No. 13-­--3548 RICHARD E. CRAYTON v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-­‐‑3548
RICHARD E. CRAYTON,
Petitioner-­‐‑Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-­‐‑Appellee.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 13-­‐‑cv-­‐‑552-­‐‑bbc — Barbara B. Crabb, Judge.
____________________
ARGUED JANUARY 22, 2015 — DECIDED JUNE 25, 2015
____________________
Before EASTERBROOK, MANION, and WILLIAMS, Circuit
Judges.
EASTERBROOK, Circuit Judge. Apprendi v. New Jersey, 530
U.S. 466 (2000), holds that facts increasing a criminal defend-­‐‑
ant’s maximum permissible sentence must be established,
beyond a reasonable doubt, to the satisfaction of the trier of
fact (a jury unless the defendant agrees to a bench trial or
formally admits the facts). Harris v. United States, 536 U.S.
545 (2002), holds that facts increasing the minimum permis-­‐‑

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2 No. 13-­‐‑3548
sible sentence may be found by a judge on the preponder-­‐‑
ance of the evidence. But Alleyne v. United States, 133 S. Ct.
2151 (2013), overrules Harris and holds that facts controlling
both minimum and maximum sentences are in the jury’s
province and covered by the reasonable-­‐‑doubt standard.
Richard Crayton, whose sentence became final between Har-­‐‑
ris and Alleyne, contends that Alleyne’s rule applies retroac-­‐‑
tively on collateral review.
A jury convicted Crayton of distributing heroin. The in-­‐‑
dictment alleged that Nicole Hedges died from using Cray-­‐‑
ton’s product, which if true would increase the minimum
sentence (though not constitute a new offense), but the jury
could not decide unanimously whether Hedges’s death re-­‐‑
sulted from Crayton’s heroin. The district judge then found
that it did. Under 21 U.S.C. §841(b)(1)(C) this required the
sentence to be at least 20 years’ imprisonment, and that’s
what the district judge imposed. In the absence of the find-­‐‑
ing that Crayton’s heroin killed Hedges, the statutory range
would have been 0 to 20 years. The judge stated that she
thought the statutory floor excessive, but she concluded that
the law required her to sentence Crayton to 20 years in pris-­‐‑
on. This court affirmed. United States v. Crayton, No. 11-­‐‑1820
(7th Cir. Dec. 27, 2011) (nonprecedential disposition).
Five months after denying Crayton’s petition for certiora-­‐‑
ri, 132 S. Ct. 2379 (2012), the Supreme Court granted Al-­‐‑
leyne’s. 133 S. Ct. 420 (2012). While Alleyne’s case was pend-­‐‑
ing, Crayton filed a petition under 28 U.S.C. §2255. The dis-­‐‑
trict court dismissed it without prejudice while waiting for
Alleyne—an improper procedure given the time-­‐‑and-­‐‑number
limits in §2255, see Rhines v. Weber, 544 U.S. 269 (2005); Pur-­‐‑
vis v. United States, 662 F.3d 939 (7th Cir. 2011), though nei-­‐‑

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No. 13-­‐‑3548 3
ther side protested. When Crayton filed another after the
Supreme Court issued its decision, the district court held
that Alleyne does not apply retroactively on collateral review.
(The parties treat Crayton’s current §2255 filing as an initial
petition, and as timely, despite the district court’s misstep in
dismissing Crayton’s first petition.)
Every court of appeals that has considered the subject
has concluded that Alleyne is not retroactive on collateral re-­‐‑
view. Butterworth v. United States, 775 F.3d 459 (1st Cir. 2015);
United States v. Reyes, 755 F.3d 210, 212–13 (3d Cir. 2014);
United States v. Olvera, 775 F.3d 726 (5th Cir. 2015); Jeanty v.
Warden, FCI-­‐‑Miami, 757 F.3d 1283, 1285–86 (11th Cir. 2014).
Two other circuits have said the same thing in nonpreceden-­‐‑
tial opinions. Rogers v. United States, 561 F. App’x 440, 443–44
(6th Cir. 2014); United States v. Richards, 567 F. App’x 591, 593
(10th Cir. 2014) (based on In re Payne, 733 F.3d 1027 (10th Cir.
2013), which addressed §2255(h)(2)). Our circuit held in
Simpson v. United States, 721 F.3d 875 (7th Cir. 2013), that Al-­‐‑
leyne does not authorize a second or successive collateral at-­‐‑
tack under §2255(h)(2) because only the Supreme Court can
declare a decision retroactive for the purpose of that para-­‐‑
graph. Tyler v. Cain, 533 U.S. 656 (2001). But for an initial pe-­‐‑
tition, such as Crayton’s, a district judge or court of appeals
may make the retroactivity decision, and that’s what Cray-­‐‑
ton asks us to do. But we conclude that the other circuits are
correct. Alleyne does not apply retroactively.
Alleyne extends Apprendi from maximum to minimum
sentences. Only once has the Supreme Court considered
whether a decision that rests on Apprendi applies retroactive-­‐‑
ly on collateral review. It held in Schriro v. Summerlin, 542
U.S. 348 (2004), that Ring v. Arizona, 536 U.S. 584 (2002), is

