United States v. Jose Zamora , 591 F. App'x 599 ( 2015 )

FILED
NOT FOR PUBLICATION JAN 29 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30268
Plaintiff - Appellee, D.C. No. 2:08-cr-00036-RSL
v.
MEMORANDUM*
JOSE LUCAS ZAMORA,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Federal prisoner Jose Lucas Zamora appeals pro se from the district court’s
denial of his petition for writ of error coram nobis. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Zamora alleges that the district court violated his Sixth Amendment rights at
sentencing when it applied a two-level enhancement under U.S.S.G. § 3C1.2 after
his jury trial conviction for various drug offenses. We review a district court’s
decision to deny coram nobis relief de novo. See Matus-Leva v. United States, 287
F.3d 758, 760 (9th Cir. 2002). The district court properly denied the petition.
Because Zamora is still in custody for this conviction, the extraordinary remedy of
coram nobis is unavailable. See id. at 761 (when more usual remedy of habeas
petition is available, remedy of coram nobis is not, even when claims are time-
barred by AEDPA).
Furthermore, the Sixth Amendment is not violated when a sentencing court
finds facts while exercising its discretion to impose a sentence within the
statutorily prescribed range. See United States v. Vallejos, 742 F.3d 902, 906 (9th
Cir. 2014) (neither Alleyne v. United States, 133 S. Ct. 2151 (2013), nor Apprendi
v. New Jersey, 530 U.S. 466 (2000), is implicated when a judge imposes a
sentencing enhancement that does not affect the statutory sentencing range).
AFFIRMED.
2 13-30268