Weston v. United States ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60117
Conference Calendar
MICHAEL GEROME WESTON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:01-CV-12-WS
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December 11, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Michael Gerome Weston, Mississippi prisoner # 04120-043,
challenges the district court’s dismissal of his 28 U.S.C. § 2241petition, in which he asserted that counsel had been ineffective
at sentencing and that his sentence violated Apprendi v. New
Jersey, 530 U.S. 466 (2000). The district court determined that
it lacked subject-matter jurisdiction under 28 U.S.C. § 2241because Weston challenged the validity of his sentence rather
than the manner in which it was being executed but had not
demonstrated that relief under 28 U.S.C. § 2255 was inadequate.
*
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that this opinion should not be published and is not precedent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. 01-60117
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Weston argues that dismissal was error and that his claims
were properly brought under 28 U.S.C. § 2241 because Apprendi had
not been decided at the time he filed his 28 U.S.C. § 2255 motion
and because he cannot meet the requirements for filing a
successive 28 U.S.C. § 2255 motion. His arguments are
unconvincing.
As the district court determined, 28 U.S.C. § 2255 provides
the primary means of collaterally attacking a federal conviction
and sentence. Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir.
2000). Although Weston may pursue 28 U.S.C. § 2241 relief upon a
showing that relief under 28 U.S.C. § 2255 is inadequate, he has
failed to make such a showing. The fact that Weston cannot meet
the requirements for filing a successive 28 U.S.C. § 2255 motion
is insufficient. See id. at 878. Additionally, Weston does not
present a prima facie Apprendi claim because the 176-month
sentence he received does not exceed the 20-year statutory
maximum for a cocaine-base-distribution offense involving
unaggravated drug quantities. See 21 U.S.C. § 841(b)(1)(C) (West
Supp. 2000). Apprendi thus does not apply. See United States v.
Doggett, 230 F.3d 160, 165 (5th Cir. 2000), cert. denied, 121 S.
Ct. 1152 (2001). That being so, this court will not address the
remainder of Weston’s arguments.
Weston has not demonstrated any error in the district
court’s judgment, and the judgment is AFFIRMED. Weston’s motion
to amend his § 28 U.S.C. § 2241 petition to supplement his
No. 01-60117
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Apprendi claim and his motion to supplement his reply brief are
DENIED.
JUDGMENT AFFIRMED; MOTIONS DENIED.