United States of America v.  Debra Lynn Morris

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-7889 
DEBRA LYNN MORRIS,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
G. Ross Anderson, Jr., District Judge.
(CR-02-128; CA-04-2238-7)
Argued: September 20, 2005
Decided: November 7, 2005
Before NIEMEYER and SHEDD, Circuit Judges, and
James C. DEVER, III, United States District Judge
for the Eastern District of North Carolina,
sitting by designation.
Affirmed by published opinion. Judge Shedd wrote the opinion, in
which Judge Niemeyer and Judge Dever joined.
COUNSEL
ARGUED: Charles Ethan Luftig, DICKSTEIN, SHAPIRO, MORIN
& OSHINSKY, L.L.P., Washington, D.C., for Appellant. Kevin
Frank McDonald, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for

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Appellee. ON BRIEF: Elaine Metlin, Laura H. Hamilton, Bernard F.
Sheehan, DICKSTEIN, SHAPIRO, MORIN & OSHINSKY, L.L.P.,
Washington, D.C., for Appellant. Jonathan S. Gasser, United States
Attorney, Columbia, South Carolina, for Appellee.
OPINION
SHEDD, Circuit Judge:
Debra Lynn Morris appeals the district court’s order denying her
28 U.S.C. § 2255 motion for relief from her conviction and sentence.
Morris argues that her sentence is unconstitutional under United
States v. Booker, 125 S. Ct. 738 (2005), because the district court
increased her base offense level using facts that she did not admit and
that were not found beyond a reasonable doubt by a jury. We granted
a certificate of appealability to consider whether Morris may raise a
Booker claim for the first time in her § 2255 motion when her judg-
ment of conviction became final before the Supreme Court decided
Booker.1 Nine circuit courts of appeals have considered this issue and
have held that Booker does not apply retroactively to cases on collat-
eral review.2 We agree with these courts, and we therefore affirm the
district court’s order.
1Although Morris raised other issues in this appeal, we denied her
request for a certificate of appealability and dismissed the appeal as to
those issues.
2See United States v. Cruz, 423 F.3d 1119 (9th Cir. 2005); Padilla v.
United States, 416 F.3d 424 (5th Cir. 2005) (per curiam); Never Misses
A Shot v. United States, 413 F.3d 781 (8th Cir. 2005) (per curiam);
United States v. Bellamy, 411 F.3d 1182 (10th Cir. 2005); Lloyd v.
United States, 407 F.3d 608 (3rd Cir.), cert. denied, No. 05-5769 (Oct.
3, 2005); Guzman v. United States, 404 F.3d 139 (2nd Cir.), petition for
cert. filed, No. 05-5187 (Jul. 5, 2005); Humphress v. United States, 398
F.3d 855 (6th Cir.), cert. denied, No. 05-5130 (Oct. 3, 2005); Varela v.
United States, 400 F.3d 864 (11th Cir.) (per curiam), cert. denied, No.
05-6041 (Oct. 3, 2005); McReynolds v. United States, 397 F.3d 479 (7th
Cir.), cert. denied, 125 S. Ct. 2559 (2005).
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I
The pertinent background for this case begins with the Supreme
Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Apprendi involved a New Jersey hate crime statute that provided for
an enhancement of a defendant’s sentence if the sentencing court
found, by a preponderance of the evidence, that the offense was com-
mitted with a purpose to intimidate an individual or group based on
(among other things) that person’s race. The defendant, who had fired
shots into the home of an African-American family, pled guilty to a
state firearm possession charge for which the maximum penalty
established by New Jersey statute was ten years. However, the sen-
tencing court found by a preponderance of the evidence that the
defendant’s conduct had been racially motivated, and (applying the
hate crime enhancement) it therefore sentenced him to a 12-year
prison term. After the sentence was affirmed by the state supreme
court, the Supreme Court reversed, holding that "[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." Id. at 490. Because the
defendant had not admitted a racial motivation for the shooting and
the state had not proved such a motivation to a jury beyond a reason-
able doubt, the Court concluded that he could not be sentenced
beyond the ten-year maximum punishment set forth in the statute.
In the wake of Apprendi, we were presented with the issue of
whether the holding of that case affected sentencing practices under
the federal sentencing guidelines ("Guidelines").3 In United States v.