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4 No. 13-­‐‑3548
not retroactive. Crayton maintains that Schriro is not disposi-­‐‑
tive against him, because Ring applied Apprendi to change
(from judge to jury) the identity of the decisionmaker under
one state’s procedure for capital punishment but did not af-­‐‑
fect that state’s allocation of the burden of persuasion (the
state had used the reasonable-­‐‑doubt standard all along).
Crayton contends that a decision changing the burden of
persuasion, as Alleyne did, is entitled to retroactive applica-­‐‑
tion under the criteria of Teague v. Lane, 489 U.S. 288 (1989).
The problem with that argument is that Apprendi itself
changed both the identity of the decisionmaker and the bur-­‐‑
den of persuasion, but the Supreme Court has not declared
Apprendi to be retroactive—nor has any court of appeals. We
held in Curtis v. United States, 294 F.3d 841 (7th Cir. 2002),
that Apprendi is not retroactive under the Teague standard.
We concluded that two sorts of decisions are applied retro-­‐‑
actively: those holding that the law does not (or cannot con-­‐‑
stitutionally) make particular conduct criminal, and those
identifying rights “so fundamental that any system of or-­‐‑
dered liberty is obliged to include them.” Curtis, 294 F.3d at
843. And we held that the changes made by Apprendi are not
in the latter category (no one thinks them to be in the “inno-­‐‑
cence” category).
Throughout this nation’s history judges have based sen-­‐‑
tences on findings made by a preponderance of the evi-­‐‑
dence. Harris held that Apprendi had altered this approach
only for maximum sentences; Alleyne disagreed and held
that Apprendi logically implies using the jury (and the rea-­‐‑
sonable-­‐‑doubt standard) for minimum sentences too. But
neither Apprendi nor Alleyne concluded that findings on the
preponderance standard are too unreliable in general to be

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No. 13-­‐‑3548 5
the basis of a valid sentence. Judges routinely make findings,
based on a preponderance of the evidence, that dramatically
affect the length of criminal sentences.
Consider: even if Crayton’s trial had occurred after Al-­‐‑
leyne, and the jury had found unanimously that Crayton’s
heroin did not kill Hedges, the judge still would have been
entitled to sentence Crayton to 20 years in prison for distrib-­‐‑
uting heroin after finding by a preponderance of the evi-­‐‑
dence that his product did kill Hedges. See United States v.
Watts, 519 U.S. 148 (1997). Alleyne did not overrule Watts or
recognize a fundamental principle that sentences must rest
on findings supported by proof beyond a reasonable doubt.
Instead Alleyne curtails legislatures’ ability to restrict judicial
discretion in sentencing. A legislature that wants to impose
compulsory minimum sentences must submit the discretion-­‐‑
reducing facts to the jury under the reasonable-­‐‑doubt stand-­‐‑
ard. That principle is some distance from a rule that defend-­‐‑
ants are entitled to have all important facts resolved by the
jury under the reasonable-­‐‑doubt standard.
It is lawful today for a judge to increase a sentence based
on facts found on the preponderance standard. “Findings by
federal district judges are adequate to make reliable deci-­‐‑
sions about punishment. See Edwards v. United States, 523
U.S. 511 (1998).” Curtis, 294 F.3d at 844. It follows, as we held
in Curtis about Apprendi itself, that Alleyne is not so funda-­‐‑
mental that it must apply retroactively on collateral review.
Crayton contends that Alleyne should be applied retroac-­‐‑
tively to his case, even if not to other prisoners’ cases, be-­‐‑
cause the district judge made it clear that she would not
have given him a 20-­‐‑year sentence but for her belief (correct
at the time of sentencing, given Harris) that a minimum sen-­‐‑

