IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 00-10533
                         Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

ABDUL SATAR,

                                         Defendant-Appellant.

                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:99-CR-331-G
                       - - - - - - - - - -
                          April 6, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Abdul Satar appeals his conviction and sentence for

possession with intent to distribute more than 100 grams of

heroin and aiding and abetting, in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2.   Satar’s challenge to the district

court’s denial of his motion to suppress evidence found in his

apartment is without merit.   There was sufficient probable cause

for the agents to believe that contraband was in Satar’s

apartment after they saw him carry the package containing heroin

into his apartment.   As for the warrantless entry, it was


     *
        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this opinion should not be published and is not precedent except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.
                            No. 00-10533
                                 -2-

justified by exigent circumstances.     See United States v. Howard,

, 74 (5th Cir. 1997).    Approximately 45 minutes after

Satar had entered his apartment with the package, the agents had

not been alerted by the transmitter inside the package and they

feared that it had failed due to the heat and the length of time

it had been in the package or that the package had been opened

and that Satar had seen the transmitter.    At that point, it was

reasonable for the agents to believe that they could not wait to

obtain a warrant.    See e.g., United States v. Rodea, 

, 1402, 1409-10 (5th Cir. 1996).    Satar’s argument that the

agents manufactured the exigency is meritless.    Nothing in the

record indicates that the agents acted unreasonably.     See 

.    Although they might have been able to obtain a

warrant before the heroin was removed or destroyed, the

possibility that it would be too late was significant enough to

justify the warrantless entry.     See 

.

     Satar argues for the first time on appeal that his consent

to the subsequent search of his apartment was not voluntary

because it was given under duress.     The argument is reviewed only

for plain error.    United States v. Calverley, 

, 162

(5th Cir. 1994)(en banc).

     Satar was warned of his constitutional rights and asked to

consent to a search.    Satar consented but said he knew nothing

about what was going on.    The agents told Satar that he had a

right to refuse to consent to the search.     Satar said that he

understood his rights and signed a consent form which was read to

him in English.    The district court was entitled to give more
                            No. 00-10533
                                 -3-

weight to the agent’s version of facts based on a finding that

the agent was more credible than Satar.     United States v. Kelly,

, 262 (5th Cir. 1977).    It was not plain error for

the district court to find based on the testimony at the hearing

that Satar’s consent was not coerced.

     Satar’s claim of ineffective assistance of counsel cannot be

resolved because it was not raised before the district court.

United States v. Ugalde, 

, 804 (5th Cir. 1988).     Such

claims are decided on direct appeal only in those rare instances

where the record is sufficiently complete to fairly evaluate the

claim.   

this appeal is one of those rare

instances, Satar cannot show that counsel was ineffective.

Strickland v. Washington, 

, 687-88, 694 (1984).

Satar lacked standing to object to the search and seizure of the

package because he voluntarily abandoned the property.     He told

the agents it did not belong to him and during his testimony at

trial he denied ownership of it.     His counsel therefore had no

basis to challenge introduction of the package as evidence.     See

United States v. Quiroz-Hernandez, 

, 864 (5th Cir.

1995); United States v. Alvarez, 

, 289-90 (5th Cir.

1993).   As for counsel’s failure to contest the use of the

transmitter in Satar’s residence, no evidence was obtained as a

result of the transmitter because Satar did not open the package.

The outcome of the proceedings was unaffected by the use of the

transmitter, thus no prejudice can be shown.

     Satar argues that the evidence at trial was insufficient to

show that he knew heroin was inside the package mailed to him.
                          No. 00-10533
                               -4-

Knowledge can be proved by circumstantial evidence.     United

States v. Rodriguez, 

, 1175 (5th Cir. 1993).    The

evidence at trial established that Satar picked up, signed for,

and took into his apartment a package not addressed to him and

that the package contained heroin.    An experienced DEA agent

testified that narcotics traffickers entrust packages containing

large quantities of narcotics only to persons who are trusted

members of their organizations.    The agent testified that the

heroin had a wholesale value between $64,000 and $80,000, and a

street value between $640,000 and $800,000.     The jury could infer

that such a large quantity of narcotics was not misaddressed and

was not delivered to the wrong individual.     See United States v.

Del Aguila-Reyes, 

, 157 (5th Cir. 1983).    Moreover,

Satar acknowledged that the nickname “A. Jaan” had been used to

address him in the past, and a mail carrier testified that Satar

had previously received two packages from overseas.    Satar was a

citizen of the country from which the package originated,

Afghanistan, and his passport indicated trips to and from

Pakistan and Afghanistan, and entry into the United States

through New York City, a place where the type of heroin in the

package is commonly distributed.     Satar’s address books contained

the name “Abdul Khaliq,” the name of the man who was smuggling

the heroin out of Afghanistan and who had Satar’s “A. Jaan” name

and address on a piece of paper.   Based on this evidence, a

rational trier of fact could have found beyond a reasonable doubt

that Satar had knowledge of the contents of the package.     See

Jackson v. Virginia, 

, 319 (1979).
                            No. 00-10533
                                 -5-

     Satar argues for the first time in this court that under

Apprendi v. New Jersey, 

(2000), the indictment

was defective because it did not identify a specific quantity of

drugs.   He also argues that the jury charge was defective because

it did not specify a quantity of drugs that Satar possessed with

the intent to distribute.   Contrary to Satar’s assertion, the

indictment alleged possession of a quantity of heroin in excess

of 100 grams, in violation of 21 U.S.C. § 841(a)(1).    The jury

charge, however, required only a finding of possession of an

unspecified quantity of heroin with the intent to distribute it.

Because § 841 calls for a factual determination regarding the

quantity of the controlled substance, and that factual

determination significantly increases the maximum penalty from 20

years under § 841(b)(1)(C) to life imprisonment under

§ 841(b)(1)(A), the jury charge in this case was unconstitutional

under Apprendi.   See United States v. Doggett, 

, 164-

65 (5th Cir.), cert. denied, 

(U.S. Feb. 20, 2000).

Nonetheless, Satar’s sentence of 136 months is less than the

statutory maximum of 20 years and therefore within the range of

punishment for the jury finding that he was guilty of possession

with the intent to distribute an unspecified quantity of heroin.

See 

States v. Meshack, 

, 575-76

(5th Cir. 2000)); § 841(b)(1)(C).

     However, since the elements found by the jury satisfied only

a conviction under § 841(b)(1)(C), a Class C felony, Satar’s term

of supervised release cannot exceed three years.   See 

n.2 (citing 18 U.S.C. § 3583(b)(2); United States
                          No. 00-10533
                               -6-

v. Kelly, 

, 24-25 (5th Cir. 1992)).   We correct some

errors under plain error review.   

.

Accordingly, Satar’s supervised release term of four years is

hereby MODIFIED to the statutorily mandated three-year term.

     AFFIRMED WITH MODIFICATION.