Opinion
Case No. 2:05 CV 00062.
April 7, 2005
ORDER
Before the Court is Petitioner Miguel Angel Leiva's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The Court, having reviewed all briefing and relevant law, DENIES Petitioner's motion for the reasons set forth below.
BACKGROUND
In April 2004, a Grand Jury returned an indictment charging Petitioner with one count of Reentry of a Previously Deported Alien, a violation of 8 U.S.C. § 1326. On April 20, 2004, the Government filed a notice of sentencing enhancement based on Petitioner's 1997 conviction for Attempted Distribution of a Controlled Substance, a third degree felony. Petitioner's 1997 conviction increased the statutory maximum for his reentry offense. See 8 U.S.C. § 1326(a), (b).
Petitioner pleaded guilty to the Reentry charge, and on September 13, 2004, the Court sentenced Petitioner to a term of imprisonment of forty-six months. Petitioner's motion followed.
In his motion, Petitioner argues that his sentence was enhanced in violation of his constitutional rights. Specifically, Petitioner asserts that the enhancement violated due process and his right to trial. In support of his argument, Petitioner citesBlakely v. Washington, 124 S.Ct. 2531 (2004), and United States v. Booker, 125 S.Ct. 738 (2005).
DISCUSSION
Petitioner's arguments fail for the following reasons. First, Petitioner's reliance on Blakely and Booker is misplaced. The holdings of these cases prevent courts from using facts "neither admitted by [a defendant] nor found by a jury" to enhance sentences beyond prescribed maximums. Blakely, 124 S.Ct. at 2537. While Blakely addressed state sentencing schemes,Booker addressed the federal sentencing system. These cases do not support Petitioner's argument because the existence of a prior conviction is not a fact that needs to be proven to a jury. As stated in Blakely, "`[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'" 124 S.Ct. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (emphasis added)); see also United States v. Sanchez-Cruz, 392 F.3d 1196, 1202 (10th Cir. 2004) (holding that Blakely does not preclude courts from using the enhancement in 8 U.S.C. § 1326(b)(2) when sentencing a convicted aggravated felon who illegally reenters the country). In this case, Petitioner's prior conviction for a felony crime was a matter of judicial record that the Court did not need to submit to a jury.
Second, even if the Booker decision contained law that could support Petitioner's claims, Petitioner would not be entitled to its retroactive application. "A new rule is not made retroactive to cases on collateral review unless the Supreme Court holds it to be retroactive." Leonard v. United States, 383 F.3d 1146, 1147 (10th Cir. 2004) (quotations and citations omitted); see also Browning v. United States, 241 F.3d 1262, 1264 (10th Cir. 2001) ("[A] rule is `made retroactive' by the Court only if the Court actually applies the rule retroactive[ly], or makes some explicit statement regarding retroactivity."). With regard to the rule announced in Booker, the Supreme Court made no suggestion that it should be applied retroactively. Moreover, the Tenth Circuit has specifically held that it does not apply retroactively. United States v. Lucero, No. 04-2131, 2005 U.S. App. LEXIS 2928 (10th Cir. Feb. 18, 2005);see also Humphress v. United States, 398 F.3d 855 (6th Cir. 2005). Therefore, Petitioner may not rely on Booker for relief.
CONCLUSION
For the reasons stated above, Petitioner has failed to show that his conviction and sentence are unlawful, and his motion to vacate, set aside, or correct his sentence in accordance with 28 U.S.C. § 2255 is hereby DENIED.
IT IS SO ORDERED.