United States v. Porter

MEMORANDUM ** Federal prisoner Jason Francisco Porter appeals from the district court’s order denying his motion under 28 U.S.C. § 2255 . We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo, United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir.2003), and we affirm. Porter contends that the Supreme Court’s decision making the United States Sentencing Guidelines “effectively advisory,” see United States v. Booker, 543 U.S. 220, 245 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), applies retroactively to his case, which became final on direct review in 2003. He therefore asks us to vacate his sentence and remand his case to the district court for resentencing. Porter’s contention is foreclosed. See United States v. Cruz, 423 F.3d 1119, 1121 (9th Cir.2005) (per curiam) (holding that Booker does not apply retroactively). We decline to address the cruel and unusual punishment and equal protection claims that Porter raises for the first time on appeal. See Snow-Erlin v. United States, 470 F.3d 804 , 808 n. 1 (9th Cir.2006). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.