Lloyd v. United States ( 2005 )


Menu:
  •                                                                                                                            Opinions of the United
    2005 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    5-17-2005
    Lloyd v. USA
    Precedential or Non-Precedential: Precedential
    Docket No. 04-3549
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
    Recommended Citation
    "Lloyd v. USA" (2005). 2005 Decisions. Paper 1092.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1092
    This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
    University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
    University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 04-3549
    GARRY D. LLOYD,
    Appellant
    v.
    UNITED STATES OF AMERICA
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF NEW JERSEY
    D.C. Civil No. 04-cv-03687
    District Judge: The Honorable Joseph E. Irenas
    Submitted Under Third Circuit LAR 34.1(a)
    April 7, 2005
    Before: BARRY, AMBRO, and GREENBERG, Circuit Judges
    (Opinion Filed: May 17, 2005)
    Richard Coughlin, Esq.
    Anne E. Blanchard, Esq.
    Office of the Federal Public Defender
    800-840 Cooper Street, Suite 350
    Camden, New Jersey 08102
    Counsel for Appellant
    1
    George S. Leone, Esq.
    Office of the United States Attorney
    970 Broad Street, Room 700
    Newark, New Jersey 07102
    Counsel for Appellee
    OPINION OF THE COURT
    BARRY, Circuit Judge
    All courts of appeals to have considered the issue of
    whether the rule of law announced in United States v. Booker,
    543 U.S. __, 
    125 S. Ct. 738
     (2005), 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.
    I. BACKGROUND
    Appellant Garry D. Lloyd was charged with bank fraud,
    in violation of 
    18 U.S.C. §§ 1344
     and 2, and was convicted by a
    jury. When determining Lloyd’s sentence, the District Court
    found facts, under a preponderance of the evidence standard, that
    had not been found by the jury, including (1) that Lloyd had
    engaged in more than minimal planning; (2) that Lloyd had
    caused a financial loss of more than $120,000 but less than
    $200,000; and (3) that Lloyd had committed an obstruction of
    justice. Application of the Federal Sentencing Guideline
    enhancements called for by these fact-findings resulted in a total
    offense level of 17 and, given Lloyd’s criminal history category
    of V, a Guideline imprisonment range of forty-six to fifty-seven
    months. The District Court sentenced Lloyd, as relevant here, to
    fifty months imprisonment, followed by five years of supervised
    release. We affirmed the judgment. See United States v. Lloyd,
    No. 02-2394, 
    58 Fed. Appx. 928
     (3d Cir. 2003). Lloyd did not
    2
    seek a writ of certiorari, and his conviction became final on May
    6, 2003.
    On June 24, 2004, the Supreme Court issued its opinion
    in Blakely v. Washington, 542 U.S. __, 
    124 S.Ct. 2531
     (2004).
    The Court held that Washington State’s determinate sentencing
    scheme, a scheme similar to the Federal Sentencing Guidelines,
    violated the Sixth Amendment right to a jury trial. 
    Id. at 2538
    .
    Blakely’s reasoning was that judges were imposing sentences
    that were not based solely on facts reflected in the verdict of the
    jury or admitted by the defendant, and were using a
    preponderance of the evidence standard to find the facts
    necessary to that imposition. 
    Id. at 2536-39
    .
    On August 3, 2004, Lloyd filed a motion to vacate his
    sentence pursuant to 
    28 U.S.C. § 2255
    . He argued that the facts
    supporting the enhancements he received were not found by a
    jury beyond a reasonable doubt and, thus, that the sentence
    imposed was in violation of Blakely. Moreover, he argued,
    although his motion was filed more than a year after his
    conviction became final, and therefore would otherwise be
    barred by the one-year limitation period of § 2255, Blakely
    created a new right. As such, Lloyd reasoned that the one-year
    period should run from the date of the Blakely decision, thereby
    rendering his motion timely. See 
    28 U.S.C. § 2255
     para. 6(3).
    The District Court disagreed, and dismissed the § 2255
    motion. Blakely, the Court explained, did not rule that the
    Federal Sentencing Guidelines were unconstitutional, but even if
    it had done so, there had been no determination, as is required
    under § 2255 para. 6(3), that Blakely applies retroactively to
    cases on collateral review. Booker, of course, had yet to be
    decided.
    Lloyd now appeals, post-Booker, to this Court. The
    District Court had jurisdiction pursuant to 
    28 U.S.C. § 2255
    . We
    have jurisdiction pursuant to 
    28 U.S.C. §§ 1291
     and 2253(a).
