Opinion
Criminal No. 02-20066-001., Civil No. 04-2180.
October 24, 2005
ORDER
On July 31, 2003, the Court sentenced Defendant to 120 months imprisonment for possessing crack cocaine with the intent to distribute. (Doc. 34). Defendant filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 37) claiming he was entitled to re-sentencing in light of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). On September 29, 2004, United States Magistrate Judge Beverly Stites Jones issued a Report and Recommendation concerning Defendant's § 2255 Motion. (Doc. 41). On October 19, 2004, this Court adopted the Report and Recommendation denying Defendant's Motion. (Doc. 42). Currently before the Court is Defendant's motion for re-sentencing and the Government's response. (Docs. 44-45). For the following reasons, Defendant's motion is DENIED.
Defendant makes an argument that his sentence should be reduced in light of the United States Supreme Court's decisions in Blakely, supra, and United States v. Booker, 125 S. Ct. 738 (2005). Defendant's argument is misplaced as Booker does not apply to sentences that became final prior to its decision and cannot be applied retroactively. Hensley v. United States, 2005 WL 1214262 (W.D. Mo. May 20, 2005) citing Cirilo-Munoz v. United States, 404 F.3d 527, 533 (1st Cir. 2005) (reasoning that it is "unlikely" that the Supreme Court will apply Booker retroactively because such a holding "would comprise tens of thousands of sentences imposed under a regime whose lawfulness was assumed during most of this period" and citing published and unpublished cases from the Second, Sixth, Seventh, Tenth, and Eleventh circuits holding that Booker does not apply retroactively); Lloyd v. United States 407 F.3d 608 (3d Cir. 2005) (holding that Booker is a "new," "non-watershed," "procedural" rule under the retroactivity analysis of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)); Mack v. McFadden, No. 05-3035-CV-S-DW, 2005 WL 1155682 (W.D. Mo. May 16, 2005) (noting Booker's lack of retroactivity and citing cases from the Sixth, Tenth, and Eleventh circuits); United States v. Escobar, No. CRIM. 02-129(1) ADM/RL, 2005 WL 1073651 (D. Minn. May 6, 2005) (analyzing Booker's effect and determining that it is not to be applied retroactively); LaPointe v. United States, No. 04-0584-W-ODS-P, 2005 WL 670742 (W.D. Mo. March 10, 2005) (holding that a prisoner cannot bring a Booker § 2255 claim to apply to a pre- Booker sentence even if the sentence was final less than one year prior to the Court's Blakely decision).
Booker has no effect on Defendant's sentence as it does not apply retroactively or to sentences that became final prior to its decision. Accordingly, Defendant's motion is DENIED.
IT IS SO ORDERED.