Bromley v. United States

2005 DNH 056

• Court: District Court, D. New Hampshire
• Decided: April 5, 2005
• Docket: 05-CV-103-SM
• Status: Published

Opinion

Bromley v . United States 05-CV-103-SM 04/05/05 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Steven L . Bromley, Petitioner,

v. Civil N o . 05-cv-103-SM Opinion N o . 2005 DNH 056 United States of America, Respondent

O R D E R

Petitioner pled guilty to one count of making a false

statement in violation of 18 U.S.C. § 1001. Sentence was imposed

on December 1 6 , 2003, in accordance with the provisions of the

United States Sentencing Guidelines. Petitioner did not object

to the constitutionality of the guidelines’ mandatory character

at sentencing, but did so on direct appeal. The United States

Court of Appeals for the First Circuit affirmed petitioner’s

conviction and sentence on October 2 2 , 2004, noting that Blakely

v . Washington, 124 S.Ct. 2531 (2004) did not, strictly speaking,

invalidate the federal guidelines, and no plain error could be

ascribed to a sentence consistent with then controlling

precedent. Now that the Supreme Court has construed the federal

guidelines to be advisory rather than mandatory, in United States

v . Booker, 15 S.Ct. 738 (2005), petitioner once again seeks to

challenge his guideline sentence. But, the new rule announced in

United States v . Booker, 125 S.Ct. 738 (2005), is procedural

rather than substantive in nature. Moreover, the rule does not

qualify as a “watershed rule” that implicates “the fundamental

fairness and accuracy of the criminal proceedings.” Saffle v .

Parks, 494 U.S. 4 8 4 , 495 (1990). Accordingly, Booker does not

apply retroactively to final convictions, like petitioner’s. See

McReynolds v . United States, 2005 WL 237642 (7th Cir. 2005);

Schriro v . Summerlin, 124 S.Ct. 2519, 2523-26 (2004); Sepulveda

v . United States 330 F.3d 5 5 , 63 (1st Cir. 2003).

The petition is denied.

SO ORDERED.

Steven J. McAuliffe Chief Judge

April 5 , 2005

cc: Steven L . Bromley, pro se