Carrington v. United States ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRAIG ANTHONY CARRINGTON, 
Petitioner-Appellant, No. 05-36143
v.  D.C. Nos.
CV-05-05286-RJB
UNITED STATES OF AMERICA, CR-89-00088-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. ORDER AND
SUPERSEDING
 OPINION
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Argued and Submitted
August 14, 2006—Seattle, Washington
Filed September 11, 2007
Before: Harry Pregerson, John T. Noonan, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan;
Concurrence by Judge Noonan;
Partial Concurrence and Partial Dissent by Judge Pregerson
12123
12126 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.
CARRINGTON v. UNITED STATES 12127
ORDER
The opinion filed on December 13, 2006, is hereby with-
drawn. A Superseding Opinion is filed simultaneously with
this order.
OPINION
CALLAHAN, Circuit Judge:
In these sentencing cases Robert Tillitz and Craig Carring-
ton (petitioners) assert a number of creative arguments in an
attempt to have their final sentences reconsidered in light of
the Supreme Court’s opinion in United States v. Booker, 543
U.S. 220 (2005). We conclude that petitioners have not pre-
sented exceptional circumstances sufficient to support a grant
of extraordinary relief such as the recall of our prior man-
dates.
I.
On May 14, 1990, Craig Carrington pleaded guilty to con-
spiracy to distribute 500 grams or more of a mixture and sub-
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 expressed his frustration with man-
datory sentencing guidelines and sentenced Carrington to 324
months in prison, the low end of the applicable range under
the United States Sentencing Guidelines. Carrington’s convic-
tion and sentence were upheld on direct and collateral
appeals.
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
12128 CARRINGTON v. UNITED STATES
intent to distribute, and interstate and foreign travel in aid of
racketeering enterprises. On August 14, 1998, Tillitz appeared
pro se before Judge Bryan for sentencing. Tillitz argued, inter
alia, that the Sentencing Guidelines were unconstitutional. In
response, Judge Bryan indicated that while he might agree,
the issue had been laid to rest by the United States Supreme
Court. Judge Bryan then sentenced Tillitz to a 360-month
term of imprisonment, the low end of the applicable Guide-
lines range. Tillitz’s conviction and sentence were upheld on
direct and collateral reviews.
On March 2, 2005, Tillitz filed a writ of audita querela “for
relief from an unconstitutional sentence” based on Booker. A
month later, 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. In Septem-
ber 2005, Judge Bryan consolidated the cases because of their
substantial similarities. Thereafter, both argued that their sen-
tences were unconstitutional and also should be modified
under 18 U.S.C. § 3582(c)(2).
On November 3, 2005, Judge Bryan denied relief on the
grounds raised by the parties. He noted, however, that in
United States v. Crawford, 422 F.3d 1145 (9th Cir. 2005), the
Ninth Circuit had recalled its mandate in a sentencing case
that involved “extraordinary circumstances.” Judge Bryan
observed that although neither petitioner had filed a motion to
recall the mandate, this distinction “may be more form rather
than substance” and the availability of such relief was “for the
Ninth Circuit to decide.” These appeals followed.1
1
Although the district court purported to transfer petitioners’ motions to
the Ninth Circuit, its order did not indicate the statutory basis for such a
transfer. However, both petitioners then filed timely notices of appeal and
on December 2, 2005, the district court granted petitioners Certificates of
Appealability as provided for by 28 U.S.C. § 2253(c).
CARRINGTON v. UNITED STATES 12129
II.
[1] The district court properly concluded that the grounds
for relief raised by petitioners in their initial motions are fore-
closed by our case law. A writ of audita querela2 is not an
available remedy where the claims raised would be cogniza-
ble in a § 2255 habeas petition. See United States v. Valdez-
Pacheco, 237 F.3d 1077, 1080 (9th Cir. 2001). Rather, com-
mon law writs such as audita querela and coram nobis sur-
vive “only to the extent that they fill ‘gaps’ in the current
systems of postconviction relief.” Id. at 1079.
[2] 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 based on Booker
through a § 2255 habeas petition. See 28 U.S.C. §§ 2255,
2244(b)(3). We have previously held, however, that the statu-
tory limits on second or successive habeas petitions do not
create a “gap” in the post-conviction landscape that can be
filled with the common law writs. See Valdez-Pacheco, 237
F.3d at 1080. Moreover, even if petitioners had been granted
permission to file second or successive habeas petitions under
28 U.S.C. § 2244(b)(3), we have held that Booker does not
apply to cases on collateral review. 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, how-
ever 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
2
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).
12130 CARRINGTON v. UNITED STATES
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 petitioners’ construction
of § 3582(c)(2) would be to stretch that provision beyond
what its language can bear. Accordingly, the district court
correctly denied petitioners relief.
III.
The district court speculated that this court might be able
to grant petitioners relief by recalling its mandates, and peti-
tioners press that argument on appeal. We conclude, however,
that to the extent that such relief is not barred by our opinions
in Cruz, 423 F.3d at 1121, and United States v. King, 419
F.3d 1036 (9th Cir. 2005), petitioners have not presented the
exceptional circumstances and equities necessary for a grant
of extraordinary relief.
