United States v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
April 4, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 01-21166
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ENRIQUE GONZALES, SR.,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m H-95-299-02
_________________________
Before GARWOOD, SMITH, and BARKSDALE,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
At issue is whether Castillo v. United
States, 530 U.S. 120 (2000), applies retroac-
tively on collateral review. We conclude that
Castillo announced a new procedural rule that
is not retroactive under Teague v. Lane, 489
U.S. 288 (1989). We therefore affirm the
denial of Enrique Gonzales’s motion for relief
from sentence under 28 U.S.C. § 2255.
I.
Gonzales was convicted of several drug
trafficking and firearms charges, including one
count of carrying a firearm in violation of 18
U.S.C. § 924(c)(1). For the § 924(c)(1)
count, the indictment referred to a generic
“firearm” but did not specify that Gonzales
carried a machinegun. With jury instructions
that mirrored the indictment, the jury con-
victed Gonzales of all counts.

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2
The government then filed a motion seeking
a thirty-year sentence on the § 924(c)(1)
count. At the time, § 924(c)(1) imposed a
five-year sentence for carrying an ordinary
firearm, but a thirty-year sentence for carrying
a machinegun.1 The court granted the motion,
finding that Gonzales had carried a machine-
gun, and sentenced him to thirty-years’ impri-
sonment on the § 924(c)(1) count.2 We af-
firmed. United States v. Gonzales, 121 F.3d
928 (5th Cir. 1997), cert. denied, 522 U.S.
1131 (1998).
Gonzales then filed a § 2255 motion to
correct the sentence on the § 924(c)(1) count.
Following Castillo and Apprendi v. New Jer-
sey, 530 U.S. 466 (2000), he argues that his
sentence violates his Fifth and Sixth Amend-
ment rights, because the indictment did not al-
lege, and the jury did not find beyond a rea-
sonable doubt, that the firearm was a machine-
gun. The district court denied the motion,
holding that Apprendi and Castillo announce
new procedural rules that are not retroactive
under Teague. See Gonzales v. United States,
159 F. Supp. 2d 555 (S.D. Tex. 2001). Be-
cause of their importance, the court granted a
certificate of appealability on both questions.
II.
Gonzales seeks collateral relief from his
sentence based on the rules of Apprendi and
Castillo. Because there are no disputed facts,
we review the denial of the § 2255 motion de
novo. United States v. Willis, 273 F.3d 592,
595 (5th Cir. 2001).
These rules are “new” as to Gonzales, be-
cause his conviction and sentence were final
before the Supreme Court decided either Ap-
prendi or Castillo. Some new rules apply re-
troactively on collateral review, others not. If
a new rule is substantive, i.e., if it interprets
the meaning of a criminal statute, it always ap-
plies retroactively. Davis v. United States,
417 U.S. 333 (1974). If it is procedural, how-
ever, it applies retroactively only if it fits one
of the Teague exceptions: (1) “[I]t places cer-
tain kinds of primary, private individual con-
duct beyond the power of the criminal law-
making authority to proscribe,” or (2) “it re-
quires the observance of those procedures that
are implicit in the concept of ordered liberty.”
Teague, 489 U.S. at 311 (quotation marks and
alterations omitted).
Gonzales argues that Apprendi and Castillo
announced substantive rules that necessarily
apply retroactively. In the alternative, he con-
tends that these rules fit the second Teague
exception if they are procedural. After brief-
ing was completed in t his case, we held in
United States v. Brown, 305 F.3d 304 (5th Cir.
2002), that Apprendi announced a non-retro-
active procedural rule; we now conclude that
Castillo did the same.
A.
In Castillo, 530 U.S. at 131, the Court held
that “Congress intended the firearm type-re-
lated words it used in § 924(c)(1) to refer to
an element of a separate, aggravated crime.”
1 “Whoever, during and in relation to any . . .
drug trafficking crime . . . uses or carries a firearm,
shall, in addition to the punishment provided for
such . . . drug trafficking crime, be sentenced to
imprisonment for five years, . . . and if the firearm
is a machinegun, . . . to imprisonment for thirty
years.” 18 U.S.C. § 924(c)(1) (1994). Congress
since has amended § 924(c)(1).
