United States v. Walker

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-10616
Plaintiff-Appellee, D.C. No.
v.
 CR-03-00516-PMP
District of Nevada,
FRED WALKER,
Defendant-Appellant. Las Vegas
 ORDER
Filed February 12, 2009
Before: Betty B. Fletcher, Robert R. Beezer and
Raymond C. Fisher, Circuit Judges.
Order;
Concurrence by Judge Beezer
ORDER
The language in the statute supporting Walker’s sentence is
quite different from the provisions construed in the cases cited
in Walker’s motion. The analysis from those cases is inappli-
cable to Walker’s situation. He therefore has not presented the
exceptional circumstances and equities necessary to support
the extraordinary remedy of recalling the mandate. See Car-
rington v. United States, 503 F.3d 888, 891 (9th Cir. 2007).
Accordingly, Walker’s motion to recall the mandate, filed on
January 12, 2009, is denied.
BEEZER, Circuit Judge, concurring:
I write separately because I believe we lack the power to
reach the merits of Walker’s motion which seeks to modify a
1753
1754 UNITED STATES v. WALKER
final judgment of this court. We filed our memorandum dis-
position on May 17, 2006, and the mandate, which returned
the case to the district court, issued on June 8, 2006.
Walker’s only other avenue for relief was to timely petition
the United States Supreme Court for a writ of certiorari. This
he did not do. Walker’s conviction became final 90 days after
our mandate issued. See Sup. Ct. R. 13; Tanner v. McDanieli,
493 F.3d 1135, 1141 n.4 (9th Cir. 2007).
Walker’s motion is premised on the retroactive application
of a Supreme Court decision that was issued after Walker’s
conviction became final. See Lopez v. Gonzales, 549 U.S. 47
(2006). No court has held the Lopez opinion to be retroactive.
Thus, I do not believe we have the power to consider Walk-
er’s motion. See Teague v. Lane, 489 U.S. 288, 310 (1989);
United States v. Cruz, 423 F.3d 1119, 1120 (9th Cir. 2005);
see also Carrington v. United States, 503 F.3d 888, 891 (9th
Cir. 2007) (denying a motion to recall the mandate as barred
by Cruz and alternatively based on lack of exceptional cir-
cumstances).
For these reasons, I would dismiss for lack of jurisdiction.
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