Opinion
04cv5238.
December 20, 2004
Petition for Writ of Habeas Corpus.
Wilfredo Rosa seeks relief under 28 U.S.C. § 2255. Rosa was charged in a single-count indictment with bank robbery, in violation of 18 U.S.C. § 2133(a). On December 12, 2003, Rosa, represented by Heather Winslow, Federal Defender Program, entered a plea of guilty to the indictment. The written plea agreement set out a detailed factual basis for the plea, the maximum statutory penalties for the offense, a preliminary guideline calculation, and the rights that the defendant was relinquishing.
The parties agreed that the base offense level was 20 and that a two level increase was appropriate because the property of a financial institution was taken. The parties disagreed, however, on the application of another two level increase for use of a death threat during the robbery. After an evidentiary hearing on the matter, I found that the two level enhancement was applicable. Rosa was then sentenced to a 41-month term of incarceration, three years of supervised release, and restitution in the amount of $686.00. Rosa did not appeal this sentence.
Under United States v. Booker, 375 F.3d 508 (7th Cir. 2004), the sentence imposed was improper because it was determined, at least in part, by my decision on the death threat. However, Rosa's challenge to the Guidelines procedure used in his sentencing would be futile. The application of Blakely v. Washington, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) to final judgments, such as this one, would violate the principles of Teague v. Lane, 489 U.S. 288 (1989). See Schriro v. Summerlin, 159 L. Ed. 2d 442, 124 S. Ct. 2519 (2004); Simpson v. United States, 376 F.3d 679, 681-82 (7th Cir. 2004).
Rosa's Petition is DENIED.