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       [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
                 United States Court of Appeals
                     For the First Circuit





No. 98-1804

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                        AARON D. JAMISON,

                      Defendant, Appellant.




           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. D. Brock Hornby, U.S. District Judge]



                              Before

                     Boudin, Circuit Judge,
                 Aldrich, Senior Circuit Judge,
and Shadur, Senior U.S. District Judge.




     Lisa S. Mouradian for appellant.
     Margaret D. McGaughey, Assistant United States Attorney, with
whom Jonathan R. Chapman, Assistant United States Attorney, and Jay
P. McCloskey, United States Attorney, were on brief for appellee.

                       ____________________

                         MARCH 26, 1999
                       ____________________�      Per Curiam.  On May 19, 1994, Aaron Jamison was
    convicted in the U.S. District Court for the District of Maine
    of conspiring to distribute and to possess with intent to
    distribute cocaine base in violation of 21 U.S.C. � 846 and
    possession with intent to distribute cocaine base in violation
    of 21 U.S.C. � 841(a)(1).  After significant post-trial
    activity, this case comes before us on appeal of the original
    conviction and sentence.  We affirm.
      On the evening of January 25, 1994, Maine Drug
    Enforcement Agency (MDEA) narcotics agents arrested a Roxanne
    Sullivan in Berwick, Maine for selling 1.9 grams of crack
    cocaine to an undercover agent.  She agreed to arrange a
    purchase from her source so that they might arrest him as
    well.  Her source was to meet her at the same parking lot
    where she had been arrested, and later that evening a van
    driven by co-defendant Eugene Martin and carrying defendant
    Jamison entered the lot.  Sullivan entered the van wearing a
    body wire, over which the agents listened in on the drug
    transaction.  Upon a prearranged signal from Sullivan, the
    agents approached the van and arrested Martin and Jamison. 
    They found, among other things, a false-bottomed Pledge
    furniture polish can between the two front seats.  Inside the
    can were ten grams of powder cocaine and several plastic bags
    containing a total of 17.4 grams of crack cocaine.  Sullivan
    also turned over two aluminum foil packets, received during
    the transaction, that contained a total of two grams of crack
    cocaine.
      Martin and Jamison were tried jointly before a jury on
    May 18, 1994, and the jury found them guilty as charged on May
    19.  Jamison was sentenced to 236 months in prison on each
    count, to be served concurrently, plus four years of
    supervised release and ordered to pay a $100 assessment.
      The post-conviction legal maneuvering began with a
    direct appeal by both defendants, but Jamison's appeal was
    dismissed for want of prosecution and an opinion issued with
    respect to Martin only.  Later, Jamison filed a pro se Motion
    to Vacate, Set Aside, or Correct Sentence pursuant to 28
    U.S.C. � 2255 based on ineffective assistance of counsel.  He
    claimed, first, that his trial counsel was ineffective
    because, among other things, he had failed to cross-examine
    Sullivan adequately.  Jamison also claimed that his appellate
    counsel was ineffective in allowing his appeal to be defaulted
    and asked that his appellate rights be restored.
      Jamison's form motion, which was signed under penalty
    of perjury, evinced only the allegations that his trial and
    appellate counsel had provided ineffective assistance.  The
    memorandum to which it referred for supporting facts was not
    signed under penalty of perjury.  Thus, aside from a precious
    few submitted in affidavits, the facts supporting Jamison's
    allegations of ineffective assistance were unsworn.  It was
    for this reason that the magistrate judge, on August 20, 1997,
    recommended denying the motion as to both claims.  He did
    address the merits of the claims, however, noting that if
    Jamison had sworn to the supporting facts, his claim as to
    trial counsel certainly would have failed but his claim as to
    appellate counsel would have succeeded.  The district court
    affirmed the recommended decision on October 3, 1997, and
    judgment denying the motion was entered on October 6.
      Jamison filed a notice of appeal on October 23 and
    requested a certificate of appealability from the district
    court.  Upon its denial, Jamison filed the same request in
    this court.  In an order dated March 4, 1998, this court
    granted the request, but only as to his claim that his
    appellate counsel had caused the defaulted appeal.  The case
    was remanded for expansion of the record and a determination
    of whether the failure to perfect the appeal was indeed
    attributable to Jamison's appellate counsel or, instead, to
    Jamison himself.  The government ultimately assented to the
    reinstatement of Jamison's appellate rights before that
    determination was made, and the district court reinstated the
    appeal period by order dated June 23, 1998.   Jamison filed a
    new notice of appeal on July 9, and that appeal is before us
    now.
      It is clear from the foregoing review of the
    procedural history that Jamison's second claim on appeal, that
    his � 2255 motion was improperly denied, is not properly
    before this court.  Before us is the direct appeal on which
    Jamison defaulted but was allowed to refile since his
    appellate counsel had caused the default.  Jamison has already
    sought review of the denial of his � 2255 motion.  The
    district court declined to grant a certificate of
    appealability as to both grounds, and this court granted one
    only as to the second ground.  Jamison's claim of ineffective
    trial counsel died when this court denied the requisite
    certificate of appealability, and Jamison cannot resurrect it
    on direct appeal of his conviction and sentence.
      We also reject Jamison's other two contentions on
    appeal.  They are each based in some manner upon the trial
    judge's failure to require, in its jury instructions and a
    verdict form question, that the jury determine whether, as the
    indictment charged, the offenses involved more than five grams
    of cocaine base.
      First, Jamison challenges his conviction, arguing that
    the jury should have been instructed to find that each offense
    involved more than five grams of crack cocaine before
  convicting him.    But this argument suffers from the
    fundamental misconception that drug amount is an element of
    the offense that the government must prove to the jury beyond
    a reasonable doubt.  This is not so:
       Drug quantity, however, is not an element of
       the offense of conviction, 21 U.S.C. �� 846
       and 841(a)(1), but is typically relevant only
       for determining the penalty.  As such, drug
       quantity for purposes of � 841(b) is
       determined by the sentencing court under a
       preponderance-of-the-evidence standard.
    
    United States v. Lindia, 82 F.3d 1154, 1160-61 (1st Cir. 1996)
    (citations omitted).  The fact that the indictment charged
    possession in excess of five grams does not change matters. 
    The trial judge committed no error in reserving to himself the
    task of determining the quantity of crack cocaine involved,
    and the convictions for conspiracy and possession with intent
    to distribute were entirely proper.
       Second, Jamison challenges his sentence, arguing that,
    in the absence of a jury finding as to drug quantity, the
    trial judge committed plain error by determining for
    Guidelines sentencing purposes the amount of crack cocaine
    involved in his offenses.  But, again, drug quantity is not an
    element of the offense and is to be determined by the judge at
    sentencing under a preponderance-of-the-evidence standard. 
    See id.  The rule is the same whether the judge is determining
    the mandatory minimum sentence pursuant to statute or
    calculating a defendant's base offense level under the
    Sentencing Guidelines.  See United States v. Edwards, 118 S.
    Ct. 1475, 1477 (1998) ("The Sentencing Guidelines instruct the
    judge in a case like this one to determine both the amount and
    the kind of 'controlled substances' for which a defendant
    should be held accountable--and then to impose a sentence that
    varies depending upon amount and kind.") (emphasis added). 
    Thus, just as Jamison's conviction was proper, so too was his
  sentence.  
       Affirmed.
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