108 F.3d 1388
97 CJ C.A.R. 458
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
UNITED STATES of America, Plaintiff-Appellee,v.Clarence Edward CODY, Defendant-Appellant.
No. 96-7092.
United States Court of Appeals, Tenth Circuit.
March 24, 1997.

ORDER AND JUDGMENT*
Before BRORBY, EBEL, and KELLY, Circuit Judges.**
KELLY, Circuit Judge.


1
Mr. Cody seeks a certificate of appealability from the district court's denial of his motion to vacate, set aside or correct his sentence.  28 U.S.C. § 2255;  see 28 U.S.C. § 2253(c)(1)(B) & (2).  Despite a similar claim rejected on direct appeal, See United States v. Cody, 7 F.3d 1523, 1527 (10th Cir.1993), Mr. Cody again challenges the marijuana plant count (1,028 plants) that resulted in a 10-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A)(vii).  The premise of his argument is that 37 drying plants are not properly counted as plants, an argument foreclosed by United States v. Silvers, 84 F.3d 1317, 1325 (10th Cir.1996), cert. denied, 117 S.Ct. 742 (1997).  That said, arguments about the applicability of Sentencing Guideline Amendment 516, U.S.S.G. § 1B1.10(c) (retroactivity) & App.  C, amend. 516, are unavailing because the amendment cannot be applied to bring the sentence below the statutory mandatory minimum for 1,000 or more marijuana plants.  Silvers, 84 F.3d at 1325.   We thus conclude that Mr. Cody has not made "a substantial showing of the denial of a constitutional right."  28 U.S.C. § 2253(c)(2).


2
The Application for a Certificate of Appealability is DENIED and the appeal is DISMISSED.



*
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.  This court generally disfavors the citation of orders and judgments;  nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.  R. 36.3


**
 After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal.  See Fed.  R.App. P. 34(a);  10th Cir.  R. 34.1.9.  The cause is therefore ordered submitted without oral argument


