Argento

ORDER

Defendant moves pursuant to 28 U.S.C. § 2255 that the court vacate his sentence. He argues that, under United States v. Booker, — U.S.-, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), “it is clear that [his] sentence was imposed in violation of the Fifth and Sixth Amendments, because his mandatory guideline sentence was increased based on judicially found facts neither inherent in the jury verdict nor admitted by him.”

The parties agree that defendant’s sentence became final on September 29, 2003. At that time, the Supreme Court had not yet decided Booker . The key issue is whether Booker applies retroactively to defendant’s case. Under Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989) (plurality opinion), “[ujnless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” Id. at 310 , 109 S.Ct. 1060 ; see also United States v. Sanchez-Cervantes, 282 F.3d 664, 667-68 (9th Cir.2002) (“[T]he Teague retroactivity doctrine applies to ... § 2255 habeas petitions.”).

1. Initially, defendant argues that Booker did not announce a…