United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 16, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 01-50367
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
SALVADOR BEJARANO GUILLEN, also known as Salvator
Bejaraao Guillen,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-98-CR-222-1
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Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
The Government appeals from the district court’s partial
grant of the 28 U.S.C. § 2255 motion filed by Salvador Bejarano
Guillen, federal prisoner # 84750-080. The district court
retroactively applied Apprendi v. New Jersey, 530 U.S. 466
(2000), in granting Guillen 28 U.S.C. § 2255 relief and in
reducing his sentence.
*
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that this opinion should not be published and is not precedent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. 01-50367
-2-
We have held that Apprendi “is not retroactive on collateral
review of initial § 2255 motions.” See United States v. Brown,
305 F.3d 304, 306-10 (5th Cir. 2002). The district court, acting
without the benefit of Brown, did not have the authority to
correct Guillen’s sentence pursuant to Apprendi. The judgment of
the district court is VACATED and the case is REMANDED for
imposition of the original sentence.
Guillen’s motion for the appointment of counsel is DENIED.