Opinion
No. 07-10771 Summary Calendar.
September 11, 2009.
Chris Jackson, Oxford, WI, pro se.
Angie Lee Henson, Assistant U.S. Attorney, U.S. Attorney's Office Northern District of Texas, Fort Worth, TX, for Plaintiff-Appellee.
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.
Chris Ryan Jackson, federal prisoner # 06914-089, was convicted by a jury of one count of possession with intent to distribute 3(3 grams of cocaine in violation of ai 21 U.S.C. §§ 841(a)(1), (b)(1)(C); one in 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 sentence on direct appeal, rejecting, inter alia, the argument that in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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.