United States v. Mustin

22 F. App'x 921

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 2, 2002
• Docket: No. 01-50137; D.C. No. CR-96-00753-R-01
• Status: Published

Opinion

MEMORANDUM

**

Travon Mustin appeals both the district court’s partial dismissal of his 28 U.S.C. § 2255 motion and the resentencing conducted after the district court’s partial granting of his motion. We have jurisdiction pursuant to 28 U.S.C. § 2253, and affirm.

Mustin contends his resentencing violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) because the firearm sentence enhancement under USSG § 2B3.1(b)(2) was not proven beyond a reasonable doubt. Although Mustin has not received a certificate of appealability (“GOA”) for this issue, we construe Mustin’s notice of appeal as a request for a COA, and grant his request. See Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir.2001) (order).

Mustin’s contention, however, is without merit because his 120-month sentence is less than the 20-year maximum provided by 18 U.S.C. § 2113(a). As such, Appren-di is not implicated.¹ See United States v. Egge, 223 F.3d 1128, 1131 n. 1 (9th Cir. 2000); see, e.g., United States v. Panaro, 266 F.3d 939, 954 (9th Cir.2001) (affirming USSG § 283.2(b)(1) enhancement).

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.

1 . Mustin also contends the district court lacked jurisdiction. On March 30, 2001, we denied Mustin's request for a COA on this issue. As Mustin has not received a COA on this issue, we cannot entertain his appeal. See U.S.C. § 2253(c)(1)(B).