IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________________

No. 99-41426 __________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MANUEL MORENO, JR.,

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court for the Eastern District of Texas 1:99-CR-29-ALL ___________________________________________________ January 2, 2002 Before GARWOOD and WIENER, Circuit Judges and VANCE,* District

Judge.

PER CURIAM:**

Appellant Manuel Moreno appeals his sentence for possession

with intent to distribute marijuana, in violation of

(a)(1). Because the bill of information did not charge a

* District Judge of the Eastern District of Louisiana, sitting by designation. ** Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. specific quantity of marijuana, and Moreno’s sentence exceeded five

years, we vacate his sentence and remand to the district court for

resentencing under Apprendi v. New Jersey,

,

(2000).

I. Background

Moreno was originally indicted for being a felon in possession

of a firearm under

(g)(1). During a traffic stop,

police officers found a loaded pistol on the driver’s side of the

truck Moreno was driving. The officers also found 175 pounds of

marijuana in a companion vehicle. Moreno pleaded not guilty to the

gun charge and asserted his innocence at trial. Moreno testified

at trial that he was unaware that the firearm was in the vehicle.

The jury failed to reach a verdict, and the judge declared a

mistrial. Two months later, the government filed a one-count bill

of information charging Moreno with possession with intent to

distribute an unspecified amount of marijuana, in violation of

(a)(1). The drug charge arose out of the same traffic

stop that was the factual basis for the gun charge. That same day,

Moreno waived his right to an indictment and pleaded guilty to the

bill of information in accordance with a written plea agreement.

Moreno also admitted in the plea agreement that he possessed a

firearm in connection with the drug offense and that a two-point

sentencing enhancement should be applied under U.S.S.G. §

2D1.1(b)(1).

2 Moreno was sentenced several months later. As part of the

presentence investigation, Moreno gave an interview to a probation

officer. During that interview, Moreno denied that he knew that

the gun was in the car when he committed the marijuana offense.

The probation officer determined that Moreno was responsible for

79.67 kilograms of marijuana, and based on that amount, calculated

Moreno’s base offense level at 22. The probation officer

recommended that a two-level increase for possession of a firearm

under U.S.S.G. § 2D1.1(b)(1) be added to Moreno’s offense level.

Moreno’s criminal history category was II, which, at an offense

level of 24, resulted in a sentencing guideline range of 57-71

months’ imprisonment. The probation officer recommended that the

district court deny Moreno a two-point downward adjustment for

acceptance of responsibility because Moreno failed to accept

responsibility for all relevant conduct involved in the offense, in

particular, the possession of the firearm. Moreno objected to the

probation officer’s recommendation.

At sentencing, the district court overruled Moreno’s objection

and sentenced him to 71 months’ imprisonment and three years of

supervised release. The district court found that Moreno was not

entitled to a downward adjustment for acceptance of responsibility

because during the presentence interview, Moreno maintained that he

did not possess a firearm in connection with the offense. The

district court also referred to a section of the presentence

investigation report that recommended that Moreno be denied a

3 downward adjustment for acceptance of responsibility because Moreno

had forced the government to go to trial on the gun charge in the

first case. Moreno filed a timely notice of appeal.

On appeal, Moreno challenges both the district court’s

refusal to grant him a downward adjustment for acceptance of

responsibility and the validity of his sentence under Apprendi v.

New Jersey,

,

(2000).

II. Discussion

B. Acceptance of Responsibility

1. Standard of Review

The determination of the sentencing judge on acceptance of

responsibility is entitled to great deference on review. See

U.S.S.G. § 3E1.1 comment. n.5 (Nov. 2001). Failure to depart

downward for acceptance of responsibility constitutes reversible

error only when that decision is made without any foundation.

United States v. Patino-Cardenas,

(5th Cir.

1996).1

2. Analysis

1 We have not definitively determined what standard applies when reviewing a district court’s refusal to grant a defendant a downward adjustment for acceptance of responsibility. Compare United States v. Wilder,

(5th Cir. 1994)(applying the "clearly erroneous" standard), with United States v. Patino-Cardenas,

(5th Cir. 1996)(applying the “without foundation” standard), and United States v. Spires,

(5th Cir. 1996)(applying the “great deference” standard). We have found, however, that “[t]here appears to be no practical difference between the three standards.” United States v. Cartwright,

(5th Cir. 1993).

