                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-4010
                                    ___________

United States of America,                *
                                         *
             Appellee,                   * Appeal from the United States
                                         * District Court for the
      v.                                 * District of Nebraska.
                                         *
Robert E. Jacobsen,                      *        [UNPUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: October 17, 2000
                                 Filed: November 7, 2000
                                  ___________

Before McMILLIAN, BOWMAN, and LOKEN, Circuit Judges.
                          ___________

PER CURIAM.

      Robert E. Jacobsen, convicted on a charge of conspiracy to distribute
methamphetamine, a violation of 21 U.S.C. § 846, and sentenced to a prison term of
136 months, appeals. For reversal, he argues that (1) the government's use of the
testimony of a parolee violated Nebraska law and the District Court1 erred by declining
to suppress such testimony, (2) the District Court erred in determining that the
government's use of a parolee's testimony did not amount to outrageous government


      1
       The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
conduct, and (3) there is insufficient evidence to support the conviction. Having
considered the briefs and record, we conclude that these issues have no merit.

       To the extent that by means of a Fed. R. App. P. 28 (j) submission Jacobsen has
succeeded in raising an issue under Apprendi v. New Jersey, 120 S. Ct. 2348 (2000),
his claim would appear to be baseless. We are strongly disinclined to say that a new
issue can be raised by a mere Rule 28(j) filing, but for purposes of this case we shall
skip over the procedural point, inasmuch as it is clear that any Apprendi claim by
Jacobsen is foreclosed by our decision in United States v. Aguayo-Delgado, 220 F.3d
926, 933 (8th Cir. 2000) (holding that jury finding of drug quantity not required unless
non-jury factual determination increases maximum sentence beyond the statutory range
authorized by jury verdict). Here, Jacobsen's sentence of 136 months is well below the
statutory maximum for the methamphetamine conspiracy of which the jury found him
guilty. Apprendi therefore is inapplicable.

       Having considered all of Jacobsen's arguments, we find that none of them has
merit. There being no error, Jacobsen's conviction is affirmed. See 8th Cir. R. 47B.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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