Opinion
Criminal No. 98-257 ADM/AJB, Civil No. 04-4027 ADM.
March 22, 2005
Henry J. Shea, III, Esq., Assistant United States Attorney, Minneapolis, MN on behalf of Plaintiff.
Wayne Douglas Shevi, pro se.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge on Defendant Wayne Douglas Shevi's ("Defendant") Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 [Docket No. 46]. Defendant argues that his Sixth Amendment right to a jury trial was violated when he received four upward enhancements (loss amount, more than minimal planning, abuse of a position of trust, and obstruction) to the base offense level. For the reasons set forth below, Defendant's Motion is denied.
Since filing the instant motion, Defendant has been released from custody. However, since he remains on supervised release, his motion is not moot. See Leonard v. Nix, 55 F.3d 370, 372-73 (8th Cir. 1995).
II. BACKGROUND
Defendant attempts to mitigate his sentence by filing this § 2255 Motion. In September 1998, Defendant was charged in a multi-count Indictment [Docket No. 1]. In January 1999, Defendant was charged with five additional counts in a Superseding Indictment [Docket No. 6]. On February 19, 2002, Defendant pleaded guilty to one count of mail fraud, one count of structuring cash transactions, and five counts of willfully making and subscribing false income tax returns [Docket No. 22].The Defendant was sentenced on September 4, 2002 [Docket No. 30]. Defendant directly appealed his conviction to the Eighth Circuit Court of Appeals [Docket No. 32], which affirmed in part, reversed in part, and remanded for further sentencing proceedings on September 30, 2003. United States v. Shevi, 345 F.3d 675 (8th Cir. 2003). Defendant's subsequent petition to the United States Supreme Court for a writ of certiorari was denied on January 26, 2004. Shevi v. United States, 540 U.S. 1166 (2004).
Pursuant to the Eighth Circuit's decision, Defendant was re-sentenced by the United States District Court on April 8, 2004 [Docket No. 43] for violations of 18 U.S.C. § 1341, 31 U.S.C. § 5324(a)(3), and 26 U.S.C. § 7206(1). In accordance with the United States Sentencing Guidelines ("USSG"), Defendant's counts of conviction were grouped into two separate categories: Group I contained counts 1 (mail fraud) and 2 (structuring cash transactions); Group II contained Counts 3 through 7 (false income tax returns).
The offense level for each group of counts is the highest offense level produced by any one of the counts in that group.See USSG § 3D1.3(a). Thus, the offense level for Group I was established by the offense level for Count 1 (mail fraud). The USSG mandated a base offense level of six for Defendant's violation of Count 1. The total loss associated with the mail fraud was $305,133.38. Based on the total loss associated with the mail fraud, Defendant's sentence was enhanced by eight levels. See USSG § 2F1.1(b)(1)(I). This sentence was further enhanced by two levels because the Court found that the offense involved more than minimal planning. See USSG § 2F1.1(b)(2)(A). Additionally, a two level enhancement was added to the sentence after a finding that Defendant abused the judicial process, and another two level enhancement was added after a finding that Defendant willfully obstructed the administration of justice.See USSG §§ 2F1.1(b)(3)(B), 3C1.1. Finally, based on the finding that Defendant abused his position of trust by defrauding his minor niece and nephew, Defendant's sentence was enhanced by two additional levels. See USSG § 3B1.3.
The offense level for Group II was determined largely on the basis of the total amount of harm or loss. Thus, the USSG mandated a base level of fifteen for Defendant's violation of Counts 3-7. A two level enhancement was added to the base offense level after a finding that the Defendant willfully obstructed the administration of justice. See USSG § 3C1.1. Upon determination of the individual adjusted offense levels for Groups I and II, a multiple count adjustment was calculated pursuant to § 3D1.4, resulting in a combined offense level of 23. After an adjustment of two levels for Defendant's acceptance of responsibility, the offense level totaled 21. This Court found that all of the factual findings were supported by a preponderance of the evidence and sentenced Defendant to a total term of 39 months on Counts 1 and 2, and a term of 36 months each on Counts 3-7, to be served concurrently.
III. DISCUSSION
Defendant's motion is brought pursuant to 28 U.S.C. § 2255. Section 2255 provides persons in federal custody a limited opportunity to collaterally attack the constitutionality, jurisdictional basis or legality of the sentence prescribed by the court. See United States v. Addonizio, 442 U.S. 178 (1979). Defendant argues that, under Blakely v. Washington, his Sixth Amendment right to a fair trial was violated. 124 S. Ct. 2531 (2004). Since Defendant filed his motion, the Supreme Court has extended its holding in Blakely to apply to the USSG.United States v. Booker, 125 S. Ct. 738 (2005). Defendant contends that Blakely and Booker demand a sentence reduction to affect the elimination of the four sentence enhancements that were applied because those enhancements were based on findings by the Court rather than a jury. For the following reasons, Defendant's motion is denied.
In Blakely, the Supreme Court held the Sixth Amendment prohibits sentences greater than "the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant." 124 S. Ct. at 2537. Applying the principles first announced in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and affirmed in Blakely, Booker found the system of enhancements established by the USSG violates the Sixth Amendment. See 125 S. Ct. at 749-50. The Supreme Court resolved this conflict by excising the provision of the Sentencing Reform Act that made the USSG mandatory, 18 U.S.C. § 3553(b)(1), effectively rendering the Guidelines advisory.Booker, 125 S. Ct. at 756-57; see also Green v. United States, 2005 U.S. App. LEXIS 1652, *2-3 (2d Cir. February 2, 2005). Because Defendant brings a § 2255 motion, Booker's rationale is pertinent only if its holding applies retroactively to cases on collateral review. A. Does Booker Announce a Substantive or Procedural Rule?
