Opinion
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NOT FOR PUBLICATION.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)
Jose Luis Buenrostro, Atwater, CA, pro se.
Suzanne A. Luban, Esq., Law Offices of Suzanne A. Luban, Oakland, CA, for Defendant-Appellant.
Matthew D. Segal, Esq., USSAC--Office of the U.S. Attorney, Sacramento, CA, for Plaintiff-Appellee.
Appeal from the United States District Court for the Eastern District of California, William B. Shubb, District Judge, Presiding. D.C. Nos. CR-95-00504-WBS/PAN, CV-99-1852-WBS/PAN.
Before: HUG, O'SCANNLAIN, and SILVERMAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Federal prisoner Jose Luis Buenrostro appeals from the district court's denial of his 28 U.S.C. § 2255 motion challenging his jury-trial conviction for conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841, 846. We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a), and we affirm.
Buenrostro contends that the district court erred in determining that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), does not apply retroactively to his case. Although he recognizes this court's ruling in United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir.2002) (holding that Apprendi is not retroactive on collateral review), he contends that intervening Supreme Court authority has superseded Sanchez-Cervantes. This court, however, has rejected this exact contention in Cooper-Smith v. Palmateer, 397 F.3d 1236, 1245-46 (9th Cir.2005). We therefore affirm the district court's order.
We decline to expand the scope of Buenrostro's certificate of appealability to include Buenrostro's remaining claims. See 9th Cir. R. 22-1(e); see also Pham v. Terhune, 400 F.3d 740, 742 (9th Cir.2005) (per curiam) (explaining that an appellant requesting an expansion of a COA must make "a substantial showing of the denial
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of a constitutional right" (internal citation and quotation marks omitted)).
AFFIRMED.