IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40063
Conference Calendar
ROBERTO MARTINEZ,
Petitioner-Appellant,
versus
JONATHON DOBRE, Warden,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:1-CV-727
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October 29, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Roberto Martinez, federal prisoner No. 28733-077, appeals
the district court’s dismissal of his 28 U.S.C. § 2241 petition
challenging his 365-month sentence for conspiracy to possess with
intent to distribute more than 100 grams of methamphetamine in
light of Apprendi v. New Jersey.** Although Martinez proceeded
pro se in the district court, he is represented by attorney Joel
David Vera on appeal. Counsel argues that the indictment was
*
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that this opinion should not be published and is not precedent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.
**
530 U.S. 466 (2000).
No. 02-40063
-2-
fatally defective because it did not put Martinez on notice of
the quantity of drugs on which his sentence would be based.
Martinez’s sentence of 365 months imprisonment does not
violate Apprendi because it is within the statutory maximum for
the offense to which he entered a guilty plea. United States v.
Keith, 230 F.3d 784, 787 (5th Cir. 2000), cert. denied, 531 U.S.
1182 (2001); see 21 U.S.C. §§ 841(a)(1),(b)(1)(A)(vii); 21 U.S.C.
§ 846. Furthermore, Apprendi does not apply retroactively to
cases on collateral review and an Apprendi claim does not satisfy
the requirements of 28 U.S.C. § 2255's savings clause. See
Wesson v. U.S. Penitentiary, Beaumont, TX, 305 F.3d 343 (5th Cir.
2002).
Counsel raises four additional arguments not raised in the
district court: that the trial court should have held a hearing
to determine whether the Government’s decision not to file a
U.S.S.G. § 5k1.1 motion was made in good faith; and that the
trial court erred at sentencing by denying a downward adjustment
for acceptance of responsibility, by finding that Martinez had a
leadership role in the offense, and by holding Martinez
responsible for 200 pounds of methamphetamine.
In addition to the fact that the foregoing issues were not
presented to the district court for consideration, we note that
the three sentencing arguments are barred by the waiver provision
of Martinez’s plea agreement and that none of the arguments are
cognizable under § 2241. Counsel is CAUTIONED that he has a duty
No. 02-40063
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not to raise frivolous arguments on appeal. See United States v.
Burleson, 22 F.3d 93, 95 (5th Cir. 1994).
Counsel has abandoned Martinez’s district-court arguments
that the Government breached the plea agreement by offering
evidence of excessive drug quantities and that the district court
erroneously departed upward when it increased Martinez’s offense
level based on his leadership role in the offense. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
AFFIRMED.