Montano v. United States ( 2002 )

ORDER

Enrique Montano appeals pro se from a district court judgment that denied a motion to vacate his sentence under 28 U.S.C. § 2255. His appeal has been referred to a panel of this court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, the panel unanimously agrees that oral argument is not needed in this case. Fed. R.App. P. 34(a).

Montano pleaded guilty to conspiring to possess marijuana for intended distribution, a violation of 21 U.S.C. § 846. On September 30, 1999, he was sentenced to seventy-one months of imprisonment and four years of supervised release.

In his amended § 2255 motion, Montano alleged a violation of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The district court rejected this claim and closed the case on May 11, 2001. Montano’s motion for reconsideration was denied, and he now appeals.

Montano was granted a certificate of appealability on the following limited issues: 1) whether a procedural default analysis applies to his Apprendi claim, in light of the fact that Apprendi was decided nine months after he was sentenced; and 2) whether the holding in Apprendi is retroactively applicable to his initial § 2255 proceeding. We need not reach the first issue, as our court has now issued a published decision which holds that Apprendi is not retroactively applicable to cases on initial collateral review. See Goode v. United States, 305 F.3d 378, 382 (6th Cir. 2002). The published decision in Goode is binding here. See United States v. Roper, 266 F.3d 526, 530 (6th Cir.2001). Consequently, Montano’s claims are unavailing because the holding in Apprendi is simply not applicable to his case.

Accordingly, the district court’s judgment is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit.