United States v. Flores ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41288
and No. 02-40363
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN DE LA CRUZ FLORES, JR.,
Defendant-Appellant.
- - - - - - - - - -
Appeals from the United States District Court
for the Southern District of Texas
USDC No. C-99-CR-324-1
USDC No. C-01-CV-147
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November 7, 2002
Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Juan De La Cruz Flores, Jr., federal prisoner #77023-079,
was convicted in October 1999 of conspiracy to possess with intent
to distribute more than 100 kilograms of marijuana. Flores has
filed a motion seeking to consolidate both of his appeals. The
motion to consolidate is GRANTED.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 01-41288 and
No. 02-40363
-2-
Flores has also filed a motion for extraordinary relief
seeking reimbursement of his second filing fee. The motion for
extraordinary relief is DENIED.
Flores has filed a motion for COA regarding the district
court’s orders striking his renewed postjudgment motions, denying
his FED. R. CIV. P. 60(b) motion, and ordering him to stop filing
documents in the instant case pending resolution of his appeal from
the denial of his 28 U.S.C. § 2255 motion. We construe his request
for COA as a motion seeking expansion of his COA. This court may
grant a COA only if Flores shows that jurists of reason would find
it debatable whether: (1) he states a valid claim of the denial of
a constitutional right; and (2) the district court was correct in
its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484
(2000).
Even if the district court erred in striking his renewed
postjudgment motions, Flores cannot show that he was harmed by such
error because he was permitted to raise his claims in subsequent
postjudgment motions. The district court properly denied his FED.
R. CIV. P. 60(b) motion because Flores’s argument that the district
court failed to address all of his claims lacks merit.
Furthermore, the district court did not abuse its discretion by
ordering Flores to cease filing documents in this case pending
resolution of his appeal. See Farguson v. MBank Houston, N.A., 808
F.2d 358, 360 (5th Cir. 1986). Accordingly, his motion for
expansion of his COA is DENIED.
No. 01-41288 and
No. 02-40363
-3-
Flores filed a motion to vacate, set aside, or correct
sentence on the ground that his sentence was unconstitutional
because drug quantity was not specifically listed as an element of
his offense during his guilty-plea hearing. The district court
granted Flores a certificate of appealability (“COA”) as to whether
Apprendi v. New Jersey, 530 U.S. 466 (2000), was retroactively
applicable to his 28 U.S.C. § 2255 motion and, if so, whether
Flores had shown that any error was not harmless. Because Flores’s
indictment alleged, and Flores explicitly conceded during his
guilty-plea hearing, that his crime of conviction involved over 100
kilograms of marijuana, his sentence does not violate Apprendi.
See United States v. Longoria, __ F.3d __ (5th Cir. July 12, 2002,
Nos. 00-50405, 00-50406), 2002 WL 1491784 at *2, *5; United States
v. Deville, 278 F.3d 500, 510 (5th Cir. 2002); United States v.
Fort, 248 F.3d 475, 483 (5th Cir.), cert. denied, 122 S. Ct. 405(2001). It is therefore not necessary to determine whether
Apprendi is retroactively applicable to his 28 U.S.C. § 2255motion. The district court’s judgment is AFFIRMED.
MOTION TO CONSOLIDATE GRANTED; MOTION FOR EXTRAORDINARY RELIEF
DENIED; MOTION FOR EXPANSION OF COA DENIED; AFFIRMED.