Opinion
No. CV-05-1042 JC/LFG, CR-03-1050 JC.
November 8, 2005
MEMORANDUM OPINION AND ORDER
This matter comes 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. 39) filed September 28, 2005. See 28 U.S.C. § 2255 R. 4(b). Defendant pled guilty to charges of reentry of a deported alien previously convicted of an aggravated felony. See 8 U.S.C. § 1326(a)(1)-(2), (b)(2). On January 6, 2004, the Court entered judgment on Defendant's conviction. Defendant did not appeal his conviction or sentence.
In his § 2255 motion, 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. The Blakely decision 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 found by a jury beyond a reasonable doubt. See Blakely, 542 U.S. at ___, 124 S. Ct. at 2536. The Court in Blakely set aside a state court sentence greater than the state's guideline range for the offense stipulated in the defendant's guilty plea. See 542 U.S. at ___, 124 S. Ct. at 2538. The more recent decision in Booker, ___ U.S. ___, 125 S. Ct. at 764 (2005), 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 criminal conviction. See United States v. 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, 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, and the Court will dismiss this claim.
Defendant also makes an argument for sentence reduction under Almendarez-Torres v. United States, 523 U.S. 224 (1998). Subsequent decisions, including Shepard v. United States, ___ U.S. ___, 125 S. Ct. 1254 (2005), make clear that this argument is unavailing. As the United States Court of Appeals for the Tenth Circuit has stated,
We note that in the recent case of Shepard v. United States, No. 03-9168, 544 U.S. ___, 2005 WL 516494 (Mar. 7, 2005), Justice Thomas stated that a majority of the Court now recognizes that Almendarez-Torres was wrongly decided. Justice Thomas also predicted that Almendarez-Torres would be overruled sometime in the near future. Shepard, 2005 WL 516494, at *9 (Thomas, J., concurring). Nonetheless, "we are bound by existing precedent to hold that the Almendarez-Torres exception to the rule announced in Apprendi [ v. New Jersey, 530 U.S. 466 (2000)] and extended to the Guidelines in [ United States v.] Booker, [ 125 S. Ct. 738 (2005)] remains good law."United States v. Jeffrey, No. 04-8009, 2005 WL 827153, at *18 n. 12 (10th Cir. Apr. 11, 2005) (quoting United States v. Moore, 401 F.3d 1220, 1224 (10th Cir. 2005)). The decision in Almendarez-Torres provides no support for Defendant's claims. Defendant is not entitled to relief, 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. 39) filed September 28, 2005, is DISMISSED with prejudice; and pursuant to rule 58(a)(2)(A)(iii) of the Federal Rules of Civil Procedure, United States v. Sam, No. 02-2307, 2003 WL 21702490, at *1 (10th Cir. July 23, 2003), judgment will be entered.