Opinion
No. 05-35474.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed February 28, 2007.
Stephen Cooper, Esq., Office of the U.S. Attorney, Federal Bldg. U.S. Courthouse, Fairbanks, AK, for Plaintiff-Appellee.
Crist A. Bigler, Terminal Island, CA, pro se.
Appeal from the United States District Court for the District of Alaska, James K. Singleton, Senior District Judge, Presiding. D.C. Nos. CV-05-00003-JKS, CR-00-00016-01-JKS.
Before: BEEZER, FERNANDEZ, and McKEOWN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Federal prisoner Crist A. Bigler appeals pro se from the district court's judgment denying his motion under 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo, United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir. 2003), and we affirm.
Bigler contends that the district court sentenced him on the basis of a greater quantity of drugs than that mentioned in the indictment, in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Bigler's conviction became final on direct review in 2001, and this court has held that Booker does not apply retroactively to such cases. See United States v. Cruz, 423 F.3d 1119, 1121 (9th Cir. 2005) (per curiam). The district court thus correctly determined that Booker affords Bigler no relief.
We deny Bigler's motion to broaden the certificate of appealability. See 28 U.S.C. § 2253(c)(2); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam). We construe Bigler's briefing of issues not certified for appeal as a motion to broaden the certificate of appealability, and we deny the motion. See 9th Cir. R. 22-1(e); Hiivala, 195 F.3d at 1104-05.
Finally, we deny Bigler's request for appointment of counsel as moot.