United States v. Plumlee , 16 F. App'x 170 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-6432
MAX ORVEL PLUMLEE; PATRICK KIT
PLUMLEE,
Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Raymond A. Jackson, District Judge.
(CR-94-2, CA-00-83-4)
Submitted: July 26, 2001
Decided: August 3, 2001
Before WILKINS, LUTTIG, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Max Orvel Plumlee, Patrick Kit Plumlee, Appellants Pro Se. Helen
F. Fahey, OFFICE OF THE UNITED STATES ATTORNEY, Alex-
andria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. PLUMLEE
OPINION
PER CURIAM:
Max and Patrick Plumlee appeal the district court’s order denying
their joint motion challenging the validity of their sentences under 28
U.S.C.A. § 2255 (West Supp. 2000), as untimely under § 2255 ¶ 6.
On appeal, the Plumlee’s contend the court below was obliged to con-
sider their motion because the Supreme Court’s recent holdings in
Apprendi v. New Jersey, 530 U.S. 466 (2000), Richardson v. United
States, 526 U.S. 813 (1999), and Bousley v. United States, 523 U.S.
614 (1998), indicate the trial court lacked the subject matter jurisdic-
tion to convict and sentence them. For reasons stated herein, we dis-
miss their appeal.
As a preliminary matter, this court has held that Apprendi is not
retroactively applicable to cases on collateral review. See United
States v. Sanders, 247 F.3d 139, 151 (4th Cir. 2001). Additionally, the
Supreme Court’s decision in Bousley preceded the filing of the Plum-
lees’ motion by over a year. See 523 U.S. 614 (1998). Consequently,
their motion is untimely as to each of these claims. See § 2255 ¶ 6.
Finally, to the extent the Plumlees’ raise a timely challenge to their
conviction under Richardson, we note that the jury returned guilty
verdicts as to Counts Seven through Ten and Thirteen through Fif-
teen, all of which are listed as predicate offenses to the continuing
criminal enterprise of which they were convicted. Consequently, the
district court’s alleged failure to give an instruction meeting the
requirements of Richardson constitutes harmless error. See United
States v. Brown, 202 F.3d 691, 700 (4th Cir. 2000) (citing United
States v. Escobar de Jesus, 187 F.3d 148, 162 (1st Cir. 1999)).
Accordingly, we deny a certificate of appealability and dismiss their
appeal. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
DISMISSED