United States v. Jackson , 332 F. App'x 973 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 11, 2009
No. 07-10771
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CHRIS JACKSON,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CV-832
USDC No. 4:00-CR-250-ALL
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Chris Ryan Jackson, federal prisoner # 06914-089, was convicted by a jury
of one count of possession with intent to distribute 30 grams of cocaine in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C); one count of carrying a firearm
during and in relation to a drug trafficking offense in violation of 18 U.S.C.
§ 924(c)(1); and two counts of possession of a firearm by a felon in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). We previously affirmed his conviction and
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 07-10771
sentence on direct appeal, rejecting, inter alia, the argument that in light of
United States v. Booker, 543 U.S. 220 (2005), the district court committed plain
error when it found certain facts relative to sentencing. Jackson subsequently
filed a 28 U.S.C. § 2255 motion, which the district court denied. A judge of this
court granted a certificate of appealability on one of the nine claims that Jackson
sought to raise on appeal: whether counsel’s failure to raise an objection to the
district court’s findings of drug type and quantity pursuant to Apprendi v. New
Jersey, 530 U.S. 466 (2000), constituted ineffective assistance of counsel.
Jackson was sentenced to 168 months in prison on the drug count. That
sentence does not exceed the statutory maximum of 20 years that applies when
the amount of cocaine is less than 500 grams. See 21 U.S.C. § 841(b)(1)(C). In
other words, Jackson’s sentence did not exceed the maximum authorized by the
jury verdict; thus, there was no Apprendi violation. See United States v. Cooper,
274 F.3d 230, 243 (5th Cir. 2001); United States v. Doggett, 230 F.3d 160, 164-65
(5th Cir. 2000). It follows that counsel did not render ineffective assistance by
failing to raise what would have been a meritless Apprendi-based objection. See
United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999).
As for any failure of counsel to preserve an objection to judicial factfinding
regarding drug type and quantity in light of Booker, there likewise was no
ineffective assistance of counsel. See United States v. Fields, 565 F.3d 290,
293-97 (5th Cir. 2009).
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
2