Opinion
Case No. 2:05CV230 DAK.
May 11, 2005
MEMORANDUM DECISION AND ORDER
This matter is before the court on Manuel Huasica-Moreno's ("Petitioner") pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Petitioner plead guilty to reentry of a previously removed alien. On November 12, 2004, the court sentenced Petitioner to 41 months in prison and 36 months of supervised release. Petitioner's sentence was enhanced 16 levels because of a previous aggravated felony. Petitioner challenges the 16-level enhancement as unconstitutional because the prior conviction was not set forth in the indictment. Petitioner further challenges the enhancement as a violation of his Fifth and Sixth Amendment rights under United States v. Booker, ___ U.S. ___, 125 S. Ct. 738, 756 (2005).
BACKGROUND
In Petitioner's Statement in Advance of Plea of Guilty in the underlying criminal action, Petitioner certified that the following facts are true and correct. Petitioner is not a citizen of the United States, and was previously removed from the United States. After he was removed, Petitioner knowingly reentered without permission. Petitioner admitted to a prior conviction for aggravated kidnapping. Based upon Petitioner's crime and his prior conviction, the court sentenced Petitioner to 41 months in prison and 36 months of supervised release.
DISCUSSION
Petitioner brings this § 2255 motion arguing first, that his sentence is unconstitutional because his sentenced was enhanced 16 levels for his prior conviction, which was not set forth in the indictment; and second, that under Booker, the court violated his Fifth and Sixth Amendment rights by sentencing Petitioner based on facts not reflected in his Statement in Advance of Plea of Guilty. A "prisoner in custody" may bring a § 2255 motion to vacate, set aside or correct their sentence upon the ground that the sentence was unconstitutional or that the sentence is otherwise subject to collateral attack. See 28 U.S.C.A. § 2255 (2004). A party filing a § 2255 motion must do so within one year of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.Id. Petitioner's motion was filed within one year of the date his conviction became final.
A. Prior Convictions Need Not be Set Forth in the Indictment
Petitioner was indicted for reentery of a previously removed felon, pursuant to 8 U.S.C. § 1326. A conviction under § 1326(a) carries a maximum of two years in prison, unless the defendant has been previously convicted of an aggravated felony. If the defendant has been so convicted, § 1326(b) applies and a defendant faces up to 20 years in prison. In this case, Petitioner's indictment did not state that he was indicted under either § 1326(a) or § 1326(b) and did not mention Petitioner's previous conviction of an aggravated felony. Petitioner argues that the enhancement is unconstitutional because the previous conviction was not set forth in the indictment.
An indictment must set forth each element of the crime that it charges. See Almendarez-Torres v. Unites States, 523 U.S. 224, 228 (1998). However, an indictment need not set forth factors relevant only in sentencing. See id. In Almendarez-Torres, the court determined that the enhancement for prior convictions under § 1326(b) was merely a sentencing factor created to punish recidivists and therefore, prior convictions need not be set forth in the indictment. See id. at 235. As in Almendarez-Torres, Petitioner's prior conviction is merely a sentencing factor and need not be set forth in the indictment. Therefore, Petitioner's claim is denied.
B. United States v. Booker does not Retroactively Apply to Cases on Collateral Review
Second, Petitioner argues that he is entitled to a reduction of sentence under Booker because he was sentenced under the Federal Sentencing Guidelines ("Guidelines"), which have been found unconstitutional and because the judge considered facts not admitted to nor proved by a jury. Specifically, Petitioner argues that the court found by a preponderance of the evidence that Petitioner had a prior conviction for aggravated kidnapping. In United States v. Booker, the United States Supreme Court held that the Guidelines, as enacted, violated a defendant's Sixth Amendment right to a jury trial because the Guidelines require a judge to sentence a defendant based on facts not reflected in a plea of guilty or jury verdict. Booker, ___ U.S. ___, 125 S. Ct. 738, 756 (2005). The Supreme Court then struck the provision of the federal sentencing statute that made the Guidelines mandatory, leaving the remainder of the statute intact. Id. at 767.
This case does not present a Booker issue because Petitioner admitted to his prior conviction. Moreover, Booker explicitly eliminated prior convictions from its application. See id. at 756 ("Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty must be admitted by the defendant or proved to the jury beyond a reasonable doubt."). However, even if the facts did present a Booker issue, Booker would not apply because it does not apply retroactively to cases on collateral review.
