United States v. Buenrostro

163 F. App'x 524

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 17, 2006
• Docket: No. 04-16570
• Status: Published

Opinion

MEMORANDUM

**

Federal prisoner Jose Luis Buenrostro appeals from the district court’s denial of his 28 U.S.C. § 2255 motion challenging his jury-trial conviction for conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841, 846. We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a), and we affirm.

Buenrostro contends that the district court erred in determining that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), does not apply retroactively to his case. Although he recognizes this court’s ruling in United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir.2002) (holding that Apprendi is not retroactive on collateral review), he contends that intervening Supreme Court authority has superseded Sanchez-Cervantes. This court, however, has rejected this exact contention in Cooper-Smith v. Palmateer, 397 F.3d 1236, 1245-46 (9th Cir.2005). We therefore affirm the district court’s order.

We decline to expand the scope of Buenrostro’s certificate of appealability to include Buenrostro’s remaining claims. See 9th Cir. R. 22 — 1(e); see also Pham v. Terhune, 400 F.3d 740, 742 (9th Cir.2005) (per curiam) (explaining that an appellant requesting an expansion of a COA must make “a substantial showing of the denial of a constitutional right” (internal citation and quotation marks omitted)).

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 9th Cir. R. 36-3.