
    UNITED STATES of America, Plaintiff-Appellee, v. Angel PENA, Defendant-Appellant.
    No. 08-56408.
    United States Court of Appeals, Ninth Circuit.
    Submitted April 5, 2010.
    
    Filed April 15, 2010.
    Shannon P. Wright, Esquire, Michael J. Raphael, Esquire, Assistant U.S., Office of the U.S. Attorney, Los Angeles, CA, for Plaintiff-Appellee.
    Carl Anthony Wayne, Carl A. Wayne Law Offices, Los Angeles, CA, for Defendant-Appellant.
    Angel Pena, pro se.
    Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Federal prisoner Angel Pena appeals pro se from the district court’s order dismissing his 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Pena contends that his 120-month sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the drug quantity was not admitted or proven to a jury beyond a reasonable doubt. We previously addressed and rejected this contention in Pena’s direct appeal, see United States v. Pena, 223 Fed.Appx. 589, 590 (9th Cir.2007), and therefore Pena may not re-litigate it in a § 2255 motion. See United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir.2000); see also United States v. Alexander, 106 F.3d 874, 876 (9th Cir.1997).

To the extent that Pena is raising additional arguments, we construe them as a motion to expand the certificate of appeal-ability. So construed, the motion is denied. See 9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     
      
       We note that on August 13, 2008, the district court issued an order granting a certificate of appealability ("COA”) on this issue, which it filed under docket # 04-cr-00837-DDP. Subsequently, on September 9, 2009, the district court issued a second order denying a COA on the same issue, filed under docket # 08-cv-01337-DDP. To the extent necessary, we sua sponte grant a COA with respect to the same issues set forth in the district court's August 13, 2008, order. See 28 U.S.C. § 2253(c)(3); see also 9th Cir. R. 22-l(e).
     