2 The jury also had found Gonzales guilty of
possession of a machinegun in violation of 18
U.S.C. § 922(o)(1). The indictment and jury in-
structions for this count specified that Gonzales’s
firearm was a machinegun. There was no evidence
of another firearm involved in Gonzales’s crimes.

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3
Gonzales argues that this rule is substantive
and therefore applies retroactively to his sen-
tence.3 To the contrary, the rule of Castillo is
procedural, because its functional effect is to
shift fact-finding responsibility from judge to
jury, not to alter the meaning of the fact to be
found.
The Supreme Court explained the “distinc-
tion between substance and procedure . . . in
the habeas context” in Bousley v. United
States, 523 U.S. 614, 620 (1998): “[O]ne of
the ‘principal functions of habeas corpus is to
assure that no man has been incarcerated un-
der a procedure which creates an impermis-
sibly large risk that the innocent will be con-
victed’” (quoting Teague, 489 U.S. at 312)
(alteration omitted).
A procedural rule, in other words, ensures
“an accurate conviction” of conduct that the
law criminalizes. Id. (quoting Teague, 489
U.S. at 313). A substantive rule, on the other
hand, involves a “decision[ ] of [a court] hold-
ing that a substantive federal criminal statute
does not reach certain conduct.” Id. That is,
a substantive rule interprets a federal criminal
statute to determine what conduct the law in
fact criminalizes.
We recently applied this distinction in
Brown. In Apprendi, 530 U.S. at 476, the
Court held that “any fact (other than prior con-
viction) that increases the maximum penalty
for a crime must be charged in an indictment,
submitted to a jury, and proven beyond a rea-
sonable doubt” (quoting Jones v. United
States, 526 U.S. 227, 243 n.6 (1999)). We
explained in Brown, 305 F.3d at 309, that this
rule “did not change what the government
must prove, only that the jury, rather than the
judge must decide the [relevant factual] ques-
tion.” We also emphasized that the Apprendi
Court characterized its decision as procedural.
Id. at 308.4
We acknowledge that Castillo, unlike Ap-
prendi, does not sound very much like a ruling
on constitutional criminal procedure. The
term “procedure” or its cognates do not ap-
pear in Castillo. Likewise, the Court neither
cites nor mentions the Fifth or Sixth Amend-
ment.
Indeed, Castillo reads very much like an
ordinary statutory-interpretation decision. For
example, the Court framed the question as
“whether Congress intended the statutory ref-
erences to particular firearm types in § 924-
(c)(1) to define a separate crime or simply to
authorize an enhanced penalty.” Castillo, 530
U.S. at 123. The Court’s answer was that
“even apart from the doctrine of constitutional
doubt, our consideration of § 924(c)(1)’s lang-
uage, structure, context, history, and such oth-
er factors as typically help courts determine a
statute’s objectives, leads us to conclude that3 If the rule of Castillo is substantive, hence
retroactive, Gonzales would be entitled to relief
from sentence, because his sentence plainly violates
the rule. Under Castillo, he was eligible for the
thirty-year sentence only if his firearm was a ma-
chinegun, but this essential fact was not alleged in
the indictment or contained in the jury instruction.
See Castillo, 530 U.S. at 123 (explaining that the
fact must be alleged in the indictment and proved to
the jury beyond a reasonable doubt).
4 See, e.g., Apprendi, 530 U.S. at 475 (“The
substantive basis for New Jersey’s enhancement is
thus not at issue; the adequacy of New Jersey’s
procedure is.”); id. at 484 (stating that “the rea-
sonable doubt requirement has a vital role in our
criminal procedure for cogent reasons”) (quotation
marks omitted).

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4
the relevant words create a separate substan-
tive crime.” Id. at 124 (emphasis added).
Tools such as text, structure, and history are,
of course, the hallmarks of statutory interpre-
tation.
Castillo therefore appears, at first blush, to
announce a substantive rule, as the only circuit
to address the question has concluded. In
United States v. Wiseman, 297 F.3d 975, 981-
82 (10th Cir. 2002), the court held that “[t]he
Castillo court did not announce a new consti-
tutional rule of criminal procedure; it con-
strued a criminal statute to require a jury de-
termination on the type of firearm used by the
defendant.” The Wiseman court reasoned that
the rule must be substantive, because “[t]he
Court’s holding in Castillo was based solely
on its interpretation of § 924(c)(1).” Id. at
981 (emphasis added).
