United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 23, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 00-51078
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES EDWARD PRICE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC Nos. W-99-CV-287
W-98-CR-54-ALL
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
James Edward Price, federal prisoner number 82392-080,
appealed the denial of his 28 U.S.C. § 2255 motion to vacate
sentence, which challenged his convictions of possession of a
controlled substance under 21 U.S.C. § 844(a) and using and
carrying a firearm in connection with a drug-trafficking offense
under 18 U.S.C. § 924(c)(1). He argued on appeal that counsel
*
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that this opinion should not be published and is not precedent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. 00-51078
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rendered ineffective assistance for not challenging his sentence
for the 21 U.S.C. § 844(a) conviction and for not challenging his
18 U.S.C. § 924(c)(1) conviction. This court held that Price’s
claim concerning his sentence for the 21 U.S.C. § 844(a)
conviction was meritorious but that his claim concerning his 18
U.S.C. § 924(c)(1) conviction lacked merit. See United States v.
Price, No. 00-51078 (5th Cir. Dec. 18, 2001) (unpublished).
Price then petitioned the Supreme Court for a writ of
certiorari. The Court granted Price’s petition, vacated the
judgment, and remanded for further consideration of Price’s 18
U.S.C. § 924(c)(1) conviction in light of United States v.
Labonte, 520 U.S. 751, 759-60 (1997), and the Solicitor General’s
concession of error. See Price v. United States, 123 S. Ct. 986
(2003). Consequently, the issue whether Price received
ineffective assistance in connection with his 18 U.S.C.
§ 924(c)(1) conviction is again before this court. The ultimate
resolution of this issue, however, does not change.
LaBonte noted that one’s sentence for certain narcotics
offenses may be enhanced based on one’s prior convictions,
provided that one receives notice that the prior convictions may
be so used in accordance with 21 U.S.C. § 851(a). 520 U.S. at
758-60. In our prior opinion, we concluded that Price’s 21
U.S.C. § 844 conviction could have been a felony because of his
prior convictions. However, Price did not receive notice that
these prior convictions could be so used. Thus, his 21 U.S.C.
No. 00-51078
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§ 844 conviction could not be a felony. Because this conviction
was not a felony, it could not qualify as the predicate offense
for his firearms conviction.
Even in light of LaBonte, however, Price’s argument that
counsel rendered constitutionally ineffective assistance for
declining to challenge his firearms conviction does not merit
relief. Price contends that his 18 U.S.C. § 924(c)(1) conviction
is invalid because his concomitant 21 U.S.C. § 844(a) conviction
was for a misdemeanor and thus did not qualify as a drug-
trafficking offense for purposes of his firearms conviction.
This argument is unavailing.
A defendant’s 18 U.S.C. § 924(c)(1) conviction does not
require an underlying conviction on the predicate offense.
United States v. Ramos-Rodriguez, 136 F.3d 465, 467 (5th Cir.
1998). It is only “the fact of the offense, and not a
conviction, that is needed to establish the required predicate.”
Id. (internal quotation marks omitted). Thus, “acquittal of the
predicate offense does not preclude conviction under § 924(c)(1)
when there is ample evidence showing that a reasonable jury could
have found the defendant guilty of the predicate offense.” Id.;
see also United States v. Ruiz, 986 F.2d 905, 911 (5th Cir.
1993).
The evidence adduced at trial was sufficient for a
reasonable jury to have found beyond a reasonable doubt that
Price committed the felony offense for which he was indicted,
No. 00-51078
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possession of cocaine base with intent to distribute in violation
of 21 U.S.C. § 841(a)(1). The jury’s choice to acquit Price on
the drug-trafficking charge is not germane to the question
whether this offense was sufficiently established to serve as a
basis for his firearms conviction. See Ramos-Rodriguez, 136 F.3d
at 467; see also Ruiz, 986 F.2d at 911. Accordingly, counsel did
not render ineffective assistance for declining to raise the
issue whether the predicate offense was sufficiently established.
In conclusion, counsel did not render constitutionally
ineffective assistance in connection with Price’s firearms
conviction. Accordingly, we AFFIRM the judgment to the extent
that the district court denied Price relief on his claim
pertaining to his 18 U.S.C. § 924(c)(1) conviction.
United States v. Price
Combined Opinion