*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this opinion should not be published and is not precedent except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. 01-41288

and No. 02-40363

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN DE LA CRUZ FLORES, JR.,

Defendant-Appellant.

- - - - - - - - - -

Appeals from the United States District Court

for the Southern District of Texas

USDC No. C-99-CR-324-1

USDC No. C-01-CV-147

- - - - - - - - - -

November 7, 2002

Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

Juan De La Cruz Flores, Jr., federal prisoner #77023-079,

was convicted in October 1999 of conspiracy to possess with intent

to distribute more than 100 kilograms of marijuana. Flores has

filed a motion seeking to consolidate both of his appeals. The

motion to consolidate is GRANTED.
No. 01-41288 and

No. 02-40363

-2-

Flores has also filed a motion for extraordinary relief

seeking reimbursement of his second filing fee. The motion for

extraordinary relief is DENIED.

Flores has filed a motion for COA regarding the district

court’s orders striking his renewed postjudgment motions, denying

his FED. R. CIV. P. 60(b) motion, and ordering him to stop filing

documents in the instant case pending resolution of his appeal from

the denial of his 28 U.S.C. § 2255 motion. We construe his request

for COA as a motion seeking expansion of his COA. This court may

grant a COA only if Flores shows that jurists of reason would find

it debatable whether: (1) he states a valid claim of the denial of

a constitutional right; and (2) the district court was correct in

its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484

(2000). 

Even if the district court erred in striking his renewed

postjudgment motions, Flores cannot show that he was harmed by such

error because he was permitted to raise his claims in subsequent

postjudgment motions. The district court properly denied his FED.

R. CIV. P. 60(b) motion because Flores’s argument that the district

court failed to address all of his claims lacks merit.

Furthermore, the district court did not abuse its discretion by

ordering Flores to cease filing documents in this case pending

resolution of his appeal. See Farguson v. MBank Houston, N.A., 808

F.2d 358, 360 (5th Cir. 1986). Accordingly, his motion for

expansion of his COA is DENIED.
No. 01-41288 and

No. 02-40363

-3-

Flores filed a motion to vacate, set aside, or correct

sentence on the ground that his sentence was unconstitutional

because drug quantity was not specifically listed as an element of

his offense during his guilty-plea hearing. The district court

granted Flores a certificate of appealability (“COA”) as to whether

Apprendi v. New Jersey, 530 U.S. 466 (2000), was retroactively

applicable to his 28 U.S.C. § 2255 motion and, if so, whether

Flores had shown that any error was not harmless. Because Flores’s

indictment alleged, and Flores explicitly conceded during his

guilty-plea hearing, that his crime of conviction involved over 100

kilograms of marijuana, his sentence does not violate Apprendi.

See United States v. Longoria, __ F.3d __ (5th Cir. July 12, 2002,

Nos. 00-50405, 00-50406), 2002 WL 1491784 at *2, *5; United States

v. Deville, 278 F.3d 500, 510 (5th Cir. 2002); United States v.

Fort, 248 F.3d 475, 483 (5th Cir.), cert. denied, 122 S. Ct. 405

(2001). It is therefore not necessary to determine whether

Apprendi is retroactively applicable to his 28 U.S.C. § 2255

motion. The district court’s judgment is AFFIRMED.

MOTION TO CONSOLIDATE GRANTED; MOTION FOR EXTRAORDINARY RELIEF

DENIED; MOTION FOR EXPANSION OF COA DENIED; AFFIRMED.