                                 IN THE UNITED STATES COURT OF APPEALS

                                                    FOR THE FIFTH CIRCUIT


                                                                No. 00-40602
                                                              Summary Calendar




UNITED STATES OF AMERICA,
                                                                                                                            Plaintiff-Appellee,

                                                                        versus

LIONEL MOORE, also known as Doc,

                                                                                                                        Defendant-Appellant.




                                         Appeal from the United States District Court
                                             for the Southern District of Texas
                                                    (No. G-99-CR-1012)

                                                             November 27, 2001


Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:*

           Appellant Lionel Moore (“Moore”) appeals his guilty-plea conviction and sentence. For the

reasons assigned herein, we affirm his conviction, but vacate his term of supervised release and

remand to the district court for resentencing.




           *
            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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited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.
                       FACTUAL AND PROCEDURAL BACKGROUND

       On March 16, 1999, Moore was indicted on one count of conspiracy to possess with intent

to distribute cocaine and cocaine base, commonly known as “crack” cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A)-(C), and 846 (“Count One”), and one count of possession with intent to

distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) (“Count Seven”).

On October 28, 1999, Moore pled guilty to Counts One and Seven. The plea was not pursuant to

a written plea agreement. On May 17, 2000, the district court sentenced Moore to concurrent 135-

month prison terms as to each count, co ncurrent five-year terms of supervised release as to each

count, and a $200 special assessment fee.

       At rearraignment, the prosecutor recited the facts which the government would prove if

Moore pleaded not guilty, which included the circumstances surrounding his arrest, and Moore

acknowledged these facts. On January 13, 1998, police officers stopped Moore for speeding. Moore

fled the scene on foot and the officers observed him throw four baggies to the ground as he ran. The

officers recovered the baggies and determined that they contained 66.18 grams of crack cocaine.

       According to the presentence report (PSR), in 1997, federal agents initiated an investigation

on the crack and powder cocaine distribution activities of Terry Lee Scott (“Scott”). Between

October 1997 and December 1997, the agents intercepted thirty-one telephone conversations between

Moore and Scott. On October 28th, Moore ordered one ounce of crack cocaine. Moore ordered

two ounces of powder cocaine from Scott on October 30th and four additional ounces on November

1st. On each of these occasions, a pole camera located in front of Scott’s residence recorded actions

consistent with the requested drug transactions. Continuing investigation revealed that Moore

obtained four ounces of crack cocaine from Scott on October 30th and purchased approximately forty


                                                 2
ounces of powder cocaine in November and December 1997. Moore also sought advice from Scott

on how to cook the powder cocaine into crack cocaine. When Scott was arrested, he told federal

officers that Moore purchased four to six ounces of cocaine per week from Scott beginning in 1997,

in both powder and crack form. Based on information from the agents and Scott, the probation

officer determined that Moore was responsible for possession and distribution of 1,219 grams of

powder cocaine and 207.93 grams of crack cocaine.

       Moore also had a prior 1993 state conviction for possession of crack cocaine with intent to

distribute and was on probation for that offense when he committed the present of fense. Moore

violated the terms of his probation four times and served a total of one year and several months in jail

before he was paroled on August 5, 1999.

       At sentencing, Moore’s defense counsel raised several objections to the PSR, and the court

ruled on each objection. One objection concerned the inclusion of crack cocaine in calculating the

offense level. Moore claimed that all of his transactions involved powder cocaine. The case agent,

Agent Robinson, told the court the following: “Moore has said he sold crack cocaine. He converted

it into crack cocaine. He bought it as powder most of the time and converted it himself.” The court

found “that the presentence report and the information that it discloses provides clear and reliable

evidence to support the calculation of the drug amount” and overruled the objection. Moore did not

object to the announced sentence.

       The judgment of conviction and sentence was entered on May 22, 2000. Moore filed a timely

pro se notice of appeal and the district court appointed counsel to represent Moore on appeal. Moore

subsequently filed a motion to dismiss counsel and appoint substitute counsel. This court denied




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Moore’s request to appoint new counsel, but ultimately granted a subsequent motion by Moore to

dismiss counsel and proceed pro se. This pro se appeal followed.

                                             DISCUSSION

        Moore challenges his sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000), and

contends that the indictment is defective for failure to allege all the elements of the charged offense.

He argues that because the indictment alleged no specific quantity of drugs under 21 U.S.C. § 841,

the district court improperly sentenced him to a term of supervised release based on an enhanced

penalty. We review Moore’s sentence for plain error in light of his failure to raise the Apprendi

objection before the district court. United States v. Meshack, 225 F.3d 556, 575 (5th Cir. 2000).

