United States v. Middleton

44 F. App'x 798

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 15, 2002
• Docket: No. 01-35732; D.C. No. CV-01-00973-MA, CR-91-00290-MA
• Status: Published

Opinion

MEMORANDUM

**

Tony Brian Middleton appeals the district court’s order denying his 28 U.S.C. § 2255 motion to vacate his 235-month sentence as an armed career criminal under 18 U.S.C. § 924(e)(1). We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We review de novo the denial of a § 2255 motion, Sanchez v. United, States, 50 F.3d 1448, 1451 (9th Cir.1995), and we affirm.

Middleton contends that his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because his sentence was enhanced based on factors which were neither alleged in the indictment nor proven to the jury. Middleton’s contentions have been foreclosed by this court’s recent decision in United States v. Sanchez-Cervantes, 282 F.3d 664, 667-71 (9th Cir.2002) (denying a 28 U.S.C. § 2255 motion and holding that Apprendi does not apply retroactively to cases on initial collateral review).

Accordingly, the judgment of the district court is 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 Ninth Circuit Rule 36-3.