United States v. Schiess

42 F. App'x 924

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 31, 2002
• Docket: No. 01-15968; D.C. Nos. CV-00-00616-RCC; CR-98-00158-RCC
• Status: Published

Opinion

MEMORANDUM

**

Trevor Nigel Schiess appeals the district court’s order denying his 28 U.S.C. § 2255 motion to vacate the 60-month sentence imposed following his jury trial conviction for conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846, and posses^ sion with intent to distribute marijuana in violation of § 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 2255, we review de novo, see United States v. Sanchez-Cervantes, 282 F.3d 664, 666 (9th Cir.2002), and affirm.

Schiess’ contention that his sentence was imposed in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the quantity of marijuana was not determined by a jury, is foreclosed by Sanchez-Cervantes, 282 F.3d at 667-68, 673 (concluding that Apprendi does not apply retroactively on initial collateral review). Schiess’ second contention, that 21 U.S.C. § 841 is facially unconstitutional, is similarly foreclosed by United States v. Buckland, 289 F.3d 558, 562 (9th Cir.) (en banc) (holding that § 841 is not facially unconstitutional), cert. denied, — U.S. —, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002).

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.