Cruz v. United States

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 00-2491
JAMES CRUZ,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. David M. Cohen, U.S. Magistrate Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
James Cruz on brief pro se.
Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on brief for appellee.
January 14, 2003
Per Curiam. James Cruz appeals from the district
court's judgment denying his 28 U.S.C. § 2255 motion to set
aside his sentence following his jury-trial convictions for
conspiracy to distribute crack cocaine, 21 U.S.C. §§ 841 and
846, along with various firearm possession violations. We have
reviewed the record, the briefs of the parties, and the
applicable law, and we discern no reversible error.
Because neither Cruz's sentence of imprisonment nor
term of supervised release exceeded the applicable default
statutory maximum, there was no violation of Apprendi v. New
Jersey, 530 U.S. 466 (2000). See United States v. Cortes-
Claudio, 2002 WL 31681895 at *1 (1st Cir. Dec. 2, 2002). There
being no Apprendi violation, the question of the retroactive
application of Apprendi becomes unnecessary to resolve here.
Similarly rendered moot is the third issue on which a COA was
granted -- whether Cruz can establish cause and prejudice to
overcome his procedural default of the Apprendi issue.
The district court's judgment denying Cruz's section
2255 motion is AFFIRMED.
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