Opinion
No. Cr. S-91-0037-DFL.
August 23, 2005
ORDER
Defendant Imran Ahmed Mir has filed a motion for review and correction of his sentence pursuant to 18 U.S.C. § 3582(c)(2), relying on United States v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2005). However, defendant's claim does not fall within the conditions enumerated in § 3582 (c)(2), in that he was not sentenced to a term of imprisonment based on a sentencing range that was subsequently lowered by the Sentencing Commission. Defendant's motion is DENIED.
Defendant's motion could be liberally construed as a motion under 28 U.S.C. § 2255. However, such a motion would be second or successive, in light of defendant's prior § 2255 motion, which was denied by the court. (9/2/99 Order at 4.) Moreover, even were the court to consider the substance of the motion, defendant's claim is without merit. The new rule announced in Booker does not apply retroactively to cases on collateral review. Schardt v. Payne, 414 F.3d 1025, 2005 WL 1593468 (9th Cir. 2005).
IT IS SO ORDERED.