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6 No. 13-­‐‑3548
tence may be increased by judicial findings. That is to say, in
the post-­‐‑Alleyne world the judge still would have found by a
preponderance of the evidence that Crayton’s heroin killed
Hedges, but the sentence would have been under 20 years.
But all this does is show that Alleyne would have affected the
outcome, had the decision been rendered earlier; it does
nothing to change the standard for retroactivity. Under
Teague decisions apply retroactively, or they do not; the Su-­‐‑
preme Court has never suggested that new procedural rules
apply retroactively to some petitioners but not others.
AFFIRMED

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No. 13‐3548 7
WILLIAMS, Circuit Judge, concurring. I am not sure
whether the Supreme Court would find Alleyne to be
retroactively applicable on collateral review. But because we
as appellate courts decide the retroactivity question in the
first instance, absent direction from the Supreme Court,
Ashley v. United States, 266 F.3d 671, 673 (7th Cir. 2001), I
would like to weigh in on both the arguments for
retroactivity and the Supreme Court’s jurisprudence on the
topic. I also take issue with the majority’s reliance on the
non‐retroactivity of an earlier case. That is not dispositive.
The majority states that if “Nicole Hedges died from
using Crayton’s product,” that finding would increase the
minimum sentence but would “not constitute a new
offense.” Slip op. 2. 1 Under Alleyne, that is simply not true.
Alleyne made clear that “[w]hen a finding of fact alters the
legally prescribed punishment so as to aggravate it, the fact
necessarily forms a constituent part of a new offense.” 133 S.
Ct. at 2162 (emphasis added). “Distribution of heroin” is not
the same offense as “distribution of heroin that results in
death.” We know that they are not the same offense but
instead constitute two different offenses because the statutes
provide for different statutory ranges of punishment. See 21
U.S.C. § 841(b)(1)(C).
This misconception has permeated circuit court decisions
addressing whether Apprendi and Alleyne should apply
retroactively, leading many courts to downplay the
significance of these decisions. See, e.g., Sepulveda v. United
States, 330 F.3d 55, 60 (1st Cir. 2003) (“Nothing in the
1 Perhaps this statement is a reference to the pre‐Alleyne understanding
of conviction versus sentencing, but later portions of the opinion, see slip
op. 4–5, suggest otherwise.

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8 No. 13‐3548
Apprendi decision indicates to us that infringements of its
rule will seriously diminish the accuracy of convictions
(which, by definition, must take place before any such
infringement occurs).”); United States v. Sanchez‐Cervantes,
282 F.3d 664, 671 (9th Cir. 2002) (“The application of Apprendi
only affects the enhancement of a defendant’s sentence once
he or she has already been convicted beyond a reasonable
doubt.”); Goode v. United States, 305 F.3d 378, 385 (6th Cir.
2002) (“The accuracy that is improved by the Apprendi
requirement is in the better imposition of a proper sentence.
In contrast, the accuracy that is improved by the rule of
Gideon involves the basic determination of the defendant’s
guilt or innocence.”). I cannot subscribe to this view. First,
Apprendi and Alleyne are not about sentencing. They are
about the accurate determination of a defendant’s guilt of a
particular offense. If Apprendi was not clear on this point,
Alleyne clarified it. 133 S. Ct. at 2160 (stating that “because
the legally prescribed range is the penalty affixed to [a]
crime,” a fact that increases either end of the penalty range
“produces a new penalty and constitutes an ingredient of the
offense”). Second, that we, along with other circuits, found
Apprendi to not be retroactive is not dispositive of the
question of whether Alleyne is retroactive. One reason we
know that is because the Supreme Court has told us that
Gideon v. Wainwright would be retroactive, Saffle v. Parks, 494
U.S. 484, 495 (1990), without indicating that any of Gideon’s
antecedents—like Johnson v. Zerbst, 304 U.S. 458 (1938) or
Powell v. Alabama, 287 U.S. 45 (1932)—would be retroactive.
I begin with a discussion of the Supreme Court’s
retroactivity jurisprudence, which the majority does not
address. The only part of the majority’s opinion that appears
to reference any court’s standard for retroactivity is a citation

