United States v. Buckhalter

*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this opinion should not be published and is not precedent except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. 01-60981
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY BUCKHALTER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:01-CV-258-GR
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October 9, 2002
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Anthony Buckhalter, federal prisoner #02649-043, appeals
from the denial of his motion to reconsider his motion to amend or
correct an imposed sentence pursuant to 28 U.S.C. § 3582(c)(2). He
also moves for a certificate of appealability (“COA”) in order to
appeal the denial of his 28 U.S.C. § 2255 motion.
Buckhalter’s motion for reconsideration was not timely
filed. See United States v. Brewer, 60 F.3d 1142, 1143-44 (5th

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No. 01-60981
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Cir. 1995). The district court therefore did not err by denying
his motion for reconsideration. See United States v. Miramontez,
995 F.2d 56, 58 n.2 (5th Cir. 1993). Accordingly, the district
court’s judgment of denial as to Buckhalter’s motion for
reconsideration is AFFIRMED.
In his request for COA, Buckhalter alleges various
constitutional violations based upon Apprendi v. New Jersey, 530
U.S. 466 (2000). Assuming that Apprendi were retroactively
applicable, Apprendi would not provide Buckhalter any relief
because any error in failing to submit the drug quantity to the
jury was harmless in light of the evidence of drug quantity
produced at trial. See United States v. Peters, 283 F.3d 300, 313-
14 (5th Cir. 2002). Because he has failed to make a substantial
showing of the denial of a constitutional right, his motion for COA
is DENIED. See 28 U.S.C. § 2253(c)(2).
AFFIRMED; COA DENIED.

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