Kinter, 235 F.3d 192 (4th Cir. 2000), the district court enhanced the
defendant’s Guidelines offense level based on its factual findings
made under a preponderance of evidence standard. Application of the
enhancement increased the defendant’s sentence above the maximum
Guidelines sentence he could have received without the factual find-
ings. We rejected the defendant’s argument that Apprendi rendered
3The Guidelines "required the district court to make a series of factual
findings about the characteristics of the defendant and of the offense, cal-
culating the final sentence using the facts found by the jury and the facts
found independently by the court prior to sentencing." United States v.
Hughes, 401 F.3d 540, 545 (4th Cir. 2005).
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sentencing practices under the Guidelines unconstitutional, conclud-
ing that "[b]ecause Apprendi does not apply to a judge’s exercise of
sentencing discretion within a statutory range, the current practice of
judicial factfinding under the Guidelines is not subject to the
Apprendi requirements — at least so long as that factfinding does not
enhance a defendant’s sentence beyond the maximum term specified
in the substantive statute." 235 F.3d at 201.
This was the state of the law in 2002, when Morris pled guilty to
conspiring to distribute oxycodone and methadone, being a felon in
possession of ammunition, and retaliating against an informant. The
indictment against Morris did not allege a specific drug quantity, and
she did not admit to a specific drug quantity during her guilty plea.
Instead, at her sentencing hearing, Morris contested the drug quantity
attributed to her by the government. Following an evidentiary presen-
tation, the district court agreed with the government and found that
Morris was responsible for 2,460.80 grams of prescription drugs,
which resulted (after an adjustment for acceptance of responsibility)
in a base offense level of 30 for the conspiracy count. Utilizing a
criminal history category of IV, the district court sentenced Morris to
200 months of imprisonment on the conspiracy count. The district
court sentenced Morris to concurrent 120-month terms for the other
counts.
We affirmed Morris’ conviction and sentence in June 2003. Perti-
nent to our discussion, we held that the district court’s drug quantity
calculation was not clearly erroneous and that Morris’ claim under
Apprendi failed because her sentence did not "exceed the statutory
maximum [20 years] for convictions in which drug quantity was not
alleged." United States v. Morris, 68 Fed. Appx. 458, 459 (4th Cir.
2003) (unpublished). Morris did not seek certiorari review of our
decision.
In June 2004, the Supreme Court decided Blakely v. Washington,
542 U.S. 296, 124 S. Ct. 2531 (2004), which involved the constitu-
tionality of the State of Washington’s determinate sentencing scheme.
In Blakely, the defendant pled guilty to kidnapping, a felony punish-
able by a term of not more than ten years of imprisonment. Other pro-
visions of Washington law, comparable to the Guidelines, mandated
a sentencing range of 49 to 53 months, unless the sentencing court
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found aggravating facts justifying an exceptional sentence. The sen-
tencing court found one such aggravating fact and therefore sentenced
the defendant to 90 months of imprisonment. The state court of
appeals affirmed the sentence, but the United States Supreme Court
reversed. Applying the rule announced in Apprendi, the Court set
aside the defendant’s sentence, holding that the imposition of the sen-
tencing enhancement — which was based solely on the sentencing
court’s factual findings — violated the defendant’s Sixth Amendment
rights because the facts supporting the findings were neither admitted
by him nor found by a jury. Blakely, 124 S. Ct. at 2536-38. Respond-
ing to an argument made by the United States as amicus curiae, the
Court expressly noted that the constitutionality of the Guidelines was
not at issue. Id. at 2538 n.9.
After Blakely was decided, Morris filed her § 2255 motion raising
several grounds for relief, including that her sentence is invalid under
Blakely. While her motion was pending before the district court, we
held that Blakely did not apply to Guidelines sentences. United States
v. Hammoud, 378 F.3d 426 (4th Cir. 2004) (en banc order).4 Based
on Hammoud, the district court rejected Morris’ Blakely claim. The
district court also rejected Morris’ other claims, and it therefore
denied her motion and granted summary judgment in the govern-
ment’s favor.
