Opinion
Crim. No. 99-261 (TFH).
February 22, 2006
MEMORANDUM OPINION
Pending before the Court is the Defendant's Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255. Upon consideration of the Defendant's submission, relevant portions of the record, and the applicable law, the Court will deny the § 2255 motion.
I. BACKGROUND
The Defendant was convicted by a jury of possession with the intent to distribute fifty grams of cocaine base and distribution of five or more grams of cocaine base. United States v. Ayala, 38 Fed. Appx. 15, 16 (D.C. Cir. 2002). The Defendant was sentenced to 145 months imprisonment. His conviction and sentence were affirmed on appeal. Ayala, 38 Fed. Appx. at 16.
II. DISCUSSION
The Defendant contends that his conviction and sentence are unconstitutional under Booker v. United States, 543 U.S. 220 (2005). In that case, the Supreme Court held that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Id. at 244. The Booker decision was issued after the Defendant's conviction became final in July, 2002. See Clay v. United States 537 U.S. 522, 525 (2003) (conviction final when time for filing certiorari petition has expired).
When a Supreme Court decision creates a new rule of criminal procedure, the new rule, with two limited exceptions, cannot be applied retroactively on collateral review. Teague v. Lane, 489 U.S. 288, 310 (1989). In agreement with all of the circuit courts that have considered the issue, the District of Columbia circuit has concluded that Booker does not apply retroactively on collateral review. See In re Zambrano, 433 F.3d 886, 888 (D.C. Cir. 2006). Accordingly, the Defendant's § 2255 motion will be denied.
In his motion, the Defendant concedes that the courts have found Booker to have no retroactive effect. He is raising the issue to preserve it for further review.
A separate order accompanies this Memorandum Opinion.