United States v. Underwood
Docket: No. 01-15547; D.C. Nos. CR-96-5059 REC, CV-00-5243-REC
Court: Court of Appeals for the Ninth Circuit; September 16, 2002; Federal Appellate Court
Warren Lee Underwood's appeal of the district court’s denial of his motion under 28 U.S.C. § 2255 has been affirmed. Underwood contends there was a material variance between the indictment, which specified methamphetamine, and trial evidence that he claims indicated amphetamine. However, the court clarified that drug type is not a necessary element of the offense; it is sufficient for the government to prove that Underwood possessed or conspired to possess a controlled substance. The trial evidence convincingly showed Underwood possessed methamphetamine, negating claims of variance. Additionally, Underwood's assertion that the Apprendi ruling should retroactively apply to initial collateral reviews was rejected, referencing precedent in United States v. Sanchez-Cervantes. All of Underwood's pending motions have been denied, and the court affirmed the district court's findings regarding the sentencing related to methamphetamine. The decision is not intended for publication and is subject to Ninth Circuit Rule 36-3 regarding citation.