Ovalle Marquez v. United States

91 F. App'x 162

Opinion

PER CURIAM.

After denying appellant Luis OvalleMarquez’s 28 U.S.C. § 2255 motion, the district court issued a certificate of appeal-ability (COA) as to the issue whether Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), may be applied retroactively. This court has ruled that Apprendi “prescribes a new rule of criminal procedure” that may not be applied retroactively to cases on collateral review. See Sepulveda v. United States, 330 F.3d 55, 63 (1st Cir.2003). This defeats the instant appeal. Contrary to appellant’s contentions, Bunkley v. Florida, 538 U.S. 835, 123 S.Ct. 2020, 155 L.Ed.2d 1046 (2003)(per curiam), and the additional cases appellant cites do not suggest that Sepulveda was wrongly decided.

We also reject appellant’s suggestion that only the Supreme Court may decide the retroactivity question. 1 Sepulveda remains the law in this circuit unless and until the Supreme Court rules otherwise. Accordingly, the judgment of the district court is affirmed. See Loe. R. 27(c).

1 . See, e.g., Garcia v. United States, 278 F.3d 1210, 1212-13 & n. 4 (11th Cir.), cert. denied, 537 U.S. 895, 123 S.Ct. 180, 154 L.Ed.2d 163 (2002), Ashley v. United States, 266 F.3d 671, 673 (7th Cir.2001), United States v. Lopez, 248 F.3d 427, 431-32 (5th Cir.2001), United States v. Sanders, 247 F.3d 139, 146 n. 4 (4th Cir.2001).