                                                                           FILED
                              NOT FOR PUBLICATION                           MAR 03 2010

                                                                        MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                    U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



 DALE A. BUSH,                                    No. 08-35921

                Petitioner - Appellant,           D.C. No. 6:06-cv-00166-ALA

   v.
                                                  MEMORANDUM *
 JEAN HILL, Superintendent of the Snake
 River Correctional Institution,

                Respondent - Appellee.



                     Appeal from the United States District Court
                              for the District of Oregon
                     Ann L. Aiken, Chief District Judge, Presiding

                             Submitted February 16, 2010 **

Before:         FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

SM S/Research
       Dale A. Bush, who is currently serving a two-year term of supervised

release, appeals from the district court’s judgment denying his 28 U.S.C. § 2254

habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

       Bush contends his Sixth Amendment right to a jury trial under Apprendi v.

New Jersey, 530 U.S. 466 (2000), was violated when the trial court found that his

drug convictions arose from separate criminal episodes and used that fact when

calculating his sentences. Bush has not shown that the state court’s rejection of

this claim was either contrary to, or an unreasonable application of, clearly

established federal law, or that it was based on an unreasonable determination of

the facts in light of the evidence presented. See 28 U.S.C. § 2254(d).

       The trial court’s fact finding did not implicate Bush’s Sixth Amendment

rights. See Oregon v. Ice, 129 S. Ct. 711, 717-18 (2009) (holding that Apprendi

and Blakely v. Washington, 542 U.S. 296 (2004) do not apply to findings of fact

necessary for the imposition of consecutive sentences). In addition, even if the

trial court’s recalcuation of Bush’s criminal history score for certain counts

implicated Blakely, that decision does not apply retroactively to Bush’s conviction,

which became final before Blakely was announced. Schardt v. Payne, 414 F.3d

1025, 1038 (9th Cir. 2005).

       AFFIRMED.


SMS/Research                               2                                     08-35921
