United States v. O'Neal

55 F. App'x 461

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 22, 2003
• Docket: No. 02-55362; D.C. No. CV-00-12004-WMB
• Status: Published

Opinion

MEMORANDUM

**

John Eric O’Neal appeals pro se the denial of his 28 U.S.C. § 2255 motion, challenging his 240-month mandatory minimum sentence, in light of the rule announced in Apprendi v. New Jersey, 530 , 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

O’Neal contends that his sentence violates Apprendi because the quantity of drugs in his possession was not presented to a jury and proved beyond a reasonable doubt. While the district court erred in not submitting the quantity issue to the jury, we conclude that error was harmless because the sentence imposed is authorized by the jury’s verdict. See United States v. Saya, 247 F.3d 929, 942 (9th Cir.) (stating that a defendant is not entitled to relief under Apprendi when his sentence does not exceed the statutory maximum authorized by the jury’s verdict), cert. denied, 534 U.S. 1009, 122 S.Ct. 493, 151 L.Ed.2d 404 (2001).

O’Neal’s attempt to distinguish his case as an Apprendi violation on the basis that a mandatory minimum sentence was imposed as a result of the district court’s drug quantity determination has been foreclosed by Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 2419-20, 153 L.Ed.2d 524 (2002) (stating that mandatory mínimums do not implicate Apprendi).

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.