Thomas v. Dobre

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 24, 2002
• Docket: 01-40919
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40919 Summary Calendar

DARRELL GLENN THOMAS,

Petitioner-Appellant,

versus

JONATHAN DOBRE, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:01-CV-339 -------------------- June 19, 2002

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Darrell Glenn Thomas, federal prisoner # 18746-077, appeals

from the denial of his 28 U.S.C. § 2241 habeas corpus petition.

He argues that the district court erred in determining that his

Apprendi v. New Jersey, 530 U.S. 466 (2000), claim did not meet

the criteria for bringing a claim pursuant to the “savings

clause” of 28 U.S.C. § 2255.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40919 -2-

Thomas contends that his sentence for possession of

amphetamine with intent to distribute was unconstitutionally

calculated in violation of Apprendi. He bases this on the fact

that the sentencing court determined his sentence by “equating”

amphetamine with heroin, as provided by a Drug Equivalency Table

appended to U.S.S.G. § 2D1.1 (1988).

“Apprendi does not apply to cases in which a sentence is

enhanced within a statutory range based upon a finding of drug

quantity.” United States v. Clinton, 256 F.3d 311, 314 (5th

Cir.), cert. denied, 122 S. Ct. 492 (2001) (citation and

quotation marks omitted). Thomas is complaining of a 162-month

sentence, whereas the maximum penalty provided by § 841(b)(1)(C)

for his offense is 20 years. See United States v. Allison, 953

F.2d 870, 873 (5th Cir. 1992).

Because Thomas has no valid Apprendi claim, his petition for

an en banc hearing is DENIED and the district court’s judgment is

AFFIRMED.

PETITION DENIED; JUDGMENT AFFIRMED.