United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 8, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 04-11221
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENESHA GENTRY,
Defendant-Appellant,
Appeal from the United States District Court
for the Northern District of Texas
Before GARWOOD, CLEMENT, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
The question presented in this case is whether United States
v. Booker, 125 S. Ct. 738 (2005), applies retroactively on
collateral review to a federal prisoner’s initial 28 U.S.C. § 2255
motion. Because we determine that Booker does not apply
retroactively on collateral review to an initial 28 U.S.C. § 2255
motion, we affirm the district court’s denial of Gentry’s § 2255
motion.
1
I. Background
On December 9, 2003, a jury convicted Kenesha Gentry, federal
prisoner #30395-177, of (1) possession with the intent to distribute
100 or more grams of heroin, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(b), and 18 U.S.C. § 2; and (2) possession with the intent
to distribute a detectable amount of cocaine, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(c), and 18 U.S.C. § 2. Pursuant to
her conviction, on March 26, 2004, the district court sentenced
Gentry to 97 months of imprisonment on each count, to run
concurrently; a four-year term of supervised release on count one
(heroin), and a concurrent two-year term of supervised release on
count two (cocaine); and a $200 special assessment. Gentry filed
a direct appeal, which was dismissed by this Court on May 17, 2004,
for want of prosecution.
Gentry then filed a motion in the district court under 28
U.S.C. § 2255. Appellant argued that her sentence was
unconstitutionally imposed in view of the Supreme Court’s decision
in Blakely v. Washington, 542 U.S. 296 (2004). Additionally, Gentry
initially requested that the district court hold her § 2255 motion
in abeyance until the Supreme Court decided Booker, the then pending
case in which the Court addressed whether Blakely applied to the
United States Sentencing Guidelines. The district court, however,
summarily denied Gentry’s § 2255 motion because her sentence did not
exceed the statutory maximum, and thus did not violate Apprendi v.
New Jersey, 530 U.S. 466 (2000). The district court also ruled that
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Gentry was not entitled to relief under Blakely based on this
Court’s decision in United States v. Pineiro, 377 F.3d 464 (5th Cir.
2004), vacated, 125 S. Ct. 1003 (2005).
Upon Appellant’s timely filing of a notice of appeal, the
district court determined that a certificate of appealability
(“COA”) should not be issued. This Court granted a COA on the issue
of whether the district court erred in determining that Gentry’s
sentence was not unconstitutionally imposed, and requested
additional briefing addressing the issue of whether Booker is
retroactively applicable on collateral review to Gentry’s § 2255
motion.
II. Discussion
We review conclusions of law underlying the denial of a § 2255
motion de novo and factual findings for clear error. United States
v. Stricklin, 290 F.3d 748, 750 (5th Cir. 2002).
Gentry argues that her sentence was imposed in violation of
Booker because the trial judge increased her sentence based on
findings of fact made by the judge. Booker held that: 1.) “[a]ny
fact (other than a prior conviction) which is necessary to support
a sentence exceeding the maximum authorized by the facts established
by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt,” 125 S.
Ct. at 756; and 2.) the remedy was to make the Guidelines advisory,
id. at 756-57. Additionally, the Booker Court expressly articulated
3
that these holdings were applicable to all cases pending on direct
review. Booker, however, made no indication regarding retroactivity
to collateral cases.
Generally speaking, federal habeas corpus petitioners may not
rely on new rules of criminal procedure decided after their
convictions have become final on direct appeal. Schriro v.
Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 2523 (2004).
Nevertheless, in Teague v. Lane, 489 U.S. 288, 290 (1989), the
Supreme Court set forth a three-prong analysis to determine whether
a new constitutional rule of criminal procedure should be applied
retroactively to cases on collateral review. First, the reviewing
court must determine when the defendant’s conviction became final.
Beard v. Banks, 542 U.S. 406, 124 S. Ct. 2504, 2510 (2004). Next,
the court must decide whether the rule in question is actually new.
Id. Lastly, the court must determine whether the new rule falls
into either of two exceptions to non-retroactivity. First, the non-
retroactivity rule “does not apply to rules forbidding punishment
‘of certain primary conduct [or to] rules prohibiting a certain
category of punishment for a class of defendants because of their
status or offense.’” Id. at 2513 (quoting Penry v. Lynaugh, 492 U.S.
302, 330 (1989)). “The second exception is for watershed rules of
criminal procedure implicating the fundamental fairness and accuracy
of the criminal proceeding.” Id. at 2506. Because the Booker rule
does not fall into either of the two Teague exceptions for non-
retroactivity, we determine that Booker does not apply retroactively
4
on collateral review to a federal prisoner’s initial 28 U.S.C. §
2255 motion.1 Therefore, we affirm the district court’s denial of
Gentry’s § 2255 motion.
