Browning

MEMORANDUM **

Rodney Browning appeals pro se the district court’s denial of his third motion under Federal Rule of Criminal Procedure 35(a) 1 as well as the district court’s dismissal of his motion to reconsider. We have jurisdiction pursuant to 28 U.S.C. § 1291 . Reviewing for “illegality or gross abuse of discretion,” United States v. Stump, 914 F.2d 170, 172 (9th Cir.1990), we affirm.

The sentences imposed on Counts 1 and 23 do not exceed the applicable statutory máximums because the indictment and jury instructions together required the jury to find the drug quantities necessary to support the sentences imposed. The sentence imposed on Count 15 does not exceed the statutory maximum because the sentencing provision used did not require that a specific drug quantity be found. See 21 U.S.C. § 841 (b)(1)(C). Even assuming a challenge under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), can be brought via Rule 35, cf. United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir.), cert. denied, — U.S. -, 123 S.Ct. 48 , 154 L.Ed.2d 243 (2002), there is no violation of the rule established by Apprendi because Browning’s sentences do not exceed the…