Garcia-Hernandez

MEMORANDUM **

Roberto Garcia Hernandez appeals the district court’s denial of his 28 U.S.C. § 2255 motion, challenging the 70-month sentence he received following his guilty-plea conviction for attempted re-entry after deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 2253 . We review de novo a district court’s decision to deny a § 2255 petition. United States v. Sanchez-Cervantes, 282 F.3d 664, 666 (9th Cir.2002), and we affirm.

Garcia-Hernandez contends that the district court erred in denying his section 2255 motion because a prior aggravated felony conviction is an element of 8 U.S.C. § 1326 under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). Because we do not apply Apprendi retroactively to cases on collateral review, Garcia-Hernandez’s claim is barred. See Sanchez-Cervantes, 282 F.3d at 671 ; see also United States v. Pacheco-Zepeda, 234 F.3d 411, 413-15 (9th Cir.) (rejecting the merits of a similar challenge on direct appeal), cert. denied, 121 S.Ct. 1503 (2001).

AFFIRMED.

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