Mustin
United States v. Mustin
Opinion
Lead Opinion
MEMORANDUM **
Travon Mustin appeals both the district court’s partial dismissal of his 28 U.S.C. § 2255 motion and the resentencing conducted after the district court’s partial granting of his motion. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and affirm.
Mustin contends his resentencing violated Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) because the firearm sentence enhancement *922 under USSG § 2B3.1(b)(2) was not proven beyond a reasonable doubt. Although Mustin has not received a certificate of appealability (“GOA”) for this issue, we construe Mustin’s notice of appeal as a request for a COA, and grant his request. See Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir.2001) (order).
Mustin’s contention, however, is without merit because his 120-month sentence is less than the 20-year maximum provided by 18 U.S.C. § 2113 (a). As such, Appren-di is not implicated. 1 See United States v. Egge, 223 F.3d 1128 , 1131 n. 1 (9th Cir. 2000); see, e.g., United States v. Panaro, 266 F.3d 939, 954 (9th Cir.2001) (affirming USSG § 283.2(b)(1) enhancement).