There are two lines of cases disposing of § 2255 motions based solely upon Booker: (1) cases finding that Booker does not apply retroactively because it is a new procedural rule that does not implicate the fundamental fairness of the criminal proceeding; and (2) cases finding that Booker does not apply retroactively because the Supreme Court has not specifically held that it does, as required under Tyler v. Cain, 533 U.S. 656 (2001). Petitioner's motion is denied under both approaches.
1. Booker Does Not Apply Retroactively Because It Is a New Procedural Rule That Does Not Implicate Fundamental Fairness
When the Supreme Court announces a "new rule," the rule "applies to all criminal cases still pending on direct review." Schriro v. Summerlin, ___ U.S. ___, 124 S. Ct. 2519, 2522 (2004). As to already final cases, the new rule applies only in limited circumstances. Id. "New substantive rules generally apply retroactively. . . . New rules of procedure, on the other hand, generally do not apply retroactively" unless the procedural rule is a "`watershed rule of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Id. at 2522-23 (internal quotations omitted). "A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes. In contrast, rules that regulate only the manner of determining the defendant's culpability are procedural." Id. at 2523 (internal citations omitted) (emphasis in original).
The Court in Booker "did not alter the range of conduct or the class of persons that the law punishes." United States v. Price, ___ F.3d ___, 2005 WL 535361, *2 (10th Cir. Mar. 8, 2005). Instead, Booker merely "altered the range of permissible methods for determining the appropriate length of punishment." Id. (quotations omitted). "Rules that allocate decisionmaking authority in this fashion are prototypical procedural rules." Schriro, 124 S. Ct. at 2523. Thus, Booker announces a procedural rule. See Price, 2005 WL 535361, *2; Rucker v. United States, 2005 WL 331336, *5 (D. Utah Feb. 10, 2005) (holding that Booker is a procedural rule); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005) (same); United States v. Siegelbaum, 2005 WL 196526, *2 (D. Or. Jan. 26, 2005) (same).
In United States v. Price, ___ F.3d ___, 2005 WL 535361 (10th Cir. Mar. 8, 2005), the court addressed the applicability of Booker by analyzing whether Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004), was a procedural or substantive rule. Id. at *1. However, Price does not conclude that Blakely applied to the Federal Sentencing Guidelines prior to Booker. Instead, the court states, "even if the Court did apply Blakely to the federal guidelines, Blakely would not apply retroactively to initial § 2255 motions for collateral relief." Id.; United States v. Leonard, 2005 WL 139183 (10th Cir. Jan. 24, 2005).
To determine whether a procedural rule applies retroactively, the court must determine (1) if the procedural rule is a new rule, and (2) if the new procedural rule falls into two limited exceptions to the general rule that procedural rules do not apply retroactively. Price, 2005 WL 535361, *4.
a. Booker Is a New Rule
To determine whether Booker was a new rule at the time that Petitioner's conviction became final, the court must first determine the date Petitioner's conviction became final, and second, whether Booker announces a new rule. Id. at *3. First, "a conviction becomes final when the availability of a direct appeal has been exhausted, and the time for filing a certiorari petition with the Supreme Court has elapsed, or the Court has denied a timely certiorari petition." Id. at *2. By pleading guilty, Petitioner waived his right to directly appeal his sentence and challenges his sentence only on collateral review under 28 U.S.C.A. § 2255. Therefore, Petitioner's sentence became final on the date his sentence was entered, October 12, 2004, well before Booker was decided by the Supreme Court.
Second, "[a] rule is new when it `breaks new ground or imposes a new obligation on the States or the Federal government' or if it `was not dictated by precedent existing at the time the defendant's conviction became final.'" Johnson v. McKune, 288 F.3d 1187, 1196 (10th Cir. 2002) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989)); Rucker, 2005 WL 331336, *5. Although prior case law may have foreshadowed Booker, it did not compel the decision. See Price, 2005 WL 535361, *4. Therefore, Booker is a new rule. See id.; Rucker, 2005 WL 331336, *5 (holding Booker is a new rule); McReynolds, 397 F.3d at 481 (same); Siegelbaum, 2005 WL 196526, *2 (same).
b. As a New Procedural Rule, Booker Does Not Apply Retroactively Because It Does Not Fit Within the Limited Exceptions Under Teague
New procedural rules generally do not apply retroactively, unless they fall within two limited exceptions under Teague v. Lane, 489 U.S. 288, 307 (1989). See Price, 2005 WL 535361, *4. First, a new procedural rule will apply retroactively if it "`places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Id. (quoting Teague, 489 U.S. at 307). Booker does not fall within this exception. Id. Second, a new procedural rule will apply retroactively if it is a "`watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.'" Id. (quoting O'Dell v. Netherland, 521 U.S. 151, 156 (1997)).