Morris appealed, arguing (among other reasons) that the district
court erred by denying her relief on her Blakely claim. Shortly there-
after, the Supreme Court decided Booker, holding that Blakely applies
to the Guidelines and, therefore, the Sixth Amendment is violated
when a district court imposes a mandatory sentence under the Guide-
lines that is greater than the maximum authorized by the facts found
by the jury alone. Booker, 125 S. Ct. at 755. The Court also held,
however, that two provisions of the statute creating the Guidelines
system must be excised to make it compatible with the Sixth Amend-
ment; this aspect of Booker makes the Guidelines advisory and their
4In our subsequent Hammoud opinion, 381 F.3d 316, 345 (4th Cir.
2004), we noted that the federal courts were divided on whether Blakely
affected sentences under the Guidelines. After deciding Booker, the
Supreme Court vacated Hammoud and remanded the case for further
consideration. Hammoud v. United States, 125 S. Ct. 1051 (2005).
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application subject to review for reasonableness. Id. at 764-65. More-
over, this aspect of Booker also requires district courts to continue
making appropriate findings of fact to calculate the sentencing range
prescribed by the Guidelines; thus, Booker ultimately did not change
the procedure by which Guidelines sentencing facts are found. See
United States v. White, 405 F.3d 208, 219 (4th Cir. 2005), petition for
cert. filed, No. 05-6891 (Oct. 13, 2005) ("In any given case after
Booker, a district court will calculate, consult, and take into account
the exact same guideline range that it would have applied under the
pre-Booker mandatory guidelines regime.").
Although the Court held in Booker that its decision applies to all
cases on direct review, 125 S. Ct. at 769, it did not address whether
its decision applies to cases on collateral review. Therefore, we
granted a certificate of appealability to determine "whether Morris
may raise a Blakely v. Washington or United States v. Booker claim
for the first time in her § 2255 motion and, thus, whether Booker
applies retroactively to her final judgment of conviction entered
before Booker."5
II
"When a decision of [the Supreme] Court results in a ‘new rule,’
that rule applies to all criminal cases still pending on direct review.
As to convictions that are already final, however, the rule applies only
in limited circumstances." Schriro v. Summerlin, 542 U.S. 348, 124
S. Ct. 2519, 2522 (2004) (citation omitted). Generally, a new proce-
dural rule does not apply retroactively, and a federal habeas petitioner
therefore ordinarily cannot rely on such a new rule on collateral
review if it was handed down after the conviction and sentence
became final on direct review. Id. at 2523.6 An exception to this gen-
5Although Morris originally based her claim on Blakely, her claim is
for all practical purposes now governed by the intervening decision in
Booker. See Lloyd, 407 F.3d at 611.
6In contrast, a new substantive rule — i.e., one that "alters the range
of conduct or the class of persons that the law punishes" — generally
applies retroactively. Schriro, 124 S. Ct. at 2522-23. Morris concedes
that Booker did not announce a substantive rule, Brief of Appellant, at 19,
and we so hold. See United States v. Sanders, 247 F.3d 139, 147 (4th Cir.
2001) (holding that Apprendi rule is procedural rather than substantive);
see also Bellamy, 411 F.3d at 1187 (noting that "every court to examine
the issue has concluded that Booker represents a ‘procedural rule’").
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eral rule of nonretroactivity exists when a new procedural rule falls
within the "small set of watershed rules of criminal procedure impli-
cating the fundamental fairness and accuracy of the criminal proceed-
ing." Id. (citation and internal punctuation omitted).
We employ a three-step analysis ("the Teague analysis") to deter-
mine whether a new rule of criminal procedure should apply retroac-
tively. Beard v. Banks, 542 U.S. 406, 124 S. Ct. 2504, 2510 (2004)
(summarizing the analysis established by Teague v. Lane, 489 U.S.
288 (1989)). In the specific context of this case, we must first deter-
mine when Morris’ conviction became final. Beard, 124 S. Ct. at
2510. If the conviction was final when Booker was decided, we must
then decide if the rule announced in Booker is actually "new." Beard,
124 S. Ct. at 2510. If the Booker rule is in fact new, then we must
consider whether the rule is of "watershed" magnitude. Beard, 124
S. Ct. at 2510.
As we have previously noted, every circuit court of appeals to have
considered this issue has held that Booker does not apply retroac-
tively. We reach the same conclusion.
A.
Applying the Teague analysis, we must first determine whether
Morris’ conviction became final prior to the 2005 decision in Booker.
