Opinion
Civil Action No. 3:00-CV-2396-G, Criminal Action No. 3:97-CR-208(02)-G.
April 11, 2005
MEMORANDUM OPINION AND ORDER
Before the court is the motion of Jose Armando Rosales ("Rosales") for relief from this court's final judgment entered on February 4, 2002. For the reasons discussed below, Rosales' motion is denied.
I. BACKGROUND
On January 5, 1998, Rosales pleaded guilty to conspiring to possess with intent to distribute 1,000 kilograms or more of marijuana. Memorandum Brief In Support of Motion for Relief from Final Judgment ("Memorandum Brief") at 3. On June 9, 1998, Rosales was sentenced to 365 months confinement. Id. at 1; Docket Sheet. On August 23, 1999, the United States Court of Appeals for the Fifth Circuit dismissed Rosales' appeal of his sentence. Docket Sheet.
On October 30, 2000, Rosales filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Memorandum Brief at 1; Docket Sheet. On February 4, 2002, this court adopted Findings, Conclusions and Recommendation of the United States Magistrate Judge and entered an order denying the motion to vacate, set aside or correct his sentence. Order, filed Feb. 4, 2002.
II. ANALYSIS
Rosales bases his motion primarily on the recent decision of the United States Supreme Court in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738 (2005). In Booker, the Court held that "the imposition of an enhanced sentence under the United States Sentencing Guidelines [("Guidelines")] based on [a] sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant," violates the Sixth Amendment to the Constitution of the United States. Booker, 125 S.Ct. at 756. In an effort to remedy any possible Sixth Amendment violation, the Court further held that the Guidelines were no longer mandatory but were only one factor to be considered in determining a defendant's sentence. Id. at 768.
Rosales argues that Booker constitutes "a change in law by the United States Supreme Court," Motion for Relief from Final Judgment at 1, and that such change should be retroactively applied to his sentence. Motion at 1, 26. However, the Court stated in Booker that its holding applies to all cases on "direct review." Booker, 125 S.Ct. at 769 (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). Therefore, Booker applies retroactively only to cases that "are not yet final." Id.
Rosales' sentence is no longer on direct review and the dismissal of his appeal by the Fifth Circuit renders the sentencing decision final. Accordingly, the Court's holding in Booker does not apply to his sentence, and Rosales' motion is denied.
III. CONCLUSION
For the reasons discussed above, Rosales' motion for relief from judgment is DENIED.