United States v. 2005-09-16 | 03-35873 | USA VCRUZ | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 03-35873
Plaintiff-Appellee, D.C. Nos.
v. CV-02-00153-a-JMF
 CR-98-00133-A-SUSANA CRUZ, JKSDefendant-Appellant.
OPINION

Appeal from the United States District Court
for the District of Alaska
James K. Singleton, Chief Judge, Presiding
Argued and Submitted
July 13, 2005—Anchorage, Alaska
Filed September 16, 2005
Before: Alfred T. Goodwin, Melvin Brunetti, and
William A. Fletcher, Circuit Judges.
Per Curiam Opinion
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COUNSEL
Meredith A. Ahearn, Hagans, Ahearn & Webb, Anchorage,
Alaska, for the defendant-appellant.
Richard L. Pomery, Assistant United States Attorney,
Anchorage, Alaska, for the plaintiff-appellee.
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OPINION
PER CURIAM:
This appeal requires us to decide whether United States v.
Booker, 125 S. Ct. 738 (2005), applies retroactively to cases
on collateral review. We hold that Booker does not apply
retroactively to convictions that became final prior to its pub-
lication.
I. BACKGROUND
Susana Cruz was convicted in June 1999 in the District of
Alaska of one count of conspiracy to commit offenses relating
to cocaine distribution and possession; three counts of posses-
sion with intent to distribute cocaine; three counts of main-
taining a place for cocaine distribution and possession; two
counts of making premises available for the storage and distri-
bution of cocaine; and one count of interstate travel to pro-
mote cocaine trafficking. On January 21, 2000, Cruz was
sentenced to 168 months in prison. This court affirmed Cruz’
conviction and sentence on May 7, 2001. See United States v.
Marin, 8 F. App’x 815 (9th Cir. 2001) (unpublished disposi-
tion).
Cruz brought a petition pursuant to 28 U.S.C. § 2255 on
July 3, 2002, collaterally attacking her sentence. The district
court denied her petition and she appealed. While her appeal
was pending before this court, the Supreme Court decided
Booker, and on January 14, 2005, we issued an order permit-
ting Cruz and the United States to file supplemental briefing
on the application of Booker to this case. Because the appel-
lant has made a “substantial showing of the denial of a consti-
tutional right,” we now expand the certificate of appealability
(“COA”) to allow us to consider the Booker issue. 28 U.S.C.
§ 2253(c)(2); see also Silva v. Woodford, 279 F.3d 825, 832-
33 (9th Cir. 2002).
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II. DISCUSSION
[1] The district court relied upon facts not found by the jury
to increase the maximum sentence applicable to Cruz under
the then-mandatory Federal Sentencing Guidelines. Cruz’
168-month sentence was based in part upon the district
court’s finding that she was responsible for possession or con-
spiracy to transport a total of 60 kilograms of cocaine, a fact
not found by the jury. Booker made available a “Sixth
Amendment objection — that the defendant’s sentence was
enhanced by judge-found facts under a mandatory Guidelines
system.” United States v. Ameline, 409 F.3d 1073, 1084 (9th
Cir. 2005).
[2] Under the framework originated in Teague v. Lane, 489
U.S. 288, 310 (1989), a new rule of constitutional law gener-
ally does not apply to convictions that have become final,
unless it falls under certain exceptions. Cruz’ conviction
became final on May 7, 2001, well before Booker was pub-
lished. In order to have retroactive effect, new rules either
must be substantive or, if procedural, they must be “watershed
rules of criminal procedure implicating the fundamental fair-
ness and accuracy of the criminal proceeding.” Schriro v.
Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 2523 (2004)
(internal quotations omitted). We now join every other circuit
that has considered the question in holding that the rule
announced by Booker does not meet any of the Teague excep-
tions, and thus does not operate retroactively. See United
States v. Bellamy, 411 F.3d 1182 (10th Cir. 2005); Lloyd v.
United States, 407 F.3d 608 (3rd Cir. 2005); Guzman v.
United States, 404 F.3d 139 (2nd Cir. 2005); Humphress v.
United States, 398 F.3d 855 (6th Cir. 2005); Varela v. United
States, 400 F.3d 864 (11th Cir. 2005); McReynolds v. United
States, 397 F.3d 479 (7th Cir. 2005).
Given the dissenting opinions in Booker and the previous
cases, it is apparent that the rule was not in fact “apparent to
all reasonable jurists,” and thus, under the Supreme Court’s
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definition, it was in fact a “new rule.” See, e.g., Beard v.
Banks, 542 U.S. 406, 124 S.Ct. 2504, 2511 (2004). Nor is
Booker’s holding a new substantive rule, as opposed to a new
procedural rule. In holding that Ring v. Arizona, 536 U.S. 584
(2002), does not operate retroactively, the Court clarified that
“[r]ules that allocate decisionmaking authority in this fashion
are prototypical procedural rules.” Schriro, 124 S. Ct. at 2523.
We recently applied Schriro to decide that Blakely v. Wash-
ington, 542 U.S. 296 (2004), did not announce a new substan-
tive rule. Schardt v. Payne, 414 F.3d 1025, 1036 (9th Cir.
2005). That rationale applies just as clearly to the Court’s
application of the Blakely rule to the federal Guidelines.
Because Booker announced a new procedural rule, it may
operate retroactively only if it is a watershed rule of criminal
procedure. Schriro, 124 S. Ct. at 2523. As we held with
respect to Blakely, the Booker rule fits squarely within the
Court’s holding that a “change in the law requiring that juries,
rather than judges, make the factual findings on which a sen-
tence is based [does] not announce a watershed rule of crimi-
nal procedure.” Schardt, 414 F.3d at 1036 (citing Schriro, 124
S. Ct. at 2524-26).
III. CONCLUSION
[3] 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. To the extent that Cruz’ appeal
challenges her sentence under Booker, the district court’s
denial of her petition is AFFIRMED. The appellant’s remain-
ing, unrelated claims are addressed in a separate unpublished
disposition.
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