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

                                                 FILED
                                                                          October 29, 2009
                                     No. 08-10054
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

DONALD TERRELL BANKS, also known as T-Blue,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:06-CV-1800
                              USDC No. 3:03-CR-78-4


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
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


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10054

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 (2005), the district court committed plain error when it
found certain facts relative to sentencing. United States v. Fields, 138 F. App’x
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 appealability 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 (2000),
constituted ineffective assistance of counsel.      Whether counsel’s failure to
preserve the Booker issue by making an Apprendi 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.




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