UNITED STATES of America, Plaintiff-Appellee, v. Robert SHIPP, Defendant-Appellant, 137 F. App'x 904

ORDER On October 5, 2004, Robert Shipp filed, with the district court, a document entitled “Motion for Modification of an Imposed Term of Imprisonment Under 18 U.S.C. § 3582(c)(2).” The district court issued an order properly recharacterizing Shipp’s motion as a collateral attack under 28 U.S.C. § 2255 and denied his motion because it was filed without our permission. In essence, what Shipp wanted was reconsideration of the sentence he received more than a decade ago following his conviction in 1993 on various counts of a superseding indictment charging several narcotics-related offenses.

Shipp’s October 5, 2004, filing was obviously a “second and successive petition” to vacate his sentence under § 2255. Because he cannot rely on the Supreme Court’s decision in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which is not retroactive to cases on collateral review, we cannot authorize him to proceed with a second kick at this long-dead cat. Accordingly, we AFFIRM the district court’s denial of Shipp’s motion.