UNITED STATES of America, Appellee, v. Michael REDD, Eric Barbour, AKA “E“, Defendants, Peter Shue, Defendant-Appellant.
No. 13-2971
United States Court of Appeals, Second Circuit
Nov. 5, 2013
II
The importance of the systematic approach required by Dillon and Wilson is underlined by a significant consideration that appears to have eluded both the government and Bethea‘s counsel: Bethea is not subject to a mandatory minimum sentence.
The Supreme Court held in Dorsey v. United States, — U.S. —, 132 S.Ct. 2321, 2326, 183 L.Ed.2d 250 (2012) that the “new, more lenient mandatory minimum provisions” “apply to offenders who committed a crack cocaine crime before August 3, 2010 but were not sentenced until after August 3.” Bethea is just such an offender: his crack sales occurred in early 2009 and he was sentenced in September 2010. The amount of cocaine base attributed to Bethea, 15.79 grams, would have subjected Bethea to a mandatory minimum of five years prior to the Fair Sentencing Act, but subjects him to no mandatory minimum under the current regime. See id. at 2329 (“The Act increased the drug amounts triggering mandatory minimums for crack trafficking offenses from 5 grams to 28 grams in respect to the 5-year minimum....“).
Dorsey was issued after the district court‘s order and after the Probation Office issued sentencing recommendations based on the assumption that a five-year mandatory minimum was applicable. Bethea‘s Guidelines sentencing range did not shift from a 60-71 month range to a fixed 60 months, as assumed by all involved; without the mandatory minimum, the range instead began below 60 months—at 57-71 months—and was considerably reduced to 37-46 months. On remand, the district court will have the opportunity to (and, indeed, must under Wilson) consider this development.
For the foregoing reasons, we vacate and remand.
Before: JACOBS and STRAUB, Circuit Judges, PAULEY, District Judge1.
PER CURIAM.
Pro se motion to recall mandates is deemed a successive motion and denied because Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), does not announce a new rule of Constitutional law that has been made retroactive by the Supreme Court.
Peter Shue, pro se, moves to recall this Court‘s mandates related to his conviction, and to reinstate his direct appeal in order
I
Shue was convicted after a jury trial in 1996 of cocaine offenses (conspiracy and attempted distribution) and related gun possession, and sentenced principally to 296 months’ imprisonment. This Court affirmed his conviction, United States v. Redd, 116 F.3d 1472, 1997 WL 346147 (Table) (2d Cir. 1997), and affirmed the denial of his motion for a new trial pursuant to
Shue‘s 2001 motion to vacate his conviction pursuant to
Shue‘s present motion—to recall our mandates and reinstate his direct appeal—argues that his sentence is unconstitutional in light of the Supreme Court‘s holding in Alleyne that “any fact that increases the mandatory minimum [sentence] is an ‘element’ that must be submitted to the jury” and proved beyond a reasonable doubt. 133 S.Ct. at 2155. Shue contends that the district court violated the principle later announced in Alleyne by finding the type and quantity of drugs involved by only a preponderance of the evidence.
II
“Our power to recall a mandate is unquestioned.” Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86, 89 (2d Cir. 1996). However, this power must be “exercised sparingly,” id., and “only in exceptional circumstances,” Fine v. Bellefonte Underwriters Ins. Co., 758 F.2d 50, 53 (2d Cir. 1985). “The sparing use of the power demonstrates it is one of last resort, to be held in reserve against grave, unforeseen contingencies.” British Int‘l Ins. Co. v. Seguros La Republica, S.A., 354 F.3d 120, 123 (2d Cir. 2003) (quoting Calderon v. Thompson, 523 U.S. 538, 549-50, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998)). This restraint is justified by the “need to preserve finality in judicial proceedings.” Sargent, 75 F.3d at 89.
“[W]hen a defendant moves to recall the mandate based on intervening precedent that calls into question the merits of the decision affirming his conviction, we construe the motion as one to vacate the defendant‘s sentence pursuant to
Shue already challenged his conviction and sentence in a
The Anti-Terrorism and Effective Death Penalty Act of 1996 creates “a gatekeeping mechanism, by which circuit courts were assigned the task of deciding in the first
We cannot authorize Shue‘s collateral attack. Shue contends that the Supreme Court announced a new rule of law in Alleyne. That may be. See Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013) (holding that Alleyne announced a new rule of law). But “a new rule is not ‘made retroactive to cases on collateral review’ unless the Supreme Court holds it to be retroactive.” Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). The Supreme Court announced the Alleyne rule on a direct appeal without expressly holding it to be retroactive to cases on collateral review. See generally Alleyne, 133 S.Ct. 2151.
The Supreme Court has left open the possibility that “with the right combination of holdings,” it could make a new rule retroactive over the course of two or more cases, but “only if the holdings in those cases necessarily dictate retroactivity of the new rule.” Tyler, 533 U.S. at 666. “The clearest instance, of course, in which [the Supreme Court] can be said to have ‘made’ a new rule retroactive is where [it has] expressly held the new rule to be retroactive in a case of collateral review and applied the rule to that case.” Id. at 668 (O‘Connor, J., concurring). It has not done so here; none of the dozen or so cases that the Supreme Court remanded for further proceedings in light of Alleyne involved collateral attacks on convictions.
Alternatively, the Supreme Court could also make a new rule of law retroactive by placing it within a category of cases previously held to be retroactive. See id. at 666, 668-69 (O‘Connor, J., concurring). There are two such categories: new substantive rules that place “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe“; and new procedural rules that “are implicit in the concept of ordered liberty.” Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (citations and quotations omitted); see Chaidez v. United States, — U.S. —, 133 S.Ct. 1103, 1107 n. 3, 185 L.Ed.2d 149 (2013) (continuing to recognize only the two Teague exceptions). The latter category is reserved for “watershed rules of criminal procedure” which “alter our understanding of the bedrock procedural elements” of the adjudicatory process. Teague, 489 U.S. at 311 (quoting Mackey v. United States, 401 U.S. 667, 693, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring)).
Alleyne falls within neither category. Our sister Circuits that have decided this issue are in accord. See In re Payne, 733 F.3d 1027, 2013 WL 5200425 (10th Cir. Sept. 17, 2013); Simpson, 721 F.3d at 876. See also United States v. Stewart, 540 Fed.Appx. 171, 2013 WL 5397401 (4th Cir. Sept. 27, 2013). Accordingly, Alleyne did not announce a new rule of law made retroactive on collateral review. As a result, Shue‘s motion—construed as a
We have examined Shue‘s remaining contentions and find them to be without merit. Because none of his claims will proceed, we deny his motion for appointment of counsel as moot.
For the foregoing reasons, Shue‘s motions are denied.