United States v. Kennedy

2 F. App'x 343

Opinion

PER CURIAM.

Kelvin O’Neil Kennedy seeks to appeal the district court’s order denying his motion filed under 28 U.S.C.A. § 2255 (West Supp.2000). We have reviewed the record and the district court’s opinion and find no reversible error. * We note, however, that the court deemed the motion untimely filed under the Antiterrorism and Effective Death Penalty Act. We find that it was timely filed on March 27, 1998. However, the district reviewed the claims raised on their merits, thus the motion was properly reviewed. Accordingly, we deny a certificate of appealability and dismiss the appeal on the reasoning of the district court. United States v. Kennedy, Nos. CR-94-297; CA-98-850-4-12 (D.S.C. July 31, 2000). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED.

* Kennedy alleges for the first time on appeal that his sentence was illegal under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Even if this claim was properly before the court, Kennedy was not sentenced above the statutory maximum for the offense of conviction. As a result, the sentence does not implicate the concerns raised in Apprendi. United States v. Angle, 230 F.3d 113 (4th Cir.2000), petition for rehearing filed, Oct. 26, 2000 (No. 96-4662).