United States v. Payan-Apodaca

MEMORANDUM ** Juan Payan-Apodaca appeals pro se the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his 235-month sentence for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841 (a)(1). We have jurisdiction pursuant to 28 U.S.C. § 2253 . We review de novo, Sanchez v. United States, 50 F.3d 1448, 1451-52 (9th Cir. 1995), and we affirm. Payan-Apodaca contends his appellate counsel rendered ineffective assistance by failing to argue on direct appeal that the district court erred by not applying a 2-level downward adjustment pursuant to Sentencing Guidelines § 2D1.1(b)(6). His contention fails. The district court did not clearly err by finding that Payan-Apodaca did not satisfy all of the requirements of § 5C1.2. He therefore was not prejudiced by appellate counsel’s purported ineffectiveness because an appeal of this issue would not have provided grounds for reversal. See Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir.2001) (“[AJppellate counsel’s failure to raise issues on direct appeal does not constitute ineffective assistance when appeal would not have provided grounds for reversal”) (citation omitted); United States v. Real-Hernandez, 90 F.3d 356, 360 (9th Cir.1996) (stating appellate review of district court’s determination of eligibility for departure under § 5C1.2 is for clear error); U.S.S.G. § 2Dl.l(b)(6) (providing that defendant must meet criteria of § 5C1.2 in order to receive 2-level adjustment). The district court therefore did not err by denying Payan-Apodaca’s § 2255 motion. 1 AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9 th Cir. R. 36-3. . Payan-Apodaca’s motion for remand on the grounds that his term of supervised release violates Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), is denied. See United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir.2002) (concluding that Apprendi does not apply retroactively to initial petitions for post-conviction relief).