[4] We have the inherent power to recall our mandate in
order to protect the integrity of our processes, but should only
do so in exceptional circumstances. Zipfel v. Halliburton, Co.,
861 F.2d 565, 567 (9th Cir. 1988). In Calderon v. Thompson,
523 U.S. 538, 549-50 (1998), the Supreme Court affirmed our
inherent power to recall our mandate. The Court, however,
held that recalling the mandate in that case was “a grave
abuse of discretion.” Id. at 541. The Court 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 demon-
strates it is one of last resort, to be held in reserve
against grave, unforeseen contingencies.
CARRINGTON v. UNITED STATES 12131
Id. at 550.3 The question then becomes whether petitioners
have presented “grave, unforeseen contingencies” that will
support the extraordinary relief of a recall of mandate.
[5] The essence of petitioners’ claim is that they are entitled
to relief in light of the Supreme Court’s decision in Booker.
We, however, have held that Booker is not retroactive and is
not by itself sufficient to justify a recall of the mandate in
cases finalized before Booker was decided. King, 419 F.3d
1036.
[6] An argument, however, has been made that this case
presents the type of extraordinary circumstances that led us to
recall our mandate in United States v. Crawford, 422 F.3d
1145 (9th Cir. 2005). There we found “extraordinary circum-
stances” to recall the mandate because (1) “the sentencing
judge had expressed explicit reservations on the record about
the sentence required under the previously mandatory Sen-
tencing Guidelines,” and (2) “the Supreme Court’s decision in
Blakely v. Washington, [542 U.S. 296 (2004)] . . . foreshad-
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).
12132 CARRINGTON v. UNITED STATES
owing its holding in . . . Booker . . . was rendered before the
mandate issued.” Crawford, 422 F.3d 1145-46.4
Neither of the two factors that supported relief in Crawford
are present here. First, although Judge Bryan readily
expressed his disapproval of mandatory sentences, his state-
ments do not suggest that there are any exceptional circum-
stances that distinguish either petitioner from other persons
sentenced under the Guidelines prior to Booker. Indeed, in his
November 2005 order Judge Bryan observed neutrally that the
“sentences may have been appropriate at the time they were
imposed, or they may not have been.”
Second, Crawford presented a unique question of timing
that favored equitable relief. The panel had just decided
Crawford’s direct appeal, when it recalled its own mandate.
In fact, the motion to recall the mandate was made less than
a month after the panel issued its memorandum disposition5
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 become
“final” because the time for filing a petition for a writ of cer-
tiorari had not expired.6 See SUP. CT. R. 13 (allowing 90 days
4
Crawford 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 elements
must always be present in order for a mandate to be recalled.
Id. at 1146 n.2. We are not called upon to consider the limits of this state-
ment because appellants have only argued the district court’s alleged mis-
givings and that timing is irrelevant. They do not assert any element not
present in Crawford.
5
United States v. Crawford, 102 Fed. Appx. 91 (9th Cir. 2004).
6
Federal Rule of Appellate Procedure 40 provides that unless time is
shortened or extended, a petition for rehearing should be filed within four-
CARRINGTON v. UNITED STATES 12133
from a circuit court’s decision for the filing of a petition for
certiorari).
[7] The particular timing in Crawford indicates that it was,
at most, a minimal extension of our policy allowing for lim-
ited 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
certiorari had not run, Crawford did not conflict with our
holding in Cruz that Booker “does not apply retroactively to
convictions that became final prior to its publication.” Cruz,
423 F.3d 1119.
[8] In contrast, here, petitioners do not seek the recall of the
mandate of a case that is still subject to the filing of a petition
for a writ of certiorari to the Supreme Court. Instead, in order
for the recalls of mandate to provide the district court with
authority to modify petitioners’ sentences, we would have to
recall the mandates that issued in petitioners’ direct appeals
from their convictions and sentences.7 However, we affirmed
Carrington’s conviction and sentence on direct appeal in
1996, and Tillitz’s conviction and sentence were affirmed
before 2001.
[9] The recognition that petitioners seek the recall of the
teen days of the entry of judgment. Federal Rule of Appellate Procedure
41 states that the mandate should issue seven calendar days after the time
for filing a petition for rehearing expires. Although Rule 41 allows a party
to seek a stay of the mandate pending the filing of a petition for a writ of
certiorari, there is no indication that a party is required to seek a stay pend-
ing certiorari.
7
The recall of our mandates in any of petitioners’ appeals from the deni-
als of their post-conviction motions would only give the district court
jurisdiction to reconsider its denials of those motions. Petitioners in their
present appeal do not challenge the denials of those motions, rather they
argue that their initial sentences are invalid.
