IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20624
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES OSCAR COOPER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-90-CR-403-1
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August 9, 2002
Before JOLLY, JONES, and PARKER, Circuit Judges.
PER CURIAM:*
James Oscar Cooper argues that the district court clearly
erred at resentencing by enhancing his offense level for the
possession of a firearm in connection with drug-trafficking
activity because the Government failed to prove a nexus between
the drug-trafficking, the weapons, and himself.
There was sufficient evidence to support a finding that
weapons were located in the immediate area of Cooper’s drug-
trafficking activity and could have been used if necessary during
*
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that this opinion should not be published and is not precedent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. 01-20624
-2-
the drug transactions. There was also evidence that
coconspirators of Cooper used weapons in connection with the
drug-trafficking conspiracy and that such use was foreseeable to
Cooper. Thus, the district court did not clearly err in making
the enhancement under U.S.S.G. § 2D1.1(b)(1). See United States
v. Jacquinot, 258 F.3d 423, 431 (5th Cir. 2001), cert. denied,
122 S. Ct. 925 (2002); United States v. Thomas, 120 F.3d 564, 574
(5th Cir. 1997).
Cooper argues that the district court erred in determining
that it could not conduct a de novo review of sentencing issues
raised for the first time at resentencing. Cooper’s arguments
relative to the drug quantity attributed to him and the
enhancement for a leadership role in the offense could have been
raised in his initial appeal. Therefore, the district court
properly refused to consider these issues at resentencing. See
United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998).
Cooper also argues that the district court erred in refusing
to depart downward at resentencing in light of his exemplary
behavior during his incarceration. Because the district court
determined that a departure was not warranted based on the facts
of the case, this court lacks jurisdiction to review the district
court’s refusal to depart downward. United States v. Brace, 145
F.3d 247, 263 (5th Cir. 1998) (en banc).
Cooper argues that his 240 month sentence when aggregated
with his three-year term of supervised release exceeds the
No. 01-20624
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maximum statutory penalty that can be imposed in violation of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Cooper was
sentenced in accord with 21 U.S.C. § 841(b)(1)(C) and, thus, his
sentence does not exceed the statutory maximum in violation of
Apprendi. See United States v. Doggett, 230 F.3d 160, 164-65
(5th Cir. 2000), cert. denied, 531 U.S. 1177 (2001).
Cooper motion for appointment of counsel to make an oral
argument is DENIED.
Cooper’s sentence is AFFIRMED.