Opinion
No. CV-05-0739 RB/ACT CR-04-179 RB.
August 15, 2005
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 (CV Doc. 1; CR Doc. 16) filed July 6, 2005. See 28 U.S.C. § 2255 R.4(b). On April 8, 2004, the Court entered judgment against Defendant, sentencing him to a 46-month prison term on his conviction for reentry by a deported alien previously convicted of an aggravated felony. See 8 U.S.C. § 1326(a)(1)-(2), (b)(2). Defendant did not appeal his conviction or sentence.
Defendant invokes the Supreme Court's recent decisions in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), as the basis for challenging his sentence. Blakely applied the rule announced by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that a sentence greater than the statutory maximum must be based on facts that are admitted or found by a jury beyond a reasonable doubt. See Blakely, 542 U.S. at ___, 124 S. Ct. at 2536. In Blakely the Court set aside a state court sentence greater than the state's guideline range for the offense stipulated in the defendant's guilty plea. 124 S. Ct. at 2538. The more recent decision in Booker, 125 S. Ct. at 764 (2005), reaffirmed the Apprendi/Blakely rule and declared the mandatory application of the United States Sentencing Guidelines unconstitutional.
These recent Supreme Court rulings are not available to Defendant on collateral review of his sentence. See United States vs. Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005); United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005); Leonard v. United States, 383 F.3d 1146, 1148 (10th Cir. 2004). For purposes of retroactivity analysis, the decisions in Blakely and Booker merely apply the previously announced rule from Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), see Blakely, 542 U.S. at ___, 124 S. Ct. at 2536, and thus provide no avenue to Defendant in a § 2255 proceeding, see Leonard, 383 F.3d at 1148. These decisions apply only to pending cases and those on direct review. See Booker, ___ U.S. at ___, 125 S. Ct. at 769; Bellamy, 411 F.3d at 1186. Defendant is not entitled to relief under these decisions, see § 2255 R. 4(b), and the Court will dismiss his motion.
IT IS THEREFORE ORDERED that Defendant's motion to vacate, set aside, or correct sentence (CV Doc. 1; CR Doc. 16) filed July 6, 2005, is DISMISSED with prejudice; his motion to file memorandum (CV Doc. 2; CR Doc. 17) is DENIED as moot; and, pursuant to Fed.R.Civ.P. 58(a)(2)(A)(iii), United States v. Sam, No. 02-2307, 2003 WL 21702490, at *1 (10th Cir. July 23, 2003), judgment will be entered.