United States v. Clark

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40691 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

JERMON RODRIGUEZ CLARK,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 2-01-CV-41-DF USDC No. 2:94-CR-1-3 -------------------- July 25, 2002

Before JONES, DUHÉ, and CLEMENT, Circuit Judges.

PER CURIAM:1

Jermon Rodriguez Clark, a federal prisoner (# 04709-078),

appeals from the district court’s dismissal of his 28 U.S.C. §

2255 motion to vacate his 1995 guilty-plea conviction and sentence

for a carjacking resulting in death, a violation of 18 U.S.C. §

2119(3). The district court granted Clark a certificate of

appealability (“COA”) on the issue whether Jones v. United States,

526 U.S. 227 (1999), and Apprendi v. New Jersey, 530 U.S. 466

(2000), can be applied retroactively to Clark’s claim.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 his 28 U.S.C. § 2255 motion, Clark argued that his

conviction and sentence were unconstitutional in that, at his

guilty-plea hearing, the district court failed to recite, as an

element of the offense, that the offense resulted in the death of

the victim. The district court concluded that Clark’s motion to

vacate was time-barred because, even if it had been filed within

one year after Apprendi was issued, Apprendi did not retroactively

apply to cases on collateral review. See 28 U.S.C. § 2255, third

paragraph of limitation provision.

Even if it is assumed arguendo that Apprendi applies

retroactively, Clark has not established that his carjacking

conviction and his 540-month prison term violated the Due Process

Clause. Clark’s indictment charged that the carjacking offense

resulted in the death of the victim and that he was subject to a

term of life imprisonment under 18 U.S.C. § 2119(3). At his plea

proceeding, the court recited the indictment charge, including the

reference to the victim’s death, and reiterated that Clark faced a

prison term of life. The Government’s recitation of the factual

basis for Clark’s plea and Clark’s own testimony regarding that

factual basis reflected that the death of the victim was central to

his conviction. Because these factors were sufficient to apprise

Clark of the applicability and effect of 18 U.S.C. § 2119(3),

Clark’s 540-month sentence did not exceed the statutory maximum and

no violation of the Apprendi principle occurred. See United States

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

U.S. 1177 (2001).

2 Accordingly, we need not reach the question on which the

district court granted COA. The district court’s order dismissing

Clark’s 28 U.S.C. § 2255 motion to vacate is AFFIRMED.