Evans v. United States

Sixth Circuit

Evans v. United States

56 F. App'x 252

CourtCourt of Appeals for the Sixth Circuit

DecidedFebruary 18, 2003

DocketNo. 01-1736

StatusPublished

Cited by1 cases

This text of 56 F. App'x 252 (Evans v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Evans v. United States, 56 F. App'x 252 (6th Cir. 2003).

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Opinion

OPINION

PER CURIAM.

Antonio Evans appeals the district court’s denial of his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. He was convicted of (1) conspiracy to possess cocaine with intent to distribute and of distributing five or more kilograms of cocaine, all in violation of 21 U.S.C. § 846, and (2) possession with intent to distribute five or more kilograms of cocaine, in viola[253]*253tion of 21 U.S.C. § 841(a). Evans was sentenced to concurrent terms of 30 years on each of the counts. His conviction and sentence were affirmed by this court on appeal. Evans then filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. The sole issue raised on appeal is whether the rule of criminal procedure set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is retroactively applicable to initial motions under 28 U.S.C. § 2255.

Subsequent to Evans’s Notice of Appeal, this court held in Goode v. United States, 305 F.3d 378 (6th Cir.), cert. denied, — U.S.-, 123 S.Ct. 711, 154 L.Ed.2d 647 (2002), that Apprendi is not retroactively applicable to initial motions under 28 U.S.C. § 2255. See also Maliszewski v. United States, 53 Fed.Appx. 337 (6th Cir. 2002); Montano v. United States, 53 Fed. Appx. 347 (6th Cir.2002). Upon being served with an order to show cause why the district court’s judgment should not be affirmed on the basis of Goode, Evans responded by acknowledging that Goode is a published decision of this court holding that Apprendi is not retroactively applicable on initial collateral review, but that Goode was wrongly decided. The published decision in Goode, however, is binding upon us. United States v. Roper, 266 F.3d 526, 530 (6th Cir.2001) (“[A] prior published opinion of this court is binding unless either an intervening decision of the United States Supreme Court requires modification of the prior opinion or it is overruled by this court sitting en banc.”).

We therefore AFFIRM the judgment of the district court.

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OPINION

PER CURIAM.

Antonio Evans appeals the district court’s denial of his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. He was convicted of (1) conspiracy to possess cocaine with intent to distribute and of distributing five or more kilograms of cocaine, all in violation of 21 U.S.C. § 846, and (2) possession with intent to distribute five or more kilograms of cocaine, in viola[253]*253tion of 21 U.S.C. § 841(a). Evans was sentenced to concurrent terms of 30 years on each of the counts. His conviction and sentence were affirmed by this court on appeal. Evans then filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. The sole issue raised on appeal is whether the rule of criminal procedure set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is retroactively applicable to initial motions under 28 U.S.C. § 2255.

Subsequent to Evans’s Notice of Appeal, this court held in Goode v. United States, 305 F.3d 378 (6th Cir.), cert. denied, — U.S.-, 123 S.Ct. 711, 154 L.Ed.2d 647 (2002), that Apprendi is not retroactively applicable to initial motions under 28 U.S.C. § 2255. See also Maliszewski v. United States, 53 Fed.Appx. 337 (6th Cir. 2002); Montano v. United States, 53 Fed. Appx. 347 (6th Cir.2002). Upon being served with an order to show cause why the district court’s judgment should not be affirmed on the basis of Goode, Evans responded by acknowledging that Goode is a published decision of this court holding that Apprendi is not retroactively applicable on initial collateral review, but that Goode was wrongly decided. The published decision in Goode, however, is binding upon us. United States v. Roper, 266 F.3d 526, 530 (6th Cir.2001) (“[A] prior published opinion of this court is binding unless either an intervening decision of the United States Supreme Court requires modification of the prior opinion or it is overruled by this court sitting en banc.”).

We therefore AFFIRM the judgment of the district court.

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