United States v. Mairel

115 F. App'x 340

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 8, 2004
• Docket: No. 01-16381
• Status: Published

Opinion

MEMORANDUM

**

James Robert Mairel appeals pro se the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his 168-month sentence following a guilty plea to possession of methamphetamine with intent to distribute (in violation of 21 U.S.C. § 841(a)(1)). We have jurisdiction pursuant to 28 U.S.C. § 2253, and reviewing de novo, we affirm.

Mairel attempts to invoke Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to challenge his sentencing enhancements for drug quantity and use of a firearm because the factors were not charged in the indictment. Because Apprendi does not apply retroactively on collateral review, his claim is foreclosed. See United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir.2002).

Because Mairel’s motion received on November 17, 2003, is identical to his opening brief, it is denied. His motions to supplement his opening brief, filed on March 15, 2004 and August 19, 2004, are granted. Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Ameline, 376 F.3d 967 (9th Cir.2004), do not affect this appeal. Cf. Cook v. United States, 386 F.3d 949, 2004 WL 2365221 (9th Cir. Oct.22, 2004) (order) (denying application for second or successive § 2255 motion because “the Supreme Court has not made Blakely retroactive to cases on collateral review”).

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.