4 Section 3E1.1 of the United States Sentencing Guidelines

provides for a two or three level reduction in a defendant’s

sentence if the defendant “clearly demonstrates acceptance of

responsibility for his offense.” U.S.S.G. § 3E1.1(a)(Nov. 2001).

The commentary to section 3E1.1 provides a non-exhaustive list of

considerations that sentencing courts are to take into account in

determining whether the defendant has accepted responsibility,

which include whether the defendant has falsely denied or

frivolously contested relevant conduct. See U.S.S.G. § 3E1.1(a),

comment. n.1(a) (Nov. 2001) (“[A] defendant who falsely denies, or

frivolously contests, relevant conduct that the court determines to

be true has acted in a manner inconsistent with acceptance of

responsibility.”).

Moreno asserts that the district court’s failure to grant him

a downward adjustment for acceptance of responsibility based on his

refusal to admit to possession of the firearm violated his Fifth

Amendment right against self-incrimination. He argues that a

contrary ruling would force him to choose between (1) accepting

responsibility for a crime, other than the one to which he has

pleaded guilty, without the protection of immunity, and (2)

forfeiting any consideration for a reduction in sentence. The

Court disagrees.

In this case, the government agreed in the plea agreement not

to prosecute Moreno on the gun charge. Further, there has been no

5 compelled self-incrimination on these facts. See United States v.

Mourning,

(5th Cir. 1990)(statutorily

overruled on other grounds); see also United States v. Kleinebreil,

(5th Cir. 1992) (reaffirming the holding of

Mourning that requiring a defendant to accept responsibility for

relevant conduct does not violate Fifth Amendment). The law of

this circuit firmly establishes that requiring a defendant to

accept responsibility for all relevant conduct before awarding a

reduction for acceptance of responsibility does not deny defendant

his right against self-incrimination.

Accordingly, Moreno was

required to accept responsibility for the conduct involved in the

drug offense, as well as for the relevant conduct of possessing the

firearm in connection with the drug offense, before he was entitled

to a downward adjustment for acceptance of responsibility.

We find that the district court had sufficient grounds to

deny defendant a downward adjustment for acceptance of

responsibility. During the course of an extended colloquy with

defense counsel during the sentencing hearing, the district court

explicitly found that Moreno was not entitled to a downward

adjustment for acceptance of responsibility because he made

contradictory statements regarding the firearm during the

presentence interview and in the plea agreement. The court stated

that “defendant was not being truthful at the time of the plea or

he was not being truthful during the presentence interview.”

6 Accordingly, the court found that it was not appropriate to grant

him acceptance of responsibility.

Our review of the record reveals that Moreno acknowledged in

his plea agreement that he possessed a firearm during his drug

trafficking activities and stipulated to a two-level enhancement

under U.S.S.G. § 2D1.1(b)(1). In contrast, in his interview with

the probation officer, Moreno claimed that he did not possess a

firearm in connection with the offense. Indeed, Moreno denied that

the gun in his vehicle was his or that he knew that it was in the

vehicle until the police stopped him. He asserted that the firearm

in his vehicle belonged to his nephew. We find that the sentencing

judge had a sufficient basis to find that Moreno did not accept

responsibility for relevant conduct because he changed his story

regarding the gun between the time he entered the plea agreement,

in which he admitted that he possessed the gun in connection with

the offense, and the time of the presentence interview, in which he

asserted his unawareness of the gun and blamed it on his nephew.

The district court additionally appeared to rely on another

basis for denying the downward adjustment. The district court

stated during the sentencing hearing that, “[t]here is no

adjustment for acceptance of responsibility for the reasons stated

in paragraph 21 [of the PSR] and the colloquy between counsel and

the court on his objection.” Paragraph 21 of the PSR states that

Moreno’s earlier decision to go to trial on the gun charge was

another reason that he should be denied a downward adjustment for

7 acceptance of responsibility.

The defendant failed to fully accept responsibility regarding relevant conduct and offense characteristics associated with the instant offense. USSG § 3E1.1, comment. (n.1a). Furthermore, Moreno proceeded on the count of Indictment to trial dealing with “factual guilt.” Thus, this has put the Government to its burden of proof and has expended the resources of the Court, which may have been otherwise used more efficiently. U.S.S.G. § 3E1.1, comment. (n.2 and 6).

Whether it is permissible for the sentencing court to find

that Moreno’s “not guilty” plea to the earlier indictment on the

gun charge constituted a false denial of relevant conduct in the

later drug case is a question of law for this Court to review de

novo. United States v. Brown,

(5th Cir. 1994).