A judgment of conviction "becomes final when the time expires for
filing a petition for certiorari contesting the appellate court’s affirma-
tion of the conviction." Clay v. United States, 537 U.S. 522, 525
(2003). Because we affirmed Morris’ conviction in June 2003, and
she did not seek certiorari review, her conviction became final in
2003, well before Booker (or Blakely) was decided. Morris does not
contend otherwise.
B.
We next must determine whether the rule announced in Booker is
actually "new." Generally, "a case announces a new rule if the result
was not dictated by precedent existing at the time the defendant’s
conviction became final." Teague, 489 U.S. at 301. In determining
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whether precedent dictated the Booker rule in 2003 when Morris’
conviction became final, we must "assay the legal landscape" as it
then existed and ascertain whether "the unlawfulness of [Morris’ sen-
tence] was apparent to all reasonable jurists." Beard, 124 S. Ct. at
2511 (citation and internal punctuation omitted). Stated otherwise, we
must determine "whether it would have been objectively unreason-
able, under the law existing at that time, for a judge to reach a con-
trary result to that subsequently reached" in Booker. O’Dell v.
Netherland, 95 F.3d 1214, 1223-24 (4th Cir. 1996) (en banc),
affirmed, 521 U.S. 151 (1997).
Morris contends that the rule announced in Booker was dictated by
Apprendi and, therefore, was not new in 2003.7 We disagree. Initially,
we note that the Court in Booker appears to have viewed its rule as
being new because it expressly held that the rule must apply to all
cases on direct review, and in doing so it quoted Griffith v. Kentucky,
479 U.S. 314, 328 (1987), for the proposition that "‘[A] new rule for
the conduct of criminal prosecutions is to be applied retroactively to
all cases . . . pending on direct review or not yet final. . . .’" Booker,
125 S. Ct. at 769. As the Sixth Circuit has recognized, "[t]his discus-
sion would be wholly unnecessary had the rule been dictated by pre-
cedent." Humphress, 398 F.3d at 861.
In any event, "[i]t cannot be said that the result in Booker was
apparent to ‘all reasonable jurists;’ in Booker itself, [four dissenting
7Morris places great emphasis on the Court’s language in Blakely that
it was "apply[ing]" the rule of Apprendi and in Booker that it was "reaf-
firm[ing]" the Apprendi rule. However, the Court has made clear that
language of this type is not necessarily dispositive in the "new rule" anal-
ysis. See Butler v. McKellar, 494 U.S. 407, 415 (1990) ("[T]he fact that
a court says that its decision is within the ‘logical compass’ of an earlier
decision, or indeed that it is ‘controlled’ by a prior decision, is not con-
clusive for purposes of deciding whether the current decision is a ‘new
rule’ under Teague. Courts frequently view their decisions as being ‘con-
trolled’ or ‘governed’ by prior opinions even when aware of reasonable
contrary conclusions reached by other courts."); see also O’Dell, 95 F.3d
at 1235 ("The point of the Butler passage, as we understand it, is that the
hortatory dicta used in opinions to underscore their faithfulness to prece-
dent should not be considered binding upon the separate question of
whether they announced a new rule under Teague.").
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Justices] undertook to explain why the holding in Booker was not
compelled by Apprendi or Blakely." Guzman, 404 F.3d at 142. These
dissenting Justices argued that "[l]egal logic" did not require the
extension of Apprendi (and Blakely) to the Guidelines "for there are
key differences" that "offer a principled basis for refusing to extend
Apprendi’s rule. . . ." Booker, 125 S. Ct. at 805-07 (Breyer, J., dissent-
ing in part). Although not dispositive, the fact that these Justices dis-
sented supports the conclusion that the Booker rule is new. See, e.g.,
Beard, 124 S. Ct. at 2512-13.
Moreover, between the time that Apprendi and Blakely were
decided, we expressly rejected the argument that Apprendi applied to
sentences under the Guidelines (i.e., the Booker rule), holding in Kin-
ter that "[b]ecause Apprendi does not apply to a judge’s exercise of
sentencing discretion within a statutory range, the current practice of
judicial factfinding under the Guidelines is not subject to the
Apprendi requirements — at least so long as that factfinding does not
enhance a defendant’s sentence beyond the maximum term specified
in the substantive statute." 235 F.3d at 201. Additionally, after
Blakely was decided, the fact "[t]hat the federal judiciary [was] deeply
divided on the issue of whether the rule announced in Blakely applies
to the . . . Guidelines lends further support to the conclusion that
Booker announced a new rule;" that is to say, "not all reasonable
jurists believed that the Booker rule was compelled by Blakely." Hum-
phress, 398 F.3d at 861; see also Cruz, 423 F.3d at 1120 ("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 definition, it was in fact a ‘new
rule.’"). Of course, a majority of this court ruled in Hammoud that
Blakely did not affect Guidelines sentencing. 378 F.3d at 426.
