United States v. Saechao

MEMORANDUM ** Petitioner challenges the constitutionality of his 2002 conviction under United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). As petitioner acknowledges, we have held that Booker does not apply retroactively on collateral review. See United States v. Cruz, 423 F.3d 1119, 1119 (9th Cir.2005) (per curiam). Even if Booker were to apply retroactively, however, petitioner’s sentence would not be affected because he waived *670 his right to a jury trial, the judge considered and ruled on each sentencing factor raised, and his sentence was not above the statutory maximum. See Booker, 543 U.S. at 231-32 ,125S.Ct. 738. Petitioner’s claim that the district court lacked jurisdiction to sentence during the pre-Booker guidelines era is also meritless. Congress had granted district courts jurisdiction to impose criminal penalties before Booker. See 18 U.S.C. § 3231 . While Booker severed and excised 18 U.S.C. §§ 3553 (b)(1) and 3742(e) — thus making the guidelines advisory — it did not sever the jurisdictional part of the statute. See Booker, 543 U.S. at 245 , 125 S.Ct. 738 . Thus, Booker may have affected the district court’s discretion to sentence petitioner, but it didn’t affect its jurisdiction. PETITION DENIED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.