Carrington v. United States

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CRAIG ANTHONY CARRINGTON, 
Petitioner-Appellant, No. 05-36143
v.  D.C. No.
UNITED STATES OF AMERICA, CV-05-05286-RJB
Respondent-Appellee.


ROBERT CHARLES TILLITZ,  No. 05-36144
Petitioner-Appellant, D.C. Nos.
v.  CV-05-05144-RJB
UNITED STATES OF AMERICA, CR-94-05074-RJB
Respondent-Appellee.
 OPINION

Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding

Argued and Submitted
August 18, 2006—Seattle, Washington

Filed December 13, 2006

Before: Harry Pregerson, John T. Noonan, and
Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Harry Pregerson;
Partial Concurrence and Partial Dissent by Judge Callahan

19379
19382 CARRINGTON v. UNITED STATES

COUNSEL

Russell V. Leonard, Assistant Federal Public Defender,
Tacoma, Washington, for petitioner-appellant Robert Charles
Tillitz.

Carol A. Elewski, Tumwater, Washington, for petitioner-
appellant Craig Anthony Carrington.

Helen J. Brunner, Assistant United States Attorney, Seattle,
Washington, for the respondent-appellee.

OPINION

PREGERSON, Circuit Judge:

The two sentencing cases before us present unusual circum-
stances. In both, the district court expressed its dissatisfaction
with the United States Sentencing Guidelines on the record
during the sentencing hearing, at a time when the Guidelines’
constitutionality was accepted. In addition, post-Booker, the
district court implored us to recall our mandate in these two
cases so that it could sentence Carrington and Tillitz to a just
and proper sentence. We believe that these cases present
extraordinary circumstances and accordingly, we recall our
mandate and remand for re-sentencing.

I. Factual Background

A. Craig Carrington’s Original Sentencing Hearing

On May 14, 1990, Craig Carrington pleaded guilty to con-
spiracy to distribute 500 grams or more of a mixture and sub-
 CARRINGTON v. UNITED STATES 19383
stance containing cocaine under 21 U.S.C. §§ 841(a),
841(b)(1)(B). The district court, Judge Robert Bryan, held a
two-day sentencing hearing on October 22-23, 1990. During
that hearing, Judge Bryan commented:

You know, let me just say something, I guess, for the
record or the benefit of people that are interested.

I hear the plea all the time from defense lawyers . . .
that the guidelines are not fair as applied to an indi-
vidual case and there ought to be a different result.
. . . I’m stuck with bad law and criminal defendants
are stuck with bad law and the rest of society is stuck
with bad law. . . .

I have been sentencing felons for 21 years, and in the
last couple of years I’m faced with these guidelines,
and it’s very frustrating because it has diminished
my responsibility and my authority. But the reason
for these guidelines is to do exactly that. That is, to
diminish the judge’s discretion. I think that I must,
if I am to do my job right, I’ve got to find the facts
as I find them and apply the guidelines, being the
law, to those facts . . . .

Judge Bryan sentenced Carrington to 324 months in prison,
the low end of the applicable Guidelines range. Carrington’s
conviction and sentence were upheld on direct and collateral
appeals.

B. Robert Tillitz’s Original Sentencing Hearing

On April 27, 1998, Robert Tillitz was convicted by a jury
for conspiracy to import hashish, conspiracy to distribute
hashish, importation of hashish, possession of hashish with
intent to distribute, and interstate and foreign travel in aid of
racketeering enterprises. On August 14, 1998, Tillitz
appeared, in pro per, before Judge Bryan for sentencing. Til-
19384 CARRINGTON v. UNITED STATES
litz argued, inter alia, that the Sentencing Guidelines were
unconstitutional. In response, Judge Bryan commented:

It might interest you to know, Mr. Tillitz, that I ruled
in this court a long time ago that it was my opinion
that these guidelines were contrary to the United
States Constitution. That issue has been laid to rest
contrary to my view by the United States Supreme
Court. So these guidelines, in spite of your view on
the legality of them and my view on it, they are part
of the law of the land that bind me and I must follow
that.

