
    UNITED STATES of America, Plaintiff—Appellee, v. David Monroe BAUMANN, Defendant—Appellant.
    No. 05-15634.
    D.C. Nos. CV-04-02680-JW, CR-00-20297-JW.
    United States Court of Appeals, Ninth Circuit.
    Submitted Dec. 5, 2005.
    
    Decided Dec. 12, 2005.
    David Monroe Baumann, Adelanto, CA, pro se.
    Marcia Jensen, AUSA, USSJ — Office of the U.S. Attorney, San Jose, CA, for Defendant-Appellant.
    Before GOODWIN, W. FLETCHER, and FISHER, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Federal prisoner David Baumann appeals pro se the denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence for second degree murder. He contends that under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the district court violated his constitutional rights in enhancing his sentence based on judge-found facts. This contention is foreclosed because Booker does not apply retroactively to convictions that became final prior to its publication. See United States v. Cruz, 423 F.3d 1119, 1119-20 (9th Cir.2005) (per curiam).

AFFIRMED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
     