United States v. Garcia

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-51291 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTONIO GARCIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-99-CV-394-SS (A-98-CR-19-2-SS) -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Antonio Garcia, federal prisoner # 77584-079, pleaded guilty

to count one of the indictment charging him with conspiracy to

possess with intent to distribute cocaine, cocaine base, and

heroin, and count 12 charging him with using a telephone to

facilitate the drug conspiracy, in violation of 21 U.S.C.

§§ 841(a)(1) and 843(b). A certificate of appealability (COA)

was granted on the issue of the voluntariness of Garcia’s plea

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-51291 -2-

agreement. See United States v. Garcia, No. 00-51291 (5th Cir.

May 17, 2001) (single-judge order).

Garcia argues that, based on Apprendi v. New Jersey, 530

U.S. 466 (2000), his guilty plea was involuntary because the

quantity of drugs was not charged in the indictment, the district

court was thus without jurisdiction, the district court did not

properly inform him of the charges to which he was pleading

guilty, and his counsel was ineffective for allowing him to plead

guilty under those circumstances.

Since the parties filed their briefs, we rejected an

identical jurisdictional argument in a 28 U.S.C. § 2241 case in

Wesson v. U.S. Penitentiary Beaumont, Tx., 305 F.3d 343, 346 (5th

Cir. 2002). The petitioner in Wesson also argued that his

indictment was defective under Apprendi because it did not allege

a drug quantity, and that the district court was deprived of

jurisdiction. Citing United States v. Cotton, 122 S. Ct. 1781,

1785-86 (2002), United States v. Longoria, 298 F.3d 367 (5th Cir.

2002 (en banc), and United States v. Gonzalez, 259 F.3d 355 (5th

Cir. 2002) (en banc), we held that the petitioner’s claim that

his defective indictment deprived the court of jurisdiction was

meritless because defects in an indictment are nonjurisdictional.

Wesson, 305 F.3d at 346.

We also recently held in United States v. Brown, 305 F.3d

304, 310 (5th Cir. 2002), a 28 U.S.C. § 2255 case, that the new

rule of criminal procedure announced in Apprendi does not apply

retroactively on collateral review of initial 28 U.S.C. § 2255 No. 00-51291 -3-

motions. Because Garcia’s claims are all dependent upon the

retroactive application of Apprendi in this 28 U.S.C. § 2255

proceeding, and because it has been determined that Apprendi is

not applicable retroactively on collateral review, the district

court’s denial of 28 U.S.C. § 2255 relief is AFFIRMED.