United States v. Livingstone

32 F. App'x 413

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 20, 2002
• Docket: No. 01-35129; D.C. Nos. CV-00-00896-JO, CR-98-00478-JO
• Status: Published

Opinion

MEMORANDUM

**

Iain Fletcher Livingstone appeals pro se the district court’s denial of his 28 U.S.C. § 2255 motion, challenging his 60-month sentence imposed after his guilty plea conviction for manufacturing marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(vii). We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Livingstone was granted a certificate of appealability (“COA”) on (1) whether appellant may raise on collateral review a claim that his sentence is unconstitutional based on the new rule of constitutional law enunciated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and, if so, (2) whether appellant’s sentence is unconstitutional under Apprendi because he was subject to a mandatory minimum sentence of five years based on the judge’s determination of the amount of drugs involved in his offense. The first COA issue is foreclosed by our recent decision in United States v. Sanchez-Cervantes, 282 F.3d 664, 666-72 (9th Cir.2002) (concluding that Apprendi does not apply retroactively on initial collateral review). Accordingly, we do not reach the second COA issue, regarding the merits of Livingstone’s claim. See id. at 666.

AFFIRMED.

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