Samuel Ilori v. United States of America

* After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 27, 2006*
Decided October 2, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-4138
SAMUEL ILORI,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division
No. 04-CV-4700
Elaine E. Bucklo,
Judge.
O R D E R
Samuel Ilori pleaded guilty to possessing at least 100 grams of heroin with
the intent to distribute. See 21 U.S.C. § 841(a)(1), (b)(1)(B)(i). At his sentencing
hearing in January 2003, the government presented evidence that Ilori had sold
1,363 grams of heroin and recommended that he be sentenced accordingly. Using
the larger drug amount, the district court calculated a total offense level of 34 and
sentenced Ilori to 151 months’ imprisonment, the lowest end of the guidelines range
given his Category I criminal history. Ilori filed two notices of appeal, but
voluntarily dismissed both appeals before briefing.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-4138 Page 2
In July 2004, more than a year after his conviction became final, Ilori moved
to vacate his sentence under 28 U.S.C. § 2255. He argued, relying on Blakely v.
Washington, 542 U.S. 296 (2004), that he was sentenced in violation of his Sixth
Amendment right to trial by jury. The district court denied his motion in November
2004, explaining that even if the Supreme Court was to later hold, as it did in
United States v. Booker, 543 U.S. 220 (2005), that Blakely applied to guidelines
sentences, neither Blakely nor Booker would apply retroactively to his case.
Nevertheless, the district court granted Ilori’s request for a certificate of
appealability.
As we have explained, the Supreme Court did not make Blakely applicable to
guidelines sentences prior to its decision in Booker, and Booker “does not apply
retroactively to criminal cases that became final before its release on January 12,
2005.” McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005). Thus, under
this circuit’s precedent, the district court properly denied Ilori’s § 2255 motion. We
acknowledge, however, that the Supreme Court has granted certiorari in Burton v.
Waddington, 2005 WL 1793351 (9th Cir. 2005), cert. granted, 74 U.S.L.W. 3676
(U.S. June 5, 2006) (No. 05-9222), to consider whether Blakely announced a new
rule and, if so, whether that rule should apply retroactively. But even if the
Supreme Court answers that question affirmatively, Ilori still would not be entitled
to the relief he seeks because he failed to raise a Sixth Amendment claim on direct
appeal, and he has not shown cause for this procedural default or actual prejudice
resulting from the alleged error, nor has he suggested that he is actually innocent.
See Bousley v. United States, 523 U.S. 614, 622 (1998); United States v. Smith, 241
F.3d 546, 548 (7th Cir. 2001).
AFFIRMED.

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