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Magana v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 1, 2008

ARTURO ALVAREZ MAGANA, PETITIONER,
v.
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 ENTRY OF JUDGMENT FOR RESPONDENT

On April 4, 2005, Petitioner 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 being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Petitioner was sentenced on July 1, 2004 to 33 months incarceration.

Petitioner seeks vacation of his sentence pursuant to Blakely v. Washington, 542 U.S. 296 (2004), and 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). Although Blakely was decided by the Supreme Court approximately one week before Petitioner was sentenced, Blakely does not afford Petitioner relief. Petitioner claims that the 16-level enhancement pursuant to USSG 2L1.2(b)(1)(A) was improperly imposed following Blakely. Petitioner's claim is foreclosed by United States v. Quintana-Quintana, 383 F.3d 1052 (9th Cir.2004), cert. denied, 543 U.S. 1052 (2005).

For the reasons stated:

1. Petitioner Arturo Alvarez Magana's 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.

20080801

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