When Tillitz asked Judge Bryan for the name of the case in
which he had discussed the constitutionality of the Guide-
lines, Judge Bryan answered: “It’s past history now and it’s
of no assistance to us.”

Judge Bryan then sentenced Tillitz to a 360-month term of
imprisonment, the low end of the applicable Guidelines range.
Tillitz’s conviction and sentence were upheld on direct and
collateral appeals.

C. Hearing on Writ of Audita Querela

On March 2, 2005, Tillitz filed a writ of audita querela “for
relief from an unconstitutional sentence” based on United
States v. Booker, 543 U.S. 220 (2005). On April 15, 2005,
Carrington filed a motion for modification of his sentence
under 18 U.S.C. § 3582(c)(2). Judge Bryan appointed counsel
for both Tillitz and Carrington.

On September 13, 2005, Judge Bryan noted substantial
similarities between the cases of Carrington and Tillitz and
entered a minute order joining the two cases. Carrington and
Tillitz argued that the district court should grant a writ of
audita querela because their sentences are unconstitutional.
 CARRINGTON v. UNITED STATES 19385
Carrington also argued that his sentence should be modified
under 18 U.S.C. § 3582(c)(2).

Judge Bryan denied relief on the grounds raised by the par-
ties. Sua sponte, Judge Bryan asked this court to recall our
mandate based on the existence of extraordinary circum-
stances, as we had done in United States v. Crawford, 422
F.3d 1145 (9th Cir. 2005), and to give him an opportunity to
re-sentence these two defendants. See Tillitz v. United States,
No. C05-5144RJB, 2005 WL 2921957, at *12-13 (W.D.
Wash. Nov. 3, 2005). Judge Bryan then transferred these
cases to this court for us to determine whether the petitioners
were entitled to relief, including recall of the mandate. See id.
at *13.

II. Analysis

A. Grounds Raised by Petitioners

[1] The district court properly concluded that the grounds
for relief raised by Carrington and Tillitz in their initial
motions are foreclosed by our case law. A writ of audita querela1
is not an available remedy where the claims raised would be
cognizable in a § 2255 habeas petition. See United States v.
Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir. 2001). Rather,
common law writs such as audita querela and coram nobis
survive “only to the extent that they fill ‘gaps’ in the current
systems of postconviction relief.” Id. at 1079.

[2] These petitioners argue that there is a gap in post-
conviction relief. They contend that the numerical limits on
filing habeas petitions preclude them from raising a claim
1
Audita querela, literally “the complaint having been heard,” is a com-
mon law writ used to attack a judgment that was correct when rendered,
but that later became incorrect because of circumstances that arose after
the judgment was issued. See Doe v. INS, 120 F.3d 200, 203 n.4 (9th Cir.
1997).
19386 CARRINGTON v. UNITED STATES
based on Booker through a § 2255 habeas petition. See 28
U.S.C. §§ 2255, 2244(b)(3). We have previously held, how-
ever, that the statutory limits on second or successive habeas
petitions do not create a “gap” in the post-conviction land-
scape that can be filled with the common law writs. See
Valdez-Pacheco, 237 F.3d at 1080. Moreover, even if peti-
tioners had been granted permission to file a second or suc-
cessive habeas petition under 28 U.S.C. § 2244(b)(3), we
have held that Booker does not apply to cases on collateral
appeal. See United States v. Cruz, 423 F.3d 1119, 1121 (9th
Cir. 2005) (per curiam). Therefore, petitioners are not entitled
to relief on collateral review, however it is labeled.

[3] Similarly, the district court properly found that it could
not modify petitioners’ sentences under 18 U.S.C.
§ 3582(c)(2). Section 3582(c)(2) allows the district court to
modify a sentence where the applicable sentencing range has
been lowered by the Sentencing Commission subsequent to
the imposition of the sentence. Booker did not lower sentenc-
ing ranges, nor was Booker an action “by the Sentencing
Commission”; therefore § 3582(c)(2), by its own terms, does
not apply here. See United States v. Moreno, 421 F.3d 1217,
1220-21 (11th Cir. 2005). To accept the Petitioners’ construc-
tion of § 3582(c)(2) would be to stretch that provision beyond
what its language can bear.