    3
    II. DISCUSSION
    The Antiterrorism and Effective Death Penalty Act of
    1996 (“AEDPA”) provides that a one-year period of limitation
    applies to a motion to vacate, set aside, or correct a sentence
    under 
    28 U.S.C. § 2255
    . See 
    28 U.S.C. § 2244
    (d)(1). Section
    2255 states, in relevant part, that the limitation period shall run
    from the latest of: “(1) the date on which the judgment of
    conviction becomes final . . . [or] (3) the date on which the right
    asserted was initially recognized by the Supreme Court, if that
    right has been newly recognized by the Supreme Court and made
    retroactively applicable to cases on collateral review.” 
    28 U.S.C. § 2255
     para. 6. Because Lloyd concededly filed his motion more
    than a year after his conviction became final, his motion would
    only have been timely filed if the Supreme Court announced a
    newly recognized right or a “new rule” that has been made
    “retroactively applicable to cases on collateral review.” See 
    id.
    Lloyd initially argued to us that his sentence was imposed
    in violation of Blakely. That argument is now, of course,
    governed by the intervening decision, issued on January 12,
    2005, in Booker, which concluded that the holding in Blakely
    applies to the Federal Sentencing Guidelines. 543 U.S. at __,
    125 S.Ct. at 756.1 We hardly break new ground when we note
    that Booker was decided by two opinions. The first, authored by
    Justice Stevens, held that because the Federal Sentencing
    Guidelines allowed judges to find facts (other than the fact of a
    prior conviction) that lead to a greater sentence than that
    1
    We note in passing that some courts, when considering the
    issues now before us, refer to the “Blakely rule” and others refer to
    the “Booker rule.” We believe it is appropriate to refer to the
    “Booker rule.” It is the date on which Booker issued, rather than
    the date on which Blakely issued, that is the “appropriate dividing
    line.” McReynolds v. United States, 
    397 F.3d 479
    , 481 (7th Cir.
    2005). Blakely, as the Court of Appeals for the Seventh Circuit
    pointed out, reserved decision about the status of the Federal
    Sentencing Guidelines, and Booker established a new rule for the
    federal system. See 
    id.
    4
    authorized by the facts established by a plea of guilty or a jury
    verdict, the Guidelines were unconstitutional. The second,
    authored by Justice Breyer, devised the remedy of excising the
    statutory provision that made the Guidelines mandatory.
    Generally, a new rule of criminal procedure “will not be
    applicable to those cases which have become final before the
    new [rule is] announced.” Teague v. Lane, 
    489 U.S. 288
    , 310
    (1989). This bar applies equally to a federal habeas corpus
    petitioner who wishes to collaterally attack his conviction, unless
    an exception applies. Accordingly, in order for Lloyd to benefit
    from Booker, it must be determined that the rule announced
    therein applies retroactively.
    Under Teague, the determination of whether a rule of
    criminal procedure applies retroactively to a case on collateral
    review requires a three-step inquiry. In terms of this case, then,
    we must first determine if Lloyd’s conviction became final prior
    to the Supreme Court’s decision in Booker. See Beard v. Banks,
    542 U.S. __, 
    124 S. Ct. 2504
    , 2510 (2004). Second, we must
    determine whether the rule announced in Booker qualifies as
    “new.” 2 See 
    id.
     Third, if those two conditions are satisfied, we
    must examine whether the new procedural rule qualifies under
    one of Teague’s two narrow exceptions to the non-retroactive
    application of such rules. See 
    id.
     As relevant here, a new rule of
    criminal procedure will apply retroactively if it is deemed a
    “watershed [rule] of criminal procedure implicating the
    fundamental fairness and accuracy of the criminal proceeding.”
    
    Id. at 2513
     (internal quotation and citation omitted).
    2
    Teague differentiates between new substantive rules and
    new procedural rules. See Teague, 
    489 U.S. at 311
    . The Supreme
    Court has unequivocally stated that the Apprendi line of cases, of
    which Booker is surely one, announced a new rule of criminal
    procedure. Schriro v. Summerlin, 542 U.S.      , 
    124 S.Ct. 2519
    ,
    2523-24 (2004).
    5
    A.
    It bears repeating, and the parties do not dispute, that
    Lloyd’s conviction became final on May 6, 2003. See Kapral v.
    United States, 
    166 F.3d 565
    , 572 (3d Cir. 1999) (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).
    This date is thirteen months prior to the issuance of the decision
    in Blakely, and twenty months prior to the issuance of the
    decision in Booker. Clearly, then, both Blakely and
    Booker would have to be given retroactive effect in order for
    them to be applied to Lloyd’s case.
