Lead Opinion
Opinion by Judge CALLAHAN; Concurrence by Judge NOONAN; Partial Concurrence and Partial Dissent by Judge PREGERSON.
ORDER
The opinion filed on December 13, 2006, is hereby withdrawn. A Superseding Opinion is filed simultaneously with this order.
OPINION
In these sentencing cases Robert Tillitz and Craig Carrington (petitioners) assert a number of creative arguments in an attempt to have their final sentences reconsidered in light of the Supreme Court’s opinion in United States v. Booker,
I.
On May 14, 1990, Craig Carrington pleaded guilty to conspiracy to distribute 500 grams or more of a mixture and substance containing cocaine under 21 U.S.C. §§ 841(a), 841(b)(1)(B). The district court, Judge Robert Bryan, held a two-day sentencing hearing on October 22-23, 1990. During that hearing, Judge Bryan expressed his frustration with mandatory sentencing guidelines and sentenced Carrington to 324 months in prison, the low end of the applicable range under the United States Sentencing Guidelines. Carrington’s conviction and sentence were upheld on direct and collateral appeals.
On April 27, 1998, Robert Tillitz was convicted by a jury for conspiracy to import hashish, conspiracy to distribute hashish, importation of hashish, possession of hashish with intent to distribute, and interstate and foreign travel in aid of racketeering enterprises. On August 14, 1998, Tillitz appeared pro se before Judge Bryan for sentencing. Tillitz argued, inter alia, that the Sentencing Guidelines were unconstitutional. In response, Judge Bryan indicated that while he might agree, the issue had been laid to rest by the United States Supreme Court. Judge Bryan then
On March 2, 2005, Tillitz filed a writ of audita querela “for relief from an unconstitutional sentence” based on Booker. A month later, Carrington filed a motion for modification of his sentence under 18 U.S.C. § 3582(c)(2). Judge Bryan appointed counsel for both Tillitz and Carrington. In September 2005, Judge Bryan consolidated the cases because of their substantial similarities. Thereafter, both argued that their sentences were unconstitutional and also should be modified under 18 U.S.C. § 3582(c)(2).
On November 3, 2005, Judge Bryan denied relief on the grounds raised by the parties. He noted, however, that in United States v. Crawford,
II.
The district court properly concluded that the grounds for relief raised by petitioners in their initial motions are foreclosed by our case law. A writ of audita querela
Petitioners argue that there is a gap in post-conviction relief. They contend that the numerical limits on filing habeas petitions preclude them from raising a claim based on Booker through a § 2255 habeas petition. See 28 U.S.C. §§ 2255, 2244(b)(3). We have previously held, however, that the statutory limits on second or successive habeas petitions do not create a “gap” in the post-conviction landscape that can be filled with the common law writs. See Valdez-Pacheco,
Similarly, the district court properly found that it could not modify petitioners’ sentences under 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) allows the district court to modify a sentence where the applicable sentencing range has been lowered by the Sentencing Commission subsequent to the imposition of the sen
III.
The district court speculated that this court might be able to grant petitioners relief by recalling its mandates, and petitioners press that argument on appeal. We conclude, however, that to the extent that such relief is not barred by our opinions in Cruz,
We have the inherent power to recall our mandate in order to protect the integrity of our processes, but should only do so in exceptional circumstances. Zipfel v. Halliburton, Co.,
In light of “the profound interests in repose” attaching to the mandate of a court of appeals, however, the power can be exercised only in extraordinary circumstances. 16 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3938, p. 712 (2d ed.1996). The sparing use of the power demonstrates it is one of last resort, to be held in reserve against grave, unforeseen contingencies.
Id. at 550,
The essence of petitioners’ claim is that they are entitled to relief in light of the Supreme Court’s decision in Booker. We, however, have held that Booker is not retroactive and is not by itself sufficient to justify a recall of the mandate in cases finalized before Booker was decided. King,
An argument, however, has been made that this case presents the type of extraordinary circumstances that led us to recall our mandate in United States v. Crawford,
Neither of the two factors that supported relief in Crawford are present here. First, although Judge Bryan readily expressed his disapproval of mandatory sentences, his statements do not suggest that there are any exceptional circumstances that distinguish either petitioner from other persons sentenced under the Guidelines prior to Booker. Indeed, in his November 2005 order Judge Bryan observed neutrally that the “sentences may have been appropriate at the time they were imposed, or they may not have been.”