12134 CARRINGTON v. UNITED STATES
mandates in their direct appeals — which have been final for
years — reveals that they are in essence arguing for the retro-
active application of Booker. As a three-judge panel we are
constrained from adopting their argument by our holding in
Cruz that “Booker is not retroactive, and does not apply to
cases on collateral review where the conviction was final as
of the date of Booker’s publication.” 423 F.3d at 1121. See
also King, 419 F.3d at 1036. Moreover, our rejection of peti-
tioners’ request for the recall of our mandates is consistent
with the positions adopted by our sister circuits. See United
States v. Saikaly, 424 F.3d 514 (6th Cir. 2005) (denying
motion to recall mandate based on Booker and noting similar
decisions by other circuits); United States v. Fraser, 407 F.3d
9, 10-11 (1st Cir. 2005) (denying a petition for rehearing and
noting that if a “mandate could be recalled merely based on
Booker, that result would provide an avenue to escape the
restrictions Congress has imposed on habeas review”).
[10] We understand the argument that declining to recall
our mandates amounts to denying relief under Booker to
defendants whose direct appeals were final at the time that
decision was rendered. We agree, however, with the Sixth
Circuit’s response that “[a]lthough the defendant may argue
that there is an element of unfairness in this result, it is the
same element found in any Supreme Court decision which
announces a new rule applicable to criminal defendants with
pending prosecutions or appeals, but which is not made retro-
active to defendants whose cases are final.” Saikaly, 424 F.3d
at 518. We read our Ninth Circuit case law as being in accord
with the Sixth Circuit’s perspective that the “incremental
change in the law as evidenced by Apprendi, Blakely, and
Booker simply is not the type of unforeseen contingency
which warrants recall of the mandate to permit yet another
round of appellate review.” Id.
Finally, we do not hold that relief would not be available
in a particular case upon a showing of truly extraordinary cir-
cumstances and equities, but only that this is not such a case.
CARRINGTON v. UNITED STATES 12135
Petitioners have not proffered any evidence that they were
uniquely impacted by the Guidelines or that there are any
equities that distinguish them from other defendants sen-
tenced before Booker. Rather, they point only to the trial
judge’s expressions of his displeasure with mandatory guide-
lines. The trial judge’s perspective may have been somewhat
vindicated by Booker, but it would be unfair to countless
defendants and to numerous judges to base the retroactive
application of a Supreme Court opinion on the degree to
which a trial judge grumbled while enforcing the extant law.
IV.
We affirm the district court’s determinations that issuance
of a writ of audita querela is not an available remedy in light
of our opinion in Valdez-Pacheco, 237 F.3d at 1080, and that
petitioners are not entitled to relief under 18 U.S.C.
§ 3582(c)(2) because the applicable sentencing range has not
been lowered by the Sentencing Commission. We reject, how-
ever, the district court’s suggestion that we might recall our
mandates, thus allowing petitioners to seek resentencing in
light of Booker. We have previously held that Booker is not
retroactive, Cruz, 423 F.3d 1119, and petitioners have failed
to make the type of individualized showing of extraordinary
circumstances that might arguably distinguish them from
other defendants sentenced under mandatory guidelines. The
district court’s denials of relief are AFFIRMED.
NOONAN, Circuit Judge, concurring in the judgment of the
court:
Resolution of this appeal turns on how the constitution is
conceived to be. For some, the constitution is an unchanging
document, speaking now as it did in 1789 except for such
amendments as have been duly added to it. The paper and ink
12136 CARRINGTON v. UNITED STATES
of the old document have not altered; neither has its meaning.
Stability is the bedrock of our government of laws.
What happens when the Supreme Court, as it not infre-
quently does, gives a new interpretation of the constitution,
overruling an earlier interpretation? From the perspective just
outlined, the new interpretation must be seen as a correction.
A mistaken reading of the constitution has been replaced. The
true meaning, now recovered, must have been the meaning
the document always had. From this perspective, the petition-
ers in this case were sentenced under a system now recog-
nized as constitutionally flawed. As the true meaning of the
constitution has now been discovered, the petitioners should
be able to be sentenced under the constitutionally correct sys-
tem. As the constitution doesn’t change, the new system was
the only constitutional system at the time of their sentencing.
It is unjust to hold them incarcerated under unconstitutional
law.
This analysis has some intuitive appeal. A counter example
may suggest that there is something wrong with it. Suppose
the penalty for securities fraud is ten years. A man is sen-
tenced to that term. Subsequently, the statute is changed; the
penalty becomes five years. Is it unjust to keep beyond five
years the man already sentenced to ten? No. When he com-
mitted the crime that was the lawful sentence. The new statute
does not retroactively reduce his punishment.
Why does this example seem clear and the constitutional
case cloudy? It is because of the belief that the constitution,
unlike a statute, does not change. Therefore, a new reading of
the constitution is necessarily restorative and retroactive. The
new reading is what the constitution always said. But perhaps
this response rests on a basic mistake. It is my contention that
it does.
The mistake is to think of the constitution speaking. The
original document is as silent as the paper on which it is writ-
CARRINGTON v. UNITED STATES 12137
ten. It is not what speaks. It is the interpreters of the constitu-
tion who speak. It is they who give it life and power. In our
system of law, the authoritative interpreters are the justices of
the Supreme Court. It is their voices that say what the consti-
tution says.
