United States v. Callejas

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 10, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-2132
v. District of New M exico
CA RM ELO CA LLEJAS, (D.C. No. CR-00-732 BB)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.
A jury convicted Carmelo Callejas in 2001 on five counts of criminal
conduct. He was sentenced to 248 months in prison. This Court has twice
affirmed that sentence— once on direct appeal, United States v. Callejas, 66 Fed.
App’x 826 (10th Cir. 2003) (unpublished), and again in dismissing M r. Callejas’s
application for a certificate of appealability under 28 U.S.C. § 2255, United States
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10 th Cir. R. 32.1.
v. Callejas, 137 Fed. App’x 175 (10th Cir. 2005) (unpublished). Following the
Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), M r.
Callejas brought a third challenge to his sentence, which he styled as a “M otion to
Eliminate Enhancements and Reduce Sentence.” The district court dismissed his
motion, holding that M r. Callejas could collaterally challenge his sentence only
via § 2255. M em. & Order, 1-3.
The district court is correct. Section 2255 provides the exclusive means for
collateral attack of a federal criminal sentence. Baker v. Sheriff of Santa Fe
County, 477 F.2d 118, 119 (10th Cir. 1973). W e note, however, that even were
M r. Callejas to petition this Court to authorize a second § 2255 application, as
required by 28 U.S.C. § 2244(3), his petition would fail. Defendants may not
raise a Booker claim in a second or successive § 2255 motion, as Booker did not
announce a new, retroactive rule of constitutional law. Bey v. United States, 399
F.3d 1266, 1268-69 (10th Cir. 2005).
The judgment of the United States District Court for the District of New
M exico is AFFIRM ED. The government’s motion to dismiss is DENIED.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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