United States v. Price

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 24, 2003
• Docket: 00-51078
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 23, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 00-51078 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES EDWARD PRICE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC Nos. W-99-CV-287 W-98-CR-54-ALL --------------------

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

James Edward Price, federal prisoner number 82392-080,

appealed the denial of his 28 U.S.C. § 2255 motion to vacate

sentence, which challenged his convictions of possession of a

controlled substance under 21 U.S.C. § 844(a) and using and

carrying a firearm in connection with a drug-trafficking offense

under 18 U.S.C. § 924(c)(1). He argued on appeal that counsel

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-51078 -2-

rendered ineffective assistance for not challenging his sentence

for the 21 U.S.C. § 844(a) conviction and for not challenging his

18 U.S.C. § 924(c)(1) conviction. This court held that Price’s

claim concerning his sentence for the 21 U.S.C. § 844(a)

conviction was meritorious but that his claim concerning his 18

U.S.C. § 924(c)(1) conviction lacked merit. See United States v.

Price, No. 00-51078 (5th Cir. Dec. 18, 2001) (unpublished).

Price then petitioned the Supreme Court for a writ of

certiorari. The Court granted Price’s petition, vacated the

judgment, and remanded for further consideration of Price’s 18

U.S.C. § 924(c)(1) conviction in light of United States v.

Labonte, 520 U.S. 751, 759-60 (1997), and the Solicitor General’s

concession of error. See Price v. United States, 123 S. Ct. 986

(2003). Consequently, the issue whether Price received

ineffective assistance in connection with his 18 U.S.C.

§ 924(c)(1) conviction is again before this court. The ultimate

resolution of this issue, however, does not change.

LaBonte noted that one’s sentence for certain narcotics

offenses may be enhanced based on one’s prior convictions,

provided that one receives notice that the prior convictions may

be so used in accordance with 21 U.S.C. § 851(a). 520 U.S. at

758-60. In our prior opinion, we concluded that Price’s 21

U.S.C. § 844 conviction could have been a felony because of his

prior convictions. However, Price did not receive notice that

these prior convictions could be so used. Thus, his 21 U.S.C. No. 00-51078 -3-

§ 844 conviction could not be a felony. Because this conviction

was not a felony, it could not qualify as the predicate offense

for his firearms conviction.

Even in light of LaBonte, however, Price’s argument that

counsel rendered constitutionally ineffective assistance for

declining to challenge his firearms conviction does not merit

relief. Price contends that his 18 U.S.C. § 924(c)(1) conviction

is invalid because his concomitant 21 U.S.C. § 844(a) conviction

was for a misdemeanor and thus did not qualify as a drug-

trafficking offense for purposes of his firearms conviction.

This argument is unavailing.

A defendant’s 18 U.S.C. § 924(c)(1) conviction does not

require an underlying conviction on the predicate offense.

United States v. Ramos-Rodriguez, 136 F.3d 465, 467 (5th Cir.

1998). It is only “the fact of the offense, and not a

conviction, that is needed to establish the required predicate.”

Id. (internal quotation marks omitted). Thus, “acquittal of the

predicate offense does not preclude conviction under § 924(c)(1)

when there is ample evidence showing that a reasonable jury could

have found the defendant guilty of the predicate offense.” Id.;

see also United States v. Ruiz, 986 F.2d 905, 911 (5th Cir.

1993).

The evidence adduced at trial was sufficient for a

reasonable jury to have found beyond a reasonable doubt that

Price committed the felony offense for which he was indicted, No. 00-51078 -4-

possession of cocaine base with intent to distribute in violation

of 21 U.S.C. § 841(a)(1). The jury’s choice to acquit Price on

the drug-trafficking charge is not germane to the question

whether this offense was sufficiently established to serve as a

basis for his firearms conviction. See Ramos-Rodriguez, 136 F.3d

at 467; see also Ruiz, 986 F.2d at 911. Accordingly, counsel did

not render ineffective assistance for declining to raise the

issue whether the predicate offense was sufficiently established.

In conclusion, counsel did not render constitutionally

ineffective assistance in connection with Price’s firearms

conviction. Accordingly, we AFFIRM the judgment to the extent

that the district court denied Price relief on his claim

pertaining to his 18 U.S.C. § 924(c)(1) conviction.