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No. 13‐3548 9
to our own decision in Curtis v. United States, 294 F.3d 841
(7th Cir. 2002). Slip op. 4. The standard from the Supreme
Court is that procedural rules must be “implicit in the
concept of ordered liberty” (among other things) in order to
be retroactively applicable. Teague v. Lane, 489 U.S. 288, 307
(1989). However, Curtis framed the question as whether the
rules are “so fundamental that any system of ordered liberty
is obliged to include them.” 294 F.3d at 843 (emphasis
added). The majority repeats this language from Curtis. The
difference in phrasing may seem small, but the Supreme
Court has indicated that a rule need not be utilized by every
criminal justice system in order to be implicit in the concept
of ordered liberty in the United States. See Gideon v.
Wainwright, 372 U.S. 335, 344 (1963) (“The right of one
charged with crime to counsel may not be deemed
fundamental and essential to fair trials in some countries,
but it is in ours.”).
Under Teague, a new rule can be retroactive to cases on
collateral review only if it falls into one of two narrow
exceptions to the general rule of nonretroactivity. 489 U.S. at
311–13. Of relevance here is the second Teague exception for
new rules of criminal procedure. New rules of procedure
generally do not apply retroactively to cases that became
final before the new rule was announced, unless the new
rule is “a watershed rule of criminal procedure implicating
the fundamental fairness and accuracy of the criminal
proceeding.” Whorton v. Bockting, 549 U.S. 406, 416 (2007). To
qualify as watershed, a new rule must meet two
requirements. “Infringement of the rule must seriously
diminish the likelihood of obtaining an accurate conviction
and the rule must alter our understanding of the bedrock
procedural elements essential to the fairness of a

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10 No. 13‐3548
proceeding.” Tyler v. Cain, 533 U.S. 656, 665 (2001). In my
view, Alleyne meets these requirements.
Alleyne applied a fundamental principle that dates back
at least to our nation’s founding. It has long been established
that the Constitution “protects the accused against
conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is
charged.” In re Winship, 397 U.S. 358, 364 (1970). This right to
be convicted beyond a reasonable doubt is a “historically
grounded right[] of our system, developed to safeguard men
from dubious and unjust convictions.” Brinegar v. United
States, 338 U.S. 160, 174 (1949). That the government must
prove beyond a reasonable doubt every element of an
offense is “an ancient and honored aspect of our criminal
justice system.” Victor v. Nebraska, 511 U.S. 1, 5 (1994).
The reasonable‐doubt standard “plays a vital role in the
American scheme of criminal procedure.” Cage v. Louisiana,
498 U.S. 39, 39–40 (1990) (quoting Winship, 397 U.S. at 363).
“Among other things, it is a prime instrument for reducing
the risk of convictions resting on factual error.” Cage, 498
U.S. at 40. The reasonable‐doubt standard implicates the
fundamental fairness and accuracy of criminal proceedings
because “a person accused of a crime would be at a severe
disadvantage, a 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.” Winship, 397 U.S. at 363. “[U]se
of the reasonable‐doubt standard is indispensable to
command the respect and confidence of the community in
applications of the criminal law. It is critical that the moral
force of the criminal law not be diluted by a standard of

