United States v. Kenney

* 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that this opinion should not be published and is not precedent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. 02-60038
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARON DEMETRIS KENNEY, also known as “Tall Dog,”
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC Nos. 3:01-CV-102-S and
4:93-CR-134-8-S
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Daron Demetris Kenney, federal prisoner # 02255-112, pleaded
guilty to conspiracy to possess with the intent to distribute and
distribution of cocaine and cocaine base. He now appeals the
district court’s denial of his FED. R. CIV. P. 60(b) motion for
reconsideration of the denial as untimely of his 28 U.S.C. § 2255
motion. He argues that his 28 U.S.C. § 2255 motion was timely
based on Apprendi v. New Jersey, 530 U.S. 466 (2000). Kenney has

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No. 02-60038
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also requested leave to file an out-of-time reply brief in
further support of his argument.
Kenney’s Apprendi argument is foreclosed by this court’s
decision in United States v. Brown, 305 F.3d 304, 310 (5th Cir.
2002), wherein the court held that Apprendi “is not retroactively
applicable to initial petitions under § 2255.” Accordingly, the
district court’s judgment denying Kenney’s Rule 60(b) motion is
affirmed. In light of the foregoing, Kenney’s motion to file an
out-of-time reply brief is denied.
JUDGMENT AFFIRMED; MOTION DENIED.

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