United States v. Mercadel

MEMORANDUM** Antoine M. Mercadel appeals pro se the district court’s denial of his 28 U.S.C. § 2255 motion challenging his 240-month sentence after a jury found him guilty of possession with intent to distribute over 50 grams of cocaine base, and distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, see United States v. Christakis, 238 F.3d 1164, 1168 (9th Cir.2001), and we affirm. Mercadel’s contention based on the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is foreclosed by our decision in United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir.2002) (holding that Apprendi does not apply retroactively on collateral review), cert. denied, — U.S. -, 123 S.Ct. 48, — L.Ed.2d - (2002). Mercadel also contends that the government failed to prove that his offense involved cocaine base rather than a form of cocaine subject to lesser punishment. We are not persuaded. We agree with the district court’s conclusion that the government’s expert referred to “cocaine base” [379] interchangeably with “crack” in his trial testimony. See also United States v. Shaw, 936 F.2d 412, 416 (9th Cir.1991) (concluding that the term “cocaine base” includes “crack”). Accordingly, the government proved that Mercadel’s offense conduct involved cocaine base within the meaning of 21 U.S.C. § 841(b) and U.S.S.G. § 201.1(c). AFFIRMED. Footnotes [**] This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.