                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit

No. 06-1594

                     MARCOS MARTÍNEZ-MEDINA,

                      Petitioner, Appellant,

                                     v.

                            UNITED STATES,

                       Respondent, Appellee.



          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF PUERTO RICO

        [Hon. Salvador E. Casellas, U.S. District Judge]



                                  Before

                  Torruella, Lipez and Howard,
                        Circuit Judges.



     Marcos Martínez-Medina on brief pro se.
     Nelson Pérez-Sosa, Assistant U.S. Attorney, Julia M.
Meconiates, Assistant U.S. Attorney, and Rosa Emilia Rodriguez-
Velez, United States Attorney, on brief for appellee.



                              May 8, 2008
            Per Curiam.        Pro se appellant Marcos Martínez-Medina

appeals from the district court's denial of his motion to vacate

his sentence under 28 U.S.C. § 2255.          For reasons given below, we

affirm.     On appeal, Martínez also raises new claims, which are

outside the scope of the certificate of appealability (COA) granted

by the district court.         As to such claims, we deny a COA.     We begin

with background.

            I.    Background

            In    1998,    Martínez    and   various      co-defendants     were

convicted of conspiring to possess with intent to distribute and

distribution of multi-kilograms of cocaine, heroin, and marijuana

in violation of 21 U.S.C. § 841(a)(1) and § 846.            At his sentencing

hearing   in     1999,   the   district   court   found   that   Martínez   had

committed certain murders in furtherance of the drug conspiracy, a

finding that significantly increased the applicable sentencing

guideline range. Eventually, the court imposed the high end of the

guideline range--a prison term of 405 months, or nearly 34 years.

Martínez appealed, and his appeal was consolidated with appeals by

two of his co-defendants.

            On appeal, Martínez's appointed appellate attorney, who

had also been his trial attorney, challenged his conviction and

sentence.      During the pendency of the appeal, Apprendi v. New

Jersey, 530 U.S. 466 (2000), was decided. In a supplemental brief,

counsel raised an Apprendi claim, alleging that Martínez's sentence

                                      -2-
had   been    based   on   murders   that   were   neither   charged   in   the

indictment nor determined by the jury beyond a reasonable doubt.

In    her    brief,   however,   counsel    conceded    that   Martínez     was

responsible for more than 500 grams of cocaine and that the 40-year

statutory maximum in § 841(b)(1)(B) applied.

              We affirmed Martínez's conviction and sentence.               We

rejected his Apprendi and other sentencing claims, relying in part

on counsel's appellate concession that the statutory maximum was 40

years.       But before we turned to Martínez's Apprendi claim, we

discussed a possible sentencing guideline error that we had noticed

sua sponte--that the district court had not determined the specific

drug quantity attributable to Martínez.             We stated that, in the

absence of a quantity determination, the 20-year statutory maximum

would apply, and noted that Martínez had received a nearly 34-year

sentence.1     But we suggested that any error had been forfeited or


       1
      As this court has emphasized both before and after Apprendi,
a sentencing court may not automatically attribute the conspiracy-
wide drug quantity to an individual defendant for purposes of
guideline sentencing, but must make an individualized determination
of drug quantity. See United States v. Sepúlveda, 15 F.3d 1161,
1197 (1st Cir. 1993) (stating that the guidelines require an
individualized determination of drug quantity); United States v.
Colón-Solis, 354 F.3d 101, 103 (1st Cir. 2004) (stating that this
court has "consistently . . . required a defendant-specific
determination of drug quantity as a benchmark for individualized
sentencing under the guidelines").       In many drug cases, the
individualized finding of drug quantity will determine the
appropriate base offense level under the drug guideline, § 2D1.1.
Prior to Apprendi, it was also used to determine the appropriate
statutory maximum under § 841(b)(1). See United States v. Irvin,
2 F.3d 72, 77-78 (4th Cir. 1993).
     In Martínez's case, however, the base offense level was

                                      -3-
waived--counsel had not objected to the lack of findings at the

sentencing proceeding, and, on appeal, she had conceded to a higher

maximum.   At the same time, however, we observed that based on the

trial evidence, the district court "would have had no difficulty"

finding Martínez responsible for more than 500 grams of cocaine.

