Berry v. United States

390 F. Supp. 2d 509, 2005 U.S. Dist. LEXIS 21706, 2005 WL 2407626

• Court: District Court, W.D. Virginia
• Decided: September 29, 2005
• Docket: 7:05CV00574
• Status: Published

Opinion

OPINION

JONES, Chief Judge.

Petitioner James Gilbert Berry, a federal inmate proceeding by counsel, brings this Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.A. § 2255 (West 1994 & Supp.2005). In his motion, Berry requests re-sentencing on his 2003 conviction based on the United States Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because I find that Booker does not apply retroactively to Berry’s case, I must summarily dismiss his § 2255 motion.

Berry pled not guilty in this court to a charge of conspiracy to possess with intent to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C.A. §§ 841(a)(1) and 846 (West 1999 & Supp. 2005). After a two-day trial in January 2003, a jury found Berry guilty. I sentenced Berry on April 11, 2003, to 360 months in prison. Berry appealed, and the United States Court of Appeals for the Fourth Circuit affirmed his conviction and sentence. United States v. Berry, 87 Fed.Appx. 312-314, 2004 WL 180426 (4th Cir.2004) (unpublished). The Supreme Court denied Berry’s subsequent petition for a writ of certiorari on October 4, 2004. Berry v. United States, — U.S. -, 125 S.Ct. 56, 160 L.Ed.2d 25 (2004). Counsel filed this motion on Berry’s behalf on September 15, 2005.

Berry alleges that his sentence violates the rule of Booker. The Supreme Court, in its Booker decision, extended the rule in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), to invalidate the United States Sentencing Guidelines in part. Booker, 125 S.Ct. at 746. This court has held that the rule in Blakely does not apply retroactively to cases on collateral review. See Lilly v. United States, 342 F.Supp.2d 532, 538 (W.D.Va.2004). Following the rationale of Lilly, I find that Booker does not apply retroactively to cases on collateral review, a view adopted by all of the courts of appeal that have considered the issue. See United States v. Cruz, 423 F.3d 1119 (9th Cir.2005) (citing cases).

Because Berry’s conviction became final prior to the decision in Booker, I find that Booker does not apply retroactively to his § 2255 motion for collateral review. Berry has not raised any other ground for relief under § 2255, and thus I must dismiss his motion.

An appropriate Final Order will be entered herewith.