Garcia-Hernandez v. United States

43 F. App'x 133

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 30, 2002
• Docket: No. 01-56538; D.C. No. CV-01-00211-K CR-98-03224-K
• Status: Published

Opinion

MEMORANDUM

**

Roberto Garcia Hernandez appeals the district court’s denial of his 28 U.S.C. § 2255 motion, challenging the 70-month sentence he received following his guilty-plea conviction for attempted re-entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 2253. We review de novo a district court’s decision to deny a § 2255 petition. United States v. Sanchez-Cervantes, 282 F.3d 664, 666 (9th Cir.2002), and we affirm.

Garcia-Hernandez contends that the district court erred in denying his section 2255 motion because a prior aggravated felony conviction is an element of 8 U.S.C. § 1326 under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Because we do not apply Apprendi retroactively to cases on collateral review, Garcia-Hernandez’s claim is barred. See Sanchez-Cervantes, 282 F.3d at 671; see also United States v. Pacheco-Zepeda, 234 F.3d 411, 413-15 (9th Cir.) (rejecting the merits of a similar challenge on direct appeal), cert. denied, 121 S.Ct. 1503 (2001).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.