                 Not for Publication in West's Federal Reporter
                Citation Limited Pursuant to 1st Cir. Loc. R. 32.3


          United States Court of Appeals
                        For the First Circuit


No. 00-2491

                                JAMES CRUZ,

                        Petitioner, Appellant,

                                       v.

                              UNITED STATES,

                        Respondent, Appellee.


          APPEALS FROM THE UNITED STATES DISTRICT COURT

                     FOR THE DISTRICT OF MAINE

          [Hon. David M. Cohen, U.S. Magistrate Judge]


                                    Before

                      Torruella, Circuit Judge,
                    Stahl, Senior Circuit Judge,
                    and Howard, Circuit Judge.


     James Cruz on brief pro se.
     Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on brief for appellee.



                            January 14, 2003
           Per Curiam. James Cruz appeals from the district

court's judgment denying his 28 U.S.C. § 2255 motion to set

aside his sentence following his jury-trial convictions for

conspiracy to distribute crack cocaine, 21 U.S.C. §§ 841 and

846, along with various firearm possession violations. We have

reviewed   the   record,   the   briefs   of   the   parties,   and   the

applicable law, and we discern no reversible error.

           Because neither Cruz's sentence of imprisonment nor

term of supervised release exceeded the applicable default

statutory maximum, there was no violation of Apprendi v. New

Jersey, 530 U.S. 466 (2000).         See United States v. Cortes-

Claudio, 2002 WL 31681895 at *1 (1st Cir. Dec. 2, 2002).          There

being no Apprendi violation, the question of the retroactive

application of Apprendi becomes unnecessary to resolve here.

Similarly rendered moot is the third issue on which a COA was

granted -- whether Cruz can establish cause and prejudice to

overcome his procedural default of the Apprendi issue.

           The district court's judgment denying Cruz's section

2255 motion is AFFIRMED.




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