United States v. Canada

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
December 22, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-50251
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELVIN DEAN CANADA, JR., also known as Tootie,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A:06-CV-7
USDC No. 1-02-CR-189
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Melvin Dean Canada was convicted pursuant to a plea
agreement of possession with intent to distribute more than 5
grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). He
filed a 28 U.S.C. § 2255 motion to vacate his sentence, which was
denied by the district court as time-barred. The district court
granted a certificate of appealability (COA) as to Canada’s
claims that: (1) he should be permitted to argue the
retroactivity of United States v. Booker, 543 U.S. 220 (2005) to

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No. 06-50251
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cases on collateral review to the United States Supreme Court,
notwithstanding this court’s decision United States v. Gentry,
432 F.3d 600 (5th Cir. 2005), and (2) he should be permitted to
argue the retroactivity of Crawford v. Washington, 541 U.S. 36
(2004) to cases on collateral review in this court.
However, this court has held that Booker is not
retroactively applicable to cases on collateral review. Gentry,
432 F.3d at 605-06. Additionally, Crawford was decided on March
8, 2004. 541 U.S. at 36. Because Canada's § 2255 motion was not
filed until January 4, 2006, his claims regarding the
applicability of Crawford are time-barred. Moreover, this court
recently held that Crawford does not apply retroactively to cases
on collateral review. Lave v. Dretke, 444 F.3d 333, 336 (5th
Cir. 2006), petition for cert. filed (June 13, 2006) (No. 05-
11552). Thus, the district court did not err in concluding that
Canada’s § 2255 motion was time barred.
Canada requests a COA regarding his claim that, because his
sentence was unlawfully enhanced under Booker and Crawford, his
plea agreement, and specifically his appeal waiver, are invalid.
This court will not generally address any issue not certified by
the district court unless explicitly requested to do so. See
United States v. Kimler, 150 F.3d 429 (5th Cir. 1998); Lackey v.
Johnson, 116 F.3d 149 (5th Cir. 1997). Here, Canada explicitly
requests a COA on this issue. However, Canada has not made a
substantial showing of the denial of a constitutional right, and

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No. 06-50251
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therefore his arguments on this issue are unavailing. See Slack
v. McDaniel, 529 U.S. 473, 484 (2000).
Accordingly, Canada’s motion for COA is DENIED and the
district court’s judgment is AFFIRMED.

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