United States v. McClain

32 F. App'x 426

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 20, 2002
• Docket: No. 01-35404; D.C. No. CV-00-03075-AAM
• Status: Published

Opinion

MEMORANDUM

**

Edwin Dale McClain appeals pro se the district court’s denial of his 28 U.S.C. motion. McClain challenges his jury trial conviction and 360-month sentence for conspiracy to manufacture methamphetamine, conspiracy to distribute methamphetamine, conspiracy to import methamphetamine, possession with intent to distribute methamphetamine, and possession of ephedrine with intent to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(d)(1), 846, 952(a), and 963. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

McClain was granted a certificate of appealability (“COA”) on the sole issue of whether under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) it was proper for the sentencing court to determine drug quantity by a preponderance of the evidence and increase the maximum sentence for the offenses of which McClain was convicted.¹ This issue is now foreclosed by our recent decision in United States v. Sanchez-Cervantes, 282 F.3d 664, 666-671 (9th Cir. 2002) (concluding that Apprendi does not apply retroactively on initial 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 may be provided by 9 th Cir. R. 36-3.

1 . We do not address the other issues raised in McClain’s brief because they fall outside the scope of the COA. See Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir. 1999) (per curiam).