United States v. Allen

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 20, 2003
• Docket: 02-20665
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20665 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ADRIAN TODD ALLEN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-414-1 -------------------- March 20, 2003

Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM:1

A jury found Adrian Todd Allen guilty of one charge of being

a felon in possession of a firearm and one charge of possessing a

firearm in connection with a drug offense, violations of 18 U.S.C.

§§ 922(g), 924(c). Allen appeals following this court’s remand to

the district court for resentencing. See United States v. Allen,

282 F.3d 339, 343 (5th Cir. 2002). Allen argues for the first time

in this appeal that his sentence violates the principles announced

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), because the

jury was not required to make factual findings concerning his prior

convictions. He concedes that this argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he

seeks to preserve the issue for Supreme Court review in light of

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

overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; see

also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

This argument is thus unavailing.

Allen also argues that his sentence is contrary to Apprendi

because the jury did not make factual findings regarding whether he

possessed a firearm in connection with a drug offense. Allen is

mistaken. The jury specifically found this fact beyond a

reasonable doubt by convicting him of the 18 U.S.C. § 924(c)

charge. Allen has not shown that the district court erred in

sentencing him. Accordingly, the district court’s judgment is

AFFIRMED.