Second, Crawford presented a unique question of timing that favored equitable relief. The panel had just decided Crawford’s direct appeal, when it recalled its own mandate. In fact, the motion to recall the mandate was made less than a month after the panel issued its memorandum disposition
The particular timing in Crawford indicates that it was, at most, a minimal extension of our policy allowing for limited remands on direct appeals to consider Booker claims. See United States v. Ameline,
In contrast, here, petitioners do not seek the recall of the mandate of a case that is still subject to the filing of a petition for a writ of certiorari to the Supreme Court. Instead, in order for the recalls of mandate to provide the district court with authority to modify petitioners’ sentences, we would have to recall the mandates that issued in petitioners’ direct appeals from their con
The recognition that petitioners seek the recall of the mandates in their direct appeals — which have been final for years— reveals that they are in essence arguing for the retroactive application of Booker. As a three-judge panel we are constrained from adopting their argument by our holding in Cruz that “Booker is not retroactive, and does not apply to eases on collateral review where the conviction was final as of the date of Booker's publication.”
We understand the argument that declining to recall our mandates amounts to denying relief under Booker to defendants whose direct appeals were final at the time that decision was rendered. We agree, however, with the Sixth Circuit’s response that “[ajlthough the defendant may argue that there is an element of unfairness in this result, it is the same element found in any Supreme Court decision which announces a new rule applicable to criminal defendants with pending prosecutions or appeals, but which is not made retroactive to defendants whose cases are final.” Saikaly,
Finally, we do not hold that relief would not be available in a particular case upon a showing of truly extraordinary circumstances and equities, but only that this is not such a case. Petitioners have not proffered any evidence that they were uniquely impacted by the Guidelines or that there are any equities that distinguish them from other defendants sentenced before Booker. Rather, they point only to the trial judge’s expressions of his displeasure with mandatory guidelines. The trial judge’s perspective may have been somewhat vindicated by Booker, but it would be unfair to countless defendants and to numerous judges to base the retroactive application of a Supreme Court opinion on the degree to which a trial judge grumbled while enforcing the extant law.
IV.
We affirm the district court’s determinations that issuance of a writ of audita querela is not an available remedy in light of our opinion in Valdez-Pacheco,
Notes
. Although the district court purported to transfer petitioners’ motions to the Ninth Circuit, its order did not indicate the statutory basis for such a transfer. However, both petitioners then filed timely notices of appeal and on December 2, 2005, the district court granted petitioners Certificates of Appealability as provided for by 28 U.S.C. § 2253(c).
. Audita querela, literally "the complaint having been heard,” is a common law writ used to attack a judgment that was correct when rendered, but that later became incorrect because of circumstances that arose after the judgment was issued. See Doe v. INS,
. In his dissent, Justice Souter agreed with the majority’s description of the restricted availability of recalling a mandate. He commented:
To be sure, there lurks in the background the faint specters of overuse and misuse of the recall power. All would agree that the power to recall a mandate must be reserved for “exceptional circumstances,”120 F.3d, at 1048 ; 16 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3938, pp. 716-717, n. 14 (1996) (citing cases from the various Courts of Appeals recognizing that the power must be used sparingly), in the interests of stable adjudication and judicial administrative efficiency, on which growing caseloads place a growing premium. All would agree, too, that the sua sponte recall of mandates could not be condoned as a mechanism to frustrate the limitations on second and successive habeas petitions, see, e.g., 28 U.S.C. § 2244(b). If there were reason to suppose that the sua sponte recall would be overused or abused in either respect, we might well see its use as unreasonable in a given case simply to deter resort to it in too many cases.
Calderon,
. Crawford further stated:
[i]n stressing that our decision here rests on both the sentencing judge's expressed misgivings about the sentence required by the mandatory Guidelines as well as the relative timing of the Supreme Court's Blakely decision and the termination of our appellate jurisdiction, we do not suggest that these same elements must always be present in order for a mandate to be recalled.
Id. at 1146 n. 2. We are not called upon to consider the limits of this statement because appellants have only argued the district court’s alleged misgivings and that timing is irrelevant. They do not assert any element not present in Crawford.
