IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-30499 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DEMETRIUS RICHARD,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 00-CR-329-ALL -------------------- December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges

PER CURIAM:*

Demetrius Richard appeals his sentence following his guilty-

plea conviction of distribution of more than five grams but less

than 50 grams of “crack” cocaine. Richard contends that the

sentence violated Apprendi v. New Jersey,

(2000), because the drug quantity used to determine the

guidelines sentencing range exceeded the drug amount alleged in

the indictment.

Richard’s plea agreement contains a waiver of his right to

appeal his sentence, except on limited grounds, and Richard does

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-30499 -2-

not argue against enforcing the waiver. Even without the waiver,

however, the appeal has no merit.

Richard’s indictment alleged distribution of more than five

grams of crack cocaine. The statutory maximum penalty for that

offense is 40 years.

(b)(1)(B)(iii). Apprendi

affords no relief because Richard’s 97-month sentence does not

exceed the statutory maximum penalty provided for cases involving

five grams of crack. See United States v. Doggett,

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

(2001).

Apprendi likewise does not prohibit the trial court “from

determining the amount of drugs for relevant conduct purposes

under the Sentencing Guidelines.” United States v. Keith,

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

(2001).

The judgment of the district court is AFFIRMED.