United States v. Jackson

ORDER

The Memorandum disposition filed March 19, 2003, is hereby WITHDRAWN and replaced with the attached disposition.

*194 With the filing of this new disposition, the petition for panel rehearing, filed May 5, 2003, is DENIED.

MEMORANDUM **

Federal prisoner Lemuel Fezell Jackson appeals pro se the district court’s order denying his motion brought pursuant to 28 U.S.C. § 2255 to vacate the 188-month sentence imposed on remand for his conviction by guilty plea to possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841 (a)(1) and 18 U.S.C. § 2 . We affirm.

Jackson contends that the district court’s use of the preponderance of evidence standard to find at sentencing that Jackson’s offense involved crack cocaine violated his due process rights under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). Even if Jackson is not precluded from asserting his Apprendi claim on collateral review, 2 and even if he had cause for not raising the claim on direct appeal, Jackson cannot show that he suffered actual prejudice from the claimed error. United States v. Johnson, 988 F.2d 941, 945 (9th Cir.1993) (“If a criminal defendant could have…