    B.
    Neither do the parties dispute that the Booker rule
    constituted a new rule of criminal procedure for purposes of
    Teague. We agree, and believe it appropriate to briefly explain
    our reasoning.
    To determine if the rule announced in Booker was “new,”
    we are required to review the “legal landscape” at the time
    Lloyd’s conviction became final to see if the rule “was dictated
    by the then existing precedent–whether, that is, the unlawfulness
    of respondent’s [sentence] was apparent to all reasonable
    jurists.” Beard, 542 U.S. at     , 124 S.Ct. at 2511 (internal
    quotation and citation omitted) (emphasis in original). If it was
    not “dictated” by past precedent, then Booker created a new rule.
    Prior to Blakely and Booker, Apprendi established that, at
    sentencing, a judge could enhance a sentence based on facts not
    admitted by the defendant or found by the jury, so long as the
    enhancement did not increase the defendant's sentence beyond
    the prescribed statutory maximum. Apprendi v. New Jersey, 530
    
    6 U.S. 466
    , 490 (2000).3 Blakely simply applied Apprendi to a
    different statutory scheme, clarifying “that ‘the statutory
    maximum’ for Apprendi purposes is the maximum sentence a
    judge may impose solely on the basis of the facts reflected in the
    jury verdict or admitted by the defendant.” Blakely, 542 U.S. at
    __, 124 S.Ct. at 2537 (internal citation omitted) (emphasis in
    original).4 The Booker Court, of course, subsequently applied
    Blakely’s holding to the Federal Sentencing Guidelines.
    Every court of appeals to have considered the issue has
    concluded that, whether denominated as the “Blakely rule” or the
    “Booker rule,” that rule was “new.” For example, the Court of
    Appeals for the Tenth Circuit reasoned that while Blakely
    interpreted Apprendi, it was not compelled by Apprendi. See
    United States v. Price, 
    400 F.3d 844
    , 848-49 (10th Cir. 2005).
    That is, post-Apprendi but pre-Blakely, a court would not have
    believed itself compelled to conclude that what became the
    “Blakely rule” was constitutionally required. Blakely changed
    courts’ understanding of Apprendi’s statutory maximum and
    announced a new rule.
    The Court of Appeals for the Sixth Circuit also
    concluded that what it called the “Booker rule” was “clearly
    new.” See Humphress v. United States, 
    398 F.3d 855
    , 861 (6th
    3
    The courts of appeals have unanimously held that while
    Apprendi set forth a new rule of criminal procedure, that rule is not
    retroactively applicable to cases on collateral review where the
    judgments had already become final when Apprendi was decided.
    We so held in United States v. Swinton, 
    333 F.3d 481
     (3d Cir.
    2003).
    4
    Justice Stevens, in Booker, explained the holding in
    Blakely: “The [judge’s] determination that the defendant acted with
    deliberate cruelty, like the determination in Apprendi that the
    defendant acted with racial malice, increased the sentence that the
    defendant could have otherwise received. Since this fact was
    found by a judge using a preponderance of the evidence standard,
    the sentence violated Blakely’s Sixth Amendment rights.” 543
    U.S. __, __, 
    125 S.Ct. 738
    , 749 (2005).
    7
    Cir. 2005). That rule, the Court found, “was not dictated by
    precedent” when Humphress’s conviction became final, and “it
    would not have been apparent to ‘all reasonable jurists’ that his
    conviction was unlawful.” 
    Id.
     Moreover, the Court continued,
    prior to Booker, the federal judiciary had been deeply divided as
    to whether Blakely applied to the Federal Sentencing Guidelines,
    and conflicting opinions issued as to whether Blakely rendered
    those Guidelines unconstitutional. 
    Id. at 861-62
    . Differences
    among reasonable jurists, subsequently resolved by a Supreme
    Court ruling, suggest that the rule resolving those differences
    was “new.” Id.; see also Beard, 542 U.S. at __, 124 S.Ct. at
    2512-13 (noting that when four justices dissent, this may be
    sufficient to show that a new rule was announced).
    Most recently, the Court of Appeals for the Second
    Circuit has weighed in, concluding that the result in Booker “was
    not dictated by Apprendi or, for that matter, the Court’s later
    decision in Blakely. . . .” Guzman v. United States, 
    404 F.3d 139
    , 142 (2d Cir. 2005). It “cannot be said that the result in
    Booker was apparent to ‘all reasonable jurists.’” 
    Id.
     Booker, the
    Court concluded, announced a new rule. 
    Id.
    C.
