Castro v. United States ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11279
Summary Calendar
RAFAEL CASTRO,
Petitioner-
Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-
Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CV-1035-G
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June 26, 2002
Before JOLLY, DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
Rafael Castro, federal prisoner # 60649-079, has appealed the district court’s denial of his 28
U.S.C. § 2241 petition. He argues that the district court erred in construing his 28 U.S.C. § 2241
petition as a 28 U.S.C. § 2255 motion. He argues that in view of Apprendi v. New Jersey, 530 U.S.
466 (2000), the indictment was defective because it did not allege a specific drug quantity and,
therefore, it did not charge an offense. Because he is challenging his federal conviction and sentence,
the district court did not err in construing the petition as a
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
28 U.S.C. § 2255 motion. See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Castro did not
obtain this court’s authorization to file a successive 28 U.S.C. § 2255 motion, and therefore, the
district court did not have jurisdiction to consider it. See United States v. Key, 205 F.3d 773, 775
(5th Cir. 2000).
Castro has not shown that the district court erred in determining that Castro did not establish
that he is entitled to bring these claims under the savings clause of 28 U.S.C. § 2255. The indictment
which alleges a drug-quantity range rather than a specific drug quantity was sufficient to satisfy the
requirements of Apprendi. See United States v. DeLeon, 247 F.3d 593, 597 (5th Cir. 2001)(direct
appeal). The district court instructed the jury that Castro was charged “with conspiracy to possess
with intent to distribute and to distribute a Schedule II controlled substance, that is, in excess of five
(5) kilograms of a mixture and substance containing a detectable amount of cocaine.” The district
court also instructed the jury that it must find that two or more persons made a agreement to violate
the narcotics laws as charged in the indictment. On direct appeal, this court has held that a district
court’s failure to instruct the jury to find a specific amount of drugs was harmless error in cases in
which a review of the record showed that the defendant was involved in a drug offense involving at
least the amount of drugs specifically charged in the indictment. United States v. Virgen-Moreno,
265 F.3d 276, 298 (5th Cir. 2001), cert. denied, 122 S. Ct. 843 (2002); United States v. Green, 246
F.3d 433, 437 (5th Cir.), cert. denied, 122 S. Ct. 280 (2001). Castro does not argue or show that
there is any evidence in the record that could rationally lead a jury to a conclusion contrary to the
charge that Castro was involved in an offense involving at least the amount of drugs specifically
charged in the indictment. Therefore, the district court’s judgment is AFFIRMED. The
Government’s motion to supplement the record is GRANTED. Castro’s motion for permission to
file an out-of-time reply brief is GRANTED.
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