Duncan v. United States
552 F.3d 442
6th Cir.
2009
Check Treatment
Docket

*1 are themselves interests various that, formula- in some

crisply defined scattering of least, into a devolve

tions analysis still which diffuse

sub-factors (empha- at 1194 Lopez,

further. compari- The original). result —as

sis opinions apply- lengths

son of lengths of rule with the majority]

ing [the minority rule” applying opinions litigation

reveals, great deal id.—is be of a case shall when merits

about

litigated. majori proceed apply

So we bankruptcy reversing

ty rule here. in Fi summary judgment entry of

court’s that, favor, held district court

delity’s it, enough “there the record before A trial is trial.” to warrant a

questions of a ministerial purely proceeding

not a jurisdiction lack We therefore

character. us, this and dismiss the order before

over

appeal. DUNCAN, Petitioner-

Darryl Paul

Appellant, America,

UNITED STATES

Respondent-Appellee.

No. 06-5021. Appeals, Circuit.

Sixth 31, 2008.

Submitted: Oct. 9, Jan.

Decided Filed:

States 160 L.Ed.2d 621 applies retro- actively on collateral review to sentences imposed before Booker but after the Court decided Blakely Washington, hold that it We is not retroactive and therefore affirm petitioner Darryl Duncan’s sentence. Duncan stopped by an offi-

cer who knew of outstanding Duncan’s warrants. The officer approached Dun- can, gun, determined he had a and arrest- ed him. In Duncan pleaded guilty to being possession a felon in of a firearm. In calculating appropriate range, the sentencing judge cit- history Duncan’s criminal and stated that “since armed applies, career criminal I’m stuck a guideline range with of 188 to judge gave 235 months.” The Duncan 188 months, the lowest available sentence un- der only “because the rea- got up son into that range [he] was be- cause [he an] armed career criminal.” The judge observed that without armed guideline career criminal Duncan BRIEF: Camp, ON David W. Law Of- “would have been in the 70-87 month Jackson, Tennessee, Camp, fice of David range” 188 months was the “mini- Grinalds, Appellant. Leigh for R. Assis- mum Jackson, September available.” In Attorney, [was] tant United States Ten- nessee, pursuant Duncan moved 18 U.S.C. Appellee. § 2255 for the district court to vacate his MARTIN, BATCHELDER, Before: sentence; the court denied motion. DAUGHTREY, Judges. Circuit granted This then Duncan a “certifi- appealability respect cate of to the MARTIN, J., opinion delivered the issue of whether is entitled to be [he] court, DAUGHTREY, J., in which resentenced in the wake of Booker.” We BATCHELDER, joined. 447), (p. J. applies thus address whether Booker ret- separate opinion concurring delivered roactively to sentences after the the result. Court decided OPINION question’s This resolution matters JR., MARTIN, BOYCE F. Circuit Duncan if retroac- because Booker Judge. tively resentencing. he is entitled to Dun- presents question preserved This case can chal- his Sixth Amendment lenge, dispositive Court’s decision in and it is not that he United solely policy consider- ranges based violation constitutional no direct suffered ations, have with the range including disagreements would his Guidelines because any judge-found absent Kimbrough same been the Guidelines.” is because -, facts. This 552 *3 of Booker the cases (2007) (internal consolidated in Booker quotations L.Ed.2d 481 ultimately invalidated both and omitted). and Fanfan and citations Booker’s sentence While their sentences. in So, it had been because determine whether we must improper judge-found facts of the basis

creased on retroactive back to Booker is Booker, 543 jury, a U.S. to Lane, 288, not submitted Teague v. 738, “the Court held that at and subse Fanfan’s had violated court the district cases, explained quent under the to be sentenced statutory right determining for when rules the framework Fanfan was “because advisory guidelines,” judgm retroactively to final criminal apply assumption under the erroneous sentenced applies rule Teague, an old ents.2 Under mandatory,” and were guidelines that the review, but a on direct and collateral both “resentencing under seek thus he could only to generally applicable new rule is advisory guidelines.” cases still on direct review. See Griffith Hochschild, 442 980 Cir. F.3d 708, 93 Kentucky, 479 U.S. 2006). rule” also L.Ed.2d 649 Yet a “new pro retroactively a collateral words, a defendant “has In other (1) (2) or ceeding if the rule is substantive statutory rights un and both constitutional criminal rule is a “watershed rule of Hochschild, Booker,” 442 F.3d at der the fundamental procedure implicating under the erro sentenced defendants pro criminal accuracy of the fairness are manda guidelines neous belief Summerlin, 542 ceeding.” Schriro v. non-constitutional Booker-er tory suffer Barnett, 442 398 F.3d S.Ct. States v. ror. United Cir.2005).1 (2004) omitted). ev (quotations There is 524-25 here that ery indication question The first is mandatory by the

