Keoho

MEMORANDUM

On November 4, 1998, Lance Keoho (Keoho) was indicted along with co-defen *390 dants Galen Koshi and Russell Luke under 21 U.S.C. §§ 846 and 841(a)(1) (Count 1) for conspiracy to knowingly and intentionally possess with intent to distribute in excess of 500 grams of cocaine, and under 21 U.S.C. §§ 841 (a)(1) and 846, and 18 U .S.C. § 2 (Count 2) for knowingly and intentionally attempting to possess with intent to distribute in excess of 500 grams of cocaine, to wit, ten (10) kilograms of cocaine. On March 1, 1999 Keoho entered into a written plea agreement with the government whereby he pleaded guilty to Count 1 of the indictment and waived his right to appeal in exchange for dismissal of Count 2. On September 28, 1999, Keoho was sentenced to 70 months of incarceration and five years of supervised release.

Keoho claims that, in light of a new constitutional rule set forth in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), the government breached the plea agreement. This claim is meritless. In Apprendi , the Supreme Court overruled the defendant’s sentence, holding that any fact which increases the penalty for a crime beyond the…