In Booker, the Court found the Sentencing Guidelines unconstitutional because they allowed a judge to impose a sentence based on facts neither admitted to nor proven by a jury. 125 S. Ct. at 756. The Court determined in Schriro, that judicial factfinding does not implicate fundamental fairness because the evidence is "simply too equivocal" to support the conclusion that judicial factfinding "`so seriously diminishe[s]' accuracy that there is an `impermissibly large risk' of punishing conduct the law does not reach." Schariro, 124 S. Ct. at 2525 (quoting Teague, 489 U.S. at 312-13 (internal quotation marks omitted)). Thus, the judicial factfinding proscribed by Booker does not implicate fundamental fairness. See Price, 2005 WL 535361, *4. Therefore, Booker does not apply retroactively because it is a new procedural rule that does not implicate the fundamental fairness and accuracy of the criminal proceeding. Because Petitioner's conviction became final prior to the Booker decision, Booker does not apply to Petitioner's case.
2. Booker Does Not Apply Retroactively Because the Supreme Court Has Not Specifically Held That It Does, As Required Under Tyler v. Cain
While the above analysis would dispose of this case, Petitioner's motion is denied on the independent ground that the Supreme Court has not specifically held that Booker applies retroactively to cases on collateral review, as required under 28 U.S.C.A. § 2255(3). Under § 2255, a Petitioner seeking review of his/her sentence based on a "newly recognized" right may do so only if the right was recognized by the Supreme Court and if the Court made the "newly recognized" right "retroactively applicable to cases on collateral review." Id. § 2255(3). Therefore, Booker applies to § 2255 motions only if (1) it is a "newly recognized" right, and (2) if the Supreme Court made it "retroactively applicable to cases on collateral review." Id. First, as discussed above, Booker announces a new rule.
Second, under § 2255, the new rule must have been made "retroactively applicable to cases on collateral review." 28 U.S.C.A. § 2255(3). The Court in Tyler v. Cain interpreted similar language found in 28 U.S.C. § 2244 in determining the retroactive application of Cage v. Louisiana, 498 U.S. 39 (1990). See Tyler, 533 U.S. 656, 658 (2001). Section 2244 limits courts from awarding relief to prisoners who file successive habeas corpus applications, unless the prisoner "rel[ies] on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." See id. at 661-62. The Court found that under § 2244, for a new constitutional rule to apply retroactively to cases on collateral review, the Supreme Court — and the Supreme Court alone — must hold that the rule applies retroactively to cases on collateral review. See id. at 662-63. Therefore, the Court found that Cage did not apply to successive § 2244 applications because the Court had not specifically held that it applied. See id.
The language of § 2255 is similar to § 2244. Section 2255 limits review based on a new constitutional right to those rights "recognized by the Supreme Court and made applicable to cases on collateral review." 28 U.S.C.A. § 2255(3). The Booker Court specifically held that its determination applied "to all cases on direct review." 125 S. Ct. at 769. The Court did not, however, hold that it applied retroactively to cases on collateral review, as required by Tyler to find retroactive application. Thus, Booker does not apply retroactively to cases on collateral review. See In re Anderson, 396 F.3d 1336, 1339-40 (11th Cir. 2005) (holding that under Tyler, neither Booker nor Blakely retroactively applies to § 2255 motions); see also Godines v. Joslin, 2005 WL 177959, *2 (N.D. Tex. Jan. 27, 2005) (refusing to extend Booker to § 2255 motions); Gerrish v. United States, 2005 WL 159642, *1 (D. Me. Jan. 25, 2005) (holding that neither Blakely nor Booker applies retroactively to § 2255 motions).
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 is DENIED.