USA vs. Gallaway, (5th Cir. 2002)

Docket Number: 01-41110

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* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .

R. 47.5.4. 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).

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.

No. 01-41110