UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 10th day of July, two thousand and two.

PRESENT:

HON. GUIDO CALABRESI, HON. ROBERT D. SACK, HON. BARRINGTON D. PARKER, JR., Circuit Judges.

NATHANIEL F. HOLMES, Petitioner-Appellant, SUMMARY ORDER v. # 01-2081

UNITED STATES OF AMERICA, Respondent-Appellee.

For Petitioner-Appellant: Robert A. Ratliff, Cincinnati, OH For Respondent-Appellee: GREG WEST, Assistant U.S. Attorney (Barbara D. Cottrell and Thomas P. Walsh, Assistant U.S. Attorneys, on the brief), for Joseph A. Pavone, United States Attorney for the Northern District of New York, Albany, NY Appeal from the United States District Court for the Northern District of New York (Thomas J. McAvoy, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.

Petitioner-Appellant Nathaniel F. Holmes ("Holmes") appeals from an order of the United States District Court for the Northern District of New York (Thomas J. McAvoy, Judge) denying his motion for reconsideration, pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure, of the district court's order denying him relief under 28 U.S.C. § 2255.

Holmes sought reconsideration of his sentence in light of the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).

Background Petitioner was charged with the single count of conspiring to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment did not assert the quantity of marijuana involved in the conspiracy. On February 4, 1997, petitioner entered a plea of guilty to the conspiracy count. Petitioner stipulated in the plea agreement that, for a period of at least several years and continuing up until sometime in or about April of 1996, he knowingly, intentionally and unlawfully conspired to possess with intent to distribute more than 100 kilograms, but less than 400 kilograms, of marijuana.

When petitioner appeared before the court to enter his guilty plea, he did not dispute the Government's description of the drug conspiracy or the amount of marijuana properly attributed to him. At sentencing, the district court adopted the sentencing recommendations of the Probation Office. The Presentence Investigation Report ("PSR") stated that the total adjusted offense level should be 27, based on (1) an offense level of 26 applicable to a conspiracy involving at least 100 kilograms but less than 400 kilograms of marijuana, see U.S.

Sentencing Guidelines Manual § 2D1.1(c)(7) (1997) (hereinafter "U.S.S.G."), (2) a three-level reduction for acceptance of responsibility under U.S.S.G. §§ 3E1.1(a) and (b), as well as (3) a four-level enhancement for petitioner's supervisory role in the offense, pursuant to U.S.S.G. §

3B1.1. Given petitioner's Criminal History Category of IV, the district court determined that the applicable Guidelines range would be 100 to 125 months' imprisonment. See U.S.S.G.

Chapter 5, Part A. But, because petitioner had a prior felony drug conviction,1 the PSR provided that petitioner would be subject to a mandatory minimum sentence of ten years, in accordance with 21 U.S.C. § 841(b)(1)(B). See U.S.S.G. § 5G1.1(c). Accordingly, on May 9, 1997, petitioner was sentenced principally to 120 months' imprisonment. Holmes did not appeal.

On June 7, 1997, Holmes filed pro se a petition under 28 U.S.C. § 2255, alleging, inter alia, ineffective assistance of counsel for failure properly to object to the 21 U.S.C. § 851

sentencing enhancement. The petition, ultimately supplemented by further briefing with leave of the district court by petitioner's retained counsel, stated that the district court erred by considering the amount of marijuana attributable to petitioner as a sentencing factor rather than as an element of the offense. Holmes's request for relief was denied by the district court on July 21, 1999.2 In due course, and expressly citing Apprendi, Holmes sought reconsideration of that denial pursuant to Rule 60(b)(6).

The district court denied relief on the grounds that (1) Apprendi does not apply retroactively to cases on collateral review, (2) that Apprendi was not implicated, first, because Holmes was sentenced principally to 120 months' imprisonment, which is "less than the statutory maximums contained in 21 U.S.C. § 841(b)(1)(A)-(C)," and, second, because, even "if 21 U.S.C. § 841(b)(1)(D) applies because Holmes was involved in an offense involving marihuana only, the fact that he has a prior felony drug conviction exposed him to a ten[-]year statutory maximum," and (3) that, as in United States v. Champion, 234 F.3d 106 (2d Cir. 2000) (per curiam), Holmes admitted to the drug quantities attributed to him both in the plea agreement and during his plea allocution, and thus "the [c]ourt did not have to make any independent findings of drug quantity." This appeal followed.

Petitioner's claims are meritless for a number of reasons. We need mention only one.

Petitioner stipulated in his plea agreement and affirmed during his plea allocution that, as part of the drug conspiracy, he and his co-conspirators "possessed and distributed more than 100

kilograms, but less than 400 kilograms, of marihuana." At no time during the plea allocution did petitioner give any indication that he believed the stated drug quantity to be incorrect or that he wished to contest the amount. Nor has petitioner raised any challenge to the validity of his guilty plea under Rule 11 of the Federal Rules of Criminal Procedure. In similar cases, we have held that, where the defendant has entered into a stipulation and thus "formally and voluntarily avowed a fact as true in proceedings that assure the accuracy of the admission,"

United States v. Gutierrez Rodriguez, 288 F.3d 472, 477 (2d Cir. 2002), "a jury could not have found differently." Champion, 234 F.3d at 110; see United States v. White, 240 F.3d 127, 134-

35 (2d Cir. 2001). Petitioner was properly informed as to the burden of proof and right to a jury trial on issues relating to the existence of the drug conspiracy and his participation in it.

The factual proffer of the Government, to which Holmes agreed, attributed between 100 and 400 kilograms of marijuana to him. Thus, there is no Apprendi error.

Having reviewed all of petitioner's claims and having found them to be without merit, we AFFIRM the judgment of the district court.

For the Court:

ROSEANN B. MACKECHNIE, Clerk NATHANIEL F. HOLMES v. UNITED STATES OF AMERICA, No. 01-2081

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[1]-. The Government filed a special information regarding petitioner's prior conviction, in accordance with 21 U.S.C. § 851, stating that, on December 2, 1988, Holmes was convicted of the felony narcotics offense of Criminal Sale of a Controlled Substance in the Third Degree, in violation of section 220.39 of the New York Penal Law. Holmes received an indeterminate sentence of one to three years' imprisonment for the offense, which is a Class A felony.

[2]-. Thereafter, petitioner filed a Notice of Appeal to this Court prior to requesting a certificate of appealability. We dismissed the appeal, without prejudice, due to Holmes's failure first to seek a certificate of appealability from the district court. See 28 U.S.C. §

2253(c)(1); Fed. R. App. P. 22(b). Petitioner subsequently filed pro se a request for a Certificate of Appealability, which the district court denied on October 23, 1999. On September 5, 2000, this Court likewise denied petitioner's request for a certificate of appealability.