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No. 13‐3548 11
proof that leaves people in doubt whether innocent men are
being condemned.” Id. at 364. In fact, the Supreme Court has
said that the reasonable‐doubt requirement is a basic
protection “without which a criminal trial cannot reliably
serve its function.” Sullivan v. Louisiana, 508 U.S. 275, 281
(1993).
The requirement that every element of a crime—defined
as every fact that changes the statutory penalty range,
Alleyne, 133 S. Ct. at 2158—be proven beyond a reasonable
doubt improves the accuracy of the fact‐finding process,
because it reduces the risk that a person guilty of one crime
might be convicted of a more serious, and separate, crime of
which he is innocent. In fact, the reasonable‐doubt standard
is the “prime instrument” for reducing such risk. Cage, 498
U.S. at 40. In my view, the “beyond a reasonable doubt”
standard for a criminal conviction goes to the heart of
fundamental fairness and accuracy and lowering the
standard for a criminal conviction to “preponderance of the
evidence” increases the risk of an inaccurate conviction.
Factfinding based upon preponderance of the evidence,
rather than the reasonable‐doubt standard, seriously
diminishes accuracy such that there is an impermissibly
large risk of an inaccurate conviction.
As to the second requirement for a watershed rule,
Alleyne altered our understanding of the bedrock procedural
elements essential to the fairness of a proceeding by
establishing a new class of facts that constitute the “crime”
and thus must be found by the jury beyond a reasonable
doubt. We have long known that elements of the crime must
be proven beyond a reasonable doubt. But there has been
much debate about how to define “elements” versus

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12 No. 13‐3548
“sentencing factors.” Alleyne changed our understanding of
what constitutes an “element” of a crime. “Much turns on
the determination that a fact is an element of an offense
rather than a sentencing consideration, given that elements
must be charged in the indictment, submitted to a jury, and
proven by the Government beyond a reasonable doubt.”
Jones v. United States, 526 U.S. 227, 232 (1999).
Allowing Crayton to be convicted of “distribution of
heroin that resulted in death” by a mere preponderance of
the evidence increased the risk of his conviction resting on a
factual error. The reasonable‐doubt standard “provides
concrete substance for the presumption of innocence—that
bedrock axiomatic and elementary principle whose
enforcement lies at the foundation of the administration of
our criminal law.” Winship, 397 U.S. at 363. Failing to apply
Alleyne (and Apprendi) retroactively creates the “troubling
possibility that a defendant has been convicted of conduct
that constitutes a less serious offense than the one for which
he is sentenced.” Coleman v. United States, 329 F.3d 77, 93 (2d
Cir. 2003) (Parker, Jr., J., concurring in the judgment). Many
judges seem untroubled by this possibility. I am not one of
them. I do not think the fact that a person is guilty of one
crime means that he has a lesser interest in, or right to, a
determination of his guilt of a different offense beyond a
reasonable doubt.
Two Supreme Court decisions suggest that new rules
which implicate the reasonable‐doubt standard like Alleyne
should be applied retroactively. In In re Winship, the
Supreme Court stated “[l]est there remain any doubt about
the constitutional stature of the reasonable‐doubt standard,
we explicitly hold that the Due Process Clause protects the

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No. 13‐3548 13
accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” 397 U.S. at 364. In Ivan V. v.
City of New York, 407 U.S. 203 (1972), a pre‐Teague case, the
Court unanimously made In re Winship retroactively
applicable on collateral review. In Hankerson v. North
Carolina, 432 U.S. 233 (1977), another pre‐Teague case, the
Court (again unanimously) found that Mullaney v. Wilbur,
421 U.S. 684 (1975)—which established the rule that the state
must establish all elements of a criminal offense beyond
reasonable doubt and invalidated presumptions that shift
the burden of proving elements to the defendant—was
retroactively applicable.
The majority writes that neither Apprendi nor Alleyne
concluded that findings based on the preponderance
standard are too unreliable in general to be the basis of a
valid sentence. I do not quarrel with that statement. My
quarrel is with the characterization of Alleyne as a decision
about sentencing, rather than guilt. “Each crime has different
elements and a defendant can be convicted only if the jury
has found each element of the crime of conviction.” Alleyne,
133 S. Ct. at 2162. The fundamental question here is guilty or
not guilty of what? Crayton was found guilty of “distribution
of heroin” beyond a reasonable doubt. But he was not found
guilty of “distribution of heroin that resulted in death”
beyond a reasonable doubt. These are two different offenses.
As the Supreme Court said in Alleyne, “the core crime and
the fact triggering the mandatory minimum sentence
together constitute a new, aggravated crime, each element of
which must be submitted to the jury” and proven beyond a
reasonable doubt. Id. at 2161. Facts that increase a
mandatory statutory minimum are “part of the substantive

