United States Court of Appeals
For the First Circuit
No. 04-1100
UNITED STATES OF AMERICA,
Appellee,
v.
GREGORY FRASER,
Defendant, Appellant.
APPEAL FORM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Selya, Lynch and Howard,
Circuit Judges.
Thomas J. Connolly on brief for appellant.
F. Mark Terison, Senior Litigation Counsel, and Paula D.
Silsby, United States Attorney, on brief of appellee.
ON PETITION FOR REHEARING
May 10, 2005
Per Curiam. This case presents the issue of whether the
issuance of the United States Supreme Court's decision in Booker v.
United States, 125 S. Ct. 738 (2005), itself constitutes a reason
to recall mandate to permit a defendant to present arguments to
this court that his sentence should be vacated and the case
remanded for resentencing. We answer that question in the
negative. We hold that the normal and extremely rigorous standard
for recalling mandate established in Calderon v. Thompson, 523 U.S.
538, 550 (1998), applies to cases seeking to recall mandate under
Booker. As defendant cannot meet that standard, we deny his
motion.
In November 2004 this court affirmed defendant Gregory
Fraser's sentence of 54 months of imprisonment after he pled guilty
to possessing stolen firearms in violation of 18 U.S.C. § 922(j).
In our decision, we rejected Fraser's argument, made in a
supplemental brief, that under Blakely v. Washington, 124 S. Ct.
2531 (2004), he was entitled to have his sentence recalculated
because he had not admitted to (nor had a jury found beyond a
reasonable doubt) two sentencing factors: a prior state-court
continuance without a finding and his possession of 29 guns. See
United States v. Fraser, 388 F.3d 371, 376-77 (1st Cir. 2004) (per
curiam).
Fraser allowed the time for petitioning this court for
rehearing to expire and then belatedly requested additional time to
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file a petition for panel rehearing, which this court allowed.
Nonetheless, he then was late in filing his petition for panel
rehearing or for rehearing en banc, filing it two days beyond the
extended deadline. Fraser also did not move to stay mandate
pending the filing of a petition for a writ of certiorari. Mandate
then issued. Only a timely petition for rehearing stays the
issuance of mandate. Fed. R. App. P. 41(d)(1). While the untimely
petition for rehearing was pending, the time for filing a petition
for a writ of certiorari in the United States Supreme Court also
expired. See S. Ct. R. 13.
Fraser's untimely petition for rehearing from the November
2004 decision is before us. It cannot be granted because mandate
has issued. See Boston & Maine Corp. v. Town of Hampton, 7 F.3d
281, 282 (1st Cir. 1993).
We will treat the untimely petition as a motion to recall
mandate, over which we do have jurisdiction. Id. Nonetheless, the
Supreme Court has instructed that we may exercise that power only
upon a showing of "extraordinary circumstances." Calderon, 523
U.S. at 550.1 "Resort to recall power is an 'extraordinary step,'
and 'should not be used simply as a device for granting late
rehearing.'" Boston & Maine Corp., 7 F.3d at 283 (quoting Johnson
v. Bechtel Assocs. Prof'l Corp., 801 F.2d 412, 416 (D.C. Cir.
1
As in Calderon, this case does not involve recall of
mandate to correct mere clerical errors in the judgment itself,
or any claim of fraud upon the court. Calderon, 523 U.S. at 557.
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1986)). "Recall of a mandate -- other than to correct a clerical
error -- threatens important interests in finality and is a step to
be taken only in the most unusual circumstances." Conley v. United
States, 323 F.3d 7, 14 (1st Cir. 2003) (declining to recall
mandate). No such extraordinary circumstances are present here.2
To recall mandate in these circumstances would not only
undercut finality, but it would threaten the restrictions on relief
under other doctrines. This court has held that petitions under 28
U.S.C. § 2255 are unavailable to advance Booker claims in the
absence of a Supreme Court decision rendering Booker retroactive.
Cirilo-Muñoz v. United States, No. 02-1846, slip op. at 14 (1st
Cir. Apr. , 2005). If mandate could be recalled merely based on
Booker, that result would provide an avenue to escape the
restrictions Congress has imposed on habeas review.
Finally, we have said there is nothing fundamentally unfair in
the use of judge-made findings of fact. United States v.
Antonakopolous, 399 F.3d 68, 75 (1st Cir. 2005).
This case therefore falls far short of the "extraordinary
circumstances" necessary to warrant recall of mandate.
Accordingly, treating Fraser's untimely petition for rehearing as
a motion to recall mandate, that motion is denied.
So ordered.
2
This case does not present the rare circumstance where
mandate had issued but the period of time for petitioning for
certiorari has not lapsed.
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