United States v. Brown

223 F. App'x 647

Opinion

MEMORANDUM

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Federal prisoner Lamont Andre Brown appeals from the district court’s judgment denying his motion under 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo, United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir.2003), and we affirm.

Brown contends that when the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), it overruled its prior decision in United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam). Because Watts is no longer good law, he contends, the district court improperly based his sentence on conduct of which the jury acquitted him, in violation of the Sixth Amendment. Assuming arguendo that Booker applies retroactively to Brown’s case, see Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994) (holding that retroactivity must be decided before merits), Booker affords Brown no relief from his sentence because Booker plainly did not overrule Watts. See Booker, 543 U.S. at 240, 125 S.Ct. 738 (“The issue we confront [in Booker ] simply was not presented [in Watts ].”); United States v. Mercado, 474 F.3d 654, 656 (9th Cir.2007). Accordingly, we affirm the district court’s judgment denying Brown’s § 2255 motion.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.