Opinion
Case No. A01-0038 CR (JWS).
December 28, 2005.
ORDER DENYING MOTION BASED UPON BOOKER BLAKELY
On December 12, 2005, Jose O. Rodriguez filed a motion to modify his August 24, 2001 sentence, ostensibly under 18 U.S.C. §§ 3582 and 3742, alleging that his sentence is unconstitutional under the United States Supreme Court's holding in United States v. Booker, which extended Blakely v. Washington, to the federal sentencing guidelines.
See Docket No. 190 (August 24, 2001, judgment), and Docket No. 223 (July 30, 2002, dismissal of appeal by the Court of Appeals for the Ninth Circuit).
United States v. Booker, 125 S.Ct. 738, 746 (2005).
Blakely v. Washington, 124 S.Ct. 2531, 2536 (2004).
See Docket Nos. 230, 231.
The defendant is apparently attempting to bring his motion based upon a new "watershed rule" of Constitutional law. However, the Ninth Circuit has held that Blakely and Booker are not retroactive on collateral review.
See Schriro v. Summerlin, 124 S.Ct. 2519, 2524-26 (2004); Ring v. Arizona, 536 U.S. 584 (2002); Saffle v. Parks, 494 U.S. 484, 494-95 (1990); Teague v. Lane, 489, U.S. 288, 311 (1989).
See United States v. Cruz, 423 F.3d 1119 (9th Cir. 2005) (" Booker is not retroactive, and does not apply on collateral review where the conviction was final as of the date of Booker's publication"); Schardt v. Payne, 414 F.3d 1025, 1037 (9th Cir. 2005) ( Blakely "does not apply retroactively to a conviction that was final before that decision was announced.").
IT IS HEREBY ORDERED that:
1. Mr. Rodriguez's motion for modification of his sentence is DENIED; and
2. Mr. Rodriguez's motion for appointment of counsel and application to proceed without prepayment of fees, are DENIED as moot.