Interpreters of this kind do not have the passivity of paper
or the stability of stone. They change as generations change,
as the times change, as mores mutate, as new circumstances,
needs, and problems arise. Other times, other oracles. Inter-
preters of this kind are never going to give forever the same
meaning to every constitutional text. And they don’t.
As put by Chief Justice Roberts, albeit with the particular
sharpness of a dissent, “a dog’s breakfast of divided, conflict-
ing, and ever-changing analyses” may be held by the majority
to be “clearly-established law.” Abdul-Kabir v. Quarterman,
127 S. Ct. 1654, 167 L. Ed. 2d 585 (2007). Chief Justice Rob-
erts went on to observe:
After all, today the author of a dissent issued in 1988
writes two majority opinions concluding that the
views expressed in that dissent actually represented
“clearly established” federal law at that time. So
there is hope yet for the views expressed in this dis-
sent, not simply down the road, but tunc pro nunc.
Encouraged by the majority’s determination that the
future can change the past, I respectfully dissent.
Of course the constitution changes its meaning with chang-
ing majorities. Not as frequently as statutes are changed by
legislators, the old foundational document has its speech
altered by new authorized interpreters. The Supreme Court is
the engine and champion of constitutional change.
In terms of this analysis, the petitioners here were sen-
tenced under a system that was in accordance with the consti-
tution when they were sentenced. It is no more unjust to them
12138 CARRINGTON v. UNITED STATES
to keep them confined under the old system than it would be
to keep in prison the man sentenced to ten years when the
penalty later becomes five. The crime committed at a given
date is penalized under the law in force at that date. No injus-
tice is done.
The Supreme Court has recognized two exceptions to the
general rule that the constitution speaks as of the time the
Supreme Court gives it a meaning: (1) cases where the new
decision of the Supreme Court means that earlier conduct of
the prisoners would not have been criminal if the new reading
had been in place; and (2) cases where the new reading sub-
stantially improves accuracy in the determination of guilt.
Teague v. Lane, 489 U.S. 228 (1989). The exceptions estab-
lish that the Supreme Court has the power to make its reading
of the constitution retroactive. The exceptions do not establish
that as a matter of justice the Supreme Court must act retroac-
tively — only that there are cases where it is wise and equita-
ble to do so. The instant cases may deserve such equitable and
wise treatment. It is not given to us to make it available.
Judge Pregerson eloquently expresses reasons why such
retroactivity would be good here, and he offers an escape
from a rigid rule of nonretroactivity. Judge Bryan, the district
judge who sentenced the petitioners, made clear statements of
his belief in the unconstitutionality of the system with which
he was compelled to comply. Far from grumbling, Judge
Bryan’s statement showed legal perspicacity and prescience
and reflected sound judgment and an active conscience. Judge
Pregerson, recognizing these values in what Judge Bryan did,
finds in them the extraordinary circumstances that would per-
mit this court to withdraw its mandates.
The strength of Judge Pregerson’s position must be
acknowledged. It is humane, and humaneness is a necessary
quality in humans who are judges. The panel has the power
to do what he asks. The panel does not have the authority.
CARRINGTON v. UNITED STATES 12139
Only the Supreme Court has both the power and the author-
ity to create a rule of retroactivity when a new rule of consti-
tutional law, if applied retroactively, would lessen the penalty
given.
For the reasons stated, I concur in the judgment of the
court.
PREGERSON, Circuit Judge, concurring in part and dissent-
ing in part:
Once in 1990 and again in 1998, U.S. District Judge Robert
J. Bryan of the Western District of Washington imposed
multiple-decades-long sentences on defendants at a time when
the United States Sentencing Guidelines’s constitutionality
was accepted. At the time he imposed those sentences, he
stated in open court that both Guidelines sentences were, in
his view, unjust and unconstitutional. In 2005, the Supreme
Court in Booker v. United States, 543 U.S. 220, vindicated
Judge Bryan’s view that the mandatory Guidelines were
unconstitutional. Now Judge Bryan, still troubled years later
by the Guidelines sentences imposed in these two cases,
implores us to allow him to redress the injustices inflicted on
both men by recalling our mandates in their appeals so that
Judge Bryan may re-sentence them to a just and constitutional
sentence. I believe that these two cases present extraordinary
circumstances as required by Calderon v. Thompson, 523 U.S.
538, 550 (1998) (holding that “the power [to recall the man-
date] can be exercised only in extraordinary circumstances”);
and accordingly, I would recall our mandates and remand for
re-sentencing.1
1
I join Parts I and II of Judge Callahan’s opinion.
12140 CARRINGTON v. UNITED STATES
I. ADDITIONAL FACTUAL BACKGROUND
In 1990, District Judge Bryan sentenced Craig Carrington
pursuant to the then-mandatory Sentencing Guidelines. After
calculating the appropriate Guidelines range, Judge Bryan
determined that, under the Guidelines, a downward departure
was not warranted. Before he imposed sentence, Judge Bryan,
moved by his conscience, told Carrington:
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. . . . And I feel frustrated by these long
sentences. It’s contrary to the idea that one can pay
a penalty for a crime and put it behind them within
a reasonable time. . . .
