UNITED STATES COURT OF APPEALS
                                 FOR THE FIFTH CIRCUIT



                                           NO. 99-10974



                                UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

                                                  v.

                                     ROSE ELLA SUMMERS,
                                              a/k/a
                                         Rosie Summers
                                              a/k/a
                                         Rosie Campos

                                        Defendant-Appellant.


                         Appeal from the United States District Court
                              for the Northern District of Texas
                                       (3:96-CR-326-P)
           ________________________________________________________________
                                       February 5, 2001

Before HIGGINBOTHAM and DeMOSS, Circuit Judges, and FISH*, District Judge.

PER CURIAM:**

       Rose Ella Summers was charged by indictment with one count of conspiracy to possess

with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846, and one count of



       *
                District Judge of the Northern District of Texas, sitting by designation.
       **
               Pursuant to the 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not be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
conspiracy to launder the proceeds of unlawful activities, in violation of 18 U.S.C. § 1956(h). A

jury convicted her on both counts. The district court sentenced Summers to 292 months on the

drug count and 240 months on the money-laundering count. These sentences were to run

concurrently and were to be followed by five years of supervised release. Summers appealed.***

          After briefing was complete in this case, the Supreme Court issued its opinion in Apprendi

v. New Jersey, 

, 

, 

(2000), which called into question

our prior rule that drug quantity was a sentencing factor but not an element of an offense under

§ 841. indictment. Apprendi is applicable because it was decided while this case was on direct

review. See Teague v. Lane, 

, 303-04, 

, 

(1989).

Guided by Apprendi, and its precursor, Jones v. United States, 

, 

,

(1999), “it is the law of this circuit that when drug quantity is used to obtain an

enhanced sentence, the quantity of drugs is an element of the offense” which must be charged in

the indictment and submitted to the jury for proof beyond a reasonable doubt. Burton v. United

States,         F.3d   , 

, at *1 (5th Cir. 2000) (citing United States v. Doggett, 

, 164-65 (5th Cir. 2000), petn. for cert. filed (January 4, 2001) (No. 00-7819), and

United States v. Meshack, 

, 575 (5th Cir. 2000), cert. denied,        U.S.    , 

(2001)). We caution that this rule applies only when a sentence exceeds the statutory

maximum. “A fact used in sentencing that does not increase a penalty beyond the statutory

maximum need not be alleged in the indictment and proved to a jury beyond a reasonable doubt.”


          ***
               Summers timely filed a notice of appeal but her attorney was granted leave to
withdraw. New counsel was appointed for Summers but the new attorney failed to perfect her
appeal. As a result, Summers’ appeal was dismissed for want of prosecution. She subsequently
prevailed on a claim of ineffective assistance of counsel, and was granted leave to file this out-of-
time appeal.

                                                  -2-
United States v. Salazar-Flores,    F.3d    , 

, at *1 (5th Cir. 2001). See also,

United States v. Keith, 

, 787 (5th Cir. 2000), petn. for cert. filed (January 16, 2001)

(No. 00-8077).

       In this case, the indictment charged Summers with conspiracy to possess with intent to

distribute one kilogram or more of methamphetamine. The quantity of drugs was not submitted

to the jury. Because Summers may not receive an enhanced sentence for a quantity of drugs in

excess of that charged in the indictment and proven to a jury beyond a reasonable doubt, she is

subject only to the penalties enumerated under § 841(b)(1)(C). The 292 month sentence given to

Summers exceeds the applicable twenty year statutory maximum of § 841(b)(1)(C). We therefore

VACATE Summers’ sentence and REMAND this case to the district court for resentencing.




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