Carlos Gutierrez v. United States

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________

No. 05-2957 ___________

Carlos Gutierrez, * * Petitioner - Appellant, * * Appeal from the United States v. * District Court for the District * of Minnesota. United States of America, * * [UNPUBLISHED] Respondent - Appellee. * ___________

Submitted: April 18, 2006 Filed: April 24, 2006

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Before MURPHY, MELLOY, and GRUENDER, Circuit Judges. ___________

PER CURIAM.

Carlos Gutierrez was convicted after a jury trial of four drug offenses and was sentenced to 360 months. His convictions and sentence were affirmed on direct appeal. See United States v. Gutierrez, 367 F.3d 733 (8th Cir. 2004). Subsequent to his sentencing the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005), and by this motion under 28 U.S.C. § 2255 Gutierrez seeks their application to his sentence. The

district court1 denied relief but granted a certificate of appealability. Since Blakely and Booker do not apply retroactively, Gutierrez is not entitled to the ruling he seeks. See Never Misses a Shot v. United States, 413 F.3d 781 (8th Cir. 2005) (per curiam). Accordingly, we affirm the judgement of the district court. See 8th Cir. R. 47B.

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1 The Honorable John R. Tunheim, United States District Judge for the District of Minnesota.

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