F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                 UNITED STATES COURT OF APPEALS                             JAN 4 2001

                                 TENTH CIRCUIT                         PATRICK FISHER
                                                                                Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 00-1148
 v.                                               (D.C. No. 99-CR-157-2-B)
                                                         (Colorado)
 VICTOR JESUS ROJAS-MENDOZA,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, Circuit Judges.


      Victor Jesus Rojas-Mendoza appeals his conviction for methamphetamine

distribution, arguing that the failure to specify drug quantity in his indictment is

contrary to the Supreme Court’s ruling in Apprendi v. New Jersey, 

(2000). For the reasons set out below, we affirm.

      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
      Mr. Rojas-Mendoza was arrested in April 1999 and indicted on two counts

of distributing “a mixture or substance containing a detectable amount of

methamphetamine.” No drug quantity was specified in the indictment text, but

each count cited 21 U.S.C. § 841(b)(1)(A)(viii), which applies to distribution of

500 or more grams of methamphetamine substances. A jury found Mr. Rojas-

Mendoza guilty on both counts, without considering the amount of drugs

involved. At sentencing, the judge determined that Mr. Rojas-Mendoza should be

held responsible for distributing 1.6 kilograms of methamphetamine and, after

downward adjustments based on the United States Sentencing Guidelines,

sentenced him to 121 months’ imprisonment.

      The procedures followed in Mr. Rojas-Mendoza’s trial and sentencing were

consistent with the well-established principles of the time. The procedural

landscape changed, however, with the Supreme Court’s Apprendi decision in June

2000. Apprendi established that, “[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt,” 

We recently held that the quantity of drugs involved in an offense is

one such fact. See United States v. Hishaw, No. 99-6258, __ F.3d ___ (10th Cir.,

Dec. 20, 2000). The new Apprendi requirements apply to this case upon direct

review. See Griffith v. Kentucky, 

, 328 (1987).


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      While Apprendi did not address which facts must be included as elements

of an indicted crime, Mr. Rojas-Mendoza argues the logic of Apprendi suggests

that indictments must now specify sentence-enhancing facts such as drug quantity.

Although Mr. Rojas-Mendoza’s indictment cited the statutory subsection that

applies to over 500 grams of methamphetamine substances, giving him some

notice of the amount the government sought to hold against him, statutory

citations are not sufficient substitute for missing elemental facts. See United

States v. Brown, 

, 1505 (10th Cir. 1993). The failure to specify an

elemental fact in the indictment text is a jurisdictional flaw rendering an

indictment legally insufficient to support a conviction, see 

Mr. Rojas-

Mendoza argues his conviction cannot stand. It is beyond question, however, that

Mr. Rojas-Mendoza was indicted and convicted for distributing some appreciable

quantity of methamphetamine under 21 U.S.C. § 841. His conviction can be

supported under section 841(b)(1)(C), which applies to distribution of a

controlled substance without regard to quantity enhancements.

      Mr. Rojas-Mendoza points out that section 841(b)(1)(C) sets forth a

different range of penalties from the enhanced section under which he was

convicted, providing for sentences of “not more than 20 years” as opposed to “not

less than 10 years or more than life.” He asserts that his sentence was determined

by the 10-year minimum of the enhanced provision, and that the logic of Apprendi


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implies that facts which trigger application of a statutory minimum must also be

determined by a jury beyond a reasonable doubt. There is some logic to this

argument, as discussed in the Apprendi dissent, 

(O’Connor,

J., dissenting). However, Apprendi did not overrule the Court’s earlier decision

in McMillan v. Pennsylvania, 

(1986), which held that judges may

make sentencing decisions within the prescribed statutory range. See 

n.13 (“We do not overrule McMillan. We limit its holding to

cases that do not involve the imposition of a sentence more severe than the

statutory maximum for the offense established by the jury’s verdict . . . .”).

Consequently, the rule of Apprendi applies only to cases for which a sentence was

imposed beyond the statutory maximum; McMillan continues to apply to all other

cases.

         Although drug quantities were determined by the sentencing judge in this

case, “as long as the defendant’s sentence falls within the maximum established

by statute, Apprendi does not foreclose consideration of drug quantities beyond

the offense of conviction.” Hishaw, 99-6258,       F.3d     (10th Cir., Dec. 20,

2000). Mr. Rojas-Mendoza’s 121-month sentence fell within the 20-year

maximum of section 841(b)(1)(C), and thus Apprendi can offer him no relief.




                                          -4-
We AFFIRM Mr. Rojas-Mendoza’s conviction and sentence.

                           ENTERED FOR THE COURT


                           Stephanie K. Seymour
                           Chief Judge




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