy, and he was willing to take that risk.   Bass’s sentence

was not unfair and did not violate due process.

     AFFIRMED.




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