IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-30557 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

EUGENE TROY ELLIS

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 99-CR-161-ALL-J -------------------- January 23, 2001

Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

A jury convicted Eugene Troy Ellis on all three counts of an

indictment charging him with being a felon in possession of a

firearm, possession with intent to distribute cocaine, and using

a firearm in connection with a drug-trafficking crime. The

district court sentenced Ellis to 120 months’ imprisonment on

Count 1, 240 months on Count 2, and 60 months on Count 3, the

last to run consecutively to the other two terms. The court also

sentenced Ellis to three years of supervised release on Counts 1

and 3 and five years of supervised release on Count 2. The five-

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-30557 -2-

year term of supervised-release was based on drug quantity

pursuant to

(b)(1)(a). The district court sua

sponte increased Ellis’s offense level by two points for

obstruction of justice, based on a finding that Ellis committed

perjury when he testified on his own behalf at trial. On

appeal, Ellis challenges the five-year term of supervised release

and the two-level increase for obstruction of justice.

Ellis argues that the five-year term of supervised release

exceeds the statutory maximum term and therefore is improper

under Apprendi v. New Jersey,

(2000),

because the sentence was based on a drug amount that was neither

set forth in the indictment nor found by the jury beyond a

reasonable doubt. Ellis concedes that his trial counsel did not

object to the five-year term and that his claim is therefore

subject only to “plain error” review. See United States v.

Calverley,

(5th Cir. 1994) (en banc); United

States v. Meshack,

(5th Cir. 2000), petition

for cert. filed, (U.S. Nov. 26, 2000) (No. 00-7246).

On “plain error” review, this court may correct forfeited

errors only when the appellant shows that (1) there is an error

(2) that is clear or obvious and (3) that affects his substantial

rights. Fed. R. Crim. P. 52(b); United States v. Olano,

(1993); Calverley,

. If these

factors are established, the decision to correct the forfeited

error remains within the court’s sound discretion, which the

court will not exercise unless the error seriously affects the No. 00-30557 -3-

fairness, integrity, or public reputation of judicial

proceedings. Olano,

.

“Other 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.” Apprendi,

. Apprendi

applies when drug quantity is used to increase the statutory

maximum sentence beyond that provided for in

(b)(1)(c), the penalty provision of

that

does not refer to drug quantity. See United States v. Keith,

(5th Cir. 2000). Under Apprendi it was error to

use drug quantity as the basis for sentencing Ellis to more than

three years of supervised release on Count 2, a Class C felony.

See

(a)(3) (Class C felonies), and 3583(b)(2)

(“not more than three years” of supervised release for Class C

felonies);

(b)(1)(C) (“supervised release of at

least 3 years”); Meshack,

(three-year term of

supervised release). The five-year term of supervised release is

“error”. United States v. Doggett,

(5th

Cir. 2000).

“Clear,” or “obvious” error means an error which was clear

under current law at the time of the appeal. Johnson v. United

States,

(1997). Apprendi’s application to drug

crimes under

is now clearly established. See

Doggett,

; Keith,

. Thus,

the error was plain. Johnson,

. No. 00-30557 -4-

The error resulted in Ellis being sentenced to an overlong

term of supervised release. Therefore it affected his

“substantial rights”. See Meshack,

(correcting

overlong terms of supervised release under plain-error review).

Declining to give Ellis the benefit of well-established law would

reflect adversely on the fairness and integrity of the judicial

proceedings. Olano,

. The five-year term of

supervised release does not survive plain-error review.

The Government asserts that, regardless of drug quantity,

Ellis had undisputed prior-felony convictions that subjected him

to an increased statutory maximum sentence of more than three

years of supervised release under

(b)(1)(C). “The

only convictions the court may rely upon for enhancement are

those enumerated in the government’s ‘Information of Prior

Conviction,’ filed pursuant to

.” See United

States v. Steen,

(5th Cir. 1995). “If the

prosecution fails to comply with § 851’s procedural requirements,

a district court cannot enhance a defendant’s sentence.” Id.;

United States v. Puig-Infante,

(5th Cir.

1994). The Government sought unsuccessfully to have Ellis’s

sentence enhanced under

for two prior convictions

that would have made Ellis eligible for life imprisonment and

more than three years of supervised release. Because the

district court determined that it had “no jurisdiction to

consider the enhancement under the bill of information” that

alleged Ellis’s prior convictions, there are no cognizable prior

convictions on which to base an enhancement under 21 U.S.C. No. 00-30557 -5-

§ 841(b)(1)(C). Ellis’s five-year term of supervised release on

Count 2 is vacated, and the case is remanded for resentencing.

See Meshack,

.

Ellis contends that the district court’s sua sponte

two-level increase in his total offense level for obstruction of

justice was not supported by adequate “independent findings to

establish a willful impediment to or obstruction of justice.” He

asserts that “there must be more than a simple finding that the

defendant lied” before the obstruction-of-justice increase may be

applied.

Section 3C1.1 of the sentencing guidelines provides for a

two-level increase if “‘the defendant willfully obstructed or

impeded, or attempted to obstruct or impede, the administration

of justice during the course of the investigation, prosecution,

or sentencing of the instant offense.’” United States v. Storm,

(5th Cir. 1994) (quoting § 3C1.1). The

guideline’s commentary specifically lists “committing, suborning,

or attempting to suborn perjury” as examples of conduct to which

the enhancement applies. § 3C1.1, comment. (n.4(b)).

Perjury occurs when “‘[a] witness testifying under oath or

affirmation . . . gives false testimony concerning a material

matter with the willful intent to provide false testimony, rather

than as a result of confusion, mistake or faulty memory.’”

United States v. Cabral-Castillo,

(5th Cir.

1994) (quoting United States v. Dunnigan,

(1993)). Although it is preferable for the district court to

make independent clear findings on each element of the alleged No. 00-30557 -6-

perjury, it is enough if the court’s finding “‘encompasses all of

the factual predicates for a finding of perjury.’” United States

v. Laury,

(5th Cir. 1993) (quoting Dunnigan,

). The record indicates that the district court

did not err in finding that Ellis committed perjury. He

willfully and falsely denied possession of the gun and the

cocaine, facts obviously material to his case.

Ellis’s sentence to a five-year term of supervised release

on Count 2 is VACATED, and the case is REMANDED for resentencing.

In all other respects, the conviction and sentence are AFFIRMED.