IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
August 25, 2006
UNITED STATES OF AMERICA, PLAINTIFF,
ROBERT E. JULIUS, DEFENDANT.
The opinion of the court was delivered by: Reagan, District Judge
MEMORANDUM & ORDER
Before this Court is Defendant Robert E. Julius' motion to review sentence pursuant to 18 U.S.C. § 3742 (Doc. 23). This motion was filed on January 24, 2006 (see Doc. 23). As the Government correctly points out in its response to Julius' motion (Doc. 25), § 3742 does not provide a mechanism, other than the timely filing of a notice of appeal, for a defendant to request a court to review his or her sentence. 18 U.S.C. § 3742.
This Court sentenced Julius on March 15, 2004 (see Doc. 17), and entered judgment on March 16, 2004 (see Doc. 18). Subsequently, Julius failed to file a notice of appeal (or a motion for an extension of time to file such a notice) within the ten-day period provided for in FEDERAL RULE OF APPELLATE PROCEDURE 4(b)(1).
Accordingly, Julius' motion is untimely.
Nonetheless, Julius' motion "invoke[s] grounds mentioned in § 2255," (i.e., that his sentence is unconstitutional.) See 28 U.S.C. § 2255, ¶ 1. Accordingly, pursuant to United States v. Evans, 224 F.3d 670, 673 (7th Cir. 2000), this Court must treat his motion as a collateral attack upon his sentence. This being the case, however, Julius' motion is still untimely -- having been filed over a year after entry of judgment, see 28 U.S.C. § 2255.
In addition, even if his motion were timely, Julius' claim still must fail, as it is based upon United States v. Booker, 543 U.S. 220 (2004). As the Seventh Circuit has made clear, 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). . Accordingly, pursuant to McReynolds, Julius cannot raise claims based on Booker.
For the foregoing reasons, the Court hereby DENIES Julius' motion to review sentence (Doc. 23).
IT IS SO ORDERED.
MICHAEL J. REAGAN United States District Judge
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