We reason, nonetheless, that Castillo an-
nounced a procedural rule. We recognize that
this conclusion may seem counterintuitive.
After all, the Court interpreted § 924(c)(1) and
held that its “firearm type-related words . . .
[are] an element of a separate, aggravated
crime.” Castillo, 530 U.S. at 131 (emphasis
added). Calling a statutory term an “element”
was once a telltale sign of a substantive in-
terpretation of a criminal statute.
After Apprendi, however, we no longer can
assume that an interpretation of a statute’s
“elements” is substantive. The distinction be-
tween what was once called an “element” and
what was once called a “sentencing factor” “is
largely irrelevant after Apprendi.” United
States v. Matthews, 312 F.3d 652, 662 (5th
Cir. 2002), cert. denied, 2003 U.S. LEXIS
2433 (U.S. Mar. 24, 2003) (No. 02-9053).
These terms now reflect the allocation of fact-
finding responsibility between judge and jury.
By calling the “firearm type-related words” of
§ 924(c)(1) an “element,” the Court allocated
responsibility for finding this fact to the jury.
It did not alter the substantive meaning of the
“firearm type-related words.”
The terms “element” and “sentencing fac-
tor” are therefore conclusions, not reasons for
a conclusion.5 The rule of Apprendi, to re-
peat, is that “any fact (other than prior con-
viction) that increases the maximum penalty
for a crime must be charged in an indictment,
submitted to a jury, and proven beyond a rea-
sonable doubt.” Apprendi, 530 U.S. at 476
(quoting Jones, 526 U.S. at 243 n.6). Appren-
di thus requires courts to determine the stat-
ute’s basic offense and its maximum penalty,
and then to determine what other facts in the
statute affect the possible penalty.
5 “Apprendi repeatedly disparaged the distinc-
tion between a fact characterized as a sentencing
factor and a fact characterized as an element of a
separate offense when the fact increases the stat-
utory maximum penalty.” Matthews, 312 F.3d at
662 & n. 13 (collecting quotations). The Supreme
Court has reiterated this principle in subsequent
Apprendi cases.
“As to elevation of the maximum punishment .
. . Apprendi repeatedly instructs in that context
that the characterization of a fact or circumstance
as an ‘element’ or a ‘sentencing factor’ is not de-
terminative of the question ‘who decides,’ judge or
jury.” Ring v. Arizona, 536 U.S. 584, ___, 122 S.
Ct. 2428, 2441 (2002). “[T]he fundamental
meaning of the jury-trial guarantee of the Sixth
Amendment is that all facts essential to imposition
of the level of punishment that the defendant re-
ceivesSSwhether the statute calls them elements of
the offense, sentencing factors, or Mary
JaneSSmust be found by the jury beyond a rea-
sonable doubt.” Id. at ___, 122 S. Ct. at 2444
(Scalia, J., concurring).

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5
If these facts do not increase the maximum,
they may be found by a judge; if they do, they
must be alleged in the indictment and found by
a jury. At this point, the court, as a shorthand
for its reasoning, may attach the term “sen-
tencing factor” to the former and “element” to
the latter. Cf. Castillo, 530 U.S. at 123-24.
What matters, though, is the effect of a fact on
the statutory maximum.
This Apprendi analysis can resemble sub-
stantive statutory interpretation, because the
court must use traditional tools to identify the
basic offense and its penalty, as well as any
facts that affect the penalty. The Court in
Castillo engaged, albeit implicitly, in precisely
this kind of Apprendi analysis.6
The Castillo Court, 530 U.S. at 124, used
the text and structure of § 924(c)(1) to identify
“the basic federal offense of using or carrying
a gun during and in relation to a crime of vio-
lence [or drug trafficking crime],” which car-
ried a five-year sentence. The Court then re-
lied on this and other tools to decide that the
kind of firearm used or carried is a fact that
increases the statutory maximum. Id. at 125-
31. The Court concluded by calling this fact
“an element of a separate, aggravated crime.”
Id. at 131. As the Court’s reasoning demon-
strates, though, the conclusional term “ele-
ment” merely means that “the indictment must
identify the firearm type and a jury must find
that element proved beyond a reasonable
doubt.” Id. at 123.
