United States v. Rodney Allen Brown

*
The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-4140
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Southern
v. * District of Iowa.
*
Kenny Clyde Homer Bevard, II, * [UNPUBLISHED]
*
Appellant. *
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Submitted: September 13, 2005
Filed: September 20, 2005
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Before RILEY, FAGG, and GRUENDER, Circuit Judges.
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PER CURIAM.
Kenny Clyde Homer Bevard, II pleaded guilty to being a felon in possession
of a firearm. After Bevard’s conviction became final, the Supreme Court decided
Blakely v. Washington, 124 S. Ct. 2531 (2004). Bevard later filed a 28 U.S.C. § 2255
motion to vacate, set aside, or correct his sentence, asserting his sentence violates
Blakely. The district court * denied Bevard’s motion holding Blakely does not apply
on collateral review. Bevard appeals asserting Blakely and United States v. Booker,
125 S. Ct. 738 (2005), should apply retroactively for three reasons. First, Bevard

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contends Blakely and Booker did not create new procedural rules because their
holdings were dictated by existing precedent. Second, Bevard argues that even if
Blakely and Booker created a new procedural rule, it is a watershed rule implicating
the fundamental fairness and accuracy of criminal proceedings. Third, Bevard argues
Blakely and Booker created a substantive change in the law by changing the
punishment available for the crime. Bevard’s arguments are foreclosed by our recent
decision in Never Misses a Shot v. United States, 413 F.3d 781 (8 th Cir. 2005). Like
all other circuits that have considered the issue, we held “the ‘new rule’ announced
in Booker does not apply to criminal convictions that became final before the rule
was announced, and thus does not benefit movants in collateral proceedings.” Id. at
___.
We thus affirm the district court’s denial of Bevard’s motion.
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