Torres v. United States , 14 F. App'x 701 ( 2001 )

ORDER

Santos Torres appeals the denial of his motion to vacate his sentence under 28 U.S.C. § 2255. We affirm.

Torres was convicted of conspiring to distribute cocaine, 21 U.S.C. §§ 846, 841(a)(1), and possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), and was sentenced to concurrent 87-month terms of imprisonment. In December 2000 Torres moved to vacate his sentences, claiming that they run afoul of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because drug quantities were not charged in his indictment or proved at trial. The district court denied the motion on the ground that Apprendi does not apply retroactively but then granted Torres a certificate of appealability, stating that reasonable jurists could disagree as to the retroactivity of Apprendi in initial § 2255 proceedings. But irrespective of its retroactivity, Apprendi does not apply to Torres’s case because his prison terms do not exceed the default 20-year maximum penalty for cocaine offenses. See 21 U.S.C. § 841(b)(1)(C); Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. His motion was therefore properly denied.

AFFIRMED.