Downing v. United States

156 F. App'x 2

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 16, 2005
• Docket: No. 05-35317; D.C. No. CV-01-06117-ALA
• Status: Published

Opinion

MEMORANDUM

**

Raymond Whitney Downing appeals the district court’s denial of his 28 U.S.C. § 2255 motion challenging the sentence imposed following his guilty plea conviction on multiple counts of bank robbery. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Downing contends that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), should be applied retroactively to cases on collateral review, and that his Sixth Amendment rights were violated at sentencing because the district court sentenced him as a career offender on facts neither charged in the indictment nor proven to a jury beyond a reasonable doubt. Downing’s request for retroactive application of Booker and Blakely is foreclosed by United States v. Cruz, 423 F.3d 1119, 1120 (9th Cir.2005) (holding that “the rule announced by Booker ... does not operate retroactively”).

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.