                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         SEP 10 2002
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                    No. 01-8085
                                                 (D.C. Nos. 01-CV-102-J,
 LUIS CISNEROS LEDESMA,                              97-CR-132-02-J)
                                                      (D. Wyoming)
          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges. **


      Defendant-Appellant Luis Cisneros Ledesma, a federal inmate appearing

pro se, seeks a certificate of appealability (“COA”) allowing him to appeal the

district court’s order denying relief on his motion made pursuant to 28 U.S.C.

§ 2255. Because Mr. Ledesma has not “made a substantial showing of the denial

of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny a COA and dismiss the


      *
        This order and judgment is not binding precedent, except under the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)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
appeal.

      The background of Mr. Ledesma’s activities and the trial leading to his

conviction can be found in his direct appeal. United States v. Ledesma, 203 F.3d

836, 2000 WL 155591 (10th Cir. Feb. 14, 2000) (table). After pleading guilty to

one count of unlawful reentry into the United States after having been deported, 8

U.S.C. § 1326(b)(2), Mr. Ledesma was convicted by a jury of one count of

conspiracy to possess with intent to distribute and distribution of

methamphetamine. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846. Mr. Ledesma was

sentenced to a concurrent sentence totaling 240 months, a $4,000 fine, and a $200

special assessment.

      Mr. Ledesma filed his § 2255 petition in the district court, claiming that his

conviction should be vacated because (1) the trial court lacked subject matter

jurisdiction because the indictment failed to specify the quantity of

methamphetamine; and (2) the sentencing judge determined the quantity of

methamphetamine instead of the jury, thus violating the rule of Apprendi v. New

Jersey, 530 U.S. 466 (2000). The district court rejected these arguments on the

following grounds: (1) Mr. Ledesma did not raise the issues in his direct appeal,

and failed to show cause and resulting prejudice or a fundamental miscarriage of

justice to overcome the procedural bar; and (2) even if he had not defaulted, Mr.

Ledesma’s sentence was within the twenty year statutory maximum and, therefore,


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Apprendi was not violated.

      We agree with the district court. 1 In United States v. Mora, 293 F.3d 1213,

1219 (10th Cir. 2002), we held that Apprendi is not applicable retroactively to

initial habeas petitions. We add that even if the indictment should have included

drug quantity, it does not deprive a court of jurisdiction. United States v. Cotton,

122 S. Ct. 1781, 1783–85. Further, the Supreme Court held that no constitutional

violation occurs where a judge finds “a fact increasing the mandatory minimum

(but not extending the sentence beyond the statutory maximum) . . . .” Harris v.

United States, 122 S. Ct. 2406, 2414 (2002). In such a circumstance, “the jury’s

verdict has authorized the judge to impose the minimum with or without the

finding.” Id. Here, the jury’s verdict, even without a finding regarding

methamphetamine quantity, allowed the district court to sentence Mr. Ledesma

within the twenty-year statutory maximum of 21 U.S.C. § 841(b)(1)(C). See

United States v. Thompson, 237 F.3d 1258, 1262 (10th Cir. 2001) (no Apprendi

violation where the sentence fell within the statutory range of 21 U.S.C. §

841(b)(1)(C)).



      1
        It appears from the district court docket entries that Mr. Ledesma may
have filed his notice of appeal untimely. The district court, however, did not
enter a separate Fed. R. Civ. P. 58 judgment. As such, we will proceed to the
determination of whether to grant a COA to Mr. Ledesma. See Allison v. Bank
One-Denver, 289 F.3d 1223, 1232–33 (10th Cir. 2002) (accepting jurisdiction
where no Rule 58 judgment had been entered).

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     Therefore, for substantially the same reasons given by the district court, we

DENY a COA and DISMISS the appeal.


                                     Entered for the Court


                                     Paul J. Kelly, Jr.
                                     Circuit Judge




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