IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50543 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CLAY OWEN BERGMAN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-97-CR-281-ALL-EP -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Clay Owen Bergman appeals the district court’s dismissal of

his

motion wherein he challenged his 1998

conviction for manufacturing in excess of 100 marijuana plants.

Bergman’s motion for en banc consideration of his appeal is

DENIED.

Bergman argues that the reasoning of Apprendi v. New Jersey,

(2000), requires that a jury determine beyond a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-50543 -2-

reasonable doubt that he was responsible for manufacturing over

100 plants because such fact triggered the statutory minimum of

(b)(1)(B)(vii), thus resulting in his five-year

sentence. He argues that Apprendi is “equally applicable to a

situation in which the existence of a fact invokes a mandatory

minimum sentence, as it is to situations in which the existence

of a fact increases the range of sentence available.” We review

the district court’s factual findings for clear error and its

conclusions of law de novo. See United States v. Faubion,

(5th Cir. 1994).

The district court did not err by denying Bergman’s

motion. First, factors that trigger application of

mandatory minimum sentencing ranges do not have to be proved to a

jury beyond a reasonable doubt. See Harris v. United States,

(2002). Second, this court has recently held

that Apprendi is not retroactively applicable to initial

petitions under

. United States v. Brown,

(5th Cir. 2002). Accordingly, the judgment

dismissing the

motion is AFFIRMED.

AFFIRMED; MOTION DENIED.