04-2844 MARLON McR EYNOLDS , JAMIE L. THOMAS , and DAVID BENNETT v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-2520, 04-2632 & 04-2844
M ARLON McR EYNOLDS , J AMIE L. T HOMAS ,
and D AVID B ENNETT ,
Petitioners-Appellants,
v.
U NITED S TATES OF A MERICA ,
Respondent-Appellee.
____________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
Nos. 1:03-cv-1360-LJM-VSS et al.—
Larry J. McKinney, Chief Judge.
____________
S UBMITTED J ANUARY 13, 2005—D ECIDED F EBRUARY 2, 2005
____________
Before E ASTERBROOK , W OOD , and S YKES , Circuit Judges.
E ASTERBROOK , Circuit Judge. Marlon McReynolds, Jamie
Thomas, and David Bennett were among the many persons
convicted of participating in a large-scale cocaine-distribu-
tion enterprise. See United States v. Dumes, 313 F.3d 372
(7th Cir. 2002). After the judgments became final, they
sought collateral relief under 28 U.S.C. §2255. They
contended, among other things, that their sentences are
invalid because the juries did not determine, beyond a
reasonable doubt, the precise amounts of cocaine base
(crack) and cocaine hydrochloride that led to their sentenc-
ing ranges. The district judge rejected these and related

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2 Nos. 04-2520, 04-2632 & 04-2844
arguments, concluding that the sixth amendment’s jury-
trial right, as understood in Apprendi v. New Jersey, 530
U.S. 466 (2000), did not require the jury to determine any
issue other than the thresholds that set the statutory
maximum penalty—and, as the jury found that these three
conspired to distribute more than 50 grams of crack, a
quantity that exposed each to life imprisonment, see 21
U.S.C. §841(b)(1)(A)(iii), the court held that the sentences
are lawful.
Like the trial itself, the district court’s decision followed
this circuit’s authority. See United States v. Nance, 236 F.3d
820, 824-25 (7th Cir. 2000); United States v. Smith, 223
F.3d 554, 563-66 (7th Cir. 2000). But in United States v.
Booker, No. 04-104 (U.S. Jan. 12, 2005), the Supreme Court
held that defendants have a right to a jury trial on any
disputed factual subject that increases the maximum
punishment, and that the federal Sentencing Guidelines
come within this rule to the extent that their operation is
mandatory. This means that the conditions for a certificate
of appealability under 28 U.S.C. §2253(c)(2) have been
satisfied, as each appellant “has made a substantial
showing of the denial of a constitutional right.” The court
therefore issues certificates of appealability on the question
whether the proceedings violated the sixth amendment’s
right to jury trial. Because this is a collateral attack,
however, we must consider the antecedent question
whether the rights recognized by Booker apply retroactively
on collateral review, and our certificates of appealability
include this issue as well. See Slack v. McDaniel, 529 U.S.
473, 483-85 (2000).
Although the Supreme Court did not address the retro-
activity question in Booker, its decision in Schriro v.
Summerlin, 124 S. Ct. 2519 (2004), is all but conclusive
on the point. Summerlin held that Ring v. Arizona, 536 U.S.
584 (2002)—which, like Booker, applied Apprendi’s princi-
ples to a particular subject—is not retroactive on collateral
review.

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Nos. 04-2520, 04-2632 & 04-2844 3
Ring held, in reliance on Apprendi, that a defendant is
entitled to a jury trial on all aggravating factors that
may lead to the imposition of capital punishment. In
Summerlin the Court concluded that Ring cannot be treated
as a new substantive rule—which is to say, a rule that
“alters the range of conduct or the class of persons that the
law punishes.” 124 S. Ct. at 2523. It observed that “Ring
altered the range of permissible methods for determining
whether a defendant’s conduct is punishable [in a particular
way], requiring that a jury rather than a judge find the
essential facts bearing on punishment. Rules that allocate
decisionmaking authority in this fashion are prototypical
procedural rules”. Ibid. That is no less true of Booker—or
for that matter Apprendi itself. We held in Curtis v. United
States, 294 F.3d 841, 843 (7th Cir. 2002), that Apprendi
does not apply retroactively on collateral review, because it
“is concerned with the identity of the decisionmaker, and
the quantum of evidence required for a sentence, rather
than with what primary conduct is unlawful”. That, too, is
equally true of Booker. No conduct that was forbidden
before Booker is permitted today; no maximum available
sentence has been reduced.
The remedial portion of Booker drives the point home.
The Court held that the federal Sentencing Guidelines
remain in force as written, although 18 U.S.C. §3553(b)(1),
which makes their application mandatory, no longer
governs. District judges must continue to follow their
approach as guidelines, with appellate review to deter-
mine whether that task has been carried out reasonably. No
primary conduct has been made lawful, and none
of the many factors that affect sentences under the Sen-
tencing Guidelines has been declared invalid. Consequently
Booker, like Apprendi and Ring, must be treated as a
procedural decision for purposes of retroactivity analysis.
A procedural decision may be applied retroactively if
it establishes one of those rare “watershed rules of criminal

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4 Nos. 04-2520, 04-2632 & 04-2844
procedure implicating the fundamental fairness and
accuracy of the criminal proceeding.” Summerlin, 124 S. Ct.
at 252; Teague v. Lane, 489 U.S. 288, 311 (1989) (plurality
opinion). The Court held in DeStefano v. Woods, 392 U.S.
631 (1968), and reiterated in Summerlin, that the choice
between judges and juries as factfinders does not make such
a fundamental difference; to the contrary, the Court stated
in Summerlin, it is not clear which is more accurate. 124 S.
Ct. at 2525. What is more, Booker does not in the end move
any decision from judge to jury, or change the burden of
persuasion. The remedial portion of Booker held that
decisions about sentencing factors will continue to be made
by judges, on the preponderance of the evidence, an ap-
proach that comports with the sixth amendment so long as
the guideline system has some flexibility in application. As
a practical matter, then, petitioners’ sentences would be
determined in the same way if they were sentenced today;
the only change would be the degree of flexibility judges
would enjoy in applying the guideline system. That is not a
“watershed” change that fundamentally improves the
accuracy of the criminal process. See also Curtis, 294
F.3d at 843-44.
We conclude, then, that Booker does not apply retroac-
tively to criminal cases that became final before its release
on January 12, 2005. That date, rather than June 24, 2004,
on which Blakely v. Washington, 124 S. Ct. 2531 (2004),
came down, is the appropriate dividing line; Blakely
reserved decision about the status of the federal Sentencing
Guidelines, see id. at 2538 n.9, so Booker itself represents
the establishment of a new rule about the federal system.
Petitioners’ convictions and sentences became final well
before Booker was issued, and its approach therefore does
not govern these collateral proceedings.
Because this decision affects a substantial volume of post-
Booker litigation, it was circulated before release to all
active judges. See Circuit Rule 40(e). No judge favored a

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Nos. 04-2520, 04-2632 & 04-2844 5
hearing en banc.
We have considered petitioners’ remaining arguments and
conclude that they do not present substantial constitutional
issues supporting certificates of appealability.
A FFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-2-05

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