United States v. Cino

158 F. App'x 25

Opinion

MEMORANDUM

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Stephen Ciño appeals the district court’s denial of his 28 U.S.C. § 2255 motion challenging the sentence imposed following his conviction on counts of interference with commerce by threats or violence and aiding and abetting, conspiring to commit an offense against the United States in connection with a counterfeit traveler’s check scheme, wire fraud and aiding and abetting, money laundering, possession and uttering of counterfeit obligation of organization, and mail fraud and aiding and abetting. We have jurisdiction pursuant to 28 U.S.C. § 2253.

Cino contends that his Sixth Amendment rights were violated because his sentence was enhanced on the basis of several facts found by the district court by a preponderance of the evidence, that were neither charged in the indictment nor proven to a jury beyond a reasonable doubt. A Certificate of Appealability was granted on the issue of whether 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. This court has foreclosed the retroactive application of Blakely. See United States v. Cruz, 423 F.3d 1119, 1120 (9th Cir.2005) (per curiam) (holding that neither Blakely nor United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), applies retroactively to cases on collateral review).

We decline to expand the Certificate of Appealability because Ciño has failed to make a “ ‘substantial showing of the denial of a constitutional right,”’ Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), quoting 28 U.S.C. § 2253(c), and has not demonstrated that “reasonable jurists would find the District Court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

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.