                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 January 11, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                       No.11-2154
 ELOY CARRANZA-HURTADO,                     (D.C. No. 1:CR-91-00007-JEC-5-1 &
                                                 1:11-CV-00564-JEC-LFG)
          Defendant-Appellant.                           (D. N.M.)



                                ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.

      Defendant Eloy Carranza-Hurtado (Carranza) appeals from the district

court’s denial of his post-judgment motion to dismiss his indictment. Exercising


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court’s decision.

                                          I

      In 1991, Carranza and three co-defendants were arrested in Albuquerque,

New Mexico, “while they were attempting to consummate the sale of six

kilograms of cocaine.” United States v. Martinez, 979 F.2d 1424, 1425 (10th Cir.

1992). Carranza was subsequently charged with and convicted of conspiracy to

distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846

and 18 U.S.C. § 2; possession with intent to distribute more than five kilograms

of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A); and use of a

firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) and

18 U.S.C. § 2. This court affirmed Carranza’s convictions on direct appeal.

Martinez, 979 F.2d at 1434.

      Carranza subsequently filed two motions to vacate, set aside or correct

sentence pursuant to 28 U.S.C. § 2255. In the second of those proceedings, which

concluded in March of 1997, the district court vacated one of Carranza’s

convictions and entered an amended criminal judgment.

      On January 23, 2011, Carranza filed a pro se motion to dismiss the original

indictment filed against him. In his motion, Carranza argued that the indictment

was insufficient and void in light of Apprendi v. New Jersey, 530 U.S. 466

(2000), because it failed to include all of the elements of the charged offenses.

Carranza pointed specifically to the indictment’s failure to allege the precise

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quantity of cocaine at issue, as outlined in § 841(b)(1)(A).

      The district denied Carranza’s motion as untimely filed. More specifically,

the district court noted that Carranza’s motion was filed long after final judgment

was entered in his case. The district court further concluded that it was

unnecessary to treat Carranza’s motion as a § 2255 motion because Carranza

“ha[d] previously filed two § 2255 motions, and the one-year limitations period

ha[d] long expired.” ROA, Vol. 1 at 28.

                                          II

      We review de novo a district court’s denial of a motion challenging the

sufficiency of an indictment. See United States v. Ambort, 405 F.3d 1109, 1116

(10th Cir. 2005) (noting that “when the sufficiency of a charge is challenged, we

review the district court’s decision de novo”). Federal Rule of Criminal

Procedure 12(b)(3) provides that “a motion alleging a defect in the indictment”

“must be raised before trial.” If, however, the alleged defect is that the

indictment fails to state an offense, the claim may be raised “at any time while the

case is pending,” Fed. R. Crim. P. 12(b)(3), including “for the first time on

[direct] appeal,” United States v. Sinks, 473 F.3d 1315, 1321 (10th Cir. 2007).

      Here, it is undisputed that Carranza filed his motion to dismiss long after

his convictions and sentence became final. Indeed, Carranza had already sought §

2255 relief on two occasions prior to seeking dismissal of the indictment.

Consequently, the district court properly concluded that Carranza’s motion to

                                          3
dismiss was untimely under Federal Rule of Criminal Procedure 12(b).

      As we have noted, the district court also considered and rejected the

possibility of construing Carranza’s motion to dismiss as a post-conviction

motion to vacate under 28 U.S.C. § 2255. We conclude the district court did not

abuse its discretion in this regard. See United States v. Valadez-Camarena, 402

F.3d 1259, 1261 (10th Cir. 2005) (applying abuse of discretion standard to similar

ruling). More specifically, we agree with the district court that a § 2255 motion

filed by Carranza would be procedurally barred either as untimely, or as second or

successive in light of Carranza’s two prior § 2255 motions. See id. (reaching

similar conclusion). And, even ignoring either of these procedural bars, it is well

established that Apprendi does not apply retroactively to final criminal judgments

such as Carranza’s. See United States v. Lott, 310 F.3d 1231, 1238 (10th Cir.

2002) (“We apply Apprendi to cases pending on direct review.”); United States v.

Mora, 293 F.3d 1213, 1219 (10th Cir. 2002) (holding that Apprendi is not

retroactively applicable to initial habeas corpus petitions).

      The decision of the district court is AFFIRMED. Carranza’s motion for

leave to proceed on appeal without prepayment of costs or fees is DENIED.


                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Chief Judge


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