F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 5 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-2255
PETER RATZLAFF, (D.C. No. CIV-01-583-JP/LFG)
(D. New Mexico)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before SEYMOUR, HENRY, and BRISCOE, 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.
Peter Ratzlaff, a federal prisoner appearing pro se, seeks a certificate of
appealability (COA) to appeal the district court's dismissal of his motion to vacate, set
*
This order and judgment is not binding precedent, except under the doctrines of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.
aside, or correct sentence under 28 U.S.C. § 2255. Because he has failed to make a
“substantial showing of the denial of a constitutional right” as required by 28 U.S.C.
§ 2253(c)(2), we deny his request for a COA and dismiss the appeal.
Ratzlaff entered into a plea agreement in 1997 whereby he pled guilty to Count I of
an indictment, which charged that Ratzlaff and others
did unlawfully, willfully, knowingly and intentionally combine, conspire,
confederate and agree together and with each other and with other persons
whose names are known and unknown to the grand jury to commit the
following offenses against the United States, to wit: to possess ephedrine
with intent to manufacture, to manufacture, and to possess with intent to
distribute in excess of one (1) kilogram of a Mixture and Substance
Containing a Detectable Amount of Methamphetamine, its salts, isomers, or
salts of its isomers, a Schedule II Controlled Substance.
In violation of 21 U.S.C. § 846 and 18 U.S.C. § 2.
Indictment at 2. Pursuant to the plea agreement, Ratzlaff was sentenced to a term of
imprisonment of 120 months under 21 U.S.C. § 841(b)(1)(C).
In his § 2255 motion, Ratzlaff alleged that his sentence should be reduced in
accordance with Apprendi v. New Jersey, 530 U.S. 466 (2000), because he was sentenced
under the wrong provision. Ratzlaff argued that he pled guilty to possession of ephedrine,
a listed chemical, but that neither the charge nor his plea agreement alleged a quantity of
ephedrine. He also argued his sentence was illegally enhanced and that he should have
been sentenced under 21 U.S.C. § 841(d)(2). At the time of sentencing, § 841(d)(2)
provided that a person who knowingly or intentionally possessed a listed chemical with
intent to manufacture a controlled substance shall, in the case of ephedrine (a list I
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chemical), be sentenced to a term not to exceed ten years. 21 U.S.C. § 841(d)(2) (1997).
The district court determined that Ratzlaff's sentence was less than the statutory
maximum under § 841(b)(1)(C) and therefore Apprendi did not apply. Ratzlaff filed a
motion to alter or amend, which the district court construed as a motion under Federal
Rule of Civil Procedure 60(b) because it was filed more than ten days after judgment was
entered. In denying the motion, the court determined that Count I of the indictment
clearly charged Ratzlaff with conspiracy to manufacture, and to possess with intent to
distribute, more than a kilogram of a mixture containing methamphetamine, and that his
sentence was lower than the statutory maximum allowed under § 841(b)(1)(C) for that
crime.
Although not clearly stated, the indictment did charge Ratzlaff with conspiracy to
manufacture and conspiracy to possess with intent to distribute in excess of one kilogram
of a mixture containing methamphetamine rather than conspiracy to possess ephedrine
with intent to manufacture methamphetamine. The plea agreement entered into by
Ratzlaff reflects this understanding in that it specifies that the penalty for the offense is
imprisonment for a period of not less than ten years nor more than life. Therefore, the
district court was correct in applying § 841(b)(1)(C) when it imposed Ratzlaff's sentence.
Because Ratzlaff's sentence is less than the maximum sentence under § 841(b)(1)(C),
Apprendi is not implicated. See United States v. Thompson, 237 F. 3d 1258, 1261-62
(10th Cir. 2001); United States v. Hishaw, 235 F.3d 565, 577 (10th Cir. 2000). Further,
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even if we did agree that the proper sentencing provision was § 841(d)(1), as argued by
Ratzlaff, the sentence he received as the result of his plea agreement is not greater than
the ten-year maximum sentence allowed and Apprendi still would not be implicated.
Ratzlaff’s request for a certificate of appealability is DENIED and the appeal is
DISMISSED. The motion to proceed on appeal in forma pauperis is DENIED. The
mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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