See United States v. Martínez-Medina, 279 F.3d 105, 125 & n.10 (1st

Cir.), cert. denied, 537 U.S. 921 (2002).        In so doing, we

essentially confirmed that the district court's apparent error and

counsel's failure to press for a specific drug amount finding were

not prejudicial since it was clear that the district court, if it

had addressed the issue, would have attributed at least 500 grams

of cocaine to Martínez, thereby exposing him to a 40-year maximum,

which exceeded the sentence he actually received.

           Subsequently, Martínez's attorney urged him to file a §

2255 motion alleging that she had rendered ineffective assistance



determined under the murder guideline, § 2A.1.1, not the drug
guideline.    Nonetheless, the district court, which sentenced
Martínez pre-Apprendi, should still have made an individualized
drug finding so as to determine whether the murder-based guideline
sentence was within the statutory maximum applicable to Martínez's
drug offense. See § 5G1.1(c) (permitting imposition of a guideline
sentence only if it is within "the statutorily authorized maximum
sentence" and "any statutorily required minimum sentence"); id.
(commentary) (indicating that the statutory maximum is the one
"authorized by statute for the offense of conviction").         For
example, if the district court had determined that no specific
quantity of cocaine could be attributed to Martínez, then it could
not have imposed a guideline sentence of nearly 34 years on
Martínez. At most, it could have imposed the 20-year statutory
maximum that applies to an offense involving an undetermined amount
of cocaine.

                                -4-
of   counsel.    Based   apparently     in   part   on   what   was   a

misunderstanding of our appellate decision, she stated that she had

misconstrued Apprendi, that Apprendi required application of the

20-year default maximum, and that she had erroneously conceded to

a 40-year statutory maximum.

          In November 2002, Martínez filed the instant § 2255

motion and certain amendments.         He asserted Apprendi claims,

alleging that his indictment had not charged him with murders or

adequately stated a specific drug quantity and that the jury had

not made pertinent determinations either.       He also asserted an

ineffective assistance of counsel claim, relying on counsel's

suggestion that she had misconstrued Apprendi.      He contended that

if counsel had not conceded to the 40-year statutory maximum, this

court would have vacated his sentence on appeal on the ground that

Apprendi required application of the 20-year maximum.     Among other

things, Martínez noted that certain co-defendants of his, who had

played a more significant role in the conspiracy, but who had been

sentenced after Apprendi, had received sentences of 20 years on the

drug conspiracy count.

          On February 7, 2006, the district court issued an Opinion

and Order denying the § 2255 claims.   The court upheld a magistrate

judge's report recommending that the claims be denied and also

offered additional analysis.   Subsequently, it granted Martínez's




                                -5-
application for a COA and his motion to proceed in forma pauperis

on appeal.

           II.    Discussion

           After careful consideration of Martínez's contentions, we

affirm the district court's denial of the § 2255 motion, and we

deny a COA relative to Martínez's new appellate claims.      See 28

U.S.C. § 2253(c)(2) (permitting a COA "if the applicant has made a

substantial showing of the denial of a constitutional right").

           A.    The Apprendi Issues

           1.    Drug Quantity

           Martínez argues that his indictment was defective under

Apprendi because it did not adequately charge drug quantity.     He

also objects to the fact that the jury did not determine drug

quantity and type as was subsequently required by Apprendi.      His

claims are unpersuasive for the following reasons.

           First, Martínez fails to cite any case law to support his

claim that his indictment violated Apprendi.2    In pertinent part,

the indictment charged a conspiracy involving "multi-kilograms" of

cocaine, which implied that it involved a minimum of 1 kilogram of

cocaine.     In addition, the indictment specified a relevant overt

act--that, in early 1996, approximately 2 kilograms of cocaine were



     2
      And we note that, in the direct appeal, the appellants did
not raise Apprendi claims challenging the adequacy of the drug
quantity allegations in the indictment, and that we did not rule on
that question.

                                  -6-
delivered to the drug point with which Martínez had allied himself.

Hence, taken together, the indictment allegations put Martínez on

notice that he could be subject to a 40-year statutory maximum.3

See United States v. Soto-Beníquez, 356 F.3d 1, 49 n.10 (1st Cir.

2003) (stating that an indictment need not "specify the exact

amount of drugs involved in the conspiracy, as long as it allege[s]

the   appropriate     threshold    amounts   necessary    to   support    the

defendants' sentences"); 21 U.S.C. § 841(b)(1)(B) (providing for a

40-year maximum if the offense involves at least 500 grams of

cocaine).

