United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS For the Fifth Circuit November 8, 2002

Charles R. Fulbruge III Clerk No. 00-41183

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RAY ANTHONY CRUZ; MARCUS CRUZ,

Defendants-Appellants.

Appeal from the United States District Court For the Southern District of Texas

November 8, 2002

Before DAVIS, BARKSDALE and DENNIS, Circuit Judges.

PER CURIAM:1

Ray and Marcus Cruz challenge their convictions and sentences

on drug trafficking charges on several grounds all related to the

government’s failure to allege in the indictment the drug quantities

involved in the offenses.

The only Apprendi v. New Jersey,

(2000) error that

1 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. occurred was in relation to the drug conspiracy charge. The court

properly imposed prison sentences within the limit provided in

(b)(l)(C), the baseline sentencing provision for cocaine

related offenses. However, the five year term of supervised release

the court imposed exceeds the baseline maximum sentence of three

years. See United States v. Doggett,

, 165 n.2. (5th

Cir. 2000). We must therefore reduce the term of supervised release

from five years to three years to bring the sentence within the

baseline sentencing limit. As modified, the sentence complies with

Apprendi and U.S. v. Cotton,

(2002).

Appellants also argue that because the indictment failed to

allege drug quantities, it did not state an offense. We agree with

the government that the indictment stated an offense. See Cotton.

The effect of the government’s failure to allege drug quantities in

the indictment was to limit appellants’ sentences to the penalty

provided in

(b)(l)(C) and (D).

Neither did the district court err in denying the Cruzes’

motion for a bill of particulars. The district court’s decision on

this issue is reviewed for abuse of discretion. To prevail the

Cruzes must establish that the denial caused surprise at trial and

resulted in prejudice to substantial rights. United States v.

Moody,

(5th Cir. 1991). Appellants do not allege

surprise or any specific harm they suffered from the court’s ruling.

When the information sought by the bill is made available to the

defendants in other ways, for example by the use of “open file”

2 discovery as was done in this case, the district court need not

order the bill. United States v. Vasquez,

(5th

Cir. 1989).

The Cruzes also argue that the district court constructively

amended their indictments by instructing the jury to make specific

findings as to the quantity of drugs involved in the conspiracy.

“A constructive amendment occurs when the jury is permitted to

convict the defendant upon a factual basis that effectively modifies

an essential element of the offense charged.” United States v.

Holley,

(5th Cir. 1994)(internal quotation and

citation omitted). A constructive amendment violates the defendants

right under the Fifth Amendment to a grand jury indictment.

But once appellants’ sentences are corrected to come within the

penalty provided by the baseline provisions, the findings of drug

quantity by the jury are surplusage. Even if the findings of the

jury amount to an amendment of the indictment, so long as the

sentence does not depend on those findings, the error is harmless.

F.R.C.P. 52(a); Neder v. United States,

(1999).

We therefore affirm the appellants’ convictions. We also

affirm appellants’ sentences, except to modify the terms of their

supervised release from five years to three years.

AFFIRMED as modified.

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