[4] Accordingly, the district court is correct that the only
relief available to these petitioners would be for this court to
recall our mandate. We now turn to that question.

B. Recall of the Mandate

[5] A mandate should be recalled only “in extraordinary
circumstances.” Calderon v. Thompson, 523 U.S. 538, 550
(1998). Our authority to recall the mandate should be exer-
cised only “for good cause or to prevent injustice.” Zipfel v.
Halliburton Co., 861 F.2d 565, 567 (9th Cir. 1988) (internal
citations and quotation marks omitted).
 CARRINGTON v. UNITED STATES 19387
[6] We have held that the Supreme Court’s decision in
Booker was not, by itself, sufficient to justify recall of the
mandate in cases finalized before Booker was filed. See
United States v. King, 419 F.3d 1035, 1036 (9th Cir. 2005).
But Booker was an extraordinarily important decision that
may, when combined with other extraordinary circumstances,
justify recall of the mandate. In United States v. Crawford,
422 F.3d 1145 (9th Cir. 2005), we recalled the mandate in a
pre-Booker sentence to allow the district court to re-sentence
under Booker. We based our decision on the existence of two
extraordinary circumstances: (a) that the sentencing judge had
expressed reservations at the time of sentencing about the sen-
tence required under the mandatory Guidelines; and (b) that
the Supreme Court’s decision in Blakely, which “foreshad-
owed” its holding in Booker, was rendered before our man-
date issued in Crawford. See id. at 1145-46.

[7] Here, the first basis for our decision in Crawford is
present. In both Carrington and Tillitz’s original sentencing
hearing, Judge Bryan expressed his frustration with the lack
of discretion afforded to district court judges by the Guide-
lines. The second basis is not present, purely by the “accident
of timing” as Judge Bryan noted. In Crawford, however, we
emphasized that this combination of circumstances was not
the only one that would justify recalling our mandate. See id.
at 1146 n.2. Instead, we noted that “future panels will neces-
sarily evaluate the existence of ‘extraordinary circumstances’
warranting the recall of a mandate based on the facts of their
individual cases.” Id.

[8] Here, there is an additional circumstance not present in
Crawford that compels our attention—Judge Bryan’s impas-
sioned plea to this court.

In his November 3, 2005 order, Judge Bryan said:

A Sentencing Guidelines scheme was adopted by
Congress and implemented by the United States Sen-
19388 CARRINGTON v. UNITED STATES
tencing Commission on November 1, 1987. Many
judges, including the undersigned, believed that the
Sentencing Guidelines were contrary to the require-
ments of the U.S. Constitution. Nevertheless, the
Supreme Court, in its wisdom, found that the guide-
lines passed constitutional muster.

Many defendants, including Mr. Tillitz and Mr.
Carrington, were sentenced under the mandatory
guidelines scheme, and many, including Mr. Tillitz
and Mr. Carrington, are still incarcerated under man-
datory guideline sentences. . . .

During the period of the guidelines’ mandatory
life—1987 to 2005—judges, like the undersigned,
did their best to apply the law, assuming the consti-
tutionality of the guidelines, and often sentencing
defendants to sentences that were inappropriate
under any law or theory of sentencing except the
guidelines. District judges, in other words, tried to
follow the law, even if it appeared to lead to injus-
tice.

Now, under Booker, it is clear that the guidelines
sentencing scheme was unconstitutional all along. It
follows that defendants, still incarcerated under an
unconstitutional sentencing scheme, would seek
resentencing, even knowing that, on resentencing,
longer sentences might be imposed. Yet, because of
retroactivity rules, defendants serving unconstitu-
tional sentences are offered no relief, no remedy, and
no justice.