                Next, it is true that there was Apprendi error because

the jury did not determine drug quantity.           But as we explained in

rejecting the same Apprendi claim by Martínez's co-appellants, the

error     was   harmless   under   any   standard   of   review   since   the

overwhelming trial evidence showed a conspiracy-wide drug quantity

that triggered a statutory maximum of life in prison.             Martínez-

Medina, 279 F.3d at 122.       The same reasoning applies to Martínez



      3
      Because Martínez has not established that his indictment
failed to adequately allege drug quantity, his other arguments
premised on that contention also fail. In any event, this panel
would be obliged to follow First Circuit precedent over conflicting
precedent from other circuits. E.g., United States v. González-
Vélez, 466 F.3d 27, 35 (1st Cir. 2006) (confirming this circuit's
position that drug quantity is not an element of a conspiracy crime
under 21 U.S.C. § 846).         In addition, the jurisdictional
proposition that Martínez advocates is no longer valid. See United
States v. Cotton, 535 U.S. 625, 631 (2002) (overruling prior case
law holding that a defective indictment deprives a court of
jurisdiction over the prosecution).

                                     -7-
because   he     was   found    guilty    of     participating      in   the   same

conspiracy.     Id. at 113-15; United States v. Casas, 425 F.3d 23, 66

n.58 (1st Cir. 2005) (emphasizing that, for Apprendi purposes, it

is the drug quantity attributable to the entire conspiracy and not

the   quantity    attributable      to    the     individual    defendant      that

determines the statutory maximum).

           2.    The Murders

           Since the trial evidence supported a statutory maximum of

life, Martínez had no viable Apprendi claim based on the district

court's finding that he had committed certain murders that could be

used to enhance his guideline sentence.             As of the time his appeal

was pending, Apprendi was deemed not to implicate “findings made

for   purposes    of   the     sentencing      guidelines,”    as   we   noted   in

rejecting the same Apprendi claim by his co-appellants.                  Martínez-

Medina, 279 F.3d at 122.

           B.    Ineffective Assistance of Counsel

           Martínez contends that his appellate counsel rendered

ineffective assistance on appeal.                She allegedly misconstrued

Apprendi and so erroneously conceded that he was responsible for

more than 500 grams of cocaine and that a 40-year maximum applied.

But as discussed above, the statutory maximum based on the evidence

as to the conspiracy-wide drug quantity was life.                    Accordingly,

counsel's appellate concession to the lower 40-year statutory

maximum, and her failure to argue for the even lower 20-year


                                         -8-
default maximum, did not prejudice Martínez.4          Given the trial

evidence and the state of the law at that time, Martínez could not

have obtained a reduced sentence on appeal based on Apprendi.

          C.    The New Claims

          In his appellate brief, Martínez raises new issues that

were not presented in his § 2255 motion or in his district court

application for a COA.     As to such issues, Martínez must show that

a COA is warranted.      We conclude that he has not done so.

           Martínez argues that he should be resentenced consistent

with the 5-year default maximum for a marijuana offense.             He

contends that the jury might have convicted him for having been

involved in marijuana transactions, but the trial transcripts

provide no factual support for his argument. Martínez also presses

a claim under United States v. Booker, 543 U.S. 220 (2005),

relative to the murder enhancement of his sentence.        His claim is

foreclosed by our case law. "This court has held that petitions

under 28 U.S.C. § 2255 are unavailable to advance Booker claims in

the   absence   of   a   Supreme   Court   decision   rendering   Booker

retroactive."    United States v. Fraser, 407 F.3d 9, 11 (1st Cir.




      4
      We note as well that counsel did not render objectively
unreasonable performance by adopting a position on appeal that was
supported by the trial evidence. As indicated in our appellate
opinion, the evidence would readily have permitted a finding that
over 500 grams of cocaine could be attributed to Martinez.
Martínez-Medina, 279 F.3d at 125 n.10.

                                   -9-
2005) (citing Cirilo-Muñoz v. United States, 404 F.3d 527 (1st Cir.

2005)).

          We affirm the district court's judgment denying the

motion to vacate under 28 U.S.C. § 2255.   We deny a COA to appeal

based on new claims and terminate the appeal as to such claims.




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