Martinez v. Dobre

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 29, 2002
• Docket: 02-40063
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40063 Conference Calendar

ROBERTO MARTINEZ,

Petitioner-Appellant,

versus

JONATHON DOBRE, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:1-CV-727 -------------------- October 29, 2002 Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Roberto Martinez, federal prisoner No. 28733-077, appeals

the district court’s dismissal of his 28 U.S.C. § 2241 petition

challenging his 365-month sentence for conspiracy to possess with

intent to distribute more than 100 grams of methamphetamine in

light of Apprendi v. New Jersey.** Although Martinez proceeded

pro se in the district court, he is represented by attorney Joel

David Vera on appeal. Counsel argues that the indictment was

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. ** 530 U.S. 466 (2000). No. 02-40063 -2-

fatally defective because it did not put Martinez on notice of

the quantity of drugs on which his sentence would be based.

Martinez’s sentence of 365 months imprisonment does not

violate Apprendi because it is within the statutory maximum for

the offense to which he entered a guilty plea. United States v.

Keith, 230 F.3d 784, 787 (5th Cir. 2000), cert. denied, 531 U.S.

1182 (2001); see 21 U.S.C. §§ 841(a)(1),(b)(1)(A)(vii); 21 U.S.C.

§ 846. Furthermore, Apprendi does not apply retroactively to

cases on collateral review and an Apprendi claim does not satisfy

the requirements of 28 U.S.C. § 2255's savings clause. See

Wesson v. U.S. Penitentiary, Beaumont, TX, 305 F.3d 343 (5th Cir.

2002).

Counsel raises four additional arguments not raised in the

district court: that the trial court should have held a hearing

to determine whether the Government’s decision not to file a

U.S.S.G. § 5k1.1 motion was made in good faith; and that the

trial court erred at sentencing by denying a downward adjustment

for acceptance of responsibility, by finding that Martinez had a

leadership role in the offense, and by holding Martinez

responsible for 200 pounds of methamphetamine.

In addition to the fact that the foregoing issues were not

presented to the district court for consideration, we note that

the three sentencing arguments are barred by the waiver provision

of Martinez’s plea agreement and that none of the arguments are

cognizable under § 2241. Counsel is CAUTIONED that he has a duty No. 02-40063 -3-

not to raise frivolous arguments on appeal. See United States v.

Burleson, 22 F.3d 93, 95 (5th Cir. 1994).

Counsel has abandoned Martinez’s district-court arguments

that the Government breached the plea agreement by offering

evidence of excessive drug quantities and that the district court

erroneously departed upward when it increased Martinez’s offense

level based on his leadership role in the offense. See Yohey v.

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

AFFIRMED.