United States v. Allen

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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20665
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADRIAN TODD ALLEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-414-1
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March 20, 2003
Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:1
A jury found Adrian Todd Allen guilty of one charge of being
a felon in possession of a firearm and one charge of possessing a
firearm in connection with a drug offense, violations of 18 U.S.C.
§§ 922(g), 924(c). Allen appeals following this court’s remand to
the district court for resentencing. See United States v. Allen,
282 F.3d 339, 343 (5th Cir. 2002). Allen argues for the first time
in this appeal that his sentence violates the principles announced

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2
in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), because the
jury was not required to make factual findings concerning his prior
convictions. He concedes that this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
seeks to preserve the issue for Supreme Court review in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi did not
overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; see
also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
This argument is thus unavailing.
Allen also argues that his sentence is contrary to Apprendi
because the jury did not make factual findings regarding whether he
possessed a firearm in connection with a drug offense. Allen is
mistaken. The jury specifically found this fact beyond a
reasonable doubt by convicting him of the 18 U.S.C. § 924(c)
charge. Allen has not shown that the district court erred in
sentencing him. Accordingly, the district court’s judgment is
AFFIRMED.

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