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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JOHN RAYMOND SINCLAIR,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

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CASE NO. C05-2130-MJP

(CR99-466-MJP)

REPORT AND RECOMMENDATION

INTRODUCTION

Petitioner has filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his

sentence. Petitioner raises a sole claim that is based upon United States v. Booker, 125 S. Ct. 738

(2005). The government has filed a response, arguing, among other things, that Booker does not

apply retroactively to cases, such as this one, on collateral review. After careful review of the

parties’ briefs, the court concludes that the government is correct in its argument, and petitioner’s

motion should be dismissed.

PROCEDURAL HISTORY

Petitioner pled guilty in 1999 to seven counts of bank robbery. (Doc. #6 in Case No.

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CR99-466). In his plea agreement, petitioner agreed “not to ask or argue for less than 188

months” imprisonment as his sentence. (Doc. #6 in Case No. C05-2130, Ex. A). The district

court sentenced petitioner to 188 months in prison. The court cited petitioner’s “criminal history

and violence” as the reason for imposing a sentence at the higher end of the sentencing range.

(Doc. #15 in Case No. CR99-466). Petitioner did not file a direct appeal.

Petitioner filed the instant motion under § 2255 on December 28, 2005. (Doc. #1). On

February 1, 2005, the government filed its response. (Doc. #6). The matter is now ready for

review.

DISCUSSION

In his § 2255 motion, petitioner raises a single claim for relief. He argues that his Sixth

Amendment rights were violated when the court “made factual determinations . . . as to whether

[petitioner’s] prior convictions qualified as predicate offenses to elevate his status and trigger a

mandatory minimum sentence under the career criminal label.” (Doc. #1, Attachment). For

support, petitioner relies upon the Supreme Court decision in United States v. Booker, 125 S. Ct.

738 (2005) and related cases. In its response, the government argues, among other things, that

Booker does not apply retroactively to cases, such as this, on collateral review.

The Supreme Court has not yet addressed whether Booker applies retroactively. However,

the Ninth Circuit has held, in agreement with all the other circuit courts that have considered the

question, that Booker does not apply retroactively to cases on collateral review. See United States

v. Cruz, 423 F.3d 1119 (9th Cir. 2005), cert. denied, 126 S. Ct. 1181 (2006). Thus, petitioner

may not rely upon Booker here, and his § 2255 motion should be dismissed. Because the court

finds that the government’s position on the Booker question is correct, it is unnecessary to address

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the government’s alternative arguments.

CONCLUSION

For the foregoing reasons, the court recommends that petitioner’s motion under 28 U.S.C.

§ 2255 to vacate, set aside, or correct his sentence, be dismissed. A proposed Order reflecting this

recommendation is attached.

DATED this 14th day of April , 2006.

A

Mary Alice Theiler

United States Magistrate Judge

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