                Not For Publication in West's Federal Reporter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. 03-1711

                    LUIS ENRIQUE OVALLE MARQUEZ,

                        Petitioner, Appellant,

                                      v.

                              UNITED STATES,

                         Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF PUERTO RICO

      [Hon. Raymond L. Acosta, Senior U.S. District Judge]


                                   Before

                        Boudin, Chief Judge,
                 Selya and Lipez, Circuit Judges.



     Luis E. Ovalle-Marquez on brief pro se.
     H.S. Garcia, United States Attorney, Susan I. Torres,
Assistant United States Attorney, and Thomas F. Klumper, Assistant
United States Attorney, on brief for appellee.



                              April 6, 2004
          Per    Curiam.       After    denying     appellant    Luis    Ovalle-

Marquez's 28 U.S.C. § 2255 motion, the district court issued a

certificate of appealability (COA) as to the issue whether Apprendi

v. New Jersey, 530 U.S. 466 (2000), may be applied retroactively.

This court has ruled that Apprendi                "prescribes a new rule of

criminal procedure" that may not be applied retroactively to cases

on collateral review. See Sepulveda v. United States, 330 F.3d 55,

63 (1st Cir. 2003).   This defeats the instant appeal.                Contrary to

appellant's     contentions,    Bunkley      v.    Florida,     538    U.S.   835

(2003)(per curiam), and the additional cases appellant cites do not

suggest that Sepulveda was wrongly decided.

          We also reject appellant's suggestion that only the

Supreme Court may decide the retroactivity question.1 Sepulveda

remains the law in this circuit unless and until the Supreme Court

rules otherwise.    Accordingly, the judgment of the district court

is affirmed.    See Loc. R. 27(c).




     1
        See, e.g., Garcia v. United States, 278 F.3d 1210, 1212-13
& n.4 (11th Cir.), cert. denied, 537 U.S. 895 (2002), Ashley v.
United States, 266 F.3d 671, 673 (7th Cir. 2001), United States v.
Lopez, 248 F.3d 427, 431-32 (5th Cir. 2001), United States v.
Sanders, 247 F.3d 139, 146 n.4 (4th Cir. 2001).



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