                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            MAY 22 2002
                             FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Respondent - Appellee,

    v.                                                      No. 01-8068
                                                       (D.C. No. 01-CV-29-B,
    MIGUEL NAVARRETE-CARRILLO,                             97-CR-106-B)
                                                           (D. Wyoming)
                Petitioner - Appellant.


                              ORDER AND JUDGMENT             *




Before SEYMOUR , PORFILIO , and BALDOCK , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Federal prisoner Miguel Navarrete-Carrillo, proceeding   pro se , seeks to

appeal from the denial of his 28 U.S.C. § 2255 motion to vacate his sentence.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Mr. Navarrete-Carrillo pleaded guilty on January 30, 1998, to one count of

conspiring to possess with intent to distribute methamphetamine, in violation of

21 U.S.C. § 846. He was sentenced to serve seventy-seven months in prison and

did not appeal from his conviction.

       Over two years later, on February 16, 2001, Mr. Navarrete-Carrillo filed a

§ 2255 motion, contending for the first time that his plea was involuntary and he

would not have pleaded guilty if counsel had advised him that the government’s

evidence was invalidly obtained by use of a wiretap or that under           Apprendi v. New

Jersey , 530 U.S. 466 (2000), “quantity under 21 U.S.C. § 841 would have to be

proven beyond a reasonable doubt.” R. Vol. 1, Doc. 1 at 5. The district court

denied his § 2255 motion as untimely filed.           See § 2255(1) (providing that

one-year period of limitation generally runs from the date the judgment of

conviction becomes final). The court also noted that “[n]either the Supreme

Court nor the Tenth Circuit . . . has applied         Apprendi retroactively,” R. Vol. 1,

Doc. 7 at 2, foreclosing any tolling of the statute of limitations.        See § 2255(3)

(providing tolling of one-year statute of limitation when the right asserted was

newly recognized by the Supreme Court after appellant’s conviction and made

retroactively applicable to cases on collateral review).

       Mr. Navarrete-Carrillo must obtain a certificate of appealability (COA) by

making a “substantial showing of the denial of a constitutional right.” 28 U.S.C.


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§ 2253(c)(2). When, as here, the district court has dismissed the case on

procedural grounds without considering the underlying constitutional claim, the

appellant must demonstrate that “jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.”   Slack v. McDaniel, 529 U.S. 473, 484 (2000).

       Mr. Navarrete-Carrillo does not argue for a tolling of the limitations period,

and we have no reason to question the district court’s holding that his § 2255

motion was barred by the applicable statute of limitations. Therefore, we

conclude that jurists of reason would not “find it debatable whether the district

court was correct in its procedural ruling.”         Id.

       Further, if we were to reach the merits, the record demonstrates that

Mr. Navarrete-Carrillo’s decision to plead guilty was based on the fact that his

co-conspirator “decided to plead [guilty] on that last day [before trial] and turned

State’s evidence on [him],” and not on any alleged wiretap evidence the

government had obtained. Aplt. Br., App. A at 7 (Tr. of Sentencing Hr’g). In

addition, the indictment alleged that Mr. Navarrete-Carrillo “possessed with

intent to distribute and/or distributed at least six ounces of methamphetamine

during the course of the conspiracy,” R. Supp’l Vol. 1, Doc. 15 at 2, and he

conceded at his sentencing hearing that “there were two instances in which [a


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witness] saw [him] deliver three ounces.” Aplt. Br., App. A at 7. Under these

circumstances, even if   Apprendi applied retroactively, there would be no violation

because Mr. Navarrete-Carrillo pleaded guilty to conspiring to possess and

distribute at least six ounces of methamphetamine and the maximum sentence for

that offense is twenty years under § 841(b)(1)(C).    See United States v. Wilson,

244 F.3d 1208, 1215 (10th Cir.) (noting that reversible Apprendi error arises only

when drug quantity causes sentence to exceed the statutory maximum), cert.

denied, 533 U.S. 962 (2001); United States v. Thompson, 237 F.3d 1258, 1262

(10th Cir.) (holding that, because neither § 841 nor § 846 require a specific

quantity of drugs as an element of the offense and the maximum sentence under

these statutes was twenty years, no Apprendi violation occurred where defendant

sentenced to less than twenty years), cert. denied, 532 U.S. 987 (2001).

      Mr. Navarrete-Carrillo’s request for a COA is DENIED and the case is

DISMISSED. His motion to proceed         in forma pauperis in this court is

GRANTED. The mandate shall issue forthwith.



                                                       Entered for the Court



                                                       John C. Porfilio
                                                       Circuit Judge



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