    And so we turn to whether Booker’s new rule of criminal
    procedure qualifies under the second exception to Teague’s non-
    retroactivity bar.5 Teague’s prohibition against the retroactive
    application of new rules of criminal procedure does not apply to
    “watershed rules of criminal procedure implicating the
    fundamental fairness and accuracy of the criminal proceeding.”
    Beard, 542 U.S. at , 124 U.S. at 2513 (internal quotation and
    citation omitted). We explained in United States v. Swinton that
    Teague’s second exception is reserved for watershed rules that
    5
    The first exception applies to a new rule that “places certain
    kinds of primary, private individual conduct beyond the power of
    the criminal law-making authority to proscribe.” Teague, 
    489 U.S. at 307
     (internal quotation and citation omitted). Booker does not
    implicate this exception.
    8
    “not only improve the accuracy of trial, but also ‘alter our
    understanding of the bedrock procedural elements’ essential to
    the fairness of a proceeding.” 
    333 F.3d 481
    , 487 (3d Cir. 2003)
    (quoting Sawyer v. Smith, 
    497 U.S. 227
    , 242 (1990)) (emphasis
    in original). To say that this exception is extremely narrow is to
    understate the issue for, as the Supreme Court itself has noted, it
    has “yet to find a new rule that falls under the Teague
    exception.” Beard, 542 U.S. at __, 124 S. Ct. at 2513-14.6
    Every federal court of appeals to have considered whether
    Booker’s new rule constituted a “watershed rule” that would
    satisfy Teague’s second exception has held that it does not and,
    thus, has held that Booker does not apply retroactively to cases
    on collateral review. See, e.g., Guzman, 
    404 F.3d at
    143-44 ;
    Varela v. United States, 
    400 F.3d 864
    , 868 (11th Cir. 2005);
    Price, 
    400 F.3d at 845
    ; Humphress, 
    398 F.3d at 857
    ;
    McReynolds, 
    397 F.3d at 481
    . We join those courts.7
    6
    Including the Batson rule at issue in Teague, the Court has
    refused to apply twelve new rules of criminal procedure
    retroactively on collateral review. See United States v. Mandanici,
    
    205 F.3d 519
    , 529 (2d Cir. 2000) (collecting ten such cases); see
    also Summerlin, 542 U.S. at      , 124 S.Ct. at 2525-26. Indeed, as
    the Guzman Court noted, “[n]o such watershed rule has been
    identified by the Court since that standard was adopted.” Guzman,
    
    404 F.3d at 143
    .
    7
    We have recently held, in the context of a prisoner’s
    request under 
    28 U.S.C. § 2244
     for leave to file a second or
    successive motion to vacate his sentence under § 2255, that the
    prisoner cannot make a “prima facie showing” under §
    2244(b)(3)(C) that Booker constitutes “a new rule of constitutional
    law, made retroactive to cases on collateral review by the Supreme
    Court, that was previously unavailable.” In re Olopade, 
    403 F.3d 159
    , 164 (3d Cir. 2005) (quoting 
    28 U.S.C. § 2255
    ). We concluded
    that the Supreme Court has not held that Booker is applicable to
    cases on collateral review, that no combination of Supreme Court
    decisions dictates that Booker has retroactive force on collateral
    review, and that the Court’s holding in Summerlin “strongly
    suggests” that Booker is not retroactively applicable to cases on
    9
    At the outset, we reject the government’s contention that
    the “watershed rule” exception only applies to new procedural
    rules that improve the accuracy of the guilt or innocence of a
    defendant. It is just not so that because Booker only impacts
    sentencing, the “watershed rule” exception cannot apply.
    In Schriro v. Summerlin, the Supreme Court examined
    whether the holding of Ring v. Arizona, 
    536 U.S. 584
     (2002),
    applied retroactively to cases on collateral review. 542 U.S. __,
    
    124 S.Ct. 2519
    , 2524-25. Ring, which was decided in the wake
    of Apprendi, struck down an Arizona law permitting a judge,
    rather than a jury, to find certain aggravating factors beyond a
    reasonable doubt that would warrant imposition of the death
    penalty. 
    Id. at 2522
    . The Summerlin Court emphasized that the
    question before it was “whether judicial factfinding so seriously
    diminishes accuracy that there is an impermissibly large risk of
    punishing conduct the law does not reach.” 
    Id. at 2525
     (internal
    quotation marks and citation omitted) (emphasis in original).
    Because the evidence as to whether juries are more accurate
    factfinders than judges was “simply too equivocal,” 
    id.,
     the
    Court could not say that the rule announced in Ring so
    significantly improved accuracy that it should apply retroactively
    to cases already final on direct review. See 
    id.
