Free Order - District Court of Connecticut - Connecticut

Case 3:00-cr-00140-EBB

Document 47

Filed 04/28/2005

Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA : v. HYDAR HUSMAN : : NO. 3:00CR140(EBB)

AMENDED RULING ON MOTION TO VACATE AND CORRECT SENTENCE Defendant has moved under 28 U.S.C. Section 2255 to vacate and correct the sentence imposed by this court on March 5, 2002, on the ground that sentence was imposed in violation of the Constitution of the United States, citing Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004). This court deferred ruling on

the motion pending the Supreme Court's decision in United States v. Booker, ___ U.S. , 125 S. Ct. 738 (2005). In Apprendi, the Supreme Court reiterated the rationale of Jones v. United States, 526 U.S. 227 (1999), that "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id., at 476.

Defendant pled guilty to a violation of 21 U.S.C. § 952, 21 U.S.C. § 960b(2)(B) and 18 U.S.C. § 2. The maximum sentence Defendant received

defendant could have received was 40 years.

a sentence of 132 months, after the court departed downward from his guideline range of 168 to 210 months, a sentence well below

Case 3:00-cr-00140-EBB

Document 47

Filed 04/28/2005

Page 2 of 2

the applicable maximum. inapplicable.

Accordingly, Apprendi and Jones are

Booker held that the Sentencing Guidelines violated the Sixth Amendment, that they were advisory rather than mandatory and that the holding was applicable to all cases pending on direct review but made no reference to its applicability collateral attacks on sentences. to

That question was answered by

the Second Circuit Court of Appeals in Miguel Guzman v. United States of America, Doc. No. 3-2446-pr (Apr. 8, 2005), which held that Booker does not apply retroactively to cases on collateral review. The motion [Doc. No. 43] is denied (1) because it is a second or successive motion for which defendant had not obtained certification from the Court of Appeals as required by 28 U.S.C. § 2255 and (2) on the merits pursuant to Guzman, supra.

SO ORDERED.

______________________________ ELLEN BREE BURNS, SENIOR JUDGE UNITED STATES DISTRICT COURT Dated at New Haven, CT, this ___ day of April, 2005.

2