Acero v. United States

171 F. App'x 76

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 14, 2006
• Docket: No. 05-35498
• Status: Published

Opinion

MEMORANDUM

**

Federal prisoner Fernando Aristobulo Acero appeals pro se the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his sentence following his guilty plea for possession with intent to distribute over 50 kilograms of marijuana and 500 grams or more of a mixture and substance containing cocaine. We have jurisdiction under 28 U.S.C § 2253, and we affirm.

Acero’s contention that he is entitled to be resentenced under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), is foreclosed because such relief is not available retroactively on collateral review. See United States v. Cruz, 423 F.3d 1119, 1121 (9th Cir.2005) (holding that Booker does not apply retroactively in § 2255 proceedings where the conviction was final as of the date of Booker’s publication).

To the extent that appellant raises uncertified issues in his appeal, we construe it as a motion to broaden the certificate of appealability, and deny the motion. See 9th Cir. R. 22-l(e).

AFFIRMED.

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.