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14 No. 13‐3548
offense.” Id. “When a finding of fact alters the legally
prescribed punishment so as to aggravate it, the fact
necessarily forms a constituent part of a new offense.” Id. at
2162. The accuracy improved by Alleyne is not just in the
proper sentence. It is in the determination of guilt or
innocence with respect to the offense of distribution of
heroin that resulted in death.
While the majority mentions Schriro v. Summerlin, 542
U.S. 348 (2004), the holding of that case is of little assistance
in deciding the question here since Schriro was about jury
versus judicial fact finding where critically, the standard of
proof of beyond a reasonable doubt remained unchanged.
Furthermore, even if Alleyne was about sentencing, Schriro
“leaves little doubt that the ‘watershed rule’ can apply to a
procedural rule that only affects sentencing.” Lloyd v. United
States, 407 F.3d 608, 614 (3d Cir. 2005). We must look at
whether factfinding based upon a preponderance of the
evidence “so seriously diminishes accuracy that there is an
impermissibly large risk of punishing conduct the law does
not reach.” Schriro, 542 U.S. at 355–56. That it does. Because
the reasonable‐doubt standard is the prime instrument to
ensure accuracy of convictions, allowing a factfinder to make
determinations based upon a preponderance of the
evidence, rather than beyond a reasonable doubt, does
seriously diminish accuracy.
The majority also writes that post‐Alleyne, “the judge still
would have been entitled to sentence Crayton to 20 years in
prison for distributing heroin after finding by a
preponderance of the evidence that his product did kill
Hedges,” citing generally United States v. Watts, 519 U.S. 148
(1997). Slip op. 5. However, being entitled to do something

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No. 13‐3548 15
and being required to do something are two very different
things. And the argument is a red herring because the judge
was entitled to sentence Crayton to 20 years with or without a
finding that his product resulted in death. After all, the
statutory range for “distribution of heroin” was 0 to 20 years.
She clearly did not want to sentence Crayton so high, but she
was bound to, based upon a finding by a preponderance of
the evidence that death resulted. Ironically, the judge could
not have sentenced Crayton to 241 months (20 years and 1
month), because that sentence would have violated Apprendi.
The preponderance of the evidence finding required her to
sentence Crayton to exactly 20 years.
The majority further writes that “[t]hat principle” (which
I assume is a reference to the holding of Alleyne) “is some
distance from a rule that defendants are entitled to have all
important facts resolved by the jury under the reasonable‐
doubt standard.” Slip op. 5. I am not sure what it means by
the concept of “important facts.” But the rule of Alleyne is
that defendants are entitled to have all facts that increase a
statutory minimum or maximum resolved by a jury under
the reasonable doubt standard. So if by “important facts” it
means “facts that increase a statutory minimum or
maximum,” it is wrong.
Having considered the importance of the “beyond a
reasonable doubt” standard and the ways in which Alleyne
altered our understanding of this bedrock procedural
element, I now address what is pragmatically the real
problem: the fact that the Supreme Court has never found a
new rule of criminal procedure to fall within the second
Teague exception. It has come close though. On more than
one occasion, the Court has been one justice shy of finding

