IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-51201
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
APOLONIO PASTRANO, also
known as Polo,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-99-CV-380
SA-93-CR-184-2
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Apolonio Pastrano, federal prisoner # 65249-080, is
appealing the district court’s denial of his 28 U.S.C. § 2255
motion challenging his conviction for conspiracy to possess with
intent to distribute marijuana. Relying on Apprendi v. New
Jersey, 530 U.S. 466 (2000), he argues that his conviction should
be set aside because the quantity of drugs upon which he 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that this opinion should not be published and is not precedent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.
No. 99-51201
-2-
sentenced was not alleged in the indictment and was not submitted
to the jury and proved beyond a reasonable doubt.
In United States v. Brown, 305 F.3d 304, 305-09 (5th Cir.
2002), a 28 U.S.C. § 2255 case, the court determined that the new
rule of criminal procedure announced in Apprendi does not apply
retroactively on collateral review of initial 28 U.S.C. § 2255
motions. Therefore, Pastrano’s argument based on Apprendi fails.
The district court’s denial of Pastrano’s 28 U.S.C. § 2255 motion
is AFFIRMED.
The Government’s motion for a summary affirmance is DENIED.