F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 24 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs. No. 96-7092
(D.C. No. 96-CV-264)
CLARENCE EDWARD CODY, (E.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BRORBY, EBEL, and KELLY, Circuit Judges.**
Mr. Cody seeks a certificate of appealability from the district court’s denial of his
motion to vacate, set aside or correct his sentence. 28 U.S.C. § 2255; see 28 U.S.C.
§ 2253(c)(1)(B) & (2). Despite a similar claim rejected on direct appeal, See United
States v. Cody, 7 F.3d 1523, 1527 (10th Cir. 1993), Mr. Cody again challenges the
marijuana plant count (1,028 plants) that resulted in a 10-year mandatory minimum
*
This order and judgment is not binding precedent, except under the doctrines of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); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
sentence under 21 U.S.C. § 841(b)(1)(A)(vii) . The premise of his argument is that 37
drying plants are not properly counted as plants, an argument foreclosed by United States
v. Silvers, 84 F.3d 1317, 1325 (10th Cir. 1996), cert. denied, 117 S. Ct. 742 (1997). That
said, arguments about the applicability of Sentencing Guideline Amendment 516,
U.S.S.G. § 1B1.10(c) (retroactivity) & App. C, amend. 516, are unavailing because the
amendment cannot be applied to bring the sentence below the statutory mandatory
minimum for 1,000 or more marijuana plants. Silvers, 84 F.3d at 1325. We thus
conclude that Mr. Cody has not made “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
The Application for a Certificate of Appealability is DENIED and the appeal is
DISMISSED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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