IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-20783

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES ROY WHITE, also known as Pumpkin, also known as Derrick Gilford,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (99-CR-628)

October 17, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

James White appeals the sentence imposed following his

conviction for possession with intent to distribute more than 50

grams of cocaine base and conspiracy to possess with intent to

distribute more than 50 grams of cocaine base in violation of

(a)(1) and 841(b)(1)(A)(iii). He argues that the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. district court, in light of Apprendi v. New Jersey,1 erred in

refusing to instruct the jury to find that a specific quantity of

drugs was involved that would support his sentence. Finding the

Apprendi error, however plain, to be harmless, we AFFIRM.

I

White’s arrest and conviction results from an undercover

operation during which law enforcement officers infiltrated a crack

cocaine trafficking ring that involved White, Anthony Wayne Clark,

and Shawn Allen Glover. Houston Police made undercover purchases

of crack on several occasions from these individuals for several

months leading up to October 1998. On October 7, 1998, Clark

agreed to sell 18 “cookies” of crack to an officer for $11,000.2

White supplied 14 of these “cookies” for the October 7 sale. White

was arrested at the scene of the sale along with Clark (Glover

escaped). A bag of crack was thrown by Glover under Clark’s car,

but it was retrieved by the police. The bag contained 387.6 grams

of crack.

White was convicted on both counts after a three-day trial

that began on March 6, 2000. Owing to his prior convictions, White

1

(2000). 2 Each “cookie” weighed between 20 and 28 grams.

2 received concurrent life sentences followed by 10 years of

supervised release.

II

Since White’s sentence is within the permitted range of the

statute under which he was indicted,3 the only Apprendi error in

this case (and the only Apprendi error White argues on appeal)

arises from the district court’s failure to instruct the jury on

the issue of drug quantity. “[I]f 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.”4 The specification of a drug quantity range in the

indictment is sufficient to satisfy Apprendi.5

Since White did not object to the jury instruction at trial,

our review here is for plain error.6 In order for us to reverse we

must find “(1) an error; (2) that is clear or plain; (3) that

affects the defendant’s substantial rights; and (4) that seriously

affects the fairness, integrity, or public reputation of judicial

3

(b)(1)(A).

4 United States v. Doggett,

(5th Cir. 2000). 5 United States v. DeLeon,

(5th Cir. 2001). 6 United States v. Delgado,

(5th Cir. 2001).

3 proceedings.”7 The failure to instruct the jury on drug quantity

was erroneous,8 as the Government admits.

We have consistently found the Apprendi error present here to

require that the defendant’s sentence be vacated unless the error

is harmless.9 While a failure to allege a drug quantity in the

indictment will usually require reversal,10 the mere failure to

properly instruct the jury regarding drug quantity is subject to

harmless error analysis.11 This distinction apparently arises from

the fact that a failure to allege drug quantity in the indictment,

in contrast to a failure to properly instruct the jury when they

have a proper indictment, will provide us with “no way to infer

from the record that such a [quantity] determination was made by

the jury.”12

While justification for the distinction between defects in the

indictment and erroneous jury instructions in our jurisprudence is

7 United States v. Vasquez,

(5th Cir. 2000). 8 Doggett,

. 9 United States v. Randle,

(5th Cir. 2001).

10 Id at 322 n. 1. See also United States v. Baptiste, No. 99-31027,

(5th Cir. Aug. 31, 2001). 11 United States v. Green,

(5th Cir. 2001); United States v. Slaughter,

(5th Cir. 2001). See also United States v. Gonzalez,

(5th Cir. 2001) (distinguishing omission from the indictment from failure to instruct jury on quantity). 12 Baptiste,

.

4 perhaps questionable,13 Supreme Court precedent requires that we

apply the harmless error test to the erroneous instruction of the

jury.14 We have previously applied the harmless error test when

reviewing the district court’s Apprendi error in failing to

instruct the jury on the issue of drug quantity entirely.15

In this case, the district court instructed the jury as to

quantity, but gave an instruction that misstated the law, only

requiring the jury to find whether there was a “detectable amount

of cocaine base.” Harmless error applies here as well, and we

conclude from our review of the record that no rational jury could

have found that White’s involvement in both the conspiracy and the

distribution of the crack in this case related to a quantity less

than 50 grams, when the overwhelming evidence is that the October

7, 1998 sale involved some quantity in excess that amount,

considering that each “cookie” of crack weighed between 20 and 28

grams, and at least fourteen were involved. White himself

confessed that he supplied the crack. The Apprendi error in this

case, therefore, was harmless.

13

(“Several circuits have, by contrast, applied the plain error standard in similar cases [where the indictment is silent on drug quantity] and affirmed enhanced sentences.”) (citing United States v. Promise,

(4th Cir. 2001) (en banc) (opinion of four judges); United States v. Pease,

(11th Cir. 2001); United States v. Mojica-Baez,

(1st Cir. 2000)). 14 See Neder v. United States,

(1999) (holding that omission of element of offense from jury instruction subject to harmless error review); Illinois v. Pope,

(1987) (holding that erroneous instruction of jury as to offense element is subject to harmless error review). 15 Green,

; Slaughter

.

5 III

For the foregoing reasons, White’s sentence is AFFIRMED.

6