Trial judges, more than anything, want to do the
right thing. We understand our obligation to follow
the law, but deeply—and even desperately—hope
that the law will lead to justice. If we are part of an
 CARRINGTON v. UNITED STATES 19389
injustice, we want to set it right, even if it involves
a great deal of extra work. To quote Gerry Spence:

[S]ometimes a judge doesn’t know how to
get justice. . . . [T]he judge has to just sit up
there and watch justice fail right in front of
him, right in his own courtroom, and he
doesn’t know what to do about it, and it
makes him feel sad. . . . Sometimes he even
gets angry about it.

Gerry H. Spence, Of Murder and Madness: A True Story, 490
(1983).

This judge, sad and a little angry, would welcome
an opportunity to resentence these defendants to a
constitutional and legal sentence.

Tillitz, 2005 WL 2921957, at *12-13 (internal citations omit-
ted).

[9] We believe these two circumstances, particularly in tan-
dem, are quite extraordinary. First, that Judge Bryan would
make a statement about the constitutionality of the Guidelines
at the sentencing hearing, at a time that the Guidelines were
firmly entrenched, is unusual. In Carrington’s sentencing
hearing particularly, Judge Bryan presaged the fault the
Supreme Court found in the Guidelines in Booker: that the
Guidelines unconstitutionally “diminish[ed] the judge’s dis-
cretion” to sentence defendants to an appropriate sentence,
and required him to “find the facts . . . and apply the
[G]uidelines, being the law, to those facts.”

[10] Second, Judge Bryan implores this court to recall our
mandate. Booker restored the role of the district court as the
person uniquely suited to consider all the circumstances sur-
rounding a criminal defendant and to fashion a sentence most
just and appropriate for that individual. For the same reason,
19390 CARRINGTON v. UNITED STATES
we put great stock in the fact that Judge Bryan tells us that
Carrington and Tillitz are particularly worthy of re-
sentencing. These two cases have weighed on Judge Bryan’s
conscience eight years and sixteen years, respectively, after
the original sentences were imposed. They compelled him to
the point that he would sua sponte request that this court
recall its mandates and that he would voluntarily assume the
additional responsibility involved in re-sentencing these
defendants. We believe that the number of cases in which a
district court will feel so strongly about the need to re-
sentence is small, making these cases truly extraordinary.

[11] Our interest in the finality of judgment is not so strong
that we would not allow a district court judge the opportunity
to remedy what the judge considers to be an “injustice” and
to re-sentence a defendant to a sentence that is just and
proper. See Gondeck v. Pan Am. World Airways, Inc., 382
U.S. 25, 26-27 (1965). In the two cases before us, we con-
clude that extraordinary circumstances exist to warrant recall
of the mandates.

MANDATES RECALLED, SENTENCES VACATED,
AND CASES REMANDED.

CALLAHAN, Circuit Judge concurring and dissenting:

The majority, after affirming the denial of appellants’ cre-
ative requests for relief by way of a writ of audita querela and
pursuant to 18 U.S.C. § 3582(c)(2) (modification of sentence),1
misuses our equitable powers to recall the mandates in cases
that became final over fifteen years ago and six years ago,
1
I concur in the majority’s conclusions that defendants “are not entitled
to relief on collateral review, however it is labeled,” (maj. op. 19386) and
that their sentences are not subject to modification under 18 U.S.C.
§ 3582(c)(2).
 CARRINGTON v. UNITED STATES 19391
respectively. I dissent because the majority misreads the fac-
tual record, departs from controlling precedent and the posi-
tions taken by our sister circuits, and proposes a premise on
which any defendant sentenced under the pre-Booker guide-
lines may seek to be re-sentenced.

I

Initially, it should be observed that there is nothing in the
record of either of these cases to suggest any individual equi-
ties. As noted by the majority, at the initial sentencing hear-
ings, Judge Bryan expressed his frustration with the lack of
discretion afforded to district judges by the mandatory sen-
tencing guidelines. (maj. op. 19387) But there is nothing to
suggest that these appellants were different from any other
persons sentenced under the guidelines. In fact, at oral argu-
ment, government counsel noted that when one of the appel-
lants initially sought a downward departure, the district court
denied the request. Indeed, the majority’s lengthy quote of
Judge Bryan’s comments when he denied appellants relief in
2005 makes clear that Judge Bryan’s objections were to man-
datory guidelines as such and does not suggest that appellants
were in any way exceptional.2 The critical point is not that
mandatory guidelines did not produce overly long sentences,
but that there is nothing in the record to distinguish appellants
from all the other defendants sentenced under the mandatory
sentencing guidelines by Judge Bryan.

