UNITED STATES of America, Plaintiff-Appellee v. Jose Luis GARCIA, Defendant-Appellant, 348 F. App'x 65

PER CURIAM: Jose Luis Garcia appeals the district court’s denial of his 28 U.S.C. § 2255 motion, wherein he challenged his conviction for conspiracy to possess with intent to distribute marijuana. Reviewing the district court’s factual findings for clear error and its conclusions of law de novo, see United States v. Edwards, 442 F.3d 258, 264 (5th Cir.2006), we AFFIRM. Garcia contends that his trial counsel rendered ineffective assistance by failing to object under Apprendi v.

New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that his indictment did not allege, and the jury was not asked to find, a specific drug quantity. Even assuming arguendo that trial counsel rendered deficient performance by failing to object, Garcia cannot show the requisite prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Garcia raised his Apprendi argument on direct appeal, where we held under plain-error review that any potential Apprendi error was without merit. United States v. Garcia, 70 Fed.Appx. 789, 790 (5th Cir.2003).

Had counsel objected and preserved an Apprendi claim, it would have been subject to harmless error review. See United States v. Baptiste, 309 F.3d 274, 277 (5th Cir.2002). Under that standard, the error is harmless if, by finding the defendant guilty, the jury necessarily must have found a certain drug quantity beyond a reasonable doubt. Id. Garcia stipulated at trial that the drug quantity involved in this case was 200 kilograms of marijuana.

By finding Garcia guilty of conspiracy to possess marijuana the jury necessarily found the stipulated drug quantity, which was sufficient to expose him to a statutory maximum of 40 years. See 21 U.S.C. § 841(b)(l)(B)(vii). Garcia’s 320-month sentence did not exceed the statutory maximum authorized by the jury’s verdict, and Garcia is not entitled to relief under his Apprendi argument. See United States v. Doggett, 230 F.3d 160, 165 (5th Cir.2000). Thus, Garcia cannot show prejudice from counsel’s failure to preserve the error.

Garcia’s argument that his appellate counsel was ineffective on direct appeal for failing to raise the ineffectiveness of trial counsel is also without merit. See United States v. Kinder, 167 F.3d 889, 893 (5th Cir.1999) (failure to raise legally meritless argument cannot support ineffectiveness claim). AFFIRMED. 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.