1

 The Hon. Warren K. Urbom, United States District Judge for the District of

Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-3785

___________

Antonio Brown, *

*

Petititioner-Appellant, *

* On Appeal from the 

v. * United States District Court

* for the District of

* Nebraska.

United States of America, *

* [UNPUBLISHED]

Respondent-Appellee. *

___________

Submitted: July 16, 2002

Filed: July 30, 2002

___________

Before WOLLMAN, RICHARD S. ARNOLD, and FAGG, Circuit Judges.

___________

PER CURIAM.

Antonio Brown appeals the District Court’s1

 denial of his petition for postconviction relief under 28 U.S.C. § 2255. In 1998, Mr. Brown was convicted of
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conspiracy to distribute cocaine base and sentenced to thirty years of imprisonment

pursuant to the United States Sentencing Guidelines. 

On appeal, he argues that this sentence should be reversed because the jury did

not decide the quantity of drugs involved in the conspiracy, a fact that produced a

longer sentence. See Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that any

fact other than a prior conviction that results in a sentence longer than the statutory

maximum, must be proved beyond a reasonable doubt to a jury.) 

This Court’s decision in United States v. Moss, 252 F.3d 993 (8th Cir. 2001),

cert. denied, 122 S. Ct. 848 (2002), forecloses Mr. Brown’s arguments. There, the

Court held that a defendant may not raise an Apprendi claim for the first time on

collateral review. Id. at 995. In addition, because Mr. Brown did not argue at trial

that the jury must find the quantity of drugs involved in the conspiracy, he is

procedurally barred from raising that argument in a post-conviction motion. Mr.

Brown acknowledges the holding of Moss, but argues that the decision should be

overruled. We are not at liberty to do so. See United States v. Prior, 107 F.3d 654,

660 (8th Cir.), cert. denied, 522 U.S. 824 (1997). 

Mr. Brown’s second argument is that he was denied his right to effective

counsel at trial because his attorney failed to object to the testimony of two witnesses.

Mr. Brown contends the statements of declarants that the witnesses repeated on the

stand were hearsay, and that his counsel should have invoked the procedures for

evaluating the admissibility of such statements outlined in United States v. Bell, 573

F.2d 1040 (8th Cir. 1978). To demonstrate that his counsel was ineffective in this

situation, Mr. Brown must show that there is a reasonable probability that if a Bell

objection had been made, it would have been sustained, and the result of the

proceeding would have been different. United States v. Apfel, 97 F.3d 1074 (8th Cir.

1996). 
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He cannot meet these requirements. The District Court analyzed the testimony

of the witnesses carefully, and we see no error. As required by Bell, a preponderance

of the evidence showed that the out-of-court statements were made by co-conspirators

in furtherance of the conspiracy. 573 F.2d at 1044. Because these statements were

admissible, Mr. Brown cannot show trial counsel’s failure to invoke Bell caused him

prejudice. 

The decision of the District Court is affirmed. 

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.