Opinion
05 Civ. 2562 (LBS), 98 Cr. 1078 (LBS).
July 27, 2005
MEMORANDUM AND ORDER
In the above-captioned pro se motion pursuant to 28 U.S.C. § 2255, petitioner Jairo Guzman ("Petitioner") moves to vacate his sentence as violative of his Sixth Amendment rights, citingBlakely v. Washington, 542 U.S. 296 (2004). By Order of this Court dated April 19, 2005, Petitioner was granted sixty (60) days from the date on which he was served with respondent's answer to submit a reply. The government served its answer on April 28, 2005, and this Court has received no reply from Petitioner. We therefore proceed to adjudicate the merits of the petition.
The Court of Appeals for the Second Circuit has held thatUnited States v. Booker, 125 S. Ct. 738 (2005), "does not apply to cases on collateral review," such as § 2255 petitions, "where the defendant's conviction was final as of January 12, 2005, the date that Booker issued." Guzman v. United States, 404 F.3d 139, 141 (2d Cir. 2005). Petitioner's conviction was affirmed by the Court of Appeals in January of 2001, and became final later that year, upon the expiration of his time to seek review in the United States Supreme Court by writ of certiorari. Thus, Petitioner's conviction was final long before the Supreme Court's decision in Booker, and the Second Circuit's decision in Guzman establishes that Petitioner may not raise a Booker claim on collateral review.
The Second Circuit's decision in Guzman did not concern Petitioner, but rather a man named Miguel Guzman.
Booker applied Blakely to the U.S. Sentencing Guidelines.See Booker, 125 S.Ct. at 746. While Petitioner citesBlakely, his challenge to his sentence is clearly a claim governed by Booker, in that he objects to a Guideline enhancement based on facts purportedly not conceded in his guilty plea. See Lloyd v. United States, 407 F.3d 608, 611 n. 1 (3d Cir. 2005); Guzman, 404 F.3d at 141; McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005). Petitioner's motion is thus barred by the Second Circuit's decision inGuzman. In any event, Petitioner's conviction was final long before even Blakely issued, and the logic of Guzman andSchriro v. Summerlin, 542 U.S. 348 (2004), cited in Guzman, 404 F.3d at 141-43, indicates that Blakely, like Booker, is not retroactively applicable to cases on collateral review. See United States v. Price, 400 F.3d 844 (10th Cir. 2005).
The Guideline enhancement to which Petitioner objects may have been irrelevant to his sentence, as he appears to have received the statutory mandatory minimum sentence for the crime to which he pleaded guilty. Petitioner contends, however, that in the absence of the challenged enhancement he would have been eligible for a "safety val[v]e" downward departure. (Motion at 3.) Because this motion would lack merit even if Petitioner were correct in his contention, we need not address the issue.
The motion is therefore DENIED. Petitioner's Motion for Bond Pending Hearing is DENIED as moot. The Clerk of the Court is directed to close this case. Because Petitioner has not "made a substantial showing of the denial of a constitutional right," 28 U.S.C.A. § 2253(c)(2) (West 2005), a certificate of appealability shall not issue.
SO ORDERED.