United States v. Reyes-Oliveros

33 F. App'x 332

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 17, 2002
• Docket: No. 01-35711; D.C. No. CV-01-00068-FVS
• Status: Published

Opinion

MEMORANDUM

**

Jose Reyes-Oliveros appeals pro se the denial of his 28 U.S.C. § 2255 motion challenging his 188-month sentence imposed following his guilty plea convictions for conspiracy to possess a controlled substance with intent to distribute, in violation of 21 U.S.C. § 846; and being an aggravated felon alien found in the United States after deportation, in violation of 8 U.S.C. § 1326(b)(2). We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Reyes-Oliveros contends that his sentence is unconstitutional and 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 a drug quantity finding that was neither alleged in the indictment, nor submitted to the jury. This contention is foreclosed by our decision in United States v. Sanchez-Cervantes, 282 F.3d 664, 667-71 (9th Cir.2002) (concluding that Apprendi does not apply retroactively to cases on initial collateral review).¹

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 . Although the district court did not rule on whether Reyes-Oliveros’ § 2255 motion was timely, we do note that because Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is not retroactively applicable to cases on collateral review, ReyesOliveros’ § 2255 motion is time-barred. See 28 U.S.C. § 2255(3); see also United States v. Valdez, 195 F.3d 544, 546-48 (9th Cir.1999).