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16 No. 13‐3548
new rules of criminal procedure to be retroactively
applicable. See, e.g., Schriro v. Summerlin, 542 U.S. 348 (2004);
O’Dell v. Netherland, 521 U.S. 151 (1997); Sawyer v. Smith, 497
U.S. 227 (1990); see also Tyler v. Cain, 533 U.S. 656 (2001) (one
justice shy of finding that the Court had already made Cage
retroactive in Sullivan).
What the Court said is that Gideon would be such a rule,
Saffle, 494 U.S. at 495, and so I turn to Gideon for guidance.
See Gray v. Netherland, 518 U.S. 152, 170 (1996) (referring to
the Gideon rule as a “paradigmatic example” of the second
Teague exception).
With the passage of time, I hope we do not lose sight of
the context in which Gideon was decided. Gideon was
remarkable. But its holding did not come out of nowhere.
Some courts have described Gideon as cutting “a new rule
from whole cloth,” see Butterworth v. United States, 775 F.3d
459, 468 (1st Cir. 2015), unlike Apprendi and Alleyne, but I
disagree. A series of other decisions regarding the right to
counsel, due process, and incorporation of the Bill of Rights
to the states led to it—decisions which the Supreme Court
has not suggested would have met the standard for the
watershed rule exception under Teague. Prior to Gideon, the
Supreme Court had determined that the Sixth Amendment
required counsel to be provided to indigent federal
defendants. Johnson v. Zerbst, 304 U.S. 458 (1938). It had also
found that the Due Process Clause required states to provide
counsel to indigent defendants in special circumstances,
Powell v. Alabama, 287 U.S. 45 (1932), which eventually came
to include all capital cases, Hamilton v. Alabama, 368 U.S. 52
(1961), but also encompassed non‐capital cases where the
totality of facts showed circumstances requiring

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No. 13‐3548 17
appointment of counsel like the personal characteristics or
complexity of the charge made a fair trial unlikely without
appointed counsel, e.g., Betts v. Brady, 316 U.S. 455 (1942). 2
The Court had established that it violated due process for a
state to deny a defendant the opportunity to obtain (and the
right to be represented by) counsel of one’s own choosing.
Chandler v. Fretag, 348 U.S. 3, 9 (1954). And it had made other
Bill of Rights guarantees obligatory on the states through the
Fourteenth Amendment, including the Fourth Amendment’s
prohibition on unreasonable searches and seizures and the
Eighth Amendment’s ban on cruel and unusual punishment.
Gideon, 372 U.S. at 342.
Given these precedent cases, it is no wonder that Justice
Clark in his concurrence in Gideon noted that that case “d[id]
no more than erase a distinction which ha[d] no basis in
logic and an increasingly eroded basis in authority.” Gideon,
372 U.S. at 348 (Clark, J., concurring in the result). That
sounds familiar. See Alleyne, 133 S. Ct. at 2160 (citing Justice
Breyer’s concurrence in Harris v. United States, 536 U.S. 545
(2002), which reasoned that facts increasing the minimum
and facts increasing the maximum cannot be distinguished
“‘in terms of logic’”).
Some circuits have found that “Gideon altered our
understanding of what constitutes basic due process by
2 This particular rule—that states must provide counsel to indigent non‐
capital defendants under special circumstances—produced a long series
of Supreme Court decisions, most of which found that the defendant was
entitled to appointed representation under the circumstances. See Moore
v. Michigan, 355 U.S. 155, 159 n.7 (1957) (citing twenty‐six Supreme Court
cases discussing the principles which determine the extent to which the
constitutional right to counsel is secured in a state prosecution).

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18 No. 13‐3548
establishing that representation by counsel is fundamental to
a fair trial,” while Apprendi and Alleyne “merely clarified and
extended the scope of a pre‐existing right—the right to have
all convictions supported by proof beyond a reasonable
doubt.” United States v. Mora, 293 F.3d 1213, 1219 (10th Cir.
2002). I cannot help but sense some revisionist history. Prior
to Gideon, Powell had already stated that the right to counsel
was fundamental. 287 U.S. at 68. Gideon merely clarified and
extended the scope of a pre‐existing right because the right
to counsel previously existed in federal prosecutions, special
circumstances, and state inmates prosecuted for capital
offenses.
The Supreme Court and circuit courts alike have found
that new procedural rules, despite arguably being aimed at
improving the accuracy of trial or promoting the objectives
of fairness and accuracy, do not meet the Teague standard
because they are not as “sweeping” as Gideon. See e.g., O’Dell,
521 U.S. at 167; United States v. Mandanici, 205 F.3d 519, 528–
29 (2d Cir. 2000). It seems to me that the “sweeping” nature
of Gideon is not so much a reflection of how many cases it
would have applied to retroactively, but instead a statement
about how many cases in which it would be a relevant
consideration going forward. The Supreme Court said that
Gideon was sweeping because it “established an affirmative
right to counsel in all felony cases.” O’Dell, 521 U.S. at 167.
But the right to counsel had already been established for all
federal defendants and for state defendants under certain
circumstances. Also, because of Johnson and the fact that
most states provided counsel to indigent defendants as a
matter of state law prior to Gideon, relatively few defendants
actually needed to be retried as a result of Gideon’s holding.
Most indigent defendants were already being provided with

