Castro v. United States

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 27, 2002
• Docket: 01-11279
• Status: Unpublished

Opinion

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.

------------------------------------------------------ Appeal from the United States District Court for the Northern District of Texas USDC No. 3:01-CV-1035-G ------------------------------------------------------ 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

-2-