Opinion
Case No. 03-CR-110.
August 3, 2006
DECISION AND ORDER
Movant Marcus Shawtel Nesbitt ("Nesbitt"), filed a motion to stay and "abey." By his motions, he seeks to preserve objections to his sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005). Under controlling Seventh Circuit case law, Nesbitt may not challenge his sentence under Apprendi, Blakely, or Booker, because those cases do not apply retroactively to sentences such as his. See McReynolds v. United States, 397 F.3d 479, 481 (7th Cir.), cert. denied, 125 S.Ct. 2559 (2005) (regarding Booker); Simpson v. United States, 376 F.3d 679, 681-82 (7th Cir. 2004) (regarding Blakely).
While, at least implicitly, acknowledging that precedent, Nesbitt is apparently hopeful that the Supreme Court will rule or that Congress will legislate that such rulings are retroactive. If either occurs, Nesbitt's motion is part of the record. However, at this juncture, Nesbitt is not entitled to relief.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT:
Nesbitt's motion to stay and "abey" (Docket No. 98) is DENIED.