II

There is no doubt that the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005), “marked a
major transformation in the law of federal criminal sentenc-
ing.” United States v. Mohamed, 459 F.3d 979, 984 (9th Cir.
2
Just before the section cited to by the majority, Judge Bryan stated that
the “sentences may have been appropriate at the time they were imposed,
or they may not have been.”
19392 CARRINGTON v. UNITED STATES
2006). Furthermore, we have held that Booker does not oper-
ate retroactively, and “does not apply to cases on collateral
review where the conviction was final as of the date of
Booker’s publication.” United States v. Cruz, 423 F.3d 1119,
1121 (9th Cir. 2005). Both convictions at issue here were final
years before the Supreme Court decided Booker. Thus, we
should affirm the district court’s denial of relief because
appellants are not entitled to relief under a writ of audita
querela, not entitled to relief under 18 U.S.C. § 3582(c)(2),
and not entitled to any relief under Booker.

III

Although the majority basically determines that appellants
are not entitled to relief on the grounds they raised, it attempts
to avoid the consequences of its determination by finding that
these appeals present “extraordinary circumstances” which
justify a recall of the mandates. The majority recognizes that
it needs to circumvent this court’s opinion which holds that
Booker by itself does not justify a recall of the mandate. See
United States v. King, 419 F.3d 1035, 1036 (9th Cir. 2005).
In attempting to allow appellants to be resentenced, the major-
ity improperly expands the definition of “extraordinary cir-
cumstances” to a point at which it could be invoked by almost
every person sentenced under the mandatory sentencing
guidelines. This is contrary to the Supreme Court reiteration
that recalls of mandate are limited to truly exceptional cir-
cumstances, Calderon v. Thompson, 523 U.S. 538, 549-50
(1998), and contradicts our holdings in Cruz and King that
Booker is not retroactive.

A.

In Calderon, the Supreme Court held that we committed a
grave abuse of discretion in recalling our mandate. Calderon,
523 U.S. at 542. Although the Supreme Court’s concerns
were partially based on the fact that the case was a state capi-
tal case, see id. at 553-59, it first set forth the standard for an
 CARRINGTON v. UNITED STATES 19393
appellate court recalling its mandate. The Court accepted that
we have an inherent power to recall our mandate, but noted:

In light of “the profound interests in repose” attach-
ing to the mandate of a court of appeals, however,
the power can be exercised only in extraordinary cir-
cumstances. 16 C. Wright, A. Miller, & E. Cooper,
Federal Practice and Procedure § 3938, p. 712 (2d
ed.1996). The sparing use of the power demonstrates
it is one of last resort, to be held in reserve against
grave, unforeseen contingencies.

Id. at 550.3

B.

What then are the “extraordinary circumstances” that jus-
tify recalling the mandates in this case? They cannot arise out
3
In his dissent, Justice Souter agreed with the majority’s description of
the restricted availability of recalling a mandate. He commented:
To be sure, there lurks in the background the faint specters of
overuse and misuse of the recall power. All would agree that the
power to recall a mandate must be reserved for “exceptional cir-
cumstances,” 120 F.3d, at 1048; 16 C. Wright, A. Miller, & E.
Cooper, Federal Practice and Procedure § 3938, pp. 716-717, n.
14 (1996) (citing cases from the various Courts of Appeals recog-
nizing that the power must be used sparingly), in the interests of
stable adjudication and judicial administrative efficiency, on
which growing caseloads place a growing premium. All would
agree, too, that the sua sponte recall of mandates could not be
condoned as a mechanism to frustrate the limitations on second
and successive habeas petitions, see, e.g., 28 U.S.C. § 2244(b). If
there were reason to suppose that the sua sponte recall would be
overused or abused in either respect, we might well see its use as
unreasonable in a given case simply to deter resort to it in too
many cases.
Calderon, 523 U.S. at 569-70 (footnote omitted). The majority’s recall
appears to be the type of “mechanism [used] to frustrate the limitations on
second and successive habeas petitions” disapproved by Justice Souter.
19394 CARRINGTON v. UNITED STATES
of the Supreme Court’s decision in Booker, because we have
held that Booker does not create the “extraordinary circum-
stances” necessary to justify recalling a mandate. King, 419
F.3d at 1036.

