United States v. Gallaway

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41110 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERALD GALLAWAY,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:00-CR-62-1 -------------------- May 23, 2002

Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

Gerald Gallaway appeals his 151-month sentence following his

jury-trial conviction for conspiracy to distribute and possession

with the intent to distribute cocaine base and heroin, in

violation of 21 U.S.C. §§ 841(a)(1) and 846. Gallaway contends

that his sentence was imposed in violation of Apprendi v. New

Jersey, 530 U.S. 466 (2000).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41110 -2-

Gallaway did not challenge his sentence on these grounds in

the district court, thus, this court reviews his assertion for

plain error only. See United States v. Vasquez-Zamora, 253 F.3d

211, 213 (5th Cir. 2001). Because Gallaway was sentenced below

the statutory maximum for the offense charged in his indictment,

there was no Apprendi violation. See United States v. Keith, 230

F.3d 784, 787 (5th Cir. 2000), cert. denied, 531 U.S. 1182

(2001); United States v. Randle, 259 F.3d 319, 322 (5th Cir.

2001). Gallaway has not shown plain error; indeed, he has not

shown any error at all. Accordingly, we AFFIRM.

AFFIRMED.