UNITED STATES of America, Plaintiff-Appellee, v. Dana Eugene WALKER, Defendant-Appellant, 146 F. App'x 192

MEMORANDUM Federal prisoner Dana Eugene Walker appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate or correct his sentence for possession of marijuana with intent to distribute. Under 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), Walker contends that the district court erred in enhancing his sentence based on judge-found facts. Walker’s conviction was final as of the dates the Booker and Blakely decisions were issued.

Walker’s claim is foreclosed because, as we recently held, “Booker does not apply retroactively to convictions that became final prior to its publication.” United States v. Cruz, 423 F.3d 1119, 1120 (9th Cir.2005). See also, Schardt v. Payne, 414 F.3d 1025, 1036 (9th Cir.2005) (holding in a 28 U.S.C. § 2254 habeas action that Blakely does not apply retroactively to cases on collateral review). Consequently, we affirm the district court. 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.