. United States v. Crawford,
. Federal Rule of Appellate Procedure 40 provides that unless time is shortened or extended, a petition for rehearing should be filed within fourteen days of the entry of judgment. Federal Rule of Appellate Procedure 41 states that the mandate should issue seven calendar days after the time for filing a petition for rehearing expires. Although Rule 41 allows a party to seek a stay of the mandate pending the filing of a petition for a writ of certiorari, there is no indication that a party is required to seek a stay pending certiorari.
. The recall of our mandates in any of petitioners’ appeals from the denials of their post-conviction motions would only give the district court jurisdiction to reconsider its denials of those motions. Petitioners in their present appeal do not challenge the denials of those motions, rather they argue that their initial sentences are invalid.
Concurrence Opinion
concurring in the judgment of the court:
Resolution of this appeal turns on how the constitution is conceived to be. For some, the constitution is an unchanging document, speaking now as it did in 1789 except for such amendments as have been duly added to it. The paper and ink of the old document have not altered; neither has its meaning. Stability is the bedrock of our government of laws.
What happens when the Supreme Court, as it not infrequently does, gives a new interpretation of the constitution, overruling an earlier interpretation? From the perspective just outlined, the new interpretation must be seen as a correction. A mistaken reading of the constitution has been replaced. The true meaning, now recovered, must have been the meaning the document always had. From this perspective, the petitioners in this case were sentenced under a system now recognized as constitutionally flawed. As the true meaning of the constitution has now been discovered, the petitioners should be able to be sentenced under the constitutionally correct system. As the constitution doesn’t change, the new system was the only constitutional system at the time of their sentencing. It is unjust to hold them incarcerated under unconstitutional law.
This analysis has some intuitive appeal. A counterexample may suggest that there is something wrong with it. Suppose the penalty for securities fraud is ten years. A man is sentenced to that term. Subsequently, the statute is changed; the penalty becomes five years. Is it unjust to keep beyond five years the man already sentenced to ten? No. When he committed the crime that was the lawful sentence. The new statute does not retroactively reduce his punishment.
Why does this example seem clear and the constitutional case cloudy? It is because of the belief that the constitution, unlike a statute, does not change. Therefore, a new reading of the constitution is necessarily restorative and retroactive. The new reading is what the constitution always said. But perhaps this response rests on a basic mistake. It is my contention that it does.
The mistake is to think of the constitution speaking. The original document is as silent as the paper on which it is written. It is not what speaks. It is the interpreters of the constitution who speak. It is they who give it life and power. In our system of law, the authoritative interpreters are the justices of the Supreme Court. It is their voices that say what the constitution says.
Interpreters of this kind do not have the passivity of paper or the stability of stone. They change as generations change, as the times change, as mores mutate, as new circumstances, needs, and problems arise. Other times, other oracles. Interpreters of this kind are never going to give forever the same meaning to every constitutional text. And they don’t.
As put by Chief Justice Roberts, albeit with the particular sharpness of a dissent, “a dog’s breakfast of divided, conflicting, and ever-changing analyses” may be held by the majority to be “clearly-established law.” Abdul-Kabir v. Quarterman, — U.S. —,
After all, today the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented “clearly established” federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road, but tunc pro nunc. Encouraged by the majority’s determination that the future can change the past, I respectfully dissent.
Of course the constitution changes its meaning with changing majorities. Not as frequently as statutes are changed by legislators, the old foundational document has its speech altered by new authorized interpreters. The Supreme Court is the engine and champion of constitutional change.
In terms of this analysis, the petitioners here were sentenced under a system that was in accordance with the constitution when they were sentenced. It is no more unjust to them to keep them confined under the old system than it would be to keep in prison the man sentenced to ten years when the penalty later becomes five. The crime committed at a given date is penalized under the law in force at that date. No injustice is done.
The Supreme Court has recognized two exceptions to the general rule that the constitution speaks as of the time the Supreme Court gives it a meaning: (1) cases where the new decision of the Supreme Court means that earlier conduct of the prisoners would not have been criminal if the new reading had been in place; and (2) cases where the new reading substantially improves accuracy in the determination of guilt. Teague v. Lane,
Judge Pregerson eloquently expresses reasons why such retroactivity would be good here, and he offers an escape from a rigid rule of nonretroactivity. Judge Bryan, the district judge who sentenced the petitioners, made clear statements of his belief in the unconstitutionality of the system with which he was compelled to comply. Far from grumbling, Judge Bryan’s statement showed legal perspicacity and prescience and reflected sound judgment and an active conscience. Judge Pregerson, recognizing these values in what Judge Bryan did, finds in them the extraordinary circumstances that would permit this court to withdraw its mandates.
