United States v. Susana Cruz

This appeal requires us to decide whether United States v. Booker, — U.S. —, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), applies retroactively to cases on collateral review. We hold that Booker does not apply retroactively to convictions that became final prior to its publication.

I. BACKGROUND

Susana Cruz was convicted in June 1999 in the District of Alaska of one count of conspiracy to commit offenses relating to cocaine distribution and possession; three counts of possession with intent to distribute cocaine; three counts of maintaining a place for cocaine distribution and possession; two counts of making premises available for the storage and distribution of cocaine; and one count of interstate travel to promote cocaine trafficking. On January 21, 2000, Cruz was sentenced to 168 months in prison. This court affirmed Cruz’ conviction and sentence on May 7, 2001. See United States v. Marin, 8 Fed. Appx 815 (9th Cir.2001) (unpublished disposition).

Cruz brought a petition pursuant to 28 U.S.C. § 2255 on July 3, 2002, collaterally attacking her sentence. The district court denied her petition and she appealed. While her appeal was pending before this court, the Supreme Court…