The majority, however, cites United States v. Crawford,
422 F.3d 1145 (9th Cir. 2005), as holding that Booker “when
combined with other extraordinary circumstances, justif[ies]
recall of the mandate.” (maj. op. 19387) My quarrel is not
with this reading of Crawford. Rather, I object to the majori-
ty’s expansion of the unique “extraordinary circumstances”
present in Crawford into a justification that can be invoked by
any person who was sentenced under the mandatory sentenc-
ing guidelines.

In Crawford, we found “extraordinary circumstances” to
recall the mandate because (1) “the sentencing judge had
expressed explicit reservations on the record about the sen-
tence required under the previously mandatory Sentencing
Guidelines,” and (2) “the Supreme Court’s decision in Blakely
v. Washington, [542 U.S. 296 (2004)] . . . foreshadowing its
holding in . . . Booker . . . was rendered before the mandate
issued.” Crawford, 422 F.3d at 1145-46. The court further
stated:

[i]n stressing that our decision here rests on both the
sentencing judge’s expressed misgivings about the
sentence required by the mandatory Guidelines as
well as the relative timing of the Supreme Court’s
Blakely decision and the termination of our appellate
jurisdiction, we do not suggest that these same ele-
ments must always be present in order for a mandate
to be recalled.

Id. at 1146 n.2.

In addition, it is critical to recognize that in Crawford, the
panel that had just decided Crawford’s direct appeal, recalled
 CARRINGTON v. UNITED STATES 19395
its own mandate. In fact, the motion to recall the mandate was
made less than a month after the panel issued its memoran-
dum disposition4 and within weeks of the issuance of the
court’s mandate. Thus, although the mandate had issued,
Crawford’s direct challenge to his conviction and sentence
had not been finally decided because the time for filing a peti-
tion for a writ of certiorari had not expired.5 See SUP. CT. R.
13 (allowing 90 days from a circuit court’s decision for the
filing of a petition for certiorari). In contrast here, appellants’
convictions and sentences were affirmed years ago by differ-
ent panels. Moreover, the proposal that we recall our man-
dates is not raised in the appellants’ direct appeals, but in
appeals from the district court’s denial of their successive col-
lateral attacks on their sentences.

Our precedents, including Crawford, do not permit the
recall of the mandates in the cases at bar because (1) although
the district judge expressed his displeasure with mandatory
sentencing guidelines, as previously noted, there are no other
exceptional circumstances, and (2) the appellants had no
direct appeal or collateral proceedings pending when Booker
was decided.

The majority, however, excuses the lack of any extraordi-
nary circumstances by commenting that the fact that appel-
lants did not have any proceedings pending when Booker was
decided was an “accident of timing.” (maj. op. 19387) This
will not do. First, appellants’ direct appeals were exhausted
years ago and their 2005 filings that led to these appeals came
4
United States v. Crawford, 102 Fed. Appx. 91 (9th Cir. 2004).
5
The particular facts in Crawford suggest that it may be viewed as only
a minimal extension of our policy allowing for limited remands on direct
appeals to consider Booker claims. See United States v. Ameline, 409 F.3d
1073, 1074 (9th Cir. 2005), and United States v. Cantrell, 433 F.3d 1269,
1278 (9th Cir. 2006). Moreover, as the time for filing a petition for certio-
rari had not run, Crawford can be reconciled with our holding in Cruz that
Booker “does not apply retroactively to convictions that became final prior
to its publication.” Cruz, 423 F.3d at 1119.
19396 CARRINGTON v. UNITED STATES
after they had unsuccessfully pursued a number of collateral
challenges to their convictions and sentences.6 Second, as
noted by the district court, the appellants’ predicament was
not just an “accident of timing” because the appellants could
have argued, as did Booker, that the mandatory guidelines
were unconstitutional.7 Third, and related to the first two
points, the majority’s dismissal of timing eviscerates the dis-
tinctions courts have always made between direct appeals,
collateral challenges, and successive collateral challenges.8 It
is not just an “accident of timing” that a defendant does not
raise an issue on appeal or that a favorable change in the law
comes only years after a defendant’s conviction becomes
final.