In other words, Apprendi analysis does not
alter the meaning of the fact to be found, but
instead allocates fact-finding responsibilities
between judge and jury. Consider Gonzales’s
eligibility for a thirty-year sentence under
§ 924(c)(1) before and after Castillo. In both
instances, someone had to find that he carried
a machinegun, not a simple firearm. The only
difference, after Castillo, is that, for the thirty-
year sentence to be imposed, the jury, not the
court, must find this fact.
The opening sentence reveals this truth:
“In this case we once again decide whether
words in a federal criminal statute create of-
fense elements (determined by a jury) or sen-
tencing factors (determined by a judge).” Cas-
tillo, 530 U.S. at 121. And, as we explained in
Brown, 305 F.3d at 309, the responsibility for
fact-finding is a quintessential procedural rule,
not “a substantive change in the law.”
It is useful, in this regard, to contrast Cas-
tillo with Bailey v. United States, 516 U.S.
137 (1995). There, the Court interpreted the
meaning of “use” in § 924(c)(1) to mean “ac-
tive employment of the firearm by the
defendant.” Id. at 143. The Court contrasted
this definition with “mere possession of a
firearm by a person who commits a drug
offense.” Id. Unlike Castillo, Bailey therefore
altered the substantive meaning of a key term
in § 924(c)(1), as the federal courts quickly
learned from the avalanche of § 2255 motions.
Thus, Bailey necessarily applied retroactively
6 We recognize that Castillo preceded Apprendi
by three weeks. We sometimes emphasize Ap-
prendi, however, because it addresses the same is-
sue, i.e., the constitutional allocation of fact-finding
responsibility, more generally and thoroughly than
does Castillo. Moreover, the Court grappled with
this issue repeatedly before deciding Castillo and
Apprendi. See, e.g., Jones v. United States, 526
U.S. 227 (1999); Almendarez-Torres v. United
States, 523 U.S. 224 (1998). Thus, we safely may
assume the Court had all its caselaw in mind when
it issued Castillo and Apprendi. See United States
v. Torres, 282 F.3d 1241, 1246 (10th Cir. 2002)
(observing that Castillo belongs to “the Apprendi
family of cases”).

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6
on collateral review. Bousley, 523 U.S. at
620.
Finally, our precedents support the view
that Castillo announced a procedural rule. In
United States v. Shunk, 113 F.3d 31 (5th Cir.
1997), we concluded that United States v.
Gaudin, 515 U.S. 506 (1995), announced a
procedural rule. In Gaudin, id. at 511, the
Court had held that the materiality element of
18 U.S.C. § 1001 had to be found by the jury,
not the court. We noted that “Gaudin
explicitly states that the rule it created was
procedural.” Shunk, 113 F.3d at 35. More
importantly, however, we also explained that
“Gaudin did not change what the Government
must prove; materiality was always an element
of a § 1001 offense. Instead, Gaudin changed
the party to whom the Government must
prove materialitySSfrom judge to jury.” Id.
(citation omitted).
Likewise, Castillo did not change the nec-
essary factual showing for a thirty-year
sentence under § 924(c)(1). The government
always had to prove that the firearm used was
a machinegun; Castillo merely changed “the
party to whom the government must prove”
that the firearm used was a machinegun.7
Even United States v. McPhail, 112 F.3d
197 (5th Cir. 1997), in which we concluded
(before Bousley) that Bailey announced a sub-
stantive rule, indicates, by way of contrast,
that Castillo announced a procedural rule.
The McPhail court explained, in three
different ways, why the rule of Bailey was
substantive. Most basically, the “decision in
Bailey articulates the substantive elements” of
the conduct criminalized by § 924(c)(1). Mc-
Phail, 112 F.3d at 199. That is to say, Bailey
“explains what conduct is, and always has
been, criminalized by [§ 924(c)(1)].” Id. This
kind of holding “is a substantive, non-
constitutional decision concerning the reach of
a federal statute.” Id.
