IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 1, 2008
ABRAHAM FLORES, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT FOR RESPONDENT
On June 22, 2005, Petitioner Abraham Flores timely filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.
Petitioner pleaded guilty pursuant to a written Plea Agreement to use of a communication facility in connection with a drug offense in violation of 21 U.S.C. § 843(b). Petitioner was sentenced on June 25, 2004 to 48 months incarceration.
Petitioner's Section 2255 motion asserts that his sentence is unconstitutional based on United States v. Booker, 543 U.S. 220 (2005). Petitioner's motion is DENIED. Booker is not retroactive to cases on collateral review. United States v. Cruz, 423 F.3d 1119 (9th Cir.2005), cert. denied, 546 U.S. 1155 (2006). For the reasons stated:
1. Petitioner Abraham Flores' motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 is DENIED.
2. The Clerk of the Court is directed to enter JUDGMENT FOR RESPONDENT.
IT IS SO ORDERED.
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