C.
Because Booker announced a new rule of criminal procedure, we
must now determine whether the rule is one of watershed magnitude.
To qualify as a watershed rule, "a new rule must meet two require-
ments: Infringement of the rule must seriously diminish the likelihood
of obtaining an accurate conviction, and the rule must alter our under-
standing of the bedrock procedural elements essential to the fairness
of a proceeding." Tyler v. Cain, 533 U.S. 656, 665 (2001) (citations
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and internal punctuation omitted). As the Court explained in Schriro,
the class of watershed procedural rules is "extremely narrow, and it
is unlikely that any has yet to emerge." 124 S. Ct. at 2523 (citations
and internal punctuation omitted). The Court has pointed to Gideon
v. Wainwright, 372 U.S. 335 (1963), which established the right to
counsel in criminal trials for serious offenses, as the type of case that
announced a watershed rule. See Beard, 124 S. Ct. at 2514.
Morris argues that the Booker rule qualifies as a watershed rule
because it "prevent[s] a judge from [increasing] a defendant’s sen-
tence based on facts never found by a jury beyond a reasonable doubt
or admitted by the defendant," and it is therefore "critical to the accu-
racy of the findings on which fair criminal sentences are based. . . ."
Brief of Appellant, at 20, 23.8 We believe that Morris’ argument is
foreclosed by our decision in Sanders, in which we considered the
retroactivity of Apprendi. After applying the Teague analysis and con-
cluding that Apprendi announced a new rule of criminal procedure,
we specifically rejected an argument virtually identical to Morris’.
We recognized that the Apprendi rule is "dual-faceted" inasmuch as
it requires that "a jury, rather than a judge, must determine the facts
supporting a statutory enhancement, and that this finding must be
made beyond a reasonable doubt, rather than by a preponderance of
the evidence." 247 F.3d at 148. However, we concluded that "[t]hese
rules . . . are not the types of watershed rules implicating fundamental
fairness that require retroactive application on collateral attack." Id.
Because Booker is an application of Apprendi, albeit in a different
context, we conclude that Sanders controls.
8Morris points to our statement in Kinter that if the Guidelines were
affected by Apprendi, then "Apprendi would indeed work a water-shed
change upon the federal courts’ current sentencing practices." 235 F.3d
at 200. Morris’ reliance on this statement is misplaced for at least two
reasons. First, we were not conducting the Teague analysis. Second, we
hypothesized that the change would be a watershed change because
"[d]istrict courts would no longer be permitted to make factual determi-
nations that had the effect, in any real sense, of enhancing the defen-
dant’s sentence, and the . . . Guidelines would thus be rendered
essentially useless. . . ." 235 F.3d at 200. Of course, Booker did not have
the dramatic effect about which we hypothesized.
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Apart from Sanders, we conclude in any event that the Booker rule
is not a watershed rule. As we have noted, the practical net result of
Booker is minimal. On this point, we agree with the Seventh Circuit’s
conclusion:
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 fac-
tors will continue to be made by judges, on the preponder-
ance of the evidence, an approach that comports with the
sixth amendment so long as the guideline system has some
flexibility in application. As a practical matter, then, peti-
tioners’ 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 fun-
damentally improves the accuracy of the criminal process.
McReynolds, 397 F.3d at 481; see also Lloyd, 407 F.3d at 615 ("By
creating an advisory federal sentencing regime, the Booker Court did
not announce a new rule of criminal procedure that significantly
increases the ‘certitude’ or ‘accuracy’ of the sentencing process.").
III
The rule announced in Booker is a new rule of criminal procedure,
but it is not a watershed rule. Accordingly, the rule is not available
for post-conviction relief for federal prisoners, like Morris, whose
convictions became final before Booker (or Blakely) was decided.
Accordingly, we affirm the district court’s order denying Morris
relief.
AFFIRMED
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