United States v. Rios

154 F. App'x 681

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 12, 2005
• Docket: No. 04-17323
• Status: Published

Opinion

MEMORANDUM

**

Jessie Dario Rios appeals the district court’s denial of his 28 U.S.C. § 2255 motion challenging the sentence imposed following his conviction on one count of armed bank robbery. We have jurisdiction pursuant to 28 U.S.C. § 2253.

Rios contends that his Sixth Amendment rights were violated because his sentence was enhanced on the basis of several facts found by the District Court Judge by a preponderance of the evidence, that were neither charged in the indictment nor proven to a jury beyond a reasonable doubt. He contends that 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. Rios’ request for retroactive application of Blakely is foreclosed by 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 eases on collateral review).

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.