Patrick J. SAHLI, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee, 145 F. App'x 618

MEMORANDUM Patrick J. Sahli appeals pro se the district court’s denial of his 28 U.S.C. § 2255 motion challenging his conviction by guilty plea on multiple counts of mail fraud. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Sahli contends that the district court erred by imposing a sentence based on facts either contested by him or found by a preponderance of the evidence, contrary to United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). This contention is foreclosed by United States v.

Cruz, 423 F.3d 1119, 1119-20 (9th Cir.2005) (holding that “Booker does not apply retroactively to convictions that became final prior to its publication”) and Schardt v. Payne, 414 F.3d 1025, 1036 (9th Cir.2005) (concluding that Blakely does not apply retroactively to cases on § 2254 habeas review). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.