IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20138 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAYMOND DELEON ALUISO, JR.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-176-4 -------------------- April 6, 2001

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

The attorney appointed to represent Raymond DeLeon Aluiso,

Jr. (“Aluiso”) has moved for leave to withdraw and has filed a

brief as required by Anders v. California,

(1967).

Aluiso has filed a response.

Our independent review of the appellate record and of the

possible issues raised by counsel and by Aluiso reveals no

nonfrivolous issues. We separately address the following issue

raised by Aluiso.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20138 -2-

Aluiso contends that his sentence is illegal in light of

Apprendi v. New Jersey,

,

(2000).

This court held, in light of Apprendi, “that if the government

seeks enhanced penalties based on the amount of drugs under

(b)(1)(A) or (B), the quantity must be stated in the

indictment and submitted to a jury for a finding of proof beyond

a reasonable doubt.” United States v. Doggett,

(5th Cir. 2000), cert. denied,

(2001).

This court specifically concluded that failure to state the

quantity of drugs in the indictment limited the term of

supervised release to a maximum of three years, under

(b)(1)(C) and

(b)(2). See

at 165 n.2.

Aluiso argues that the Government’s failure to allege drug

quantity in his indictment should have limited the supervised

release portions of his sentence to a maximum term of three

years. Because he did not raise his argument before the district

court, review is for plain error. See United States v. Meshack,

(5th Cir. 2000), cert. denied,

(2001). Under plain-error review, this court may address the

issue only if (1) there is an error, (2) the error is clear or

obvious, and (3) the error affects substantial rights. See

United States v. Olano,

(1993); United States

v. Calverley,

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

“[I]n most cases the affecting of substantial rights requires

that the error be prejudicial; it must affect the outcome of the

proceeding.” Calverley,

. If the above conditions

are satisfied, the court may correct the error, but only if it No. 00-20138 -3-

“seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings.” Olano,

(alteration in

original) (internal quotation marks and citations omitted).

The district court erred in imposing supervised release

terms in excess of three years with respect to Counts Four and

Five of the indictment. The district court sentenced Aluiso,

pursuant to

(b)(1)(B)(iii), to concurrent terms of

five years’ supervised release on Counts Four and Five. The

Government failed to allege the amount of drugs in Counts Four

and Five.

The district court did not, however, commit plain error in

imposing supervised release terms in excess of three years with

respect to Counts Four and Five of the indictment. The “affects

substantial rights” element of the plain error test “generally

requires the defendant to establish prejudice.” Meshack,

. The Government stated a quantity of drugs in Count

Six. The district court did not err in imposing a term of five

years’ supervised release on that count. See Doggett,

n.2. Because Aluiso would still be required to serve five

years’ supervised release under Count Six, he cannot show that

the district court’s errors prejudiced him. See Meshack,

.

The motion for leave to withdraw is GRANTED, counsel is

excused from further responsibilities herein, and the APPEAL IS

DISMISSED. See 5TH CIR. R. 42.2.