Frazier

MEMORANDUM **

David Edward Frazier, a federal prisoner, appeals the district court’s dismissal of his 28 U.S.C. § 2255 motion challenging his 151-month sentence following his guilty plea conviction for five counts of cocaine distribution, in violation of 21 U.S.C. § 841 (a)(1). We have jurisdiction pursuant to 28 U.S.C. § 2253 . Reviewing de novo, see United States v. Sanchez-Cervantes, 282 F.3d 664, 666 (9th Cir.), cert. denied, — U.S.-, 123 S.Ct. 48 , 154 L.Ed.2d 243 (2002), we affirm.

Frazier contends that his counsel rendered ineffective assistance at sentencing by failing to argue that under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) Frazier could only be sentenced as a career offender if it was alleged in the indictment and proven beyond a reasonable doubt. We disagree.

Application of the career offender enhancement under U.S.S.G. § 4B1.1 did not violate the principles of Apprendi because Frazier’s sentence did not exceed the statutory maximum. See United States v. Gamez, 301 F.3d 1138, 1149-50 (9th Cir.2002). Because Apprendi was inapplicable, counsel’s failure to make an Apprendi argument at sentencing was not deficient. See…