United States v. Chavez

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 24, 2003

Charles R. Fulbruge III Clerk No. 02-51364 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTIN ALONSO CHAVEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CV-025-DB & EP-98-CR-1438-1-DB --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Martin Alonso Chavez, federal inmate #91099-080, was

convicted by a jury of conspiracy to possess with intent to

distribute cocaine and possession with intent to distribute

cocaine and was sentenced to concurrent sentences of 324 months’

imprisonment and five years’ supervised release. Chavez appeals

the district court’s dismissal of his 28 U.S.C. § 2255 motion.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-51364 -2-

The district court granted Chavez a certificate of

appealability (“COA”) because this court had not yet decided

whether Apprendi v. New Jersey, 530 U.S. 466 (2000), applied

retroactively to an initial 28 U.S.C. § 2255 motion. In United

States v. Brown, 305 F.3d 304 (5th Cir. 2002), cert. denied, 123

S. Ct. 1919 (2003), we held that Apprendi does not apply

retroactively to cases on initial collateral review. Chavez’s

position is foreclosed by Brown.

We do not reach the other issues raised by Chavez because he

has not expressly sought to expand the COA grant to include these

issues. United States v. Kimler, 150 F.3d 429, 431 (5th Cir.

1998). Accordingly, the judgment of the district court is

AFFIRMED.