                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 01-3615
                               ________________

United States of America,                *
                                         *
            Appellee,                    *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      Southern District of Iowa.
Mark Steven Ayala,                       *
                                         *             [PUBLISHED]
            Appellant.                   *

                               ________________

                               Submitted: December 12, 2002
                                   Filed: December 26, 2002
                               ________________

Before HANSEN, Chief Judge, HEANEY and BYE, Circuit Judges.
                           ________________

PER CURIAM.

       Mark Steven Ayala pleaded guilty to conspiring to distribute
methamphetamine, cocaine, cocaine base, and marijuana, in violation of 21 U.S.C.
§ 846, and using a person under the age of eighteen to distribute methamphetamine,
in violation of 21 U.S.C. § 861(a)(1). The district court1 accepted a plea agreement
that the parties reached pursuant to Federal Rule of Criminal Procedure 11(e)(1)(C),


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        The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
which bound the court to sentence Ayala to 360 months in prison. Ayala received
360 months in prison and ten years of supervised release.

       Ayala did not appeal, but he did file a timely 28 U.S.C. § 2255 motion. The
district court denied his motion and granted him a certificate of appealability. For the
reasons discussed below, we affirm the judgment of the district court.

                                           I.

       Ayala submitted two opening briefs, and when this court required him to
choose which brief he would rely on, he selected the second one. (8th Cir. Docket
6/12/02, 6/19/02, 6/21/02.) We therefore do not consider the additional issues Ayala
raised in his first opening brief: ineffective assistance of postconviction counsel, the
application of an aggravating-role enhancement, the timeliness of the government's
notice under 21 U.S.C. § 851 of Ayala's prior felony drug conviction, sentencing
disparity relative to Ayala's codefendants, and ineffective assistance of trial counsel.

                                          II.

       First, Ayala argues that his convictions and sentence violate Apprendi v. New
Jersey, 530 U.S. 466 (2000). We held in United States v. Moss, 252 F.3d 993, 997
(8th Cir. 2001), cert. denied, 122 S. Ct. 848 (2002), that an Apprendi claim cannot be
raised on collateral review. Ayala urges us to overrule Moss, but this can only be
done by the en banc court. See Jarrett v. United States, 266 F.3d 789, 791 (8th Cir.
2001), cert. denied, 122 S. Ct. 1582 (2002). Ayala's request for an initial hearing en
banc was denied. (8th Cir. Docket 7/9/02.)

       Second, Ayala argues that the government breached the plea agreement by
failing to conduct an immediate debriefing that might have led to a substantial-
assistance downward-departure motion. We have carefully read the plea agreement,

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and we have found no such breach. The agreement imposed a unilateral obligation
on Ayala to agree to be debriefed immediately, but it did not impose any
corresponding obligation on the government to debrief him immediately. (Plea
Agreement Add. ¶ 3.) More importantly, because what is really at stake for Ayala is
the government's decision not to file a substantial-assistance downward-departure
motion, the agreement reserved to the government the right to determine in its "sole
discretion" whether to file such a motion. (Id. ¶ 8.) See United States v. Amezcua,
276 F.3d 445, 447 (8th Cir.) (finding no merit to defendant's argument that
government breached plea agreement where agreement reserved to government, in
its sole discretion, decision whether to move for substantial-assistance downward-
departure), cert. denied, 122 S. Ct. 2637 (2002).

                                        III.

       Accordingly, we affirm the judgment of the district court. We deny as moot
the government's motion to strike certain portions of Ayala's briefs and to dismiss
those issues from this appeal.



      A true copy.

            Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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