
    UNITED STATES of America, Plaintiff-Appellee, v. Scott NEWCOMB, Defendant-Appellant.
    No. 01-5302.
    United States Court of Appeals, Sixth Circuit.
    Sept. 26, 2001.
    
      Before NELSON and MOORE, Circuit Judges; KATZ, District Judge.
    
    
      
       The Honorable David A. Katz, United States District Judge for the Northern District of Ohio, sitting by designation.
    
   This pro se federal prisoner appeals a district court judgment denying his motion to dismiss the indictment filed pursuant to Fed.R.Crim.P. 12(b)(2). This case has been referred to a panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).

Newcomb pleaded guilty to attempting to possess with the intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. On July 7, 2000, the district court sentenced Newcomb to ninety-six months of imprisonment and ten years of supervised release. Judgment was entered on July 10, 2000. Newcomb did not appeal.

On January 29, 2001, Newcomb moved the district court to dismiss the indictment based on the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and claimed that the district court lacked jurisdiction to take his guilty plea because the indictment did not state all elements of the charged offense and because the factual basis for the plea did not cover all elements of the offense. The district court determined that it lacked jurisdiction to entertain the motion and denied it.

In his timely appeal, Newcomb argues that the district court erred in determining that it lacked jurisdiction over his motion to dismiss the indictment and that his right to due process was violated by that determination.

This court reviews a district court’s refusal to dismiss an indictment for an abuse of discretion. United States v. Middleton, 246 F.3d 825, 841 (6th Cir.2001) (citing United States v. Powell, 823 F.2d 996, 1000 (6th Cir.1987)); Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1248 (6th Cir.1996).

Upon review, we conclude that the district court lacked jurisdiction and properly refused to grant Newcomb’s belated motion to dismiss the indictment.

Accordingly, the district court’s judgment is hereby affirmed pursuant to Rule 34(j)(2)(C), Rules of the Sixth Circuit, for the reasons set forth in the district court’s opinion and order of February 22, 2001.  