           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 7, 2009
                                     No. 08-40385
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellant

v.

NOE NICOLAS GARZA

                                                   Defendant-Appellee


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:03-CR-70-1
                               USDC No. 2:07-CV-342


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Noe Nicolas Garza, federal prisoner #03659-025, pleaded guilty in 2003 to
one count of conspiracy to possess with intent to distribute cocaine and was
sentenced to 293 months in prison. On appeal, we rejected under plain error
review his argument that the district court’s findings of fact violated the Sixth
Amendment in light of United States v. Booker.1 Garza then petitioned for


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.

       1
           543 U.S. 220 (2005).
                                    No. 08-40385

habeas relief, under 28 U.S.C. § 2255, raising claims of ineffective assistance of
counsel related to counsel’s conduct at sentencing, including counsel’s failure to
preserve Booker error. The district court denied relief. A judge of this court
granted Garza a certificate of appealability on one issue: whether counsel’s
failure to anticipate the decision in Booker and preserve error by making an
objection pursuant to Apprendi v. New Jersey 2 –a failure that relegated Garza to
plain error review on appeal–constituted ineffective assistance of counsel. We
now affirm the district court’s judgment.
      Our recent opinion in United States v. Fields is dispositive.3 As in Fields,
the district court sentenced Garza prior to the Supreme Court’s ruling in
Booker.4     Before Booker our precedent foreclosed application of the Sixth
Amendment rule of Apprendi to factual determinations under the Sentencing
Guidelines.5 As Fields reminds, the law in this circuit makes clear that counsel
was not required to make meritless objections under then-existing precedent,6
anticipate changes in the law, or raise every potentially meritorious claim.7
Thus, as we held in Fields, Garza’s counsel did not render constitutionally
ineffective assistance by failing to anticipate Booker’s application of Apprendi to
the Sentencing Guidelines and the resulting “sea-change” in sentencing.8 To the
extent that Garza raises other arguments not included within the scope of our



      2
          543 U.S. 220 (2005).
      3
          565 F.3d 290, 293-97 (5th Cir. 2009).
      4
          Fields, 565 F.3d at 295
      5
        See Fields, 565 F.3d at 295; United States v. Randle, 304 F.3d 373, 378
(5th Cir. 2002).
      6
          Fields, 565 F.3d at 295, 297.
      7
          Fields, 565 F.3d at 294, 296-97.
      8
          Id. at 295-97.

                                          2
                                   No. 08-40385

order granting the certificate of appealability, we do not consider them.9
     Judgment of the district court is AFFIRMED.




     9
         See Neville v. Dretke, 423 F.3d 474, 478 (5th Cir. 2005).

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