United States v. 2008-07-02 | 05-36143 | CARRINGTON V. USA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 CRAIG ANTHONY CARRINGTON, No. 05-36143 Petitioner-Appellant,
D.C. Nos. v.  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  CR-94-05074-RJBUNITED STATES OF AMERICA,
Respondent-Appellee. ORDER

Filed July 3, 2008
Before: Harry Pregerson, John T. Noonan, and
Consuelo M. Callahan, Circuit Judges.
ORDER
Judge Noonan and Judge Callahan vote to deny the petition
for rehearing and Judge Pregerson votes to grant the petition
for rehearing. The petition for rehearing is DENIED.
Judge Pregerson votes to grant the petition for rehearing en
banc, and Judge Callahan votes to deny the petition for
rehearing en banc. Judge Noonan recommends that the peti-
tion for rehearing en banc be denied. The full court has been
advised of the petition for rehearing en banc and no judge of
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the court has requested a vote on the petition. Federal Rule of
Appellate Procedure 35. The petition for rehearing en banc is
DENIED.
Judge Pregerson’s dissent to the panel’s September 11,
2007 opinion is amended to include the following footnote
following the sentence “I agree that Cruz holds that Booker is
not retroactive to cases on collateral review, but that is all that
Cruz holds.” Carrington v. United States, 503 F.3d 888, 901
(9th Cir. 2007):
But unlike my colleagues, I am not persuaded by
Cruz’s holding that Booker is not retroactive to cases
on collateral review. My thoughts on this matter are
informed by Professor Kermit Roosevelt III’s
recently published law review article, A Retroactivity
Retrospective, With Thoughts for the Future: What
the Supreme Court Learned from Paul Mishkin, and
What it Might, 95 CAL. L. REV. 1677 (2007). Roose-
velt posits that, under a proper reading of the
Supreme Court’s case law, Booker did not create a
“new” procedural rule of law which can never be
applied retroactively; instead, Booker simply
announced the correct interpretation of constitutional
meaning. Recognizing that “[h]orror stories about
the consequences of the Federal Guidelines are
legion,” id. at 1701, Roosevelt offers the following
advice regarding the retroactive application of
Booker on collateral review:
By holding that the Guidelines could persist in an
advisory capacity, the Booker Court indicated that
the proper remedy is simply to allow the trial court
to determine whether it would have imposed the
same sentence in its discretion under an advisory
regime. Allowing habeas petitioners this chance at a
reduced sentence will impose some administrative
burdens, for trial courts may have to reconsider a
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very large number of sentences. But each reconsider-
ation is relatively trivial, and it should not outweigh
the substantial injustice in those cases in which the
courts would have imposed lesser sentences if they
had the choice. This approach would strike the bal-
ance we should strive for in such cases . . . the bal-
ance between the sense of injustice and the needs of
organized society.
Id. at 1702 (internal citation and quotation marks omitted).
Thus, in the Booker context, “we need only ask,
according to our best current understanding of the
law, whether the pre-Booker imposition of sentences
violated the constitutional rights of [the] defendants,
and if so, whether those wrongs merit a remedy.” Id.
at 1679. Here, the answer to both questions must be
“yes,” for we know to a certainty that Judge Bryan
would have imposed lesser sentences if he had been
given the choice. For this reason, and for those artic-
ulated in the body of my dissenting opinion, I would
give Judge Bryan that choice now.
With the addition of the above as footnote 3 in Judge Pre-
gerson’s dissent, the footnotes that follow footnote 3 in the
dissent are renumbered accordingly.
Judge Noonan’s concurrence to the panel’s September 11,
2007 opinion is amended to include the following addition:
The two decisions that came down on December
10, 2007 from the Supreme Court (Gall v. United
States, 128 S. Ct. 586 (2007) and Kimbrough v.
United States, 128 S. Ct. 558 ( 2007)) seem to me to
deserve reflection as one looks at our cases. Even
more so, the position announced on December 11 of
the United States Sentencing Commission on crack
cocaine sentences may be relevant. U.S. Sentencing
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Commission, Memorandum on Retroactive Applica-
tion of Amendment to Fed. Sentencing Guidelines
Regarding Cocaine Base Offenses (Dec. 12, 2007).
My position on our two cases has been that the old
sentences were not unjust at the time and do not
became so by virtue of the change in the constitu-
tion; that it would be wise, nonetheless, to give
Judge Bryan the discretion he seeks but that we
lacked authority to make the change retroactive. If
the Sentencing Commission can make its recommen-
dations retroactive, and district judges have the statu-
tory authority to apply the recommendations
retroactively may a district judge apply new
Supreme Court decisions retroactively? On the face
of it, a new Supreme Court rule has more authority
than a new rule of the Sentencing Commission. The
Supreme Court, however, has chosen to put a close
rein on the retroactivity of its new readings of the
constitution.
It has been commonly understood that the consti-
tutional change by the Supreme Court on sentencing
was a procedural change, a reallocation of the power
to sentence. United States v. Cruz, 425 F.3d 1119
(9th Cir. 2005) (per curiam). To the nonlegal mind
it might seem that the change had a substantive
impact. When the Guidelines became advisory only
and the old system was found to be a serious viola-
tion of the constitution, it could be thought that the
re-reading of the constitution was momentous, a
watershed even if it was not categorized as substan-
tive. But such has not been the case. Id. at 1121. If
these cases are returned to Judge Bryan, he will con-
front a situation indistinguishable from what he first
confronted. The law, as determined by this circuit, is
against retroactivity. The solitary exception granted
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by Crawford would not support Judge Bryan if he
created exceptions in these two cases.
Stress is laid by Judge Pregerson on the fact that
Judge Bryan has expressed the convictions of his
conscience. It is not unusual for judges to have a
conscience and to have convictions formed by it. A
judge without a conscience is a monster. It is not
usual for a judge to express openly in a proceeding
in court the conflict he sees between his conscience
and the law he is being asked to apply.
Open expression of conscience requires our
respect. It does not always require a response that
will help the judge. In these cases, if we recalled the
mandate and remanded, the judge would still be con-
fronted with the rule against retroactivity.
I vote to deny the petition for rehearing and to rec-
ommend denial of the petition for rehearing en banc.
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