[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 8, 2005
No. 04-15611 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos.
04-00107-CV-AAA
03-00026-CR-AAA
RAYMOND GELINAS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(September 8, 2005)
Before ANDERSON, BIRCH and PRYOR, Circuit Judges.
PER CURIAM:
Raymond Gelinas appeals, pro se, the denial of a motion to attack his
sentence, under section 2255 of Title 28 of the United States Code, and alleges that
his sentencing was illegal, under Blakely v. Washington, 542 U.S. ___, 124 S. Ct.
2531 (2004). Gelinas argues that we should apply Blakely retroactively and
invalidate his federal sentence for possession with the intent to distribute
oxycodone. Varela v. United States, 400 F.3d 864 (11th Cir. 2005), controls
squarely the question Gelinas’s certificate of appealability presents. We affirm the
denial of his motion under section 2255.
Gelinas pleaded guilty to two counts of possession with intent to distribute
oxycodone and was sentenced to concurrent sentences of 48 months in prison.
Gelinas did not pursue a direct appeal. A retroactive amendment to the Sentencing
Guidelines later reduced Gelinas’s sentence to 26 months in prison. In August
2004, after the Supreme Court decided Blakely, Gelinas filed his first motion for
collateral review and argued that his sentence was illegal under Blakely.
The district court denied Gelinas’s motion. Afterwards, the Supreme Court
made advisory the federal Sentencing Guidelines in United States v. Booker, 543
U.S. ___, 125 S. Ct. 738 (2005). Gelinas then applied for, and was granted, a
certificate of appealability to answer the following two questions: first, should we
apply Blakely “and/or” Booker retroactively to cases on collateral review; and
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second, if that rule is retroactive, was Gelinas’s sentence enhanced improperly
based on his possession of a firearm, a fact found by the judge? We review the
issues of law de novo. Varela, 400 F.3d at 867 n.3.
A panel of this Court has already answered the first of these questions, and
that answer is dispositive. In Varela, this Court determined that “Schriro v.
Summerlin, 542 U.S. [348], 124 S. Ct. 2519 (2004), is essentially dispositive” of
this issue and, like the new rule announced in Ring v. Arizona, 536 U.S. 584, 122
S. Ct. 2428 (2002), the “prototypical procedural rule” of Booker should not be
applied retroactively to cases on collateral review. 400 F.3d at 867. The denial of
Gelinas’s motion is, therefore,
AFFIRMED.
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