                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         FEB 27 2003
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 02-3347
                                               (D.C. No. 01-CV-3214-JTM
 v.
                                                and 97-CR-10080-01-JTM)
                                                       (D. Kansas)
 SALVADOR CHAVEZ-CEJA,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, HENRY and HARTZ, Circuit Judges.


      Salvador Chavez-Ceja was convicted of possession of methamphetamine

with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). He was sentenced

to 210 months in prison; his conviction and sentence were upheld on direct

appeal. Chavez-Ceja then filed a motion to vacate, set aside or correct his

sentence pursuant to 28 U.S.C. § 2255. He argues that his conviction was


      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The 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.
obtained in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), because

neither the indictment nor the judge’s instructions to the jury made the amount of

methamphetamine a specific element of the offense with which he was charged. 1

      The district court denied Chavez-Ceja’s motion and denied his request for a

Certificate of Appealability, finding that Chavez-Ceja had failed to make a

substantial showing of the denial of a constitutional right. We AFFIRM the

denial of a COA for substantially the reasons stated by the district court.


                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




      1
        Chavez-Ceja also argues that the district court improperly calculated his
criminal history when sentencing him. (Aplt. Br. at 13-14.) Because he raises
this argument for the first time on appeal, we consider it waived. See Walker v.
Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992).

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