BURTON v. U.S., 237 F.3d 490 (5th Cir. 2000)

Bobby Joe BURTON, Petitioner, v. UNITED STATES of America, Respondent.

No. 98-20294.United States Court of Appeals, Fifth Circuit.
December 22, 2000.

Paula Camille Offenhauser, Asst. U.S. Atty., Kathlyn Giannaula Snyder, Houston, TX, for Plaintiff-Appellee.

John Joseph Perry, Jones Cryer, Houston, TX, for Defendant-Appellant.

On Remand from the Supreme Court of the United States.

Before REYNALDO G. GARZA, JONES and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

Pursuant to the Supreme Court’s decisions in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), a fact that increases the penalty for a crime beyond the prescribed statutory maximum must be alleged in the indictment and proved to the jury beyond a reasonable doubt. Guided by these two Supreme Court decisions, it is the law of this circuit that when drug quantity is used to obtain an enhanced sentence, the quantity of drugs is an element of the offense.

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See United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000); United States v. Meshack, 225 F.3d 556, 575 (5th Cir. 2000).

In the instant case, the quantity of cocaine base possessed with intent to distribute by Bobby Joe Burton, Jr. was neither charged in the indictment nor proven to the jury beyond a reasonable doubt. The life sentence given to Burton exceeds the maximum statutory penalty set forth in 21 U.S.C. § 841(b)(1), absent a showing of drug quantity or other sentence enhancing factors. See Meshack, 225 F.3d at 576. We therefore vacate Burton’s sentence and remand to the United States District Court for the Southern District of Texas for resentencing.

SENTENCE VACATED AND REMANDED.

[EDITORS’ NOTE: THE PER CURIAM OPINION IN U.S. v. CRAWFORD, (5th Cir. March 8, 2000) No. 98-20294, WAS ORIGINALLY ATTACHED.][*]

[*] Pursuant to 5th Cir.R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir.R. 47.5.4.

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