IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA §

§

VS. § NO. 3-02-CR-0396-M(07) 

§ NO. 3-06-CV-0095-M 

ADRIANA TERESA SANCHEZ GUTIERREZ §

§

Defendant. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Defendant Adriana Teresa Sanchez Gutierrez, by and through her counsel of record, has filed

a motion to correct, vacate, or set aside her sentence pursuant to 28 U.S.C. § 2255. For the reasons

stated herein, the motion should be denied.

I.

Defendant was convicted by a jury of: (1) conspiracy to possess with intent to distribute five

kilograms or more of cocaine in violation of 21 U.S.C. § 846; and (2) conspiracy to launder

monetary instruments in violation of 18 U.S.C. § 1956(a)(1)(A)(i) & (h). Punishment was assessed

at 240 months confinement followed by supervised release for a period of five years. Her conviction

and sentence were affirmed on direct appeal. United States v. Bautista, No. 03-1114, 111 Fed.

Appx. 282 (5th Cir. Oct. 15, 2004). Defendant now seeks post-conviction relief pursuant to 28

U.S.C. § 2255.

II.

In two related grounds for relief, defendant contends that: (1) her sentence was enhanced

based on facts not submitted to the jury or proved beyond a reasonable doubt in violation of the

Sixth Amendment to the United States Constitution; and (2) she was sentenced under a mandatory

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guideline system that was held unconstitutional in United States v. Booker, 543 U.S. 220, 125 S.Ct.

738, 160 L.Ed.2d 621 (2005).

In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), a majority

of the Supreme Court held that an enhanced sentence imposed by a judge under the Washington

Sentencing Reform Act, which was based on facts neither admitted by the defendant nor found by

a jury, violated the Sixth Amendment to the United States Constitution. Blakely, 124 S.Ct. at 2538.

Booker extended that holding to invalidate the mandatory nature of the federal sentencing

guidelines. See Booker, 125 S.Ct. at 759. However, Booker does not apply retroactively to cases

on collateral review. Id. at 769 (Breyer, J.), citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct.

708, 716, 93 L.Ed.2d 649 (1987) (holding that decision applies "to all cases on direct review")

(emphasis added). See also United States v. Gentry, ___ F.3d ___, 2005 WL 3317891 at *2 (5th Cir.

Dec. 8, 2005) (holding that Booker is not applicable to cases already final); In re Elwood, 408 F.3d

211, 213 (5th Cir. 2005) (citing cases) (same). Consequently, defendant is not entitled to postconviction relief on this ground.

RECOMMENDATION

It plainly appears from the face of the motion and the record of prior proceedings that

defendant is not entitled to relief. Accordingly, her motion to correct, vacate, or set aside sentence

should be summarily denied. See Rule 4(b), Rules Governing Section 2255 Cases.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

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grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: January 18, 2006. 

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