United States v. Aviles

167 F. App'x 635

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 16, 2006
• Docket: No. 03-16565
• Status: Published

Opinion

MEMORANDUM

**

Salvador Aviles appeals from the district court’s order denying his 28 U.S.C. § 2255 motion challenging the sentence imposed following his conviction for narcotics conspiracy and telephone charges. We have jurisdiction pursuant to 28 U.S.C. § 2253.

A limited certificate of appealability (“COA”) was granted on the issue of whether Aviles’ due process claim that his sentence was enhanced on the basis of facts not charged in the indictment, submitted to a jury, or proved beyond a reasonable doubt, has become a valid retroactive claim under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The retroactive application of Apprendi on collateral review is foreclosed by United States v. Sanchez-Cervantes, 282 F.3d 664, 667 (9th Cir.2002), and we affirm the district court.

To the extent that Aviles raises arguments not encompassed within the COA, we construe this as a motion to broaden the COA and deny the motion. See 28 U.S.C. § 2253(c)(2); 9th Cir. R. 22-l(e). We additionally deny Aviles’ motion for broader certification. See id.

AFFIRMED.

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