United States v. Cooper

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20624 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES OSCAR COOPER,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-90-CR-403-1 -------------------- August 9, 2002 Before JOLLY, JONES, and PARKER, Circuit Judges.

PER CURIAM:*

James Oscar Cooper argues that the district court clearly

erred at resentencing by enhancing his offense level for the

possession of a firearm in connection with drug-trafficking

activity because the Government failed to prove a nexus between

the drug-trafficking, the weapons, and himself.

There was sufficient evidence to support a finding that

weapons were located in the immediate area of Cooper’s drug-

trafficking activity and could have been used if necessary during

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-20624 -2-

the drug transactions. There was also evidence that

coconspirators of Cooper used weapons in connection with the

drug-trafficking conspiracy and that such use was foreseeable to

Cooper. Thus, the district court did not clearly err in making

the enhancement under U.S.S.G. § 2D1.1(b)(1). See United States

v. Jacquinot, 258 F.3d 423, 431 (5th Cir. 2001), cert. denied,

122 S. Ct. 925 (2002); United States v. Thomas, 120 F.3d 564, 574

(5th Cir. 1997).

Cooper argues that the district court erred in determining

that it could not conduct a de novo review of sentencing issues

raised for the first time at resentencing. Cooper’s arguments

relative to the drug quantity attributed to him and the

enhancement for a leadership role in the offense could have been

raised in his initial appeal. Therefore, the district court

properly refused to consider these issues at resentencing. See

United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998).

Cooper also argues that the district court erred in refusing

to depart downward at resentencing in light of his exemplary

behavior during his incarceration. Because the district court

determined that a departure was not warranted based on the facts

of the case, this court lacks jurisdiction to review the district

court’s refusal to depart downward. United States v. Brace, 145

F.3d 247, 263 (5th Cir. 1998) (en banc).

Cooper argues that his 240 month sentence when aggregated

with his three-year term of supervised release exceeds the No. 01-20624 -3-

maximum statutory penalty that can be imposed in violation of

Apprendi v. New Jersey, 530 U.S. 466 (2000). Cooper was

sentenced in accord with 21 U.S.C. § 841(b)(1)(C) and, thus, his

sentence does not exceed the statutory maximum in violation of

Apprendi. See United States v. Doggett, 230 F.3d 160, 164-65

(5th Cir. 2000), cert. denied, 531 U.S. 1177 (2001).

Cooper motion for appointment of counsel to make an oral

argument is DENIED.

Cooper’s sentence is AFFIRMED.