Vargas v. U.S.

Full title: MICHAEL VARGAS, Petitioner, v. UNITED STATES OF AMERICA, Respondent

Court: United States District Court, E.D. California

Date published: Jul 11, 2005

No. CV-F-05-885 REC (No. CR-F-97-5064 REC) (E.D. Cal. Jul. 11, 2005)

Opinion

No. CV-F-05-885 REC (No. CR-F-97-5064 REC).

July 11, 2005

ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 AND DIRECTING ENTRY OF JUDGMENT FOR RESPONDENT

ROBERT COYLE, District Judge

On July 7, 2005, petitioner Michael Vargas filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Defendant contends that he is entitled to relief underUnited States v. Booker, ___, U.S. ___, 125 S.Ct. 738 (2005), because the court calculated his base offense level relying on matters not found true by a jury or admitted by the defendant during the change of plea proceedings.

Petitioner is not entitled to relief. Booker is not retroactive to cases on collateral review. See Varela v. United States, 400 F.3d 864, 868 (11^th Cir. 2005);Humphress v. United States, 398 F.3d 855, 860-863 (6^th Cir. 2005); McReynolds v. United States, 397 F.3d 479, 480-481 (7^th Cir. 2005);Guzman v. United States, 404 F.3d 139, 144 (2^nd Cir. 2005);see also Schardt v. Payne, ___ F.3d ___, 2005 WL 1593468 (9^th Cir. July 8, 2005) (Blakely v. Washington does not apply retroactively to convictions that became final prior to its publication).

ACCORDINGLY:

1. Petitioner's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 is denied.

2. The Clerk is directed to enter judgment for defendant.

IT IS SO ORDERED.