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United States District Court, S.D. Illinois

August 9, 2005.


The opinion of the court was delivered by: DONALD G. WILKERSON, Magistrate Judge


This matter has been referred to Magistrate Judge Donald G. Wilkerson by District Judge William D. Stiehl pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and Local Rule 72.1(a) for a Report and Recommendation on the Petition for Writ of Habeas Corpus filed by the petitioner, Gabriel Buitron, on September 20, 2004 (Doc. 1). For the reasons set forth below, it is RECOMMENDED that petition be DENIED and that the Court adopt the following findings of fact and conclusions of law:

On December 5, 1997, the petitioner, Gabriel Buitron, was convicted in Mexico for the strangulation death of a Mexican national. He was sentenced to 330 months and transferred to the United States, pursuant to a treaty, to serve this foreign sentence. Upon arrival in the United States, the United States Parole Commission, in accordance with 18 U.S.C. § 4106A(b)(1)(A), ordered that Buitron serve a sentence of 312 months. This sentence was imposed on May 16, 2003 after Buitron was interviewed by a probation officer and a psychologist, after he participated in two Parole Commission Hearings, and after his case was reviewed by a Parole Commission attorney. Upon direct review of the sentence, the Fifth Circuit Court of Appeals, in an unpublished opinion, affirmed the decision of the Parole Commission and the sentence imposed. Buitron v. United States Parole Commission, 73 Fed. Appx. 759 (5th Cir. 2003). The Fifth Circuit found that the Parole Commission did not abuse its discretion in departing upward from the Sentencing Guidelines. Buitron, 73 Fed. Appx. at 763-754.

  In this petition for a writ of habeas corpus, Buitron asserts the following question requires review:

Whether Petitioner's right to a jury in accord with the Sixth Amendment was violated with the imposition of a term of imprisonment beyond the applicable guideline range without identifying and proving beyond a reasonable doubt any particular facts making Buitron's case extraordinary.
(Petition at p. 1)
Buitron also appears to be asserting that the Parole Commission does not have the authority to impose a sentence and that he did not receive notice of these actions against him. (Pet. at p. 6-7) In his prayer for relief, Buitron seeks to have this Court reduce his sentence to 97 to 121 months, as the parole officer had recommended, or that he be immediately released. (Pet. at p. 8) The respondent argues that Buitron may not challenge his sentence through a petition for a writ of habeas corpus. Furthermore, the respondent argues that Buitron may not assert a Sixth Amendment claim as the Sentencing Commission did not impose a sentence and merely converted a foreign sentence. As such, the respondent argues that this petition is without merit.


  Buitron has filed this petition was a writ of habeas corpus pursuant to 28 U.S.C. § 2241. This section provides that this Court my issue a writ of habeas corpus except that:

(c) The writ of habeas corpus shall not extend to a prisoner unless — (1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or
(4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or
(5) It is necessary to bring him into court to testify or for trial.
28 U.S.C. § 2241(c).
Buitron was sentenced under the authority given to the United States Parole Commission pursuant to 18 U.S.C. § 4106A. This code section provides that the Commission is to determine the release date of an offender transferred to the United Status pursuant to a treaty. Review by a Court of Appeals is permissible in the manner prescribed by 18 U.S.C. § 3742. See 18 U.S.C. § 4106A(2)(B). Section 3742(a) permits review if the sentence is in violation of the law, if it involves a an incorrect application of the sentencing guidelines, or if it is otherwise unreasonable. As an initial matter, Buitron is not challenging the execution of his sentence, i.e. that he was not given certain good conduct credit, for example, but rather the imposition of his sentence. These challenges should have been and could have been brought on direct appeal before the Fifth Circuit Court of Appeals. This Court is without jurisdiction to consider any challenge to the Fifth Circuit's decision and any such claims are subject to res judicata. A challenge also may have been brought as a petition to alter or amend judgment pursuant to 28 U.S.C. § 2255.*fn1 Such a challenge also would be improperly asserted before this Court as Buitron was not sentenced by this Court. Buitron has made no showing that § 2255 is an "inadequate or ineffective" means to pursue his claim. Therefore, as this Court lacks jurisdiction to hear this claim, it must fail. See generally Bishop v. Reno, 210 F.3d 1295 (11th Cir. 2000).

  Even if this Court were to entertain this petition,*fn2 it is clear that he cannot succeed. Buitron's main argument is based on Apprendi v. New Jersey, 530 U.S. 466 (2000) and, presumably, United States v. Booker, 125 S.Ct. 738 (2005). Apprendi held that: "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. In Booker, the Supreme Court explicitly held that this principle rendered the Federal Sentencing Guidelines unconstitutional. 125 S.Ct. at 750. Even if Apprendi and Booker applied to Buitron's sentencing, which it does not as his already imposed sentence was merely being converted, these decisions do not apply retroactively on collateral attack. See Knox v. United States, 400 F.3d 519, 523 (7th Cir. 2005) (Apprendi); Dellinger v. Bowen, 301 F.3d 758, 765 (7th Cir. 2002) (Apprendi); See also United States v. Schlifer, 403 F.3d 849, 853 (7th Cir. 2005) (noting that challenges to sentences based on the guidelines must be reviewed under the dictates of Booker only on cases currently under direct appeal). Buitron's remaining arguments are wholly without merit.

  For the reasons set forth above, it is RECOMMENDED that the Petition for Writ of Habeas Corpus filed by the petitioner, Gabriel Buitron, on September 20, 2004 be DENIED (Doc. 1), that this matter be DISMISSED, and that the Court adopt the foregoing findings of fact and conclusions of law.

  Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 73.1, the parties shall have ten (10) days after service of this Recommendation to file written objections thereto. The failure to file a timely objection may result in the waiver of the right to challenge this Recommendation before either the District Court or the Court of Appeals. Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004); United States v. Hernandez-Rivas, 348 F.3d 595, 598 (7th Cir. 2003).

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