United States v. Juan Sanchez-Cervantes, AKA Hugo Quirox, Quiroc, Quiroz, Quiroz Trejo, and Quiroz Tapia

Juan Sanchez-Cervantes appeals from the district court’s denial of his initial petition for relief pursuant to 28 U.S.C. § 2255 . Sanchez-Cervantes argues that his conviction and sentence for federal drug violations should be vacated because of the rule announced in Apprendi v. New Jersey 1 and because he received ineffective assistance of counsel at trial. We hold that the new rule of criminal procedure announced in Apprendi does not apply retroactively on initial collateral review, and Sanchez-Cervantes’ counsel did not render ineffective assistance. Therefore, we affirm the district court’s dismissal of Sanchez-Cervantes’ habeas petition.

I.

On March 18, 1993, Juan Sanchez-Cervantes was indicted on one count of possession with intent to distribute methamphetamine, one count of possession with intent to distribute cocaine, one count of conspiracy to distribute controlled sub *666 stances, all in violation of 21 U.S.C. § 841 (a)(1), and one count of illegal reentry into the United States in violation of 8 U.S.C. § 1326 (a) and (b)(2). At trial, the Government introduced evidence that Sanchez-Cervantes conducted numerous drug deals and that he illegally reentered the country, as…

concurring.

I concur in the opinion because I believe it is compelled by our en banc decision in United States v. Buckland, 277 F.3d 1173 (9th Cir.2002) (en banc). However, were it not for the majority opinion in Buckland , I would see the case differently. Sanehez-Cervantes was indicted only for violating 21 U.S.C. § 841 (a)(1) with no quantity of drugs specified. Thus, the sentence under § 841(b)(1)(C) was applicable. The quantity of drugs found by the judge exceeded the amount the jury could have found under the indictment and instructions to the jury for a violation of § 841(a)(1). In order for the jury to find these quantities the indictment would have to charge violations of § 841(b)(1)(A) or (B) with an appropriate instruction to the jury. As I contended in my concurring and dissenting opinion in Buckland , 1 this would constitute charging and proving to the jury elements of separate crimes. In that circumstance, the Teague analysis would be quite different.

. See United States v. Buckland, No. 99-30285, 2002 WL 63718 , at *11 (9th Cir. Jan. 18, 2002) (en banc) (Hug, J., concurring in part and dissenting in part).

282 F.3d 664 UNITED STATES of America, Plaintiff-Appellee, v. Juan SANCHEZ-CERVANTES, aka Hugo Quirox, Quiroc, Quiroz, Quiroz Trejo, and Quiroz Tapia, Defendant-Appellant. No. 98-35897. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 5, 2001. Filed March 1, 2002. As Amended March 15, 2002. William S. Labahn, Law Offices of William S. Labahn, P.C., Eugene, OR, for the defendant-appellant. Michael A. Rotker, Assistant United States Attorney, Washington, DC, and Christopher L. Cardani, Assistant United States Attorney, Eugene, OR, for the plaintiff-appellee. Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, Chief District Judge, Presiding. D.C. No. CV-97-6091-MRH. Before: HUG, T.G. NELSON, and GOULD, Circuit Judges. T.G. NELSON, Circuit Judge. 1 Juan Sanchez-Cervantes appeals from the district court's denial of his initial petition for relief pursuant to 28 U.S.C. § 2255 . Sanchez-Cervantes argues that his conviction and sentence for federal drug violations should be vacated because of the rule announced in Apprendi v. New Jersey 1 and because he received ineffective assistance of counsel at trial. We hold…