UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20658
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNIE FOWLER III,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(95-CR-217-1)
July 15, 1997
Before POLITZ, Chief Judge, JOLLY and BARKSDALE, Circuit Judges.
PER CURIAM:*
Johnnie Fowler III appeals his jury conviction for possession with intent to
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
distribute more than 100 grams of phencyclidine (PCP).1 Our review of the record and
the relevant authorities persuades that no reversible error was committed. Fowler
complains of the evidence of the quantity of drugs. The quantity of drugs is not an
element of the offense.2 The record reflects that Fowler possessed 28.78 actual grams
of PCP. Under Sentencing Guideline § 2D1.1(c)(7), the Drug Quantity Table, that
amount of drugs corresponds to a base offense level of 26, the base offense level used
by the district court in the sentencing computation.
Fowler complains of the use of a prior conviction. The government complied with
21 U.S.C. § 851 by filing an information before trial identifying the prior convictions
upon which it was relying. Fowler made no challenge thereto. The district court did not
err in enhancing Fowler’s sentence pursuant to 21 U.S.C. § 841(b)(1)(B).
The record is not sufficiently developed for us to address, on this direct appeal,
Fowler’s ineffective assistance of counsel claims.3 That must remain for another day.
Finally, Fowler’s complaint concerning the admission of extraneous evidence
about an earlier search of his home, involving his father, does not rise to the level of
adversely affecting his substantial rights.4 We perceive no basis for reversible error.
1
21 U.S.C. §§ 841 (a)(1), 841(b)(1)(A).
2
United States v. Castillo, 77 F.3d 1480 (5th Cir.), cert. denied, 117 S. Ct. 180 (1996).
3
United States v. Packer, 70 F.3d 357 (5th Cir. 1995), cert. denied, 117 S. Ct. 75 (1996).
4
United States v. Calverley, 37 F.3d 160 (5th Cir. 1994) (en banc).
2
AFFIRMED.
3