United States v. Harris , 332 F. App'x 967 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 16, 2009
No. 08-50905
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DANNY RAY HARRIS
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:08-CR-69-ALL
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
The attorney appointed to represent Danny Ray Harris has moved for
leave to withdraw and has filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967). Harris filed an untimely response. It is unnecessary to
decide whether leave should be granted to file the untimely response because
Harris does not raise a nonfrivolous issue for appeal. Harris contends that the
drug quantity attributed to him increased the statutory maximum for his crime
and, therefore, had to be proven to a jury or admitted by him in accordance with
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50905
Apprendi v. New Jersey, 530 U.S. 466 (2000). However, Harris was charged with
violating 21 U.S.C. § 841(a)(1); the indictment specified the penalty provisions
of § 841(b)(1)(C). A defendant’s possession with the intent to distribute any
quantity of methamphetamine satisfies that section. Under Harris’s guilty plea,
then, his statutory maximum was twenty years. His sentence of 108 months,
then, does not violate Apprendi.
Harris also raises the issue of ineffective assistance of counsel. “[T]he
general rule in this circuit is that a claim of ineffective assistance of counsel
cannot be resolved on direct appeal when the claim has not been raised before
the district court since no opportunity existed to develop the record on the merits
of the allegations.” United States v. Gulley, 526 F.3d 809, 821 (5th Cir.) (internal
quotation marks and citations omitted), cert. denied, 129 S. Ct. 159 (2008).
Accordingly, this claim would not be addressed on this direct appeal.
Finally, Harris contends that the district court did not make sufficient
findings with respect to the amount of drugs that Harris was held responsible
for as relevant conduct to his sentence. After debating the facts and being asked
to accept the sentence range set forth in the presentence report, the court
adopted the recommendation of the probation officer. As Harris concedes, he
would be required to show plain error in the court’s findings. He has no
nonfrivolous basis to do so. See United States v. Huerta, 182 F.3d 361, 364 (5th
Cir. 1999).
We have also conducted an independent review. Our independent review
of the record and counsel’s brief discloses no nonfrivolous issue for appeal.
Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is
excused from further responsibilities herein, and the APPEAL IS DISMISSED.
See 5 TH C IR. R. 42.2.
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