The strength of Judge Pregerson’s position must be acknowledged. It is humane, and humaneness is a necessary quality in humans who are judges. The panel has the power to do what he asks. The panel does not have the authority. Only the Supreme Court has both the power and the authority to create a rule of retroactivity when a new rule of constitutional law, if applied retroactively, would lessen the penalty given.
For the reasons stated, I concur in the judgment of the court.
Concurrence Opinion
concurring in part and dissenting in part:
Once in 1990 and again in 1998, U.S. District Judge Robert J. Bryan of the Western District of Washington imposed multiple-decades-long sentences on defendants at a time when the United States Sentencing Guidelines’s constitutionality was accepted. At the time he imposed
I. ADDITIONAL FACTUAL BACKGROUND
In 1990, District Judge Bryan sentenced Craig Carrington pursuant to the then-mandatory Sentencing Guidelines. After calculating the appropriate Guidelines range, Judge Bryan determined that, under the Guidelines, a downward departure was not warranted. Before he imposed sentence, Judge Bryan, moved by his conscience, told Carrington:
You know, let me just say something, I guess, for the record or the benefit of people that are interested.
I hear the plea all the time from defense lawyers ... that the guidelines are not fair as applied to an individual case and there ought to be a different result .... I’m stuck with bad law and criminal defendants are stuck with bad law and the rest of society is stuck with bad law.... And I feel frustrated by these long sentences. It’s contrary to the idea that one can pay a penalty for a crime and put it behind them within a reasonable time....
I have been sentencing felons for 21 years, and in the last couple of years I’m faced with these guidelines, and it’s very frustrating because it has diminished my responsibility and my authority. But the reason for these guidelines is to do exactly that. That is, to diminish the judge’s discretion. I think that I must, if I am to do my job right, I’ve got to find the facts as I find them and apply the guidelines, being the law, to those facts....
Judge Bryan, constrained by the Guidelines, then imposed a sentence of 324 months imprisonment — -the low end of the applicable Guidelines range.
The injustice of these harsh Guidelines sentences continued to frustrate and trouble Judge Bryan. In 1998, when Judge Bryan sentenced Robert Tillitz, the judge before imposing sentence stated:
It might interest you to know, Mr. Til-litz, that I ruled in this court a long time ago that it was my opinion that these guidelines were contrary to the United States Constitution. That issue has been laid to rest contrary to my view by the United States Supreme Court. So these guidelines, in spite of your view on the legality of them and my view on it, they are part of the law of the land that bind me and I must follow that.
Judge Bryan then sentenced Tillitz to 360 months imprisonment — the low end of the applicable Guidelines range.
After the Supreme Court decided United States v. Booker,
Judge Bryan observed that our court has authority to recall the mandate under United States v. Crawford,
II. EXTRAORDINARY CIRCUMSTANCES
We have inherent authority to recall the mandate to “prevent injustice.” Zipfel v. Halliburton Co.,
A. District Court’s Comments at Sentencing
In Crawford, we outlined a situation where a sentence violating Booker may warrant recall of the mandate even though Booker is not retroactive. There, we found two grounds for recalling our mandate. We stated in Crawford:
This case involves “extraordinary circumstances” sufficient to justify our recall of the mandate because: (1) the sentencing judge expressed explicit reservations on the record about the sentence required under the previously mandatory Sentencing Guidelines; and (2) the Supreme Court’s decision in [.Blakely ], foreshadowing its holding in [.Booker ], was rendered before the mandate issued.
