From Casetext: Smarter Legal Research

Cortez v. U.S.

United States Court of Appeals, Ninth Circuit
Aug 14, 2003
71 F. App'x 763 (9th Cir. 2003)

Opinion


71 Fed.Appx. 763 (9th Cir. 2003) Craig Joseph CORTEZ, Petitioner--Appellant, v. UNITED STATES of America, Respondent--Appellee. No. 03-55025. D.C. No. CV-01-01574-BTM. United States Court of Appeals, Ninth Circuit. August 14, 2003

Submitted July 21, 2003.

This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Defendant convicted of conspiracy to distribute marijuana and possession of marijuana with intent to distribute moved to vacate. The United States District Court for the Southern District of California, Barry T. Moskowitz, J., denied motion. Defendant appealed. The Court of Appeals held that any Apprendi error in imposition of 135-month sentence was harmless.

Affirmed.

Appeal from the United States District Court for the Southern District of California, Barry T. Moskowitz, District Judge, Presiding.

Before LEAVY, HAWKINS, and RAWLINSON, Circuit Judges.

MEMORANDUM

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.

Craig Cortez appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion. A jury convicted Cortez of conspiracy to distribute marijuana and possession of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 846. Cortez argues that the 135-month sentence imposed following his convictions violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the jury did not determine drug quantity. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We affirm because any Apprendi error in this case was "harmless beyond a reasonable doubt." United States v. Smith, 282 F.3d 758, 771-72 (9th Cir.2002). Count 2 of the indictment alleged that Cortez possessed 204.09 kilograms of marijuana,

Page 764.

and he stipulated at trial that that was the amount of marijuana involved. As a result of the Count 2 conviction, which was predicated on this quantity of marijuana, Cortez was eligible for a 135-month sentence. 21 U.S.C. § 841(b)(vii) (making people convicted of possessing more than 100 kilograms of marijuana eligible to be sentenced to 40 years in prison). The district court correctly determined that Cortez's § 2255 motion should be denied. United States v. Buckland, 289 F.3d 558, 569-70 (9th Cir.2002) (en banc); Smith, 282 F.3d at 771-72.

AFFIRMED.


Summaries of

Cortez v. U.S.

United States Court of Appeals, Ninth Circuit
Aug 14, 2003
71 F. App'x 763 (9th Cir. 2003)
Case details for

Cortez v. U.S.

Case Details

Full title:Craig Joseph CORTEZ, Petitioner--Appellant, v. UNITED STATES of America…

Court:United States Court of Appeals, Ninth Circuit

Date published: Aug 14, 2003

Citations

71 F. App'x 763 (9th Cir. 2003)