    Summerlin leaves little doubt that the “watershed rule”
    exception can apply to a procedural rule that only affects
    sentencing; indeed, were it otherwise, the Court would not have
    needed to examine whether Ring’s holding applied retroactively.
    More importantly, Apprendi and its progeny have made clear
    that distinguishing between a conviction and a sentence obscures
    what matters for constitutional purposes–namely, facts that
    increase a defendant’s punishment. See, e.g., Booker, 543 U.S.
    collateral review. Id. at 162-63.
    But we were not required to do a Teague analysis in Olopade;
    rather, we were required to read § 2255 in conjunction with §
    2244(b)(3)(C) to determine whether a second or successive motion
    should be certified. See id. at 161-62. We must, therefore, address
    the “watershed rule” exception here.
    10
    at __, 125 S.Ct. at 748 (explaining that the fact that a state labels
    a crime a “‘sentencing enhancement’ rather than a separate
    criminal act” is irrelevant for constitutional purposes); see also
    Ring, 
    536 U.S. at 610
     (Scalia, J., concurring) (“[T]he
    fundamental meaning of the jury-trial guarantee of the Sixth
    Amendment is that all facts essential to the imposition of the
    level of punishment that the defendant receives–whether the
    statute calls them elements of the offense, sentencing factors, or
    Mary Jane–must be found by the jury beyond a reasonable
    doubt.”). Accordingly, while the Summerlin Court held that
    Ring does not apply retroactively, it did not do so because Ring
    merely affected sentencing decisions.
    And so we move to Lloyd’s main argument: that by
    requiring the factfinder to determine sentencing factors beyond a
    reasonable doubt, Booker necessarily qualifies as a new rule of
    criminal procedure “without which the likelihood of an accurate
    conviction is seriously diminished.” Teague, 
    489 U.S. at 313
    .
    After all, the argument goes, the Supreme Court has long held
    that the “reasonable-doubt standard plays a vital role in the
    American scheme of criminal procedure. It is a prime
    instrument for reducing the risk of convictions resting on factual
    error.” In re Winship, 
    397 U.S. 358
    , 363 (1970). Furthermore,
    “a person accused of a crime . . . would be at a severe
    disadvantage . . [,] amounting to a lack of fundamental fairness,
    if he could be adjudged guilty and imprisoned for years on the
    strength of the same evidence as would suffice in a civil case.”
    
    Id.
     (internal quotation and citation omitted). The “use of the
    reasonable doubt standard is indispensable, for it ‘impresses on
    the trier of fact the necessity of reaching a subjective state of
    certitude of the facts in issue.’” 
    Id. at 364
     (internal citation
    omitted).
    It would be one thing if we were only dealing with Justice
    Stevens’s opinion in Booker, which held the Federal Sentencing
    Guidelines unconstitutional because their mandatory nature
    required judges to find facts that increased sentences based on a
    preponderance of the evidence. But in the opinion authored by
    Justice Breyer, the unconstitutionality of the Guidelines was
    remedied by excising the provision, at 
    18 U.S.C. § 3553
    (b)(1),
    11
    that made their application mandatory. See Booker, 543 U.S. at
    __, 125 S. Ct. at 756-757. By creating an advisory federal
    sentencing regime, the Booker Court did not announce a new
    rule of criminal procedure that significantly increases the
    “certitude” or “accuracy” of the sentencing process. As the
    Court of Appeals for the Seventh Circuit put it, Booker was not a
    “‘watershed’ change that fundamentally improves the accuracy
    of the criminal process” because defendants’ sentences “would
    be determined in the same way if they were sentenced today; the
    only change would be the degree of flexibility judges would
    enjoy in applying the guideline system.” McReynolds, 
    397 F.3d at 481
    ; see also Guzman, 
    404 F.3d at 143-44
    ; United States v.
    Ordaz, 
    398 F.3d 236
    , 239 (3d Cir. 2005) (“The net result [of
    Booker] was to delete the mandatory nature of the Guidelines
    and transform them to advisory guidelines for the information
    and use of the district courts in whom discretion has now been
    reinstated.”).
    III. CONCLUSION
    Because Booker announced a rule that is “new” and
    “procedural,” but not “watershed,” Booker does not apply
    retroactively to initial motions under § 2255 where the judgment
    was final as of January 12, 2005, the date Booker issued. We
    will, therefore, affirm the August 11, 2004 order of the District
    Court dismissing Lloyd’s § 2255 motion.
    12