USA v. Dwayne Parker

1The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3696
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United States of America, *
*
Appellee, * Appeal From the United States
* District Court for the
v. * District of North Dakota.
*
Arnaldo Losoya Mancias, * [UNPUBLISHED]
*
Appellant. *
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Submitted: November 14, 2005
Filed: November 17, 2005
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Before SMITH, HEANEY, and BENTON, Circuit Judges.
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PER CURIAM.
Arnaldo Losoya Mancias appeals the district court’s1 denial of his motion to
vacate his criminal sentence pursuant to 28 U.S.C. § 2255. He argues that he was
sentenced in violation of United States v. Booker, 125 S. Ct. 738 (2005), and Blakely
v. Washington, 542 U.S. 296 (2004), when the district court applied a career-offender
enhancement based on his prior felony conviction for escape. Because our circuit has
conclusively held that a defendant may not collaterally attack his sentence on the
basis of Booker, we affirm.

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2Since Never Misses A Shot, the Ninth Circuit has also held that Booker does
not apply retroactively. United States v. Cruz, 423 F.3d 1119 (9th Cir. 2005).
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On December 17, 2002, Mancias pled guilty to the offense of possession of
marijuana with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The
district court treated him as a career offender pursuant to United States Sentencing
Guidelines section 4B1.1(a), finding that Mancias’s two prior felony convictions
qualified as crimes of violence. Mancias appealed, raising four issues related to his
conviction, but did not appeal his sentence. This court affirmed. See United States
v. Mancias, 350 F.3d 800 (8th Cir. 2003). On August 2, 2004, Mancias filed a motion
to vacate his sentence pursuant to 28 U.S.C. § 2255, based on Blakely. The district
court denied the motion initially and upon reconsideration. This appeal followed.
In this appeal, Mancias seeks to collaterally raise a Booker claim by way of a
§ 2255 motion. Recently, in Never Misses A Shot v. United States, 413 F.3d 781 (8th
Cir. 2005) (per curiam), our court considered whether such relief was available. New
procedural rules of criminal procedure, such as the one announced in Booker, only
apply retroactively when they are “watershed rules of criminal procedure.” Teague
v. Lane, 489 U.S. 288, 311 (1989). The court in Never Misses A Shot, siding with
“all circuit courts considering the issue to date,” held that Booker “does not apply to
criminal convictions that became final before the rule was announced, and thus does
not benefit movants in collateral proceedings.” Never Misses A Shot, 413 F.3d at
783-84 (noting that at the time of the opinion, the Second, Third, Sixth, Seventh,
Tenth, and Eleventh Circuits had reached similar results). 2
Never Misses A Shot squarely forecloses Mancias’s § 2255 claim. His
conviction became final on February 26, 2004, well before Blakely and Booker were
issued, rendering his current claim a request that we apply Blakely and Booker
retroactively to grant relief. To do so, we would be required to explicitly overrule

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Never Misses A Shot, which our panel is not at liberty to do. Thus, we affirm the
district court.
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