United States v. Love

Filing 920080110

Opinion

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FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT January 10, 2008 Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ESTAC L. LOVE, Defendant-Appellant. No. 07-5126 (D.C. No. 99-CR-012-TCK-FHM) (N.D. Okla.) ORDER AND JUDGMENT * Before HARTZ, O'BRIEN, and GORSUCH, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. The defendant appeals the district court's denial of his "Motion for Reversal of Conviction Pursuant to 28 U.S.C. 1651," in which he sought coram nobis relief. He challenged sentences imposed in 2000 for violation * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. of 18 U.S.C. 924(c), arguing that the sentences violated Apprendi v. New Jersey, 530 U.S. 466 (2000). He also argued that the total term of incarceration imposed of 146 years constituted cruel and unusual punishment. The district court concluded that the defendant could not challenge his sentences through a petition for a writ of coram nobis. We affirm. "As courts have explained, a prisoner may not challenge a sentence or conviction for which he is currently in custody through a writ of coram nobis." United States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002). On appeal, the defendant argues that the district court erroneously reached its decision on constitutional grounds rather than statutory grounds, and that 924(c) creates a separate offense and is not a sentencing factor. Because the defendant is still in custody and is challenging the sentences he is currently serving, the district court did not err in denying relief. AFFIRMED. ENTERED FOR THE COURT PER CURIAM -2-

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