Barnes v. U.S. Attorney

22 F. App'x 863

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 13, 2001
• Docket: No. 01-71430
• Status: Published

Opinion

ORDER

Petitioner has applied under 28 U.S.C. §§ 2244 and 2255 to file a second or successive petition pursuant to § 2255.

Petitioner was convicted, on a plea of guilty, of conspiracy to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. He was sentenced to 240 months’ imprisonment and five years’ supervised release. See United States v. Barnes, 993 F.2d 680 (9th Cir.1993). Petitioner now contends that his sentence is in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We have held, however, that Apprendi does not apply to sentences, like petitioner’s, which do not exceed the statutory maximum under the statute of conviction, here 21 U.S.C. § 841(b)(1)(A). See United States v. Pa-naro, 266 F.3d 939, 954 (9th Cir.2001); United States v. Johansson, 249 F.3d 848,

861-62 (9th Cir.2001) (holding that Apprendi does not apply where guideline sentencing increase in offense level “did not increase the maximum penalty for the crime to which [defendant] pled guilty”); United States v. Silva, 247 F.3d 1051, 1060 (9th Cir.2001) (“An unconditional guilty plea ‘constitutes a waiver of the right to appeal all non-jurisdictional antecedent rulings and cures all antecedent constitutional defects.’").¹

The application to file a second or successive petition pursuant to 28 U.S.C. § 2255 is denied.

1 . Because petitioner's application does not present a sufficient case on the merits for the filing of a second or successive petition, we need not decide whether Apprendi has been "made retroactive to cases on collateral review by the Supreme Court,” as required by 28 U.S.C. § 2244(b)(2)(A).