United States v. Gallaway

* 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that this opinion should not be published and is not precedent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.
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.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:00-CR-62-1
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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).

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No. 01-41110
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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.

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