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, constrained by the Guidelines, then imposed a
sentence of 324 months imprisonment — the low end of the
applicable Guidelines range.
The injustice of these harsh Guidelines sentences continued
to frustrate and trouble Judge Bryan. In 1998, when Judge
CARRINGTON v. UNITED STATES 12141
Bryan sentenced Robert Tillitz, the judge before imposing
sentence stated:
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.
Judge Bryan then sentenced Tillitz to 360 months imprison-
ment — the low end of the applicable Guidelines range.
After the Supreme Court decided Booker v. United States,
543 U.S. 220 (2005), Judge Bryan again demonstrated that
Carrington’s and Tillitz’s cases continued to trouble him.
When Carrington and Tillitz each brought petitions to modify
their sentences, Judge Bryan turned down their requests.
Rather than leave it at that, Judge Bryan took the extraordi-
nary — indeed, unprecedented — measure of considering sua
sponte whether recall of the mandate would be appropriate.
Judge Bryan observed that our court has authority to recall
the mandate under United States v. Crawford, 422 F.3d 1145
(9th Cir. 2005) (recalling the mandate where the district court
had expressed reservations about fairness of the defendant’s
sentence at the defendant’s sentencing hearing), and that
Judge Bryan’s express reservations about Carrington’s and
Tillitz’s sentences sufficed to distinguish those cases from
United States v. King, 419 F.3d 1035 (9th Cir. 2005) (order)
(declining to recall the mandate because of Booker error
alone). As Judge Bryan also commented, it was only by an
“accident of timing” that Blakely v. Washington, 542 U.S. 296
(2004) (holding that a state mandatory sentencing guidelines
regime violated the Sixth Amendment) had not been decided
12142 CARRINGTON v. UNITED STATES
before our court issued the mandate in Carrington’s and Til-
litz’s appeals.
II. EXTRAORDINARY CIRCUMSTANCES
We have inherent authority to recall the mandate to “pre-
vent injustice.” Zipfel v. Halliburton Co., 861 F.2d 565, 567
(9th Cir. 1988) (quoting Aerojet-Gen. Corp. v. Am. Arbitra-
tion Ass’n, 478 F.2d 248, 254 (9th Cir. 1974)); see also Ver-
rilli v. City of Concord, 557 F.2d 664, 665 (9th Cir. 1977)
(per curiam). I agree with Judge Callahan that we may only
recall the mandate “in extraordinary circumstances.” Calde-
ron v. Thompson, 523 U.S. 538, 550 (1998). For the reasons
stated below, this case presents extraordinary circumstances
that require us to exercise our discretionary authority to recall
the mandate to prevent injustice.
A. District Court’s Comments at Sentencing
In Crawford, we outlined a situation where a sentence vio-
lating Booker may warrant recall of the mandate even though
Booker is not retroactive. There, we found two grounds for
recalling our mandate. We stated in Crawford:
This case involves “extraordinary circumstances”
sufficient to justify our recall of the mandate
because: (1) the sentencing judge expressed explicit
reservations on the record about the sentence
required under the previously mandatory Sentencing
Guidelines; and (2) the Supreme Court’s decision in
[Blakely], foreshadowing its holding in [Booker],
was rendered before the mandate issued.
Crawford, 422 F.3d at 1145-46 (internal citations omitted).2
2
In Crawford we emphasized that these are not the only circumstances
that support recall of the mandate. Specifically, we cautioned:
CARRINGTON v. UNITED STATES 12143
Crawford recognized that while the existence of Booker error
is not, by itself, sufficient to recall the mandate, see King, 419
F.3d at 1036, Booker was nevertheless an extraordinarily
important decision that, when combined with other factors,
may warrant recall of the mandate.
Applying Crawford, it is clear that the two cases before us
are “exceptional case[s] requiring recall of the mandate[s] in
order to prevent an injustice.” See Verrilli, 557 F.2d at 665.
Like District Judge William Nielsen of the Eastern District of
Washington in Crawford, Judge Bryan expressed his frustra-
tion with the lack of discretion afforded to district court
judges by the Guidelines when he sentenced Carrington and
Tillitz. If anything, Judge Bryan’s expressed concerns at Car-
rington’s and Tillitz’s sentencing hearings were even stronger
than Judge Nielsen’s concerns in Crawford. In Crawford,
Judge Nielsen complained that the sentencing ranges were
“extraordinarily high,” but — at least according to the facts
provided in Crawford — Judge Nielsen did not claim that the
mandatory Guidelines were themselves unjust and unconstitu-
tional. See 422 F.3d at 1146 n.1. Here, however, Judge Bryan
challenged both the severity of the sentencing ranges and the
constitutionality of the mandatory Guidelines when he sen-
tenced Carrington and Tillitz.