judge felt constrained an light Blakely, applied old and, defendants guidelines, post-Booker, A announced a new one. case rule or to individualized right have the a rule when “it breaks new factors, announces new statutory sentencing in light of the obligation on the ground imposes or new general § “as a because U.S.C. the Federal Government.” matter, may vary from Guidelines States or courts States,-U.S.-, any ing explanation for deviation from the an 1. See also Gall (2007) added). L.Ed.2d 445 range.”) (emphasis ("Regardless of whether the sentence range, the the Guidelines is inside or outside Teague's entirely clear that frame It is not appellate review the sentence un- court must peti appropriate habeas work is for federal standard. It must der an abuse-of-discretion § tions under 18 U.S.C. 2255 because court committed first ensure that the district comity ani of the and federalism concerns error, significant procedural such as fail- no mating Teague lacking. Valentine v. See (or calculating) ing improperly to calculate Cir. treating range, the Guidelines the Guidelines J., 2007) (Martin, dissenting). But it has been failing mandatory, to consider as Teague practice apply this Court's factors, 3553(a) selecting § a sentence based today. petitions, § and we adhere to it facts, failing clearly or to ade- erroneous explain quately the chosen sentence —includ- 301, 109 1060. A Teague, 489 U.S. S.Ct. 120 S.Ct. 2348—it was Blakely that further as “a rule that clarified the meaning “statutory new rule is defined maxi- mum”: by ‘statutory maximum’ precedent existing Ap- ... was not dictated prendi purposes is the maximum sentence at the time the defendant’s conviction be judge may Schriro, impose solely on the final,” basis came 542 U.S. at in the jury verdict or 2519, and a decision does not an facts reflected admitted “merely nounce a new rule when defendant.” 303, 124 (emphasis S.Ct. 2531 in original). application principle governed” And when the Booker Court struck down a prior Teague, Court case. federal it ob- U.S. at S.Ct. 1060. *4 served that as dissenting opinions in that previously We have held Booker is Blakely recognized, there is no distinction not retroactive back to the time that the of constitutional significance between the Supreme Apprendi v. Court decided New federal Sentencing Guidelines and the 2348, Jersey, 530 U.S. 120 S.Ct. Washington procedures at issue in that (2000), L.Ed.2d 435 see Valentine v. Unit- Booker, case.” 543 U.S. at 125 S.Ct. States, Cir.2007), 488 F.3d 325 but Apprendi long. Logi- the line of cases is Nevertheless, before Booker was handed in cally, point at some this chain —stretch- (but down after grant- certiorari had been Arizona, ing Apprendi Ring from ed) majority of this Court that held 122 S.Ct. 153 L.Ed.2d 556 U.S. Blakely require did not us to strike down (2002), Booker, through Blakely, and Rita Sentencing the federal Guidelines. United States, v. United U.S. S.Ct. Koch, Cir.2004) States 383 F.3d 436 2456, 2465, (2007), 168 L.Ed.2d 203 Gall v. (en banc). Koch, though we observed — States, -, -, may that that trajectory “[i]t be the 586, 597, (2007), S.Ct. 169 L.Ed.2d 445 and Apprendi, Ring, Blakely and will end with — States, Kimbrough v. United Guidelines,” a nullification of the we de- -,-, 558, 570, prudential clined to do so for reasons. Id. (2007) Apprendi rule announced —the Specifically, at 442. we observed that low- stop being every vary- must a new rule in er courts should not overrule ing application and instead must become Court decisions—even their when reason- old one that on collateral re- ing has been undermined —and we inter- argues view. Duncan that this switch oc- States, preted Edwards v. United 523 U.S. Booker; Blakely curred after but before government disagrees, though the it need (1998), precedent upholding as established specify the exact break. against the Guidelines a Sixth Amendment right argument Duncan is that the that challenge. also relied on the fact that We Blakely considerably dictated Booker is the scheme struck down stronger argument Apprendi than the Blakely, although identical in effect to the Although ignited did. the Federal in form: differed the Apprendi the revolution the rule an- scheme struck down in nounced than there—-“Other the fact of a promulgated by Washington’s legisla- conviction, prior any fact that increases pro- ture while the federal Guidelines were penalty beyond pre- Commission, for a crime the mulgated by Sentencing statutory scribed maximum must be sub- although we admitted that both had the jury, proved beyond mitted to a similarly and force of law and both bound doubt,” Koch, Apprendi, (citing reasonable 530 U.S. at courts. 383 F.3d at 439 Stin- Berman, See, Douglas A. States, tutionality. e.g., 508 U.S. son v. United 598(1993)). 1913, 123 Sentencing, L.Ed.2d 2005 U. Reconceptualizing S.Ct. Legal Blakely’s F. 34-36 Chi. course, in Of mandatory Guide- significance holding ger was not that Edwards’s stated be viability could not whether or not lines’s future deciding mane to unconstitutional, Booker, jus- Guidelines were criminal the “entire federal missed: 240-41, it in antici- system came to a standstill tice that “the fact Guide further held in Booker.” pation of the Court’s decision promulgated lines were Paladino, Commission, Congress, than rather Cir.2005) J., dissenting). (Ripple, significance.” Id. constitutional lack[ed] writing was on the Blakely, After latter conclusion 738. This in a that the Guidelines were doomed wall prior decision by the Court’s was informed way Apprendi not the case after Mistretta Indeed, yet an- this case is was decided. 