Opinion
Nos. Cr. S 96-0407 DFL, Civ. S 00-1433 MCE PAN P.
October 31, 2005
Findings and Recommendations
November 4, 1997, a jury convicted defendant of possessing methamphetamine and conspiring to distribute methamphetamine and possess methamphetamine with intent to distribute it. April 9, 1998, the court sentenced him to 292 months imprisonment, five years of supervised release, and $200 in special assessments. The court of appeals affirmed April 29, 1999.
June 30, 2000, defendant moved to vacate or set aside his sentence. 28 U.S.C. § 2255. He claims error based on the government's use of confidential informant Mendoza as a witness, the court's requirement that defendant take the stand and testify before it would instruct on entrapment, and prosecutorial vouching for Mendoza's credibility. Most of these issues were rejected by the Ninth Circuit in deciding defendant's appeal. Defendant procedurally defaulted any issues not raised on appeal.United States v. Ratigan, 351 F.3d 957 (9th Cir. 2003).
The court appointed counsel and April 2, 2001 defendant filed an amended motion to correct sentence. Defendant argues his sentence violates the Sixth Amendment because it was based on a drug quantity not found by a jury beyond a reasonable doubt.Apprendi v. New Jersey, 530 U.S. 466 (2000). The government opposed May 25, 2001, and defendant replied July 25, 2001.
The United States Supreme Court has held that the rationale set forth in Apprendi applies equally to defendants sentenced under the Federal Sentencing Guidelines. United States v. Booker, ___ U.S. ___, 125 S.Ct. 738 (2005). Nevertheless, the Ninth Circuit consistently has held Apprendi claims cannot be raised on initial collateral review. United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002); Cooper-Smith v. Palmateer, 397 F.3d 1236, 1245-46 (9th Cir. 2005). All courts to have addressed the issue conclude Booker does not apply retroactively on collateral review either. Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005); Humphress v. United States, 398 F.3d 855, 860 (6th Cir. 2005); Guzman v. United States, 404 F.3d 139, 141 (2d cir. 2005). Therefore claims in the amended motion fail.
Accordingly, the court hereby recommends:
1. Defendant's June 30, 2000, motion to vacate or set aside his sentence be denied.
2. Defendant's April 2, 2001, amended motion to vacate or set aside his sentence be denied.
3. The clerk of the court be directed to close the companion civil case number Civ. S 00-1433 MCE PAN P.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1), these findings and recommendations are submitted to the United States District Judge assigned to this case. Written objections may be filed within 20 days of service of these findings and recommendations. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge may accept, reject, or modify these findings and recommendations in whole or in part.