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Banda previously filed a motion for appointment of counsel on February 4, 2005. The

court construed this pleading as a § 2255 and ordered Banda to either withdraw his motion or file

an amended § 2255 motion. See Order filed on Feb. 14, 2005. In compliance with the order

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JAIME BANDA, BOP No 31229-177, §

Defendant-Movant, §

§

v. § No. 3:03-CR-0355-M

§(No. 3:05-CV-0318-M)

UNITED STATES OF AMERICA, §

Plaintiff-Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court in

implementation thereof, the subject cause has previously been referred to the United States

Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as

evidenced by his signature thereto, are as follows:

FINDINGS AND CONCLUSIONS:

Type Case: This is a motion to set aside, vacate or correct sentence filed pursuant to 28

U.S.C. § 2255.

Parties: Jamie Banda ("Banda" or “Movant”) is a federal prisoner currently confined at FCI

Beaumont in Beaumont, Texas. Respondent is the United States of America.

Statement of the Case: Banda pled guilty to conspiracy to possess with intent to distribute

a controlled substance on December 5, 2003. On March 10, 2004, he was sentenced to 97 months

in the penitentiary, 4 years of supervised release, and a special assessment in the amount of $100.

Movant did not appeal.

Banda filed the present motion on March 10, 2005.1

 The United States filed a response on

 

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Banda thereafter filed his § 2255 motion on the standard form for § 2255 motions. See Spotville

v. Cain, 149 F.3d 374, 378 (5th Cir.1998)(per curiam).

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April 4, 2005.

Findings and Conclusions: In his first ground for relief, Movant contends that he was

entitled to a four level reduction under USSG § 3B1.2 because he was a minimal participant in

the crime. In his second ground for relief, he contends that he is entitled to a two level

downward departure under USSG § 5C1.2 because he was a non-violent first time offender. In

his third ground for relief, he asserts that he is entitled to a downward departure under USSG §

3E1.1(B)(2) for acceptance of responsibility. In his fourth ground for relief, he alleges error

under United States v. Booker, __ U.S. __, 125 S.Ct. 738 (2005). Banda waived the right to

bring all claims under § 2255, except those claims relating to ineffective assistance of counsel, in

his plea agreement. (See Plea Agreement, ¶ 11, cited in the Government’s Resp. at page 3). His

waiver was knowingly and understandably entered and is enforceable. See, e.g., United States v. 

White, 307 F.3d 336, 339 (5th Cir. 2002). Therefore he is prohibited from seeking relief

pursuant to § 2255 on the grounds asserted.

In the alternative, he is not entitled to relief on the grounds asserted. Banda is barred

from raising his first three claims on collateral review. See United States v. Williamson, 183

F.3d 458, 462 (5th Cir. 1999)(“Misapplications of the Sentencing Guidelines ... are not

cognizable in § 2255 motions.”). Additionally, his allegations are wholly conclusory and thus

fail to present a cognizable claim. See, e.g., Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.

2000). 

In his fourth ground for relief, Banda claims that the District Court erred in sentencing

 

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Although the Fifth Circuit has not yet expressly addressed a Booker claim in the context

of an initial § 2255 motion, but see In re Elwood, 408 F.3d 211 (5th Cir. 2005), in which the

Fifth Circuit refused to grant leave to a habeas petitioner to file a successive § 2255 motion

predicated on the Booker decision, in accordance with the Supreme Court’s statement in Booker,

each court of appeal which has addressed this issue has refused to consider a Booker claim

asserted in a collateral attack (28 U.S.C. §§ 2254 and 55). E.g,, United States v. Bellamy, 411

F.3d 1182 (10th Cir. 2005); Lloyd v. United States, 407 F.3d 608 (3rd Cir. 2005); Cirilo-Muñoz

v. United States, 404 F.3d 527 (1st Cir. 2005); Humphress v. United States, 398 F.3d 855 (6th

Cir. 2005); McReynolds v. United States, 397 F.3d 479 (7th Cir.),cert denied __ U.S. __, 125

S.Ct. 2559 (2005); Green v. United States, 397 F.3d 101 (2nd Cir. 2005); In re Anderson, 396

F.3d 1336 (11th Cir. 2005); see also Rosales v. United States, 2005 WL 840122 (N.D. Tex.

Apr.11, 2005); Arvizo-Pena v. Medellin, 2005 WL 734996 (N.D. Tex. Mar. 31, 2005); United

States v. Jordan, 2005 WL 598449 (N.D. Tex. Mar. 10, 2005).

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him based on factors not included in his indictment and not stipulated by judicial confession. 

Although the Supreme Court’s decision in United States v. Booker, __ U.S. __, 125 S.Ct. 738

(2005), held that the United States Sentencing Guidelines were advisory rather than to be

mandatorily applied, the Court made clear that the holdings in Booker applied only to cases on

direct review. Id. at 769. Therefore, Banda cannot seek relief in § 2255 proceedings based on

the Booker decision.2

 

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RECOMMENDATION:

Movant has failed to show that he is entitled to relief pursuant to 28 U.S.C. § 2255. It is

therefore recommended that the motion be denied and dismissed. 

A copy of this recommendation shall be transmitted to Movant and to counsel for

Respondent. 

SIGNED this 15th day of August, 2005.

________________________

 Wm. F. Sanderson Jr.

United States Magistrate Judge

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten (10) days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir.

1996)(en banc), a party’s failure to file written objections to these proposed findings of fact and

conclusions of law within such ten (10) day period may bar a de novo determination by the

district judge of any finding of fact and conclusion of law and shall bar such party, except upon

grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court. 

 

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