Carlos Gutierrez v. United States ( 2006 )

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* [UNPUBLISHED]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
___________
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.
______________________________
1
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
-2-