
    UNITED STATES of America, Plaintiff—Appellee, v. Fred James LEMAY, III, Defendant—Appellant.
    No. 05-35111.
    D.C. Nos. CV-04-110-DWM, CR-99-116-DWM.
    United States Court of Appeals, Ninth Circuit.
    Submitted Nov. 8, 2005.
    
    Decided Nov. 15, 2005.
    John P. Rhodes, David C. Avery, FDMT — Federal Defenders of Montana, Missoula, MT, for Defendant — Appellant.
    Marcia Good Hurd, USBI — Office of the U.S. Attorney, Billings, MT, for Plaintiff— Appellee.
    Before WALLACE, LEAVY, and BERZON, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Fred LeMay, a federal prisoner, appeals the denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence for aggravated sexual assault of a minor,' in violation of 18 U.S.C. §§ 1153 and 2241(c). He contends that under United States v. Booker, — U.S. -, 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 Sixth Amendment 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.
     