That Judge Bryan made these statements at a time when the
Guidelines were firmly entrenched only makes his remarks
[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 elements
must always be present in order for a mandate to be recalled.
Rather future panels will necessarily evaluate the existence of
“extraordinary circumstances” warranting the recall of a mandate
based on the facts of their individual cases.
Id. at 1146 n.2.
12144 CARRINGTON v. UNITED STATES
more extraordinary. The year before Judge Bryan sentenced
Carrington, the Supreme Court upheld the Sentencing Com-
mission’s authority to promulgate mandatory sentencing
guidelines. See Mistretta v. United States, 488 U.S. 361, 412
(1989). Nevertheless, Judge Bryan’s words at Carrington’s
sentencing presaged the fault the Supreme Court found with
the Guidelines in Booker: that the Guidelines unconstitution-
ally “diminish[ed] the judge’s discretion” to sentence the
defendant to an appropriate sentence, and required the judge
to “find the facts . . . and apply the [G]uidelines, being the
law, to those facts.”
By the time Judge Bryan sentenced Tillitz, the Supreme
Court had repeatedly reinforced the validity of mandatory
sentencing guidelines, see, e.g., Stinson v. United States, 508
U.S. 36, 42 (1993), and Apprendi v. New Jersey, 530 U.S.
466, 490 (2000) (holding that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted
to a jury and proved beyond a reasonable doubt”), was not yet
on the horizon. Yet Judge Bryan continued to criticize the
Guidelines’s constitutionality and their constraint on his abil-
ity to give Tillitz a just sentence.
Judge Callahan believes that Judge Bryan’s statements at
the time of both Carrington’s and Tillitz’s sentencing are not
enough to recall the mandate. In so deciding, the majority
erroneously assumes that Crawford held that a district judge’s
express reservations at sentencing are not enough to justify
recall of the mandate. To be sure, Crawford did point out the
existence of two extraordinary circumstances justifying relief.
Crawford did not hold, however, that either factor was alone
insufficient to justify recall of the mandate. Rather, in Craw-
ford we merely noted that there were two special circum-
stances present in that case, and that those factors together
sufficiently distinguished Crawford from King. See id. at
1145-46 & n.2. Crawford certainly does not compel Judge
Callahan’s conclusion that neither of the two factors identified
CARRINGTON v. UNITED STATES 12145
in Crawford can alone be sufficient to recall the mandate.
Moreover, Judge Callahan’s position creates considerable ten-
sion with Crawford’s admonition that “future panels will nec-
essarily evaluate the existence of ‘extraordinary
circumstances’ warranting the recall of the mandate based on
the facts of their individual cases.” See id. at 1146 n.2
(emphasis added). Thus, I would not hold that we may not
recall the mandate solely because only one of the Crawford
factors is present.
B. District Court’s Sua Sponte Request that
We Recall the Mandate
In any event, there is also an additional circumstance not
present in Crawford that compels our attention — Judge
Bryan’s impassioned plea to this court. Even though the par-
ties did not raise the issue and Judge Bryan lacked authority
to recall the mandate, he nevertheless implored us to recall
our mandates. Judge Bryan told us:
A Sentencing Guidelines scheme was adopted by
Congress and implemented by the United States Sen-
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. Car-
rington, were sentenced under the mandatory guide-
lines scheme, and many, including Mr. Tillitz and
Mr. Carrington, are still incarcerated under manda-
tory 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 constitu-
12146 CARRINGTON v. UNITED STATES
tionality 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 injus-
tice, 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 con-
stitutional and legal sentence.
CARRINGTON v. UNITED STATES 12147
Tillitz v. United States, 2005 WL 2921957, at *12-*13 (W.D.
Wash. Nov. 3, 2005) (order) (internal citations omitted).
When considered in tandem with the district court’s state-
ments at Carrington’s and Tillitz’s sentencing hearings, Judge
Bryan’s impassioned statement demonstrates that the circum-
stances of this case are exceptional. Booker restored the role
of the district court judge as the person uniquely suited to
consider all the circumstances surrounding a criminal defen-
dant and to fashion a sentence most just and appropriate for
that individual. These two cases have weighed on Judge
Bryan’s conscience for sixteen years (Carrington) and eight
years (Tillitz). His conscience compelled him to sua sponte
request that this court recall its mandates and allow him to
assume the additional responsibility involved in re-sentencing
these two defendants.
Judge Callahan dismisses the importance of this factor
because, as she sees it, Judge Bryan merely “grumbled while
enforcing the extant law.” Ante, at 12135. This, however,
rejects Judge Bryan’s comments too hastily. Because Judge
Bryan was best positioned to determine whether the manda-
tory Guidelines’s constraints were extraordinarily harsh in a
given case, we should put great stock in the fact that Judge
Bryan tells us that Carrington and Tillitz were particularly
worthy of resentencing.
