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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-60981 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANTHONY BUCKHALTER, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:01-CV-258-GR -------------------- October 9, 2002 Before JONES, STEWART, and DENNIS, Circuit Judges. PER CURIAM:* Anthony Buckhalter, federal prisoner #02649-043, appeals from the denial of his motion to reconsider his motion to amend or correct an imposed sentence pursuant to 28 U.S.C. § 3582(c)(2). He also moves for a certificate of appealability (“COA”) in order to appeal the denial of his 28 U.S.C. § 2255 motion. Buckhalter’s motion for reconsideration was not timely filed. See United States v. Brewer,
60 F.3d 1142, 1143-44 (5th * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-60981 -2- Cir. 1995). The district court therefore did not err by denying his motion for reconsideration. See United States v. Miramontez,
995 F.2d 56, 58 n.2 (5th Cir. 1993). Accordingly, the district court’s judgment of denial as to Buckhalter’s motion for reconsideration is AFFIRMED. In his request for COA, Buckhalter alleges various constitutional violations based upon Apprendi v. New Jersey,
530 U.S. 466(2000). Assuming that Apprendi were retroactively applicable, Apprendi would not provide Buckhalter any relief because any error in failing to submit the drug quantity to the jury was harmless in light of the evidence of drug quantity produced at trial. See United States v. Peters,
283 F.3d 300, 313- 14 (5th Cir. 2002). Because he has failed to make a substantial showing of the denial of a constitutional right, his motion for COA is DENIED. See 28 U.S.C. § 2253(c)(2). AFFIRMED; COA DENIED.
Document Info
Docket Number: 01-60981
Filed Date: 10/10/2002
Precedential Status: Non-Precedential
Modified Date: 12/21/2014