United States v. Frazier

MEMORANDUM^**

David Edward Frazier, a federal prisoner, appeals the district court’s dismissal of his 28 U.S.C. § 2255 motion challenging his 151-month sentence following his guilty plea conviction for five counts of cocaine distribution, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 2253. Reviewing de novo, see United States v. Sanchez-Cervantes, 282 F.3d 664, 666 (9th Cir.), cert. denied, — U.S.-, 123 S.Ct. 48, 154 L.Ed.2d 243 (2002), we affirm.

Frazier contends that his counsel rendered ineffective assistance at sentencing by failing to argue that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) Frazier could only be sentenced as a career offender if it was alleged in the indictment and proven beyond a reasonable doubt. We disagree.

Application of the career offender enhancement under U.S.S.G. § 4B1.1 did not violate the principles of Apprendi because Frazier’s sentence did not exceed the statutory maximum. See United States v. Gamez, 301 F.3d 1138, 1149-50 (9th Cir.2002). Because Apprendi was inapplicable, counsel’s failure to make an Apprendi argument at sentencing was not deficient. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.