UNITED STATES of America, Plaintiff-Appellee, v. Efrain FUENTES-HERNANDEZ, Defendant-Appellant, 154 F. App'x 583

MEMORANDUM Efrain Fuentes-Hernandez, a federal prisoner, appeals pro se the denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence for conspiracy to possess heroin with intent to distribute. He contends that 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), the district court violated his Sixth Amendment rights in enhancing his sentence based on judge-found facts.

This contention is foreclosed because Booker does not apply retroactively to convictions that became final prior to its publication. See United States v. Cruz, 423 F.3d 1119, 1119-20 (9th Cir.2005) (per curiam). 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.