UNITED STATES of America, Plaintiff-Appellee v. Donald Terrell BANKS, also known as T-Blue, Defendant-Appellant, 351 F. App'x 900

PER CURIAM: Donald Terrell Banks, federal prisoner # 30671-177, was convicted by a jury of conspiracy to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A). Prior to trial, Banks pled guilty to distribution of cocaine base, in violation of Sections 841(a)(1) and (b)(1)(C). The district court sentenced him to concurrent terms of imprisonment of 360 months for conspiracy to distribute cocaine base and 240 months for distribution of cocaine base.

We previously affirmed his conviction and sentence on direct appeal, rejecting, among other points, the argument that due to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court committed plain error when it found certain facts relative to sentencing. United States v. Fields, 138 Fed.Appx. 622, 625, 628 (5th Cir.2005). Banks filed a 28 U.S.C. § 2255 motion, which the district court denied.

The district court granted a certificate of appeala-bility on Banks’s claim that counsel’s failure to raise an objection to the district court’s findings of drug type and quantity pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), constituted ineffective assistance of counsel. Whether counsel’s failure to preserve the Booker issue by making an Ap-prendi objection constituted ineffective assistance was recently addressed in United States v. Fields, 565 F.3d 290, 293-97 (5th Cir.2009).

At the time of Banks’s sentencing, the law of this circuit was settled that Apprendi did not apply to the Sentencing Guidelines. See id. at 295; United States v. Randle, 304 F.3d 373, 378 (5th Cir.2002). The failure of counsel to anticipate that Booker would apply the rule of Apprendi to the Sentencing Guidelines or to predict “the absolute sea-change in federal sentencing wrought by Booker ” does not constitute constitutionally ineffective assistance. Fields, 565 F.3d at 295-97. Contrary to Bank’s argument, the district court did not err by denying his motion without a hearing.

The facts relevant to this case are essentially undisputed and are conclusive in showing that Banks is not entitled to relief. See United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992). For the foregoing reasons, the judgment of the district court is 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.