393-94, 109 L.Ed.2d 714 Blakely earthquake’s other of Court, in upholding in which the reverberations, at least ar- and thus delegation sep against the Guidelines *5 operate retro- guable that Booker should challenges, observed aration-of-powers actively Supreme back to when the “qua Commission Blakely. decided in function.3 si-legislative” And, to pragmatic reasons there in Yet this case does not arise a vacuum. Booker. Blakely that dictated believe holding Blakely in Koch that did not Our O’Connor, Blakely dissent whose Justice down, to require us strike the demise, de- prophesized the Guidelines’s incorrect, ultimately proven never- though at the Ninth Blakely the decision scribed considering in gives great pause theless us as a “number judicial conference Circuit they argument. though And Duncan’s hyper- This was not earthquake.”4 ten postures in than were decided different Blakely, month of thou- bole. Within a directly this case and thus do not control challenging the appeals sands of criminal today, sweeping language the our decision filed, were Sentencing Guidelines federal States, F.3d Humphress 398 had struck down federal courts several (6th Cir.2005) Valentine, 488 F.3d 855 Guidelines, and the or all of the some against holding at that Book- counsels sought expedited Acting General Solicitor thus merely er announced an old rule. We of two deci- review in the that announced a new rule the consti- hold Booker questioning sions Guidelines’s years ju- reasonable doubt. Three after Francis Although we ask whether "reasonable 3. decided, Court, Aiken, precedent to whether rists could differ as Yates v. the in rule," sought-for Beard v. compel[led] 211, 216-17, Banks, 416 n. 542 U.S. (1988), quoted Teague, U.S. at in (2004), inquiry not that does held that Francis did not simply dissenting compel us to count Justices merely a new rule because it "was announce Indeed, judges. Teague or lower court application” principles the Court had primary example that did of a case Court’s O’Connor, previously established. Justice not announce a new rule was Francis author, Teague’s in Francis. dissented Franklin, L.Ed.2d which was a 5-4 decision Denniston, Agree Lyle to Consider 4. Justices allowing holding jury that a instruction Aug. Sentencing, at A14. N.Y. Times, unconstitutionally jury presume re- malice proof beyond lieved a burden of a state of its Finally, informing today an- our decision merely apply the rule and did not recognition accept that Duncan’s Blakely. in nounced that Booker argument operates retroac- forecloses Duncan’s remain- Summerlin tively split back to would create a retroactivity: that either ing avenues for with our sister circuits where not one did rule is “substantive” or that it the Booker before, e.g., McReynolds exist see v. Unit- rule of criminal announced “watershed States, Cir.2005), Summerlin, In procedure.” Thus, wary doing. which we are we Ring Court held —one decline Duncan’s invitation to create this following Apprendi not retroac- cases —is split and hold that Court’s Ring collateral review. held that tive on in Booker is decision not retroactive on jury are entitled to a trial on defendants review collateral for sentences af- leading to aggravating possibly all factors ter Dun- We therefore AFFIRM penalty. of the death imposition can’s sentence. S.Ct. 2428. Summer- lin, Ring did the Court determined BATCHELDER, M. ALICE Circuit range of conduct or the “alter[] Judge, concurring. punishes,” that the law persons class of Because I believe that Duncan’s claim is rule. and thus was not “substantive” entirely governed by our decisions Summerlin, States, Humphress United 398 F.3d 855 Instead, Ring merely “allocate[d] Cir.2005) Valentine authority” by requiring a decisionmaking Cir.2007), I 488 F.3d 325 con- the facts jury judge rather than a find opin- cur the result reached the lead *6 was a punishment essential to and thus ion. procedural Id. This “prototypical rule[.]” logic equally applies to both so the rules announced both

are, Ring, pro- like the rule announced in

cedural.

Second, Ring held that did Summerlin

not announce a “watershed rule of criminal because the could not procedure” SHAW, Petitioner-Appellant, Fannie L. juries were so much determine judges accurate than such that the more change brought by Ring “impli- about AURGROUP FINANCIAL CREDIT Margaret Burks, A. the fundamental fairness and accu- UNION and cat[ed] indeed, Respondents-Appellees. racy proceeding”; of the criminal that it the Summerlin Court found could No. 08-3061. say way: either the evidence was sim- Appeals, Court of equivocal.” Id. at ply “too Sixth Circuit. Moreover, 2519. the Booker remedial authority, opinion left albeit Submitted: Oct. 2008. discretion, with increased and Filed: Jan. Decided “effec- judges when made the Guidelines have tively advisory,” so Booker could not

announced a “watershed rule.”