United States v. Anderson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20893 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOEY LAMONT ANDERSON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-869-1 -------------------- June 13, 2002

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

PER CURIAM:*

Joey Lamont Anderson appeals from his conviction for

possession with intent to distribute 50 or more grams of cocaine

base, in violation of 21 U.S.C. § 841(a)(1), and carrying a

firearm in relation to a drug trafficking crime, in violation of

18 U.S.C. § 924(c)(1). Anderson argues that the evidence was

insufficient to support his conviction for both offenses.

Viewing the evidence in the light most favorable to the verdict,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-20893 -2-

we conclude that the evidence was sufficient for a rational jury

to conclude that Anderson knew there was 50 grams or more of

cocaine base involved in the drug transaction and that Anderson

carried the firearm in relation to the drug trafficking offense.

See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Smith v.

United States, 508 U.S. 223, 237-38 (1993); United States v.

Tolliver, 116 F.3d 120, 126 (5th Cir. 1997).

Anderson also argues that his sentence was improper under

Apprendi v. New Jersey, 530 U.S. 466 (2000), because the district

court did not instruct the jury to find a drug quantity as an

essential element of the offense. Apprendi is inapplicable to

Anderson's term of imprisonment because Anderson was not

sentenced above the 20-year statutory maximum for offenses

involving an unspecified amount of cocaine. See United States v.

Doggett, 230 F.3d 160, 165 (5th Cir. 2000), cert. denied, 531

U.S. 1177 (2001); 21 U.S.C. § 841(b)(1)(C). With respect to

Anderson's term of supervised release, we conclude that any

Apprendi error was harmless because there was no evidence from

which the jury could rationally conclude that the quantity of

drugs was less than the specific quantity alleged in the charges

of the indictment for which the jury found him guilty. See

United States v. Clinton, 256 F.3d 311, 314-15 (5th Cir.), cert.

denied, 122 S. Ct. 492 (2001); United States v. Green, 246 F.3d

433, 436-37 (5th Cir.), cert. denied, 122 S. Ct. 280 (2001).

AFFIRMED.