United States of America, Plaintiff-appellee, v. Clarence Edward Cody, Defendant-appellant, 108 F.3d 1388 (10th Cir. 1997)

Mr. Cody seeks a certificate of appealability from the district court's denial of his motion to vacate, set aside or correct his sentence. 28 U.S.C. § 2255; see 28 U.S.C. § 2253(c) (1) (B) & (2). Despite a similar claim rejected on direct appeal, See United States v. Cody, 7 F.3d 1523, 1527 (10th Cir. 1993), Mr. Cody again challenges the marijuana plant count (1,028 plants) that resulted in a 10-year mandatory minimum sentence under 21 U.S.C. § 841(b) (1) (A) (vii). The premise of his argument is that 37 drying plants are not properly counted as plants, an argument foreclosed by United States v. Silvers, 84 F.3d 1317, 1325 (10th Cir. 1996), cert. denied, 117 S. Ct. 742 (1997). That said, arguments about the applicability of Sentencing Guideline Amendment 516, U.S.S.G. § 1B1.10(c) (retroactivity) & App. C, amend. 516, are unavailing because the amendment cannot be applied to bring the sentence below the statutory mandatory minimum for 1,000 or more marijuana plants. Silvers, 84 F.3d at 1325. We thus conclude that Mr. Cody has not made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c) (2).

The Application for a Certificate of Appealability is DENIED and the appeal is DISMISSED.