United States v. Francis ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30424
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDDIE FRANCIS, JR.,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 99-CR-20028-9
- - - - - - - - - -
October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Freddie Francis, Jr., appeals his sentence for possession
with intent to distribute 17.66 grams of cocaine base. 21 U.S.C.
§ 841(a)(1). He was sentenced to 300 months of imprisonment. He
argues that in determining his sentence, (1) the district court
was bound by the drug quantity alleged in the indictment and
should not have used relevant conduct to increase his sentencing
guideline range, and (2) the fact of prior convictions should not
*
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that this opinion should not be published and is not precedent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. 02-30424
-2-
have been used to increase his sentence under the guidelines when
those prior convictions were not alleged in the indictment.
Francis acknowledges that both issues are foreclosed by this
court’s precedents. He seeks to preserve the issues for Supreme
Court review.
Francis’ 300-month sentence was within the statutory maximum
sentence of 40 years of imprisonment. 21 U.S.C.
§ 841(b)(1)(B)(iii). Francis’ first argument is without merit.
See Apprendi v. New Jersey, 530 U.S. 466 (2000).
Francis’ two prior convictions need not have been alleged in
the indictment. See Almendarez-Torres v. United States, 523 U.S.
224, 228-47 (1998). Apprendi did not overrule Almendarez-Torres.
See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000),
cert. denied, 531 U.S. 1202 (2001).
AFFIRMED.