United States v. Smith

MEMORANDUM **

Corey D. Smith appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2255 motion seeking to vacate his 63-month sentence for assault resulting in serious bodily injury. We have jurisdiction under 28 U.S.C. § 2253 , and we affirm.

Smith contends that the application of the four-level sentencing enhancement for use of a dangerous weapon was unconstitutional because the predicate facts were not admitted by him nor proven to a jury beyond a reasonable doubt. The district court correctly determined that Smith may not obtain relief under Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), or United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), because his conviction became final before both of those decisions and neither decision is retroactive to cases on collateral review. See United States v. Cruz, 423 F.3d 1119, 1121 (9th Cir.2005). Nor can Smith obtain relief under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), because “he fails to satisfy the threshold condition of Apprendi that the actual sentence imposed be longer than the maximum sentence for the crime for…