The unreasonableness of the majority’s approach is also
evident in its failure to identify what mandates it is recalling.
The majority is not recalling the mandate in these appeals
6
The district court noted that after we denied Carrington relief on his
direct appeal he filed a motion pursuant to 28 U.S.C. § 2255 in 1996, a
second motion pursuant to § 2255 in 1999, and a petition for a writ of
coram nobis in 2004, all of which were denied. The district court noted
that following his unsuccessful appeal, Tillitz filed a motion pursuant to
§ 2255 in 2001, a petition for a writ of mandamus in 2003, and another
motion pursuant to § 2255 in 2004, all of which were denied.
7
In its November 5, 2005, order the district court noted:
Although Booker was decided after Mr. Tillitz and Mr. Carring-
ton’s convictions became final, either of these petitioners could
have raised, at sentencing and on direct appeal, the issues that
underlie Booker: the sentence enhancements determined by a
judge rather than by a jury beyond a reasonable doubt; and the
mandatory application of the Sentencing Guidelines. Mr. Tillitz
and Mr. Carrington did not specifically raise these issues at sen-
tencing and on direct appeal.
8
For example, if the existence or non-existence of pending challenges
could be dismissed as an “accident of timing,” the court would not have
to wrestle with issues such as whether a Sixth Amendment challenge
based on a judge-made finding of a prior conviction had been preserved.
See United States v. Beng-Salazar, 452 F.3d 1088, 1092-95 (9th Cir.
2006).
 CARRINGTON v. UNITED STATES 19397
because no mandate has issued. Furthermore, as the majority
agrees that the district court properly denied appellants any
relief on their 2005 filings, staying the mandate in these
appeals would not provide the appellants any relief. Mr. Til-
litz was last before this court in February 2005, when we
denied him authorization to file a successive § 2255 motion.
Mr. Carrington was last before this court in December 2004,
when we denied him a certificate of appealability. It appears
that sometime after August 1996, this court affirmed the dis-
trict court’s denial of Mr. Carrington’s first motion for relief
under 28 U.S.C. § 2255, and that in February 2003, this court
dismissed Mr. Tillitz’s appeal from the district court’s denial
of his first § 2255 motion. It is doubtful that recalling the
mandates in any of these matters would provide appellants
any relief. Thus, the majority probably intends to recall the
mandates in Mr. Carrington’s direct appeal which most likely
issued in 1991 or 1992, and in Mr. Tillitz’s direct appeal that
issued in 2001. And the majority’s reason for such truly
extraordinary relief? Simply that the Supreme Court decided
Booker in 2005, because, according to the majority, defen-
dants’ failure to have any pending proceedings at that time
was just an “accident of timing.” I believe that our decisions
in Cruz, 423 F.3d at 1121, and King, 419 F.3d at 1036, pre-
clude a three-judge panel of this court from adopting the
majority’s logic.

C.