In addition, Judge Bryan’s statements provide great assur-
ance that the constitutional error in both Carrington’s and Til-
litz’s sentences was not harmless. In Calderon, the Supreme
Court rejected our claim of extraordinary circumstances
because the mistake at issue — the failure of two judges out
of thirty-five to make a timely request for a vote on whether
to rehear a case en banc and thus “contribute their views to
a determination that had been given full consideration on the
merits by a panel of the court” — was relatively unlikely to
have affected the appellant’s rights. See Calderon, 523 U.S.
at 551. Unlike Calderon, here we know that a different sen-
12148 CARRINGTON v. UNITED STATES
tence would likely result had the district judge been permitted
to impose a constitutional sentence.
Judge Bryan, exercising caution, unsurprisingly acknowl-
edged that he cannot promise that Carrington’s and Tillitz’s
sentences would be different upon re-sentencing. See Tillitz,
2005 WL 2921957, at *12 (“These sentences may have been
appropriate at the time they were imposed, or they may not
have been.”). Nevertheless, his statements at sentencing, the
fact that he gave each defendant the lowest sentence possible
within the applicable Guidelines range, and his subsequent
suggestion to us that we recall the mandates provides a level
of confidence that harmful error occurred here that will not be
true in many other cases, if any.
C. Lapse of Time
Judge Callahan makes much of the fact that the second
basis for recalling the mandate identified in Crawford — that
Blakely had been decided when the mandate in Crawford’s
appeal issued — is not present. As Judge Bryan aptly noted,
however, that second basis is not present purely by the “acci-
dent of . . . timing.” See Tillitz, 2005 WL 2921957, at *11. In
Crawford, moreover, we emphasized that this combination of
circumstances was not the only one that would justify recall-
ing our mandate. See Crawford, 422 F.3d at 1146 n.2 (“[W]e
do not suggest that these same elements must always be pres-
ent in order for a mandate to be recalled.”). Rather, we are to
look at whether extraordinary circumstances exist based “on
the facts of [defendants’] individual cases.” See id.
Rather than follow the express statements in Crawford,
Judge Callahan chooses to adopt an unduly crabbed reading
of the case. Judge Callahan would rely on what it terms a
“unique question of timing” in Crawford and would only per-
mit recall of the mandate where a sentence is not yet final.
She gives no reason, however, why the mandate can never be
recalled after the time for filing a petition for certiorari has
CARRINGTON v. UNITED STATES 12149
expired. Indeed, to do so would essentially return us to the
long-abandoned rule that our power to recall the mandate
expires at the end of the court’s term. See Aerojet-Gen., 478
F.2d at 254 n.6; see also 16 Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice & Procedure
§ 3938 (2d ed. 1996). Moreover, Judge Callahan’s effective
imposition of a ninety-day time limit fails to recognize that
time is but a factor affecting the decision whether to recall the
mandate, and not a rigid constraint. See Patterson v. Crabb,
904 F.2d 1179 (7th Cir. 1990) (noting that the power to recall
the mandate is not limited by time); Aerojet-Gen., 478 F.2d
at 254 n.6 (explaining that “the lapse of time [is] significant
only with respect to the court’s duty to ‘prevent injustice.’ ”
(quoting Greater Boston Television Corp. v. FCC, 463 F.2d
268, 277 (D.C. Cir. 1972))). I read Crawford’s second factor
as nothing more than a recognition that the lapse of time is
always a factor in determining whether to recall the mandate.
Judge Callahan, relying on United States v. Cruz, 423 F.3d
1119 (9th Cir. 2005) (per curiam), also suggests that recall of
the mandate is inappropriate because Booker is not retroac-
tive. I agree that Cruz holds that Booker is not retroactive to
cases on collateral review, but that is all that Cruz holds. Con-
trary to Judge Callahan’s assertion, Cruz does not limit Craw-
ford’s holding. To say that Booker is not generally retroactive
under Teague v. Lane, 489 U.S. 288 (1989), is not to say that
equity may never demand that we provide relief to a defen-
dant whose sentence would be unconstitutional under Booker
when special circumstances suggest that failure to do so
would result in a grave injustice. That is why Booker error
alone was not enough to warrant recall of the mandate in
King, but Booker error in addition to other extraordinary cir-
cumstances permitted recall in Crawford. The decisions of
our sister circuits are not to the contrary. See United States v.
Saikaly, 424 F.3d 514, 517-18 (6th Cir. 2005) (refusing to
recall the mandate for Booker error alone); United States v.
Fraser, 407 F.3d 9, 11 (1st Cir. 2005) (same); United States
v. Ford, 383 F.3d 567, 568 (7th Cir. 2004) (same).
12150 CARRINGTON v. UNITED STATES
Unlike Judge Callahan, I believe that the circumstances
involved in Carrington’s and Tillitz’s cases — the judge’s
strong reservations at the time of sentencing and the judge’s
sua sponte plea for relief from our court — are both unusual
and extraordinary. In addition, I do not agree that the absence
of the second factor identified in Crawford precludes relief.
III. FINALITY
At its heart, the majority opinion rests on a concern that a
contrary decision would undermine the finality of judgments.
