July 5, 2005
DECISION AND ORDER
Petitioner, Buenaventura Espin ("Espin"), was sentenced on January 24, 2003, to a 120 months imprisonment pursuant to a written plea agreement. Espin filed a petition, pro se, on May 13, 2005, requesting that the Court reconsider his sentence in light of United States v. Booker, 125 S.Ct. 738 (2005). The Government moved to dismiss the petition.
Essentially for the reasons set forth in the Government's motion, the petition, which I treat as a petition pursuant to 28 U.S.C. § 2255, must be dismissed. First of all, petitioner relies principally on the Booker Supreme Court case. However, the Second Circuit has recently ruled that Booker does not apply retroactively to those convictions that have become final. See Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005); Green v. United States, 397 F.3d 101, 103 (2d Cir. 2005).
Second, in the plea agreement, Espin waived his right to appeal or collaterally attack the sentence. This petition constitutes a collateral attack and is barred by the plea agreement. Such a bar to appeal or collateral attack has been recognized and enforced by the courts. See Frederick v. Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002), cert. denied, 537 U.S. 1146 (2003).
Petitioner's request for a consideration in light of United States v. Booker, 125 S.Ct. 738 (2005) (Dkt. #104), is denied and the petition is dismissed.
IT IS SO ORDERED.