Schiess
United States v. Schiess
Opinion
Lead Opinion
MEMORANDUM **
Trevor Nigel Schiess appeals the district court’s order denying his 28 U.S.C. § 2255 motion to vacate the 60-month sentence imposed following his jury trial conviction for conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841 (a)(1) and 846, and posses^ sion with intent to distribute marijuana in violation of § 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 2255 , we review de novo, see United States v. Sanchez-Cervantes, 282 F.3d 664, 666 (9th Cir.2002), and affirm.
Schiess’ contention that his sentence was imposed in violation of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), because the quantity of marijuana was not determined by a jury, is foreclosed by Sanchez-Cervantes, 282 F.3d at 667-68, 673 (concluding that Apprendi does not apply retroactively on initial collateral review). Schiess’ second contention, that 21 U.S.C. § 841 is facially unconstitutional, is similarly foreclosed by United States v. Buckland, 289 F.3d 558, 562 (9th Cir.) (en banc) (holding that § 841 is not facially unconstitutional), cert. denied, — U.S. —, 122 S.Ct. 2314 , 152 L.Ed.2d 1067 (2002).