Burley v. United States 04-CV-395-SM 04/05/05 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Todd M. Burley, Petitioner,

v. Civil No. 04-cv-395-SM Opinion No.

United States of America, Respondent

O R D E R

Petitioner pled guilty to count one of an indictment

charging him with conspiracy to possess with the intent to

distribute five kilograms or more of cocaine, in violation of

. He was sentenced on November 14, 2003, to, inter

alia, 120 months in prison. Petitioner now seeks relief from his

sentence under the provisions of

, claiming that

he is entitled to be resentenced in light of the Supreme Court's

recent opinion construing the United States Sentencing Guidelines

to be advisory only. United States v. Booker,

(2005) .

But, the new rule announced in United States v. Booker,

(2005), is procedural rather than substantive in nature. Moreover, the rule does not qualify as a "watershed

rule" that implicates "the fundamental fairness and accuracy of

the criminal proceedings." Saffle v. Parks,

(1990). Accordingly, it does not apply retroactively to final

convictions such as petitioner's. See McReynolds v. United

States,

(7th Cir. 2005); Schriro v. Summerlin,

(2004); Sepulveda v. United States

(1st Cir. 2003). Even if it did, it is unlikely that

petitioner's sentence under a discretionary system would have

been less, he obtained a substantial downward departure under

U.S.S.G. § 5K1.1.

The petition is denied.

SO ORDERED.

Steven J. McAuliffe Chief Judge

April 5, 2005

cc: Todd Burley, pro se Mark A. Irish, Esq.

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