Plain error requires Moore to show “(1) an error; (2) t hat 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 proceedings.” Id. (internal quotations omitted) (quoting United States v. Vasquez, 216

F.3d 456, 459 (5th Cir. 2000)). Under plain error review, this Court corrects overlong terms of

supervised release. Id. at 578.

        Moore and the government agree that the five-year term of supervised release was erroneous.

Without enhancement for drug quantity, the appropriate term of supervised release would not be

greater than three years and the period of imprisonment would not exceed twenty years. 21 U.S.C.

§ 841(b)(1)(C); United States v. Doggett, 230 F.3d 160, 164-65 & n.2 (5th Cir. 2000); Meshack, 225

F.3d at 578. This court has held that “if the government seeks enhanced penalties based on the

amount of drugs under 21 U.S.C. § 841(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.” Doggett, 230 F.3d at 164-

65. We find plain error in Moore’s sentence because the five year term of supervised release


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represents an enhanced penalty, but a drug quantity was not stated in the indictment. See United

States v. Vasquez-Zamora, 253 F.3d 211, 214 (5th Cir. 2001). We also find that the additional two

years of supervised release affects Moore’s substantial rights. See United States v. Gonzalez, 259

F.3d 355, 359 (5th Cir. 2001). Moreover, we conclude that Moore is entitled to a corrected sentence

because his sentence may not exceed the statutory maximum of a three-year term of supervised

release. See 21 U.S.C. § 841(b)(1)(C); Vasquez-Zamora, 253 F.3d at 214. Accordingly, we vacate

Moore’s term of supervised release and remand for resentencing.1

       Moore’s contention that his conviction should be reversed because the indictment failed to

allege all the essential elements of the charged offenses is without merit. Drug quantity is an element

of a 21 U.S.C. §§ 841 or 846 offense, which must be stated in the indictment, only when the

government seeks enhanced penalties based on the amount of drugs under 21 U.S.C. § 841(b)(1)(A)

or (B). See Doggett, 230 F.3d 164-65. The absence of a drug quantity allegation in the indictment

authorizes only a sentence under § 841(b)(1)(C), the default provision. The indictment in this case

is sufficient because it charges only offenses for which no drug quantity need be stated.

        Moore next argues that the district court erred in holding him responsible for the amount of

crack cocaine indicated in the PSR. Moore claims that he never obtained crack cocaine from Scott,

and that the government failed to pro ve that the cocaine purchased by Moore was crack cocaine

rather than powder cocaine. This Court reviews the accuracy of the factual findings made by a

district court in its determination of a defendant’s relevant conduct for sentencing purposes under the


       1
         Correcting the error requires resentencing under 21 U.S.C. § 841(b)(1)(C), but does not
require reversal of Moore’s conviction. See Meshack, 225 F.3d at 578 (“Apprendi allows for only
a sentencing challenge, not a challenge to the underlying conviction.”); cf. Gonzalez, 259 F.3d at 360
(“[C]orrecting the error does not require a new trial but merely resentencing . . . .”). We reject any
assertion by Moore to the contrary.

                                                  5
clearly erroneous standard. United States v. Schorovsky, 202 F.3d 727, 729 (5th Cir. 2000). “As

a general rule, a PSR bears sufficient indicia of reliability, such that a sentencing judge may consider

it as evidence in making the factual determinations required by the Sentencing Guidelines.” United

States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999). The district court may adopt facts contained

in the PSR without inquiry, if the information in the PSR has an adequate evidentiary basis and the

defendant does not present rebuttal evidence demonstrating that it is “materially untrue, inaccurate

or unreliable.” Id. (citation and internal quotations omitted). “The court is free to disregard a

defendant's unsworn assertions that the PSR is unreliable.” United States v. Ayala, 47 F.3d 688, 690

(5th Cir. 1995). The PSR’s conclusion that Moore obtained five ounces of crack cocaine from Scott

was based on sufficient evidence derived from an investigation of Scott’s drug transactions. While

Moore o bjected at sentencing to the references to crack cocaine in the PSR, he failed to present

evidence to rebut those determinations. In the absence of rebuttal evidence, the district court

correct ly relied on the PSR and Agent Robinson’s statements in determining the amount of crack

cocaine involved in this case. The district court’s finding is not clearly erroneous.

        Moore also challenges the manner in which the district court determined his criminal history

category. This court conducts a de novo review of the district court’s legal application of the United

States Sentencing Guidelines (“Guidelines”). United States v. Franklin, 148 F.3d 451, 459 (5th Cir.

