United States v. Solomon ( 2003 )

  •                                                                           F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                           UNITED STATES COURT OF APPEALS
                                                                               MAR 1 2004
                                        TENTH CIRCUIT
                                                                          PATRICK FISHER
               Plaintiff - Appellee,
                                                              No. 03-7017
     v.                                                 (D.C. No. 00-CV-365-S)
                                                              (E.D. Okla.)
               Defendant - Appellant.
                                  ORDER AND JUDGMENT          *
    Before KELLY , BRISCOE , and LUCERO , Circuit Judges.
           After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
           Mr. Solomon, an inmate appearing pro se, seeks review of the district
    court’s denial of his § 2255 motion. We affirm.
           This order and judgment is not binding precedent, except under the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.
          Mr. Solomon pleaded guilty to conspiracy to possess, manufacture and
    distribute methamphetamine, in violation of 21 U.S.C. § 846, and pursuant to a
    Fed. R. Crim. P. 11(c)(1)(C) 1 plea was sentenced to 84 months imprisonment,
    followed by five years supervised release. The agreed-upon sentence was
    substantially less than it would have been otherwise (guideline range of 120-135
    months). Doc. 25 at 3.
          Mr. Solomon’s conviction was affirmed on direct appeal after an Anders
    brief. United States v. Solomon, No. 99-7086, 
    2000 WL 293829
     (10th Cir. Mar.
    21, 2000). He subsequently filed a § 2255 motion which the district court
    construed as asserting ten claims: (1) ineffective assistance of retained counsel
    due to conflict, and ineffective assistance of appointed counsel that subsequently
    represented him; (2) erroneous calculation of drug quantity amounts; (3)
    erroneous firearms enhancement; (4) wrong Sentencing Guidelines were used, (5)
    prosecutorial misconduct involving introduction of allegedly perjured testimony
    of an Arkansas police investigator, (6) unconstitutionality of 21 U.S.C.
    § 841(b)(1)(A) in light of Apprendi v. New Jersey, 
    530 U.S. 466
     (2000); (7)
    misclassification of methamphetamine as a Schedule II drug, (8) inadequate
    advisement by the court or counsel as to the elements of the crime charged; (9) a
    defective indictment given Apprendi and the district court therefore lacked
              Then Rule 11(e)(1)(C).
    jurisdiction; and (10) lack of jurisdiction by the government over the indictment.
    The district court denied the 28 U.S.C. § 2255 motion on all grounds. This court
    granted Mr. Solomon a certificate of appealability and directed a response brief
    from the government. Reaching the first ground only, we reversed and remanded
    to determine whether retained counsel had a conflict of interest and whether
    appointed counsel was ineffective for not moving to withdraw Mr. Solomon’s
    plea. United States v. Solomon, No. 01-7045, 
    2002 WL 827593
    , at *2 (10th Cir.
    May 2, 2002). On remand, the parties stipulated to the dismissal of the first
    ground. Mr. Solomon now seeks review of the remaining issues raised in Case
    No. 01-7045.
          We have reviewed the complete record on appeal and Mr. Solomon's filings
    with this court and conclude that the district court did not err in its rulings on the
    remaining issues. Notwithstanding that we discussed the firearms enhancement
    on direct appeal, this court plainly is without jurisdiction (on direct appeal and
    certainly under § 2255) to address Mr. Solomon’s claims that his sentence is
    improper. This is because Mr. Solomon entered into a plea agreement with a
    specific sentence. He does not argue that the sentence is more than what was
    agreed, and we are without jurisdiction to entertain claims that his sentence is
    greater than the sentence range specified in the applicable guidelines. United
    States v. Trujeque, 
    100 F.3d 869
    , 870 (10th Cir. 1996); United States v.
    79 F.3d 1010
    , 1013-1014 (10th Cir. 1996). The district court was
    correct as a matter of law when it observed that because of the stipulated
    sentence, claims (2)-(5), as enumerated by the district court, “ultimately had no
    effect on the sentence which [Mr. Solomon] received.” R. Doc. 25 at 4. As a
    result, we likewise reject any issues Mr. Solomon asserts which pertain to
    sentence calculation.
          We also conclude Mr. Solomon's remaining claims were adequately
    addressed by the district court and are without merit. The argument that
    methamphetamine is not properly classified as Schedule II has been repeatedly
    rejected. United States v. Lafoon, 
    978 F.2d 1183
    , 1184 (10th Cir. 1992); United
    States v. Sullivan, 
    967 F.2d 370
    , 373 (10th Cir.1992). In addition, subsequent to
    the district court’s order, this court held that Apprendi is not retroactive to initial
    § 2255 motions. United States v. Mora, 
    293 F.3d 1213
    , 1219 (10th Cir.), cert.
    123 S. Ct. 388
          We AFFIRM for substantially the same reasons as stated by the district
    court in its order filed March 21, 2001.
                                             Entered for the Court
                                             Per Curiam