We need not reach this question, however. The district court’s

conclusion that Moreno had not accepted responsibility was

primarily based on its finding that Moreno made contradictory

statements about the gun possession. This finding alone is

sufficient to warrant denial of acceptance of responsibility. See,

e.g., United States v. Paredes-Batista,

(2d Cir.

1998) (affirming denial of an adjustment for acceptance of

responsibility when factual basis supported denial even though

district court also relied on a flawed legal theory).

C. Apprendi

Moreno raises his Apprendi challenge for the first time on

appeal. Accordingly, this Court reviews the district court’s

decision for “plain error.” United States v. Gonzalez,

(5th Cir. 2001).

Moreno argues that the two-level sentence enhancement for

possession of a firearm violated Apprendi. Section 2D1.1(b)(1) of

the guidelines provides for a two-level sentencing enhancement for

weapons possession “unless it is clearly improbable that the weapon

was connected with the offense.” U.S.S.G. § 2D1.1, comment. n.3

(Nov. 2001). Here, Moreno stipulated in his plea agreement that he

possessed a firearm in connection with the drug offense.

Sentencing enhancements under the guidelines, like section

2D1.1, do not implicate Apprendi. See United States v. Randle,

(5th Cir. 2000). In Randle, this court reiterated

that a sentencing court’s factual findings under the guidelines are

not governed by Apprendi.

(citing United States v. Doggett,

(5th Cir.), cert. denied,

,

(2000) (finding that Apprendi was specifically limited to

facts that increase the penalty beyond the statutory maximum and

does not invalidate a court’s factual finding for the purposes of

determining the applicable Sentencing Guidelines)). Therefore, we

found that Apprendi did not apply to the section 2D1.1 sentencing

enhancement for possession of a firearm. Id. (“Application of

enhancements called for by the guidelines may not be used to impose

any sentence beyond the statutory maximum prescribed by an

offense.”).

Our review of the record reveals, however, that Moreno’s bill

9 of information failed to allege a drug quantity. Although Moreno’s

Apprendi challenge did not mention the government’s failure to

allege a specific drug quantity, the Court in its discretion finds

that it is in the interests of justice and fairness to consider

this argument. See United States v. Miranda,

(5th Cir. 2001) (refusing to find the Apprendi challenge waived

when “it is clear from the record in this case that Appellants were

sentenced in violation of constitutional due process as interpreted

by the Supreme Court in Apprendi.”); Randle,

.

We have held under 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.” Doggett,

. When defendant is either

charged and convicted or is charged and pleads guilty to an

unstated quantity, defendant may be sentenced only under the

applicable default provisions of section 841. See United States v.

Gonzalez,

(5th Cir. 2001)(citations omitted).

See also United States v. Longorio,

(5th Cir.

2001)(per curiam). For marijuana, section 841(b)(1)(D) sets forth

the statutory maximum. See Gonzalez,

.

Under Section 841(b)(1)(D), in the absence of a prior

10 conviction for a felony drug offense,2 the statutory maximum to

which Moreno may be sentenced is a term of imprisonment of not more

than five years and supervised release of not more than three

years. The Court finds that the district court lacked jurisdiction

to impose a longer sentence on Moreno of 71 months’ imprisonment

and four years of supervised release. See Gonzalez, 259 F.3d at

n.3; Longorio, 259 F.3d at 365. We, therefore, vacate Moreno’s

sentence and remand to the district court for resentencing in

accordance with this opinion.

III. Conclusion

We affirm the district court’s denial of a reduction for

acceptance of responsibility, but because the sentence imposed

exceeds the statutory maximum of 60 months for the offense of

conviction, thus violating Apprendi, we vacate Moreno’s sentence

and remand for resentencing.

2 If the defendant has a prior felony drug conviction,

(b)(1)(D) provides for a statutory maximum of ten years imprisonment and four years of supervised release. Although the probation officer determined in the pre-sentence report that Moreno had been convicted of a drug offense, the record indicates that the government did not file a bill of information with the court stating in writing the previous convictions to be relied upon as required by

. Section 851 provides that “[n]o person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court. . . .” Accordingly, since the government did not comply with the requirements of section 851, it cannot now rely upon Moreno’s prior conviction to increase his sentence under section 841(b)(1)(D). (Tr. Plea, at 14-15.) See United States v. Martinez,

(6th Cir. 2001).

11 AFFIRMED in part; VACATED and REMANDED in part.

12