1998). The court assessed two points under section 4A1.1(d) of the Guidelines because Moore

committed the present offenses while he was on probation for his 1993 state court conviction. The

court also added three points under section 4A1.1(a) of the Guidelines because the state court

revoked Moore’s probation and sentenced him to three years imprisonment. Moore claims that the

assessed points for the revocation constitute unlawful double counting because the conduct


                                                   6
supporting the federal conviction for Count Seven in the indictment is the same conduct that resulted

in the state probation revocation. Finding this case analogous to our decision in Franklin, there is no

evidence that the revocation turned on the conduct underlying Moore’s federal conviction. 148 F.3d

at 461-62. The PSR indicates that Moore violated his probation numerous times and that each

motion to revoke charged Moore with failing to report; failing to pay restitution, court fees, and

supervision fees; and continued drug use. Moore’s probation was revoked for violating the

conditions of his probation, even before his guilty plea in the underlying convictions. Thus, we

decline to find double counting.

        Further, Moore urges this court to vacate his prior state conviction, claiming that his rights

were violated during his state court guilty plea because the state court failed to properly advise him

that his state conviction could subsequently be used to increase a sentence in federal court, his state

defense counsel was ineffective, and the state prosecutor was vindictive in dismissing the state

cocaine possession charge in exchange for his plea to violating probation. In Custis v. United States,

the Supreme Court held that a federal prisoner cannot collaterally attack the validity of his prior state

convictions used to enhance his sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e), in the sentencing forum, unless the attack was based on a deprivation of the right to

counsel. 511 U.S. 485, 496-97 (1994); see also Daniels v. United States, 121 S.Ct. 1578, 1583

(2001) (“[I]f, by the time of sentencing under the ACCA, a prior conviction has not been set aside

on direct or collateral review, the conviction is presumptively valid and may be used to enhance the

federal sentence.”). Like Moore, Custis challenged his prior convictions on the ground that his guilty

plea was not knowing and intelligent and that his lawyer was ineffective. Id. at 488. We believe that

Custis applies whether the sentence enhancement was imposed under the ACCA or under the


                                                   7
Guidelines. See Brackett v. United States, No. 01-1466, 2001 WL 1316525 (1st Cir. Oct. 31, 2001),

at *4. We conclude that Moore may not challenge the validity of his prior state conviction in this

direct appeal of his conviction and sentence. Thus, the district court properly applied the Guidelines

to Moore’s presumptively valid prior state conviction.

       Finally, Moore argues that the district court erred in determining his sentence without running

his federal sentence concurrent with his state sentence and without awarding him credit for time

served in state confinement. Because Moore did not raise these objections at sentencing, our review

is limited to plain error. United States v. Torrez, 40 F.3d 84, 86-87 (5th Cir. 1994); United States

v. Bleike, 950 F.2d 214 (5th Cir. 1991). “[I]f a term of imprisonment is imposed on a defendant who

is already subject to an undischarged term of imprisonment,” the district court has discretion to run

the terms concurrently or consecutively, with the exception of attempt offenses. 18 U.S.C. § 3584(a)

(2001) (emphasis added). We conclude that the district court did not commit plain error in failing

to run Moore’s federal sentence concurrent to his discharged state sentence because the State of

Texas paroled Moore on August 5, 1999, and at the time of the sentencing hearing, May 17, 2000,

and Mo ore’s guilty plea, October 28, 1999, there was nothing for the federal sentence to run

consecutive to or concurrent with. Further, the district court did not commit plain error in not giving

Moore credit for time served in state confinement because the Attorney General must compute the

credit under 18 U.S.C. § 3585(b) following sentencing. United States v. Wilson, 503 U.S. 329, 333-

34 (1992). Although Moore indicates that he is seeking judicial review of computation of his credit

by the Bureau of Prisons after exhausting his administrative remedies, Wilson, 503 U.S. at 1355, he

does not establish what administrative review he pursued. Even if all of Moore’s administrative

remedies were exhausted, he would not be entitled to this credit because the time he spent in state


                                                  8
confinement from 1998 until his parole was credited against his state sentence for violating his

probation in relation to his 1993 state conviction. 18 U.S.C. § 3585(b) (authorizing credit only for

“time he has spent in official detention prior to the date the sentence commences . . . that has not been

credit against another sentence”).

                                           CONCLUSION

        Accordingly, for the reasons stated herein, we VACATE the district court’s sentence as to

the term of five years for supervised release and REMAND for resentencing. In all other aspects, we

AFFIRM the district court’s judgment of conviction and sentence.

        Conviction AFFIRMED; sentence VACATED and REMANDED in part.




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