United States v. Zacarias-Ortiz

MEMORANDUM ** Miguel Angel Zacarias-Ortiz appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence imposed following his conviction for conspiracy to manufacture and distribute methamphetamine. Zacarias-Ortiz contends that the trial court erred in enhancing his sentence based on judge-found facts, in violation of United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), and Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004). Because Zacarias-Ortiz’s conviction was final as of the dates the Booker and Blakely decisions were issued, his claim is foreclosed. See United States v. Cruz, 423 F.3d 1119, 1121 (9th Cir.2005) (holding that “Booker is not retroactive, and does not apply to cases on collateral review where the conviction was final as of the date of Booker’s publication”); Schardt v. Payne, 414 F.3d 1025, 1036 (9th Cir.2005) (holding that Blakely does not apply retroactively to cases on collateral review in a 28 U.S.C. § 2254 habeas action). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.