A pro se motion is deemed filed at the time it is delivered to prison officials. Spotville v. Cain, 149 F.3d 374, 1

376 (5th Cir.1998); see also United States v. Patterson, 211 F.3d 927, 930 (5 Cir. 2000). th

HAB55\R&R\MOORE.DNY-BOOKER:3

2:05-CV-0047

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

UNITED STATES OF AMERICA §

§

v. § 2:03-CR-0047 (18)

§

TODD ALEXANDER MOORE §

REPORT AND RECOMMENDATION

TO DENY MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE 

On February 8, 2005, defendant TODD ALEXANDER MOORE filed with this Court a 1

Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in

Federal Custody, wherein he challenges a 72-month sentence assessed on or about October 1,

2003 after his conviction, pursuant to a guilty plea, for the offense of possession with intent to

distribute methamphetamine. For the reasons set forth below, defendant is not entitled to relief

and this motion should be denied. 

I.

MERITS

Defendant challenges his sentence based upon the recent United States Supreme Court

decision in United States v. Booker, ____ U.S. ____, 125 S.Ct. 738, 160 L.Ed.2d 621, 73

U.S.L.W. 4056 (January 12, 2005). In Booker, the Supreme Court extended the rule announced

in the prior decisions of Apprendi v. New Jersey; 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435

 

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(2000), and Blakely v. Washington, ____ U.S. ____, 124 S.Ct. 2531, 159 L.Ed.2d 403, 72

U.S.L.W. 4546 (June 24, 2004), to the federal Sentencing Guidelines. The rule, essentially held

that, 

[P]ursuant to the Sixth Amendment, any fact, other than the fact of a prior

conviction, “which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.” 125 S.

Ct. at 756. A different majority of the Court then excised certain statutory

provisions that made the Guidelines mandatory, thereby rendering the Guidelines

advisory only. Id. at 756-57. 

In re Elwood, No. 05-30269 at 2, April 28, 2005 (5 Cir. 2005) citing Booker. Defendant th

Elwood, just as MOORE in the instant case, alleged that, pursuant to Booker, the district court’s

application of the Guidelines in determining his sentence violated his Sixth Amendment rights. 

The Fifth Circuit has held, however, that the United States Supreme Court did not make Booker

retroactive to cases on collateral review. In re Elwood, No. 05-30269 at 3.

Therefore, under the law of this circuit, defendant’s claim that his sentence, assessed

under the federal Sentencing Guidelines, is unconstitutional based upon Booker and, thus, should

be vacated, is foreclosed. Such a claim is not cognizable in a section 2255 action. 

II.

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United

States District Judge that the motion to vacate, correct or set aside sentence filed by defendant

TODD ALEXANDER MOORE be DENIED.

 

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III.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file marked copy of this Report and

Recommendation to defendant by certified mail, return receipt requested, and to each attorney of

record by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 29th day of April 2005.

/s/ Clinton E. Averitte 

 CLINTON E. AVERITTE 

UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In

the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing

objections is eleven (11) days from the date of filing as indicated by the file mark on the first

page of this recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the

parties are allowed a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any

objections must be filed on or before the fourteenth (14 ) day after this recommendation is th

filed. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as

authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern

District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the

Report and Recommendation.” Objecting parties shall file the written objections with the United

States District Clerk and serve a copy of such objections on all other parties. A party’s failure to

timely file written objections to the proposed findings, conclusions, and recommendation

contained in this report shall bar an aggrieved party, except upon grounds of plain error, from

attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and

recommendation set forth by the Magistrate Judge in this report and accepted by the district

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996);

Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988). 

 

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