A. Booker Established a Procedural Rule.
Because the Teague analysis applies only to rules of procedure,
we must first determine whether the rule established in Booker is
substantive or procedural. Generally, substantive rules “narrow the
scope of a criminal statute by interpreting its terms” or “place
particular conduct or persons covered by [a criminal] statute beyond
the State's power to punish.” Summerlin, 124 S. Ct. at 2522. In
Summerlin, the Supreme Court addressed the question of whether a
substantive rule was established by Ring v. Arizona, 536 U.S. 584
(2002), which held that “a sentencing judge, sitting without a jury,
[may not] find an aggravating circumstance necessary for imposition
of the death penalty.” The Summerlin Court asserted that because
Ring did not “alter the range of conduct...subjected to the death
penalty,” but simply “altered the range of permissible methods for
determining whether a defendant’s conduct is punishable by death,
requiring that a jury rather than a judge find the essential facts
bearing on punishment,” the rule was a “prototypical procedural
1
In United States v. Brown, 305 F.3d 304 (5th Cir. 2002), we
applied the Teague analysis to determine that the new rule
established in Apprendi did not apply retroactively on collateral
review to initial petitions under § 2255. Because we concluded
that Apprendi did not fit into either of the two Teague
exceptions to non-retroactivity, it is no surprise that we
determine the new rule announced in Booker does not fit into
either of the two Teague exceptions to non-retroactivity.
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rule[.]” Summerlin, 124 S. Ct. at 2523.
Similarly, Booker did not alter the range of conduct subject
to any particular sentence. The Booker rule merely reallocates
decision-making authority in a manner that is comparable to the rule
promulgated in Ring. It is concerned with the identity of the
decision-maker and the amount of evidence required for a sentence,
rather than with what primary conduct is unlawful. Therefore, the
Booker rule is procedural in nature.
The remedial portion of Booker is even more probative of the
fact that Booker must be treated as a procedural decision for
purposes of retroactivity. Although 18 U.S.C. § 3553 (b)(1), which
made the Guidelines mandatory, no longer governs, the Court held
that the federal Sentencing Guidelines remain in force as written.
Booker, 125 S. Ct. at 756-57. District judges must continue to
follow their approach as guidelines, with appellate review to
determine whether that task has been carried out reasonably. Id.
No primary conduct has been made lawful, and none of the numerous
factors that affect sentences under the Guidelines have been
declared invalid. Consequently, Booker, like Ring, must be treated
as a procedural decision for purposes of retroactivity analysis.
B. The Booker rule constitutes a “new” rule for the purposes
of retroactivity.
Because it is clear that Gentry’s conviction became final
6
before Booker was decided,2 we now consider whether or not the
Booker holding constitutes a “new” rule for the purposes of
retroactivity.3 See Beard, 124 S. Ct. at 2510. The Supreme Court
has declared that a new rule is a rule that “breaks new ground.”
Teague, 489 U.S. at 301. Thus, “a case announces a new rule if the
result was not dictated by precedent existing at the time the
defendant’s conviction became final.” Id. Therefore, we must
survey the “legal landscape” as of January 2000, and ask whether the
rule announced by Booker was “dictated” by then-existing precedent,
and would have been “apparent to all reasonable jurists.” Beard,
124 S. Ct. at 2511.
There is no doubt that the Booker rule is new. It was not
dictated by precedent existing at the time that Gentry’s conviction
became final. Moreover, the alleged unlawfulness of Appellant’s
conviction would not have been apparent to all reasonable jurists.
2
Booker was decided on January 12, 2005. Gentry’s
conviction became final in August 2004, ninety days after we
dismissed her appeal, or, in other words, the time period for
filing for a writ of certiorari. See Griffith v. Kentucky, 479
U.S. 314 (1987) (explaining that when a defendant does not seek a
writ of certiorari, the judgment of conviction becomes final upon
the expiration of the time allowed for certiorari review); see
also 28 U.S.C. § 2101 (c) (allowing for ninety days, post-
conviction, for certiorari review). August 2004 is almost five
months prior to the issuance of the decision in Booker.
Consequently, Booker would have to be given retroactive effect in
order for it to be applied to Gentry’s case.
3
In In re Elwood, 408 F.3d 211 (5th Cir. 2005), we
implicitly determined that Booker established a “new” rule for
purposes of analyzing whether or not it should be applied
retroactively in successive motions for collateral review.
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First, the Booker court expressly stated that the holding applies
to all cases on direct review. The Court wrote, “‘[A] new rule for
the conduct of criminal prosecutions is to be applied retroactively
to all cases ... pending on direct review or not yet final, with no
exception for cases in which the new rule constitutes a ‘clear
break’ with the past.’” Booker, 125 S. Ct. at 769. The Court would
not have engaged in this discussion if the rule was found in
existing precedent.
Additionally, the fact that the entire federal judiciary had
been so deeply at odds over the issue of whether the rule announced
in Blakely applied to the Guidelines is also probative of the fact
that Booker announced a new rule. Hence, not all reasonable jurists
believed that Booker was compelled by Blakely. Consequently, we
determine that Booker established a new rule.
C. Booker does not fit into either of the two Teague
exceptions to non-retroactivity.
