*1 Case 2:04-cv-02381-TSZ Document 22 Filed 10/12/05 Page 1 of 2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
ERIC RICHARD ETHIER, Petitioner, No. C04-2381Z v. ORDER UNITED STATES OF AMERICA, Respondent.
The Court, having considered Eric Richard Ethier’s Petition to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, docket no. 1, Magistrate Judge Benton’s Report and Recommendation relating thereto, docket no. 21, along with all of the pleadings filed in this matter, does hereby ORDER:
(1) The Court ADOPTS the Report and Recommendation with the following
modifications:
(a) The Ninth Circuit has now decided that “Booker does not apply
retroactively to convictions that became final prior to its publication.” United States v. Cruz, __ F.3d __, 2005 WL 2243113 (9th Cir. Sept. 16, 2005).
(b) The sentence beginning on page 7, line 7, and ending on page 7, line 8, is
hereby modified to state that “Judge Zilly found a total offense level of ORDER -1-
*2 Case 2:04-cv-02381-TSZ Document 22 Filed 10/12/05 Page 2 of 2 twenty-nine (29) points, which was within the range contemplated by the parties.”
(2) Petitioner’s motion to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 motion (Dkt. #1) is DENIED. Petitioner’s motion for bail status and release (Dkt. #6) and his motion for voluntary dismissal (Dkt. #20) are also DENIED.
(3) The Clerk is directed to send a copy of this Order to Petitioner, to counsel for
Respondent, and to Judge Benton.
IT IS SO ORDERED.
DATED this 12th day of October, 2005.
A Thomas S. Zilly
United States District Judge ORDER -2-