Crawford,
Applying Crawford, it is clear that the two cases before us are “exceptional case[s] requiring recall of the mandate[s] in order to prevent an injustice.” See Verrilli,
That Judge Bryan made these statements at a time when the Guidelines were firmly entrenched only makes his remarks more extraordinary. The year before Judge Bryan sentenced Carrington, the Supreme Court upheld the Sentencing Commission’s authority to promulgate mandatory sentencing guidelines. See Mistretta v. United States,
By the time Judge Bryan sentenced Til-litz, the Supreme Court had repeatedly reinforced the validity of mandatory sentencing guidelines, see, e.g., Stinson v. United States,
Judge Callahan believes that Judge Bryan’s statements at the time of both Carrington’s and Tillitz’s sentencing are not enough to recall the mandate. In so deciding, the majority erroneously assumes that Crawford held that a district judge’s express reservations at sentencing are not enough to justify recall of the mandate. To be sure, Crawford did point out the existence of two extraordinary circumstances justifying relief. Crawford did not hold, however, that either factor was alone insufficient to justify recall of the mandate. Rather, in Crawford we merely noted that there were two special circumstances present in that case, and that those factors together sufficiently distinguished Crawford from King. See id. at 1145-46 & n. 2. Crawford certainly does not compel Judge Callahan’s conclusion that neither of the two factors identified in Crawford can alone be sufficient to recall the mandate. Moreover, Judge Callahan’s position creates considerable tension with Crawford’s admonition that “future panels will necessarily evaluate the existence of ‘extraordinary circumstances’ warranting the recall of the mandate based on the facts of their individual cases.” See id. at
B. District Court’s Sua Sponte Request that We Recall the Mandate
In any event, there is also an additional circumstance not present in Craiuford that compels our attention — Judge Bryan’s impassioned plea to this court. Even though the parties did not raise the issue and Judge Bryan lacked authority to recall the mandate, he nevertheless implored us to recall our mandates. Judge Bryan told us:
A Sentencing Guidelines scheme was adopted by Congress and implemented by the United States Sentencing Commission on November 1, 1987. Many judges, including the undersigned, believed that the Sentencing Guidelines were contrary to the requirements of the U.S. Constitution. Nevertheless, the Supreme Court, in its wisdom, found that the guidelines passed constitutional muster.
Many defendants, including Mr. Tillitz and Mr. Carrington, were sentenced under the mandatory guidelines scheme, and many, including Mr. Tillitz and Mr. Carrington, are still incarcerated under mandatory guideline sentences.... During the period of the guidelines’ mandatory life — 1987 to 2005 — judges, like the undersigned, did their best to apply the law, assuming the constitutionality of the guidelines, and often sentencing defendants to sentences that were inappropriate under any law or theory of sentencing except the guidelines. District judges, in other words, tried to follow the law, even if it appeared to lead to injustice.
Now, under Booker, it is clear that the guidelines sentencing scheme was unconstitutional all along. It follows that defendants, still incarcerated under an unconstitutional sentencing scheme, would seek resentencing, even knowing that, on resentencing, longer sentences might be imposed. Yet, because of ret-roactivity rules, defendants serving unconstitutional sentences are offered no relief, no remedy, and no justice.
Trial judges, more than anything, want to do the right thing. We understand our obligation to follow the law, but deeply — and even desperately — hope that the law will lead to justice. If we are part of an injustice, we want to set it right, even if it involves a great deal of extra work. To quote Gerry Spence:
[Sjometimes a judge doesn’t know how to get justice.... [T]he judge has to just sit up there and watch justice fail right in front of him, right in his own courtroom, and he doesn’t know what to do about it, and it makes him feel sad.... Sometimes he even gets angry about it.
Gerry H. Spence, Of Murder and Madness: A True Story, 490 (1983).
This judge, sad and a little angry, would welcome an opportunity to resentence these defendants to a constitutional and legal sentence.
Tillitz v. United States,
When considered in tandem with the district court’s statements at Carrington’s and Tillitz’s sentencing hearings, Judge Bryan’s impassioned statement demonstrates that the circumstances of this case are exceptional. Booker restored the role of the district court judge as the person uniquely suited to consider all the circumstances surrounding a criminal defendant and to fashion a sentence most just and appropriate for that individual. These two cases have weighed on Judge Bryan’s conscience for sixteen years (Carrington) and eight years (Tillitz). His conscience compelled him to sua sponte request that this
Judge Callahan dismisses the importance of this factor because, as she sees it, Judge Bryan merely “grumbled while enforcing the extant law.” Ante, at 893. This, however, rejects Judge Bryan’s comments too hastily. Because Judge Bryan was best positioned to determine whether the mandatory Guidelines’s constraints were extraordinarily harsh in a given case, we should put great stock in the fact that Judge Bryan tells us that Carrington and Tillitz were particularly worthy of resentencing.