Moreover, I agree with the Sixth Circuit’s persuasive
explanation in United States v. Saikaly, 424 F.3d 514 (6th Cir.
2005), that Booker does not support the recall of mandates.
That court reasoned:

Although this court has granted motions to recall the
mandate in cases which were not yet final at the time
the motion was filed, other courts of appeals which
have addressed similar motions based upon Booker
(or the earlier decisions in Apprendi and Blakely)
19398 CARRINGTON v. UNITED STATES
have found no extraordinary circumstances warrant-
ing the recall of a mandate issued in a prior (and
final) direct appeal. These decisions hold that the
proper remedy to attack a sentence in a final criminal
proceeding lies under § 2255, and the fact that such
remedy is no longer available does not warrant a
recall of the mandate. See, e.g., United States v. Fra-
ser, 407 F.3d 9, 10-11 (1st Cir. 2005) (per curiam
denial of petition for rehearing) (“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.”); United
States v. Ford, 383 F.3d 567, 568 (7th Cir. 2004)
(per curiam), cert. denied, ___ U.S. ___, 125 S.Ct.
927, 160 L.Ed.2d 813 (2005) (motion, based upon
the decision in Blakely, to recall mandate issued
three years earlier cannot be used to avoid the suc-
cessive petition restrictions of § 2255); Bottone v.
United States, 350 F.3d 59, 64 (2d Cir. 2003), cert.
denied, ___ U.S. ___, 125 S.Ct. 98, 160 L.Ed.2d 130
(2004) (“[R]ecalling the mandate more than six
years after its issuance ‘just to apply the benefit of
hindsight,’ would constitute an abuse of discretion.”
(quoting Gray-Bey v. United States, 209 F.3d 986,
988 (7th Cir. 2000) (per curiam))); United States v.
Falls, 129 Fed.Appx. 420, 420-21 (10th Cir. 2005)
(unpublished order) (“The proper means for chal-
lenging confinement pursuant to an allegedly uncon-
stitutional sentence is not a motion to recall the
mandate, but a habeas corpus proceeding under 28
U.S.C. § 2255.”).

These decisions deny any avenue of relief under
Booker to defendants whose direct appeals were
final at the time that decision was rendered.
Although the defendant may argue that there is an
element of unfairness in this result, it is the same ele-
ment found in any Supreme Court decision which
 CARRINGTON v. UNITED STATES 19399
announces a new rule applicable to criminal defen-
dants with pending prosecutions or appeals, but
which is not made retroactive to defendants whose
cases are final. Compare Allen v. Hardy, 478 U.S.
255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (per
curiam) (holding the decision in Batson v. Kentucky,
476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)
not to be applied retroactively to cases on collateral
review) with Griffith v. Kentucky, 479 U.S. 314, 107
S.Ct. 708, 93 L.Ed.2d 649 (1987) (holding Batson to
be applied retroactively to cases on direct appeal or
not yet final when the Batson case was decided).

Id. at 517-18 (footnotes omitted).

It follows that the majority’s purported finding of “extraor-
dinary circumstances” should be seen for what it is, an effort
to repudiate or circumvent our holdings that Booker is not
retroactive. Cruz, 423 F.3d at 1121; King, 419 F.3d at 1036.
Indeed, the only additional factor mentioned by the majority
is that the district judge was outspokenly critical of mandatory
sentencing guidelines. But the retroactive application of
Booker cannot turn on the degree to which the sentencing
judge grimaced when sentencing under the mandatory sen-
tencing guidelines.9 Either Booker is retroactive or it is not.
This is a matter of law. It would be unfair to countless defen-
dants and to numerous trial judges to have a defendant’s right
to possible relief from a new Supreme Court decision turn on
the extent to which the trial judge grumbled while enforcing
the law.

Accordingly, stripped of its facade of a finding of “extraor-
dinary circumstances” the majority’s recall of the mandates in
9
Would there be sufficient “extraordinary circumstances” under the
majority’s approach if the trial judge failed to voice his or her objections
at the particular defendant’s sentencing, but objected to mandatory sen-
tencing guidelines when sentencing other defendants?
19400 CARRINGTON v. UNITED STATES
effect applies Booker retroactively to grant relief to defen-
dants whose convictions were final years before Booker was
decided. I dissent because the majority’s approach cannot be
squared with our opinions in Cruz and King, is inconsistent
with the position taken by our sister circuits, and abuses our
inherent authority to recall the mandate as a last resort to cor-
rect “grave, unforeseen contingencies.” Calderon, 523 U.S. at
550.