United States v. Parsee

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-30297

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PIERRE PARSEE,

Defendant-Appellant.

Appeal from the United States District Court For the Eastern District of Louisiana (00-CV-1307-E)

January 14, 2002

Before POLITZ, HIGGINBOTHAM, and CLEMENT, Circuit Judges.

PER CURIAM:*

The district court granted a certificate of appealability from

its dismissal of appellant Pierre Parsee’s pro se 28 U.S.C. § 2255

motion on Parsee’s Apprendi claim. Parsee challenges the

constitutionality of his 360-month prison term and of 21 U.S.C. §

841 under Apprendi v. New Jersey.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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 530 U.S. 466 (2000). We need not decide whether Apprendi applies retroactively on

collateral review, or whether Parsee's Apprendi claim is

procedurally defaulted for failure to raise it on direct review,

because there is no Apprendi error in Parsee's prison term. "Since

the Supreme Court in Apprendi did not overrule its decision in

Almendarez-Torres, the sentencing court did not err by using

[Parsee's] prior conviction[] to enhance his sentence, even though

the prior conviction[] were not submitted to the jury."2

Furthermore, although no drug quantity was pled in Parsee’s

indictment or submitted for determination by the jury, Parsee was

sentenced to 360 months imprisonment, which is equal to the

statutory maximum of 30 years prescribed by 21 U.S.C. §

841(b)(1)(C) for a convicted drug felon, the default provision

where no specific quantity is alleged.3

Parsee failed to raise his constitutional challenge to 21

U.S.C. § 841 in his section 2255 motion in the district court, and

we therefore cannot consider it.4 Moreover, even assuming this

claim is not barred by Parsee's failure to raise the claim in his

section 2255 motion, by the rule of Teague v. Lane,5 or by Parsee's

2 United States v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000). 3 See id. at 165. 4 See Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir.), cert. denied, 122 S. Ct. 329 (2001). 5 489 U.S. 288 (1989).

2 failure to raise the issue on direct review, the claim is without

merit because we have previously rejected such a facial challenge

to the constitutionality of section 841(b) in light of Apprendi.6

AFFIRMED.

6 See United States v. Fort, 248 F.3d 475, 482-83 (5th Cir.), cert. denied, 122 S. Ct. 405 (2001); United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert. denied, 121 S. Ct. 2015 (2001).