United States v. Jones

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 11, 2003

Charles R. Fulbruge III No. 01-50279 Clerk Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CEDRIC TERRANCE JONES,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas (W-96-CR-111-1; W-00-CV-103)

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Pursuant to a certificate of appealability granted by our

court, Cedric T. Jones, federal prisoner # 79464-077, appeals, pro

se, the denial of his 28 U.S.C. § 2255 motion challenging his

conviction for conspiring to possess crack cocaine with intent to

distribute. (His motion to file an amended opening brief is

GRANTED.)

Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Jones v. United States, 526 U.S. 227 (1999), Jones maintains the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. district court could not impose an enhanced sentence based on drug

quantity when it was neither alleged in the indictment nor

submitted to the jury as an element of the offense. This legal

issue is reviewed de novo. E.g. United States v. Faubion, 19 F.3d

226, 228 (5th Cir. 1994).

United States v. Brown, 305 F.3d 304, 305-09 (5th Cir. 2002),

held that the new rule of criminal procedure announced in Apprendi

does not apply retroactively on collateral review. Therefore,

Jones’s claim based on Apprendi fails.

Jones was decided while Jones’s appeal was pending. The

nonretroactivity rule announced in Brown is therefore inapplicable.

See Griffith v. Kentucky, 479 U.S. 314, 327-28 (1987). In any

event, Jones is not entitled to relief under Jones. It involved a

question of statutory construction of the federal carjacking

statute, rather than a new principle of constitutional law, and is

therefore inapplicable. See Jones, 526 U.S. at 251 n.11.

MOTION TO FILE AMENDED BRIEF GRANTED; AFFIRMED