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counsel prior to Gideon.3 But going forward, an assertion of
the federal constitutional right to counsel became a factor in
every criminal case. Similarly, many rules have been found
to be not as “sweeping” as Gideon because they simply are
not a factor in a significant number of cases. For example,
the rule from Crawford v. Washington, 541 U.S. 36 (2004) is
only a consideration where the government seeks to admit
testimonial hearsay. Whorton, 549 U.S. at 419; see also O’Dell,
521 U.S. at 167 (right of rebuttal afforded to defendants in a
“limited class of capital cases” was not as “sweeping” as
Gideon). That just does not come up in every criminal case.
But how to define the crime (the issue in Alleyne) does. It is
just as sweeping as Gideon.
In many ways, Alleyne is similar to Gideon in that it is the
culminating case in a long‐running debate regarding a
fundamental right. Gideon settled the debate of when our
Constitution requires that the government provide counsel
to indigent defendants. Alleyne settled the debate of how a
“crime” is defined. Each crime is composed of different
elements and a fact is an element of a crime when it alters
the legally prescribed punishment. 133 S. Ct. at 2162. It
cannot be a sufficient justification that Alleyne is not
3 Even prior to Johnson, in 1930, the Supreme Court noted that “[t]hanks
to the humane policy of the modern criminal law”, a criminal defendant
“may have counsel furnished him by the state.” Patton v. United States,
281 U.S. 276, 308 (1930). In 1955, at least thirty‐four states provided
counsel to indigent defendants in all felony prosecutions. William M.
Beaney, THE R IGHT TO COUNSEL IN A MERICAN COURTS 84–85 (1955). In
fact, “by the time Gideon was decided, only five states had a definite
policy against appointing counsel in noncapital cases.” William M.
Beaney, The Right to Counsel: Past, Present, and Future, 49 Va. L. Rev. 1150,
1156 (1963).

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20 No. 13‐3548
retroactive because it has close analytic ties to Apprendi
(which is not retroactive), because Gideon meets the Teague
standard, but the Supreme Court has not suggested that
Johnson or Powell, to which Gideon has close analytic ties,
would also meet the Teague standard. Apprendi does not need
to be retroactive in order for Alleyne to be retroactive.
Obviously, applying Alleyne retroactively would mean
that the holding of Apprendi would be applied retroactively
as well. But the same is true of Gideon and its predecessors.
Applying Gideon retroactively necessarily entails that the
holdings of Johnson and Powell are applied retroactively. A
rule that counsel must be provided to all indigent
defendants in felony prosecutions subsumes the rule that
counsel must be provided to indigent state defendants in
special circumstances.
Here, the district judge was permitted to convict Crayton
of “distribution of heroin that resulted in death” in the in‐
between range of equal to or greater than a preponderance
of the evidence, but less than beyond a reasonable doubt.
While the district court did not state that she would not have
found death resulting beyond a reasonable doubt, the
government said at oral argument that if the judge had said
on the record that she found that death resulted by a
preponderance and also explicitly said she did not find it
beyond a reasonable doubt, the government’s position
would be the same. Many cases have tried and failed to have
new procedural rules declared retroactive by the Supreme
Court. But in my opinion, none of these rules were as
essential to ordered liberty as the rule that criminal
defendants must be convicted beyond a reasonable doubt.

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No. 13‐3548 21
All that said, I recognize that the Supreme Court has
never found a new rule of criminal procedure to meet the
Teague standard, so I concur in the judgment here. However I
hope that the Supreme Court will find in its retroactivity
jurisprudence space on the Gideon pedestal for other new
rules, particularly those so important to our criminal justice
system as the reasonable‐doubt standard.

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