United States v. Bergman

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50543
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLAY OWEN BERGMAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-97-CR-281-ALL-EP
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Clay Owen Bergman appeals the district court’s dismissal of
his 28 U.S.C. § 2255 motion wherein he challenged his 1998
conviction for manufacturing in excess of 100 marijuana plants.
Bergman’s motion for en banc consideration of his appeal is
DENIED.
Bergman argues that the reasoning of Apprendi v. New Jersey,
530 U.S. 466 (2000), requires that a jury determine beyond a

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reasonable doubt that he was responsible for manufacturing over
100 plants because such fact triggered the statutory minimum of
21 U.S.C. § 841(b)(1)(B)(vii), thus resulting in his five-year
sentence. He argues that Apprendi is “equally applicable to a
situation in which the existence of a fact invokes a mandatory
minimum sentence, as it is to situations in which the existence
of a fact increases the range of sentence available.” We review
the district court’s factual findings for clear error and its
conclusions of law de novo. See United States v. Faubion, 19
F.3d 226, 228 (5th Cir. 1994).
The district court did not err by denying Bergman’s 28
U.S.C. § 2255 motion. First, factors that trigger application of
mandatory minimum sentencing ranges do not have to be proved to a
jury beyond a reasonable doubt. See Harris v. United States, 122
S. Ct. 2406, 2420 (2002). Second, this court has recently held
that Apprendi is not retroactively applicable to initial
petitions under 28 U.S.C. § 2255. United States v. Brown, 305
F.3d 304, 310 (5th Cir. 2002). Accordingly, the judgment
dismissing the 28 U.S.C. § 2255 motion is AFFIRMED.
AFFIRMED; MOTION DENIED.

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