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U.S. v. BROWN

United States District Court, M.D. Pennsylvania


September 14, 2005.

UNITED STATES OF AMERICA
v.
ORUSTU B. BROWN.

The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge

MEMORANDUM AND ORDER

Orustu Brown was sentenced by this court on May 20, 2003. Brown filed a notice of appeal on May 21, 2003. On April 28, 2004, the Third Circuit Court of Appeals issued a mandate affirming the judgment of conviction and sentence. Brown filed a petition for writ of certiorari to the United States Supreme Court which was denied on June 30, 2004. On June 14, 2005, Brown filed a motion pursuant to 28 U.S.C. § 2255 and a brief in support of that motion on August 15, 2005. The Government filed a response on September 2, 2005.

In his petition, Brown objects to the Chapter Four enhancements of the sentencing guidelines as they are in violation of United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). In Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005), the court held that "[b]ecause Booker announced a rule that is `new' and `procedural,' Booker does not apply retroactively to initial motions under § 2255 where the judgment was final as of January 12, 2005, the date Booker issued." Id. At 615-616. Brown's judgment was final as of June 30, 2004. IT IS THEREFORE ORDERED THAT:

1) The motion filed pursuant to 28 U.S.C. § 2255 is DISMISSED.
2) The Clerk of Court shall close the file.
3) This court declines to issue a certificate of appealability.
20050914

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