                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          December 28, 2005
                                   TENTH CIRCUIT
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                        No. 05-7022
                                                        (E.D. Oklahoma)
 RICKY W. BRANTLEY,                                (D.Ct. Nos. 03-CV-00586-S
                                                        & 00-CR-0059-S)
          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Ricky Brantley appeals the district court’s denial of his 28 U.S.C. § 2255

petition claiming the district court violated his Sixth Amendment rights during his


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
sentencing under Blakely v. Washington, 542 U.S. 296 (2004), and United States

v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). Exercising jurisdiction pursuant

to F ED . R. A PP . P. 4(a) and 28 U.S.C. § 1291, we AFFIRM.

      Brantley was indicted for manufacturing marijuana and maintaining a place

for the purpose of distributing marijuana, and on three counts of illegal firearm

possession. On December 12, 2000, he entered a conditional plea of guilty to

possession of a firearm after a former felony conviction in violation of 18 U.S.C.

§ 922(g)(1), but reserved the right to appeal the district court’s denial of his

motion to suppress evidence. On May 25, 2001, the district court sentenced

Brantley to a term of ninety-six months imprisonment. We upheld his conviction

in United States v. Brantley, 33 Fed. Appx. 986 (10 th Cir.), cert. denied, 537 U.S.

1019 (2002).

      On October 24, 2003, Brantley filed a petition pursuant to 28 U.S.C. § 2255

claiming various incidents of ineffective assistance of counsel. He later

supplemented his petition to claim violations of his Sixth Amendment rights

under Blakely. In Blakely, the Supreme Court ruled that a sentence enhancement

based upon judge-found facts can violate a defendant's Sixth Amendment rights.

542 U.S. at 303-04.

      The district court denied Brantley’s claims on December 23, 2004.

Brantley then filed a Notice of Intent to Appeal and a Request for a Certificate of


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Appealability (COA). While that request was pending, the Supreme Court issued

its decision in United States v. Booker. In Booker, the Supreme Court extended

its holding in Blakely to the federal sentencing guidelines, holding that the Sixth

Amendment requires “[a]ny fact (other than a prior conviction) which is necessary

to support a sentence exceeding the maximum authorized by the facts established

by a plea of guilty or a jury verdict [to] be admitted by the defendant or proved to

a jury beyond a reasonable doubt.” 125 S.Ct. at 756. To remedy the

constitutional infirmity of the guidelines, Booker invalidated their mandatory

nature, requiring the district court to consult them as advisory. 1 Id. at 756-57

(severing and excising 18 U.S.C. §§ 3553(b)(1), 3742(e)). On March 1, 2005, in

light of the recent ruling in Booker, the district court granted Brantley’s request

for a COA as to his Blakely/Booker claims but denied a COA as to his ineffective

assistance of counsel claims. Brantley does not challenge the district court’s

order. Accordingly, the only issue on appeal is whether Brantley’s sentence was

imposed in violation of the rules set forth in Blakely and Booker.

      However, neither Blakely nor Booker can help Brantley. Blakely “does not

apply retroactively to convictions that were already final at the time the Court

decided Blakely” on June 24, 2004. United States v. Price, 400 F.3d 844, 849

(10 th Cir.), cert. denied, —S.Ct.—, 2005 WL 3144122 (2005). Booker “does not


      1
          Booker's holdings apply to all cases on direct review. Id. at 769.

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apply retroactively to criminal cases that became final before its effective date of

January 12, 2005.” United States v. Bellamy, 411 F.3d 1182, 1184 (10 th Cir.

2005). “[A] conviction becomes final when the availability of a direct appeal has

been exhausted, and the time for filing a certiorari petition with the Supreme

Court has elapsed, or the Court has denied a timely certiorari petition.” Price,

400 F.3d at 846. Because the Supreme Court denied Brantley’s petition for

certiorari in 2002, his conviction was final prior to both Blakely and Booker.

Thus, these holdings do not apply.

      AFFIRM.

                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




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