These explanations all accurately portray
the rule of Bailey but not of Castillo. In Cas-
tillo the Court did not articulate the elements
of § 924(c)(1), or explain what conduct it
criminalizes, or affect its reach. Unlike Bailey,
therefore, Castillo announced a procedural
rule.8
In sum, Castillo shifted the fact-finding re-
sponsibility from judge to jury but did not alter
the meaning of the fact to be found. Castillo
does not determine what conduct the law
criminalizes, but rather tends to ensure an ac-
curate conviction of and sentence for conduct
that the law criminalizes. Both before and af-
ter Castillo, § 924(c)(1) imposed a thirty-year
sentence for using or carrying a machinegun
during a drug trafficking crime, but Castillo
now tends to ensure that these sentences will
be imposed in a more accurate fashion.
7 By holding that Gaudin announced a pro-
cedural rule, Shunk also supports what might seem
a peculiar proposition: The rule of a case may be
procedural even if that rule applies only to a single
statute.
8 See also United States v. Lopez, 248 F.3d
427, 432 (5th Cir.) (relying on these three passages
from McPhail to conclude that Richardson v.
United States, 526 U.S. 813 (1999), announced a
substantive rule regarding the scope of 21 U.S.C.
§ 848(a)), cert. denied, 534 U.S. 898 (2001).
Irrespective of whether Lopez’s reading of
Richardson is correct, Lopez does not purport to
apply a test different from that of Bousley, Mc-
Phail, and Shunk, and, in any event, McPhail and
Shunk, like Bousley, preceded Lopez and hence
remain binding on this panel.

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7
The Court’s unavoidable use of traditional
statutory-interpretation tools may efface this
critical distinctionSSso much so that the Tenth
Circuit mistakenly held in Wiseman that the
rule of Castillo is substantive9SSbut the Su-
preme Court’s analysis undermines neither the
distinction nor the reasoning of Brown, Shunk,
and McPhail. Thus, Castillo is a procedural
rule subject to the Teague framework.
B.
Gonzales argues, in the alternative, that the
rule of Castillo fits within the second Teague
exception, which makes retroactive new pro-
cedural rules that “require[ ] the observance of
those procedures that are implicit in the
concept of ordered liberty.” Teague, 489 U.S.
at 311 (quotation marks and alteration
omitted). The Court described such rules as
“watershed rules of criminal procedure,” id.,
that are “central to an accurate determination
of innocence or guilt,” id. at 313. Because we
are confident that the rule of Castillo is not a
watershed rule of criminal procedure, we
decline to apply it retroactively.
Castillo is nothing more than a particular
manifestation of Apprendi. See Torres, 282
F.3d at 1246 (observing that Castillo belongs
to “the Apprendi family of cases”). Apprendi
requires any fact that increases the statutory
maximum to be alleged in the indictment and
proven to the jury beyond a reasonable doubt.
Castillo requires that the kind of firearm used
in a § 924(c)(1) offense be alleged in the in-
dictment and proven to the jury beyond a rea-
sonable doubt. Gonzales more or less admits
this point, because he relies on Apprendi and
Castillo for the same arguments.
In Brown, 305 F.3d at 309-10, we held that
Apprendi is not a watershed rule of criminal
procedure. We reasoned that Apprendi
improves the accuracy of the sentence, not the
determination of guilt or innocence of the of-
fense, and does not alter our understanding of
the bedrock elements essential to a
fundamentally fair proceeding. Id. at 309.
This reasoning also applies to Castillo, which
neither affects the accuracy of the
determination of guilt or innocence of a
§ 924(c)(1) offense nor reworks our basic
understanding of “ordered liberty.”10 In short,
if the general rule of Apprendi does not fit the
second Teague exception, nor does a
particular manifestation of that rule in Castillo.
The order denying the § 2255 motion is
AFFIRMED.
9 The Tenth Circuit contradicted itself in the key
sentence of Wiseman: “The Castillo Court did not
announce a new constitutional rule of criminal
procedure; it construed a criminal statute to require
a jury determination on the type of firearm used by
the defendant.” Wiseman, 297 F.3d at 981-82.
The clause before the semicolon states that Castillo
did not announce a procedural rule, but the clause
after the semicolon describes a procedural rule.
10 See Shunk, 113 F.3d at 37 ([O]ne can easily
envision a system of ‘ordered liberty’ in which cer-
tain elements of a crime can or must be proved to
a judge, not to a jury.”).

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