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

                                                 FILED
                                                                          October 13, 2009

                                       No. 08-50023                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

JOSE LUIS GARCIA,

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:04-CV-447
                           USDC No. 3:98-CR-586-ALL


Before REAVLEY, JOLLY, and WIENER, Circuit Judges.
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.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50023

      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
(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 (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 F. App’x 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)(1)(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. Kimler, 167 F.3d 889, 893 (5th Cir. 1999) (failure to
raise legally meritless argument cannot support ineffectiveness claim).
      AFFIRMED.

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