Zerr

MEMORANDUM **

Federal prisoner Michael Stephen Zerr appeals from the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct the 51-month sentence imposed following his guilty plea conviction of being a felon in possession of a firearm. We have jurisdiction pursuant to 28 U.S.C. § 1291 .

We affirm the district court’s denial of Zerr’s § 2255 motion. At the time he was sentenced, Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), did not apply to Guidelines calculations made within the statutory maximum. See United States v. Alvarez, 358 F.3d 1194, 1211 (9th Cir.2004). Further, neither Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), nor United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), apply retroactively to cases where the conviction became final prior to their publication. See United States v. Cruz, 423 F.3d 1119, 1120-21 (9th Cir.2005) (holding that neither Blakely nor Booker apply retroactively on collateral review).

Finally, Zerr has not established that his trial counsel’s failure to raise Apprendi at sentencing was unreasonable under prevailing…