I agree that finality is an important value. It is not, however,
the only relevant consideration. When the injustice is suffi-
ciently great, we should not allow our concerns with repose
to obviate our obligation to do justice.
Granting relief would place only a limited burden on the
interests underlying finality. In Calderon, the Court placed a
very high value on repose because recall of the mandate
threatened “to frustrate the interests of a State . . . in enforcing
a final judgment in its favor.” See 523 U.S. at 552. Unlike
Calderon, however, we deal here with federal convictions.
And although there is a weighty interest in finality because it
“is essential to both the retributive and the deterrent functions
of criminal law,” see id. at 555, that interest is not absolute.
The interest in repose is lessened all the more because we deal
not with finality of a conviction, but rather the finality of a
sentence. There is no suggestion that Carrington or Tillitz be
set free or that the government be forced to retry these cases.
The district court asks only for an opportunity to re-sentence
in accordance with the Constitution.
Of course, another interest underlying finality is judicial
efficiency: “the interests of stable adjudication and judicial
administrative efficiency, on which growing caseloads place
a growing premium.” Calderon, 523 U.S. at 569 (Souter, J.,
dissenting). Implicit in the majority’s opinion is a concern that
a contrary decision would open the floodgates of litigation.
CARRINGTON v. UNITED STATES 12151
On closer examination, however, this concern proves base-
less.
Cases where a district court expresses reservations about
the validity of a Guidelines sentence are rare. See United
States v. Labrada-Bustamante, 428 F.3d 1252, 1262 (9th Cir.
2005) (describing such cases as “rare”). As Tillitz observes in
his response to the government’s petition for rehearing, only
two decisions — both by district courts — have cited Judge
Bryan’s decision in Tillitz, and neither relied on the language
seeking recall of the mandate. See United States v. Scott,
Criminal Action No. 5:02CR47, 2006 WL 3488932 (N.D.W.
Va. Aug. 10, 2006); United States v. Gettings, No. CR. S-00-
535 WBS, 2006 WL 1795112 (E.D. Cal. June 28, 2006). A
WESTLAW search reveals that only five cases citing our first
decision in this case, 470 F.3d 920 (9th Cir. 2006) (Carring-
ton I), involved attempts to recall the mandate or seek re-
sentencing on Carrington I’s authority. None of these cases
appear to involve facts similar to those in Crawford or this
case, and the courts in all four cases rebuffed the request for
re-sentencing. See United States v. Blankenship, No. 06-
36039, 2007 WL 1742483 (9th Cir. June 14, 2007) (unpub-
lished memorandum); United States v. Woodruff, No. 93-
0438, 2007 WL 2123735 (N.D. Cal. July 23, 2007); United
States v. Velarde, No. 89-CR-50009-MJR, 2007 WL 853983
(S.D. Ill. Mar. 16, 2007); Dillon v. Smith, No. 1:07-CV-00118
AWI SMS HC, 2007 WL 781455 (E.D. Cal. Mar. 13, 2007);
United States v. Walker, No. 96-cr-40094-JPG, 2007 WL
458201 (S.D. Ill. Feb. 7, 2007). Moreover, I am aware of no
appellate decision — published or unpublished, in any circuit
— that involves recall of the mandate for Booker error in cir-
cumstances even remotely similar to those in Crawford and
this case.3
3
Tillitz’s response to the government’s petition for rehearing provides
a mostly comprehensive list of cases addressing recall of the mandate for
Booker or Blakely error. None of the cited cases have facts similar to
either Crawford or this case.
12152 CARRINGTON v. UNITED STATES
Crawford has been on the books for nearly two years, and
yet this case is the only one nationwide that appears to raise
similar facts. Permitting the district court to re-sentence
would place only a limited burden on the government given
the unusual circumstances involved. Finality is important, but
I fear the majority is too willing to let repose triumph over
justice.
IV. CONCLUSION
I would recall the mandates in Carrington’s and Tillitz’s
appeals. Judge Bryan stated at their sentencing hearings that
he believed their sentences were unconstitutional and unjust.
Years later, Judge Bryan singled out these two men as indi-
viduals to whom the constraints of the old mandatory Guide-
lines caused particular harm. While I recognize that the
passage of time has somewhat cemented the government’s
interest in finality, that interest is still not so strong that I
would deny 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, proper, and
constitutional. See Gondeck v. Pan Am. World Airways, Inc.,
382 U.S. 25, 26-27 (1965).4 Accordingly, I dissent.
4
Judge Callahan is also concerned that re-sentencing Carrington and
Tillitz would be “unfair” to defendants for whom relief would not be
available. On this point, I agree with Professor Douglas A. Berman, who,
providing commentary on this very case, responded to this concern by
suggesting that it represents, as Justice Brennan once put it, a “fear [of]
too much justice.” See Sentencing Law & Policy, http://
sentencing.typepad.com/sentencing_law_and_policy/2006/12/what_
wrong_with.html (Dec. 14, 2006); see also McCleskey v. Kemp, 481 U.S.
279, 339 (1987) (Brennan, J., dissenting).