United States v. Tate

11 F. App'x 331

Opinion

PER CURIAM.

Jeffrey Tate seeks to appeal the district court’s order denying his motion filed un der 28 U.S.C.A. § 2255 (West Supp.2000). We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we deny a certificate of appealability and dismiss the appeal substantially on the reasoning of the district court. See United States v. Tate, Nos. CR-97-38-H; CA-99-437-5-H (E.D.N.C. Apr. 14, 2000). * We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court, and argument would not aid the decisional process.

DISMISSED.

* We previously granted Tate’s petition for rehearing and placed his appeal in abeyance for United States v. Jones, No. 00-7249, -Fed. Appx. -. We recently held, however, in United States v. Sanders, 247 F.3d 139 (4th Cir.2001), that the new rule announced in 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. Accordingly, the Apprendi claim Tate asserted for the first time in his letter pursuant to Fed.R.App .P. 28(j) is not cognizable. We therefore remove this appeal from abeyance because we conclude Sanders is dispositive of Tate’s Apprendi claim.