United States v. Nolley ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 9, 2003
Charles R. Fulbruge III
Clerk
No. 03-10382
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRIAN NOLLEY, also known as B-Nolley,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CR-174-15-A
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Brian Nolley appeals from his guilty-plea conviction for
conspiracy to possess with intent to distribute mixtures
containing cocaine and cocaine base. Nolley’s sentence was
increased pursuant to U.S.S.G. § 2D1.1(b)(1) because a firearm
was possessed. He argues that the Government’s failure to allege
his use or possession of a firearm in the indictment rendered his
judgment of conviction invalid under Apprendi v. New Jersey, 530
U.S. 466 (2000). Nolley’s Apprendi argument is foreclosed by our
*
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that this opinion should not be published and is not precedent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. 03-10382
-2-
holding in United States v. Randle, 304 F.3d 373, 378 (5th Cir.
2002), cert. denied, 123 S. Ct. 1748 (2003).
Nolley also contends that his judgment of conviction is
invalid on the same ground under Ring v. Arizona, 536 U.S. 584(2002). He asserts that, despite contrary language in Harris v.
United States, 536 U.S. 545 (2002), the holding of Harris is
suspect in light of Ring. Nolley’s arguments regarding Ring and
Harris are wholly lacking in merit.
Accordingly, the district court’s judgment of conviction is
AFFIRMED.