United States v. McCloud , 48 F. App'x 318 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
OCT 16 2002
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 01-3076
D.C. Nos. 96-CR-20031-01-DES and
v.
00-CV-3342-DES
(D. Kansas)
IKE MCCLOUD,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before HARTZ, ALDISERT** and HOLLOWAY, Circuit Judges.
________________________________
In 1996, Defendant-Appellant Ike McCloud was convicted of two counts of
distribution of cocaine in violation of 21 U.S.C. § 841(a)(1). He was sentenced to two
terms of 360 months in prison to be served concurrently, and he appealed. Our court
affirmed the convictions and sentence. United States v. McCloud, 127 F.3d 1284 (10th
Cir. 1997).
*
This order and judgment is not binding precedent, except under the doctrines of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.
The Honorable Ruggero J. Aldisert, Senior United States Circuit Judge for the
**
Third Circuit, sitting by designation.
McCloud then filed in the district court a motion under 28 U.S.C. § 2255 to vacate
or correct his sentence. He asserted that his sentence was illegal because it was based in
part on a calculation of drug quantity that was not made by the jury, and he relied on
Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court denied relief, concluding
that the rule of Apprendi is not applicable in an initial proceeding for collateral review.
The judge issued a Certificate of Appealability as to the Apprendi issue. On appeal from
the district court’s denial of relief, Mr. McCloud filed a pro se brief, and then we
appointed counsel who filed an additional brief.1
A panel of this court recently held that the rule of Apprendi will not be applied on
an initial application for collateral review. United States v. Mora, 293 F.3d 1213, 1217-
19 (10th Cir. 2002) pet. for cert. filed, 8/30/02 (no. 02-6125).2 Thus, the ruling made by
Judge Saffels in the instant case is now the rule of this circuit. This precedent requires us
to reject Mr. McCloud’s argument in this appeal.
Two additional issues have been raised in the briefs, but like the primary issue they
are based on the premise that Apprendi should be applied in this collateral proceeding.
1
Defendant-Appellant in his pro se brief requested oral argument. However, after
examining the briefs and appellate record, this panel has determined unanimously that
oral argument would not materially assist in the determination of this appeal. See Fed. R.
App. P. 34 (a)(2); 10th Cir. R. 34.1(G). This cause is therefore ordered submitted without
oral argument.
2
We earlier held that the Apprendi rule will not be applied in a successive
application for collateral review. Browning v. United States, 241 F.3d 1262, 1265 (10th
Cir. 2001).
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Accordingly, neither of these issues support Mr. McCloud’s claim for relief. In his pro se
brief, Mr. McCloud asserts that his sentence was unlawfully calculated because his
offense level was increased by two points for possession of a firearm in the course of his
criminal activity (see United States v. McCloud, 127 F.3d at 1291), when that fact was not
pleaded in the indictment. In the brief submitted by appointed counsel, an argument is
made that greater penalties should not be imposed in cases involving crack cocaine unless
the indictment specifically charges the defendant with a crime involving that form of the
drug.
The district court did not grant a Certificate of Appealability on these issues, and
we decline to do so because Mr. McCloud has not made the required “substantial showing
of the denial of a constitutional right.” See 28 U.S.C. § 2253 (c)(2); United States v.
Gordon, 172 F.3d 753, 754 (10th Cir. 1999). Mr. McCloud’s arguments on these points
depend on retroactive application of Apprendi which is impermissible.
Accordingly the order denying relief under 28 U.S.C. § 2255 is
AFFIRMED.
ENTERED FOR THE COURT
William J. Holloway, Jr.
Circuit Judge
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