In addition, Judge Bryan’s statements provide great assurance that the constitutional error in both Carrington’s and Tillitz’s sentences was not harmless. In Calderon, the Supreme Court rejected our claim of extraordinary circumstances because the mistake at issue — the failure of two judges out of thirty-five to make a timely request for a vote on whether to rehear a case en banc and thus “contribute their views to a determination that had been given full consideration on the merits by a panel of the court” — was relatively unlikely to have affected the appellant’s rights. See Calderon,
Judge Bryan, exercising caution, unsurprisingly acknowledged that he cannot promise that Carrington’s and Tillitz’s sentences would be different upon re-sentencing. See Tillitz,
C. Lapse of Time
Judge Callahan makes much of the fact that the second basis for recalling the mandate identified in Crawford — that Blakely had been decided when the mandate in Crawford’s appeal issued — is not present. As Judge Bryan aptly noted, however, that second basis is not present purely by the “accident of ... timing.” See Tillitz,
Rather than follow the express statements in Crawford, Judge Callahan chooses to adopt an unduly crabbed reading of the case. Judge Callahan would rely on what it terms a “unique question of timing” in Crawford and would only permit recall of the mandate where a sentence is not yet final. She gives no reason, however, why the mandate can never be recalled after the time for filing a petition for certiorari has expired. Indeed, to do so would essentially return us to the long-abandoned rule that our power to recall the mandate expires at the end of the court’s term. See Aerojet-Gen.,
Judge Callahan, relying on United States v. Cruz,
Unlike Judge Callahan, I believe that the circumstances involved in Carrington's and Tillitz’s cases — the judge’s strong reservations at the time of sentencing and the judge’s sua sponte plea for relief from our court — are both unusual and extraordinary. In addition, I do not agree that the absence of the second factor identified in Crawford precludes relief.
III. FINALITY
At its heart, the majority opinion rests on a concern that a contrary decision would undermine the finality of judgments. I agree that finality is an important value. It is not, however, the only relevant consideration. When the injustice is sufficiently great, we should not allow our concerns with repose to obviate our obligation to do justice.
Granting relief would place only a limited burden on the interests underlying finality. In Calderon, the Court placed a very high value on repose because recall of the mandate threatened “to frustrate the interests of a State ... in enforcing a final judgment in its favor.” See
Of course, another interest underlying finality is judicial efficiency: “the interests of stable adjudication and judicial administrative efficiency, on which growing caseloads place a growing premium.” Calder
Cases where a district court expresses reservations about the validity of a Guidelines sentence are rare. See United States v. Labrada-Bustamante,
Crawford has been on the books for nearly two years, and yet this case is the only one nationwide that appears to raise similar facts. Permitting the district court to re-sentence would place only a limited burden on the government given the unusual circumstances involved. Finality is important, but I fear the majority is too willing to let repose triumph over justice.
IV. CONCLUSION
I would recall the mandates in Carring-ton’s and Tillitz’s appeals. Judge Bryan stated at their sentencing hearings that he believed their sentences were unconstitutional and unjust. Years later, Judge Bryan singled out these two men as individuals to whom the constraints of the old mandatory Guidelines caused particular harm. While I recognize that the passage of time has somewhat cemented the government’s interest in finality, that interest is still not so strong that I would deny a district court judge the opportunity to remedy what the judge considers to be an “injustice” and to resentence a defendant to a sentence that is just, proper, and constitutional. See Gondeck v. Pan Am. World Airways, Inc.,
. I join Parts I and II of Judge Callahan’s opinion.
. In Crawford we emphasized that these are not the only circumstances that support recall of the mandate. Specifically, we cautioned:
[I]n stressing that our decision here rests on both the sentencing judge’s expressed misgivings about the sentence required by the mandatory Guidelines as well as the relative timing of the Supreme Court’s Blakely decision and the termination of our appellate jurisdiction, we do not suggest that these same elements must always be present in order for a mandate to be recalled. Rather future panels will necessarily evaluate the existence of "extraordinary circumstances” warranting the recall of a mandate based on the facts of their individual cases.
Id. at 1146 n. 2.
. Tillilz's response to the government's petition for rehearing provides a mostly comprehensive list of cases addressing recall of the mandate for Booker or Blakely error. None of the cited cases have facts similar to either Crawford or this case.
. Judge Callahan is also concerned that re-sentencing Carrington and Tillitz would be “unfair” to defendants for whom relief would not be available. On this point, I agree with Professor Douglas A. Berman, who, providing commentary on this very case, responded to