Barnes
Barnes v. U.S. Attorney
Opinion
Lead Opinion
ORDER
Petitioner has applied under 28 U.S.C. §§ 2244 and 2255 to file a second or successive petition pursuant to § 2255.
Petitioner was convicted, on a plea of guilty, of conspiracy to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. §§ 841 (a)(1) and 846. He was sentenced to 240 months’ imprisonment and five years’ supervised release. See United States v. Barnes, 993 F.2d 680 (9th Cir.1993). Petitioner now contends that his sentence is in violation of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). We have held, however, that Apprendi does not apply to sentences, like petitioner’s, which do not exceed the statutory maximum under the statute of conviction, here 21 U.S.C. § 841 (b)(1)(A). See United States v. Pa-naro, 266 F.3d 939, 954 (9th Cir.2001); United States v. Johansson, 249 F.3d 848,
*864 861-62 (9th Cir.2001) (holding that Apprendi does not apply where guideline sentencing increase in offense level “did not increase the maximum penalty for the crime to which [defendant] pled guilty”); United States v. Silva, 247 F.3d 1051, 1060 (9th Cir.2001) (“An unconditional guilty plea ‘constitutes a waiver of the right…