United States v. Moody

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-51242 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

TAMMY MOODY, also known as Tammy Hope, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas (SA-95-CR-296-ALL) -------------------- June 29, 2001 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:* Defendant-Appellant Tammy Moody appeals the sentence of

supervised release imposed following revocation of her original

supervised release. Moody had been indicted pursuant to 21 U.S.C.

§ 841 (a)(1) for possession with the intent to distribute

methamphetamine, and the government had sought to enhance that

charge pursuant to 21 U.S.C. § 841 (b)(1)(B). She subsequently

pleaded guilty to the enhanced charge, stipulating in her plea

agreement to possession of 142 grams of the substance. Invoking

Apprendi v. New Jersey, 530 U.S. 466 (2000), Moody now argues that * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. the district court erred in resentencing her to a four-year term of

supervised release when the indictment had not charged her with

possession of a specific amount of methamphetamine.

We will uphold a sentence after revocation of supervised

release “‘unless it is in violation of law or is plainly

unreasonable.’" United States v. Stiefel, 207 F.3d 256, 259 (5th

Cir. 2000)(quoting United States v. Mathena, 23 F.3d 87, 89 (5th

Cir. 1994)). Even if we assumed arguendo that an Apprendi argument

can be raised in the appeal of a sentence imposed following

revocation of supervised release, Moody’s argument nevertheless

fails because in the plea agreement she stipulated to possessing

142 grams of methamphetamine. Apprendi is therefore inapplicable.

See,e.g., United States v. Harper, 246 F.3d 520, 529-31 (6th Cir.

2001). Based on the quantity of methamphetamine stipulated by

Moody in her plea, the district court could sentence her to a term

of supervised release “of at least 4 years.” See 21 U.S.C.

§ 841 (b)(1)(B). The court was therefore authorized, pursuant to 18

§ U.S.C. 3583(h), to resentence her to a four-year term of

supervised release following revocation, and her Apprendi argument

is unavailing.

AFFIRMED.

2