Because Booker does not fit into either of the two Teague
exceptions to non-retroactivity, we hold that Booker does not apply
retroactively on collateral review to an initial 28 U.S.C. § 2255
motion. The first Teague exception to non-retroactivity applies to
new rules “forbidding criminal punishment of certain primary conduct
and rules prohibiting a certain category of punishment for a class
of defendants because of their status or offense.” Beard, 124 S.
Ct. at 2513. This exception deals with a new rule that “places
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certain kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe.” Teague,
489 U.S. at 290. Because neither Booker nor Blakely added or
removed any conduct from the realm of criminal offenses this
exception is clearly inapplicable.
The second Teague exception to non-retroactivity protects
“watershed rules of criminal procedure implicating the fundamental
fairness and accuracy of the criminal proceeding.” Beard, 124 S.
Ct. at 2506. Such a rule “must be one ‘without which the likelihood
of an accurate conviction is seriously diminished.’” Summerlin, 124
S. Ct. at 2523 (quoting Teague, 489 U.S. at 290). This “class of
rules is extremely narrow.” Id. It is important to note that no
such watershed rule has been identified by the Supreme Court since
the standard’s inception. The Court, however, has pointed to Gideon
v. Wainwright, 372 U.S. 335 (1963)(establishing criminal defendants’
right to counsel in trials involving serious crimes), to specify the
type of case that would fit into this exception.
Booker does not meet the second exception’s standard because
it merely changed the degree of flexibility that judges enjoy in
applying the Guidelines. The flaw pinpointed in Booker is that
sentence-enhancing factors were found by judges instead of juries,
and by a preponderance of the evidence, instead of beyond a
reasonable doubt. The Court held in DeStefano v. Woods, 392 U.S.
631, 633-34 (1968), and reemphasized in Summerlin, that the choice
between judges and juries as factfinders does not make such a
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fundamental difference. Summerlin, 124 S. Ct. at 2525. In fact,
the Summerlin Court stated that it is not clear which factfinder is
more accurate. Id. In Summerlin, while considering “whether
judicial factfinding so seriously diminishe[s] accuracy that there
is an impermissibly large risk of punishing conduct the law does not
reach,” the court reasoned that “[i]f...a trial held entirely
without a jury was not impermissibly inaccurate, it is hard to see
how a trial in which a judge finds only aggravating factors could
be.” Id. at 2525-6 (internal citations and quotations omitted).
Hence, there is no basis for concluding that the judicial
factfinding addressed in Booker is either less accurate or creates
a greater risk of punishing conduct the law does not reach than did
the judicial factfinding in Summerlin.
Furthermore, the remedy, making the Guidelines advisory,
affords judges greater discretion, not less. Hence, any argument
that judicial factfinding previously diminished accuracy, cannot
support a contention that Booker falls within Teague’s second
exception because post-Booker, judges enjoy even greater discretion.
In conclusion, we cannot agree with the proposition that Booker
has the same amount of eminence or prominence with regard to
fairness and accuracy as the rule adopted in Gideon or other rules
considered within the exception. Hence, the Booker rule does not
fall within the second Teague exception to non-retroactivity which
protects “watershed rules.”
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III. Conclusion
In In re Elwood, we held that Booker may not apply
retroactively to cases on collateral review for purposes of a
successive § 2255 motion. Elwood, 408 F.3d 211 (5th Cir. 2005).
Now, we join the several courts of appeals that have held that
Booker does not apply retroactively to initial § 2255 motions.4
Because we hold that Booker does not apply retroactively to Gentry’s
motion, Appellant’s motion fails. For the foregoing reasons, we
AFFIRM the judgment of the district court denying Gentry’s 28 U.S.C.
§ 2255 motion to vacate, set aside, or remand her sentence.
4
See, e.g., Lloyd v. United States, 497 F.3d 608, 610 (3d
Cir. 2005)(“All courts of appeals to have considered the issue of
whether the rule of law announced in [Booker] applies
retroactively to prisoners who were in the initial § 2255 motion
stage as of the date that Booker issued have concluded that it
does not. We now join those courts.”); United States v. Bellamy,
411 F.3d 1182, 1188 (6th Cir. 2005) (“Thus, like Blakely, Booker
does not apply retroactively on collateral review, and Bellamy's
claim may not be brought in this initial habeas review under 28
U.S.C. § 2255.”); Guzman v. United States, 404 F.3d 139, 142 (2d
Cir. 2005)(“The several courts of appeals that have considered
the retroactivity question have held that Booker is not
retroactive ... [w]e agree.”) (citations omitted); Varela v.
United States, 400 F.3d 864, 868 (11th Cir. 2005)(per curiam)
(“[W]e conclude that Booker’s constitutional rule falls squarely
under the category of new rules of criminal procedure that do not
apply retroactively to § 2255 cases on collateral review.”);
Humphress v. United States, 398 F.3d 855, 860 (6th Cir.
2005)(“[W]e conclude that Booker's rule does not apply
retroactively in collateral proceedings[.]”); McReynolds v.
United States, 397 F.3d 479, 481 (7th Cir. 2005)(“Booker does not
apply retroactively to criminal cases that became final before
its release on January 12, 2005.”).
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