United States v. Becerra

84 F. App'x 902

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 22, 2003
• Docket: No. 03-10340; D.C. No. CR-87-398-MHP
• Status: Published

Opinion

MEMORANDUM

**

Alvaro Becerra, a federal prisoner, appeals pro se the denial of his motion to correct an illegal pre-Guidelines sentence pursuant to former Fed.R.Crim.P. 35(a) on the ground that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the jury made no findings as to drug quantity, and his 40-year sentence exceeded the statutory maximum set forth in 21 U.S.C. § 841(b)(1)(C). The new constitutional rule of criminal procedure announced in Apprendi does not apply retroactively on collateral review. United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir.2002). Becerra contends that a Rule 35(a) motion does not seek collateral review, but rather should be considered a part of the direct appeal process. This contention lacks merit because Becerra’s direct appeal is long past, and his sentence has long been final. See Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (new constitutional rules of criminal procedure not applicable to cases “which have become final before the new rules are announced”).

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 Ninth Circuit Rule 36-3.