Although Defendant brought his § 2255 based on Blakely's rationale, Blakely reserved judgment regarding the status of the federal sentencing guidelines. Blakely, 124 S. Ct. at 2538 n. 9. Since Booker expressly considered whether the USSG violated the Sixth Amendment, the Court finds the appropriate question in the instant matter is whether Booker's rationale applies retroactively to cases on collateral review. See McReynolds v. United States, 2005 U.S. App. LEXIS 1638, *6-7 (7th Cir. Feb. 2, 2005); Humphress v. United States, 2005 U.S. App. LEXIS 3274, *2 (6th Cir. Feb. 25, 2005).
Although the Supreme Court has stated that new rules apply to all criminal cases on direct review, such rules are only retroactively applicable to cases on collateral review in limited circumstances. Schiro v. Summerlin, 124 S. Ct. 2519, 2522 (2004). While new substantive rules generally apply retroactively, new procedural rules do not. Id. at 2522-23. "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 (citations omitted) (emphasis in original).
The rule announced by Booker does not alter the range of conduct or the class of persons that the law pursues. Booker simply affects the method for determining the appropriate length of punishment. See Summerlin, 124 S. Ct. at 2523. The Supreme Court has stated "[r]ules that allocate decision making authority in this fashion are prototypical procedural rules." Id. at 2523-24 (holding that a rule requiring a jury rather than a judge to find the facts essential to the death penalty is a procedural rule, while a rule that a particular fact is essential to the death penalty is a substantive rule). Therefore, the rule announced in Booker is procedural, rather than substantive, in nature. Accord Humphress, 2005 U.S. App. LEXIS at *11, n. 1; McReynolds, 2005 U.S. App. LEXIS at *3-7.
B. Does Booker 's Procedural Rule Apply Retroactively to Initial § 2255 Motions?
In Teague v. Lane, the Supreme Court set forth a three-step analysis for determining whether a procedural rule applies retroactively to cases on collateral review. 489 U.S. 288; see Beard v. Banks, 124 S. Ct. 2504, 2510 (2004). First, the reviewing court must determine the date when the Defendant's conviction became final. Id. Second, the Court must decide whether the rule at issue is actually "new." Id. If so, the court must then determine whether the new rule falls into "one of the two narrow exceptions to the Teague doctrine." O'Dell v. Netherland, 521 U.S. 151, 156-57 (1997).
1. Date Defendant's Conviction Became Final
"A conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal . . . has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied." Caspari v. Bohlen, 510 U.S. 383, 390 (1994) (citation omitted). Defendant's timely petition for a writ of certiorari was denied by the Supreme Court on January 26, 2004 and Defendant was resentenced in keeping with the Eighth Circuit's direction on April 8, 2004. See Shevi, 345 F.3d at 679. An Amended Judgment was filed on April 12, 2004. Defendant did not appeal his resentencing to the Eighth Circuit within the ten days provided under Rule 4(b)(1)(A) of the Federal Rules of Appellate Procedure. As a result, his conviction was final on April 22, 2004, well before the Supreme Court decided Booker on January 12, 2005. 2. Was the Rule Announced by Booker "New"?
For Teague purposes, a rule is "new" if it "breaks new ground." Teague, 489 U.S. at 301. In determining whether a case announces a new rule, a court must ask whether the result was "dictated" by existing precedent at the time the defendant's conviction became final. See id.; Beard, 124 S. Ct. at 2511. In other words, whether "the unlawfulness of [defendant's] conviction was apparent to all reasonable jurists." Beard, 124 S. Ct. at 2511, (quoting Lambrix v. Singletary, 520 U.S. 518, 527-28 (1997)).
Because the rule announced by Booker was not dictated by existing precedent at the time Defendant's conviction became final and it was not apparent to all reasonable jurists that his conviction was unlawful, Booker promulgated a new rule. First, the Supreme Court expressly stated that Booker's holding applies to "all cases on direct review." Booker, 125 S. Ct. at 769. Such a pronouncement would not have been necessary wereBooker's result dictated by precedent. Second, until Booker was issued, the federal judiciary was deeply divided as to whether the rule announced in Blakely would apply to the USSG. Blakely expressly reserved judgment about the status of the USSG. Blakely, 124 S. Ct. at 2538 n. 9. Some Circuits, in divided opinions, found the USSG violated the Sixth Amendment. See United States v. Booker, 375 F.3d 508, 515 (7th Cir. 2004) (Easterbrook, J., dissenting); United States v. Ameline, 376 F.3d 967, 984 (9th Cir. 2004) (Gould, J., dissenting). Booker itself was decided over a four-justice dissent. Booker, 125 S. Ct. at 807 (Breyer, J., dissenting) (arguing that factual distinctions "offer a principled basis" for refusing to extendBlakely and Apprendi to the USSG). For all of these reasons, the Court finds Booker was not dictated by existing precedent and reasonable jurists would not have felt compelled to conclude its rule was constitutionally required. See O'Dell, 521 U.S. at 156.
It is illustrative that the Eighth Circuit did not reach a conclusion on the matter. See United States v. Mooney, 2004 U.S. App. LEXIS 16302 (8th Cir. 2004) (granting en banc hearing and vacating the Court's July 23, 2004 opinion and judgment). Furthermore, the Second, Fourth, Fifth and Eleventh Circuits heldBlakely did not compel the conclusion that the USSG violated the Sixth Amendment. See United States v. Mincey, 380 F.3d 102 (2d Cir. 2004); United States v. Hammoud, 378 F.3d 426 (4th Cir. 2004) (en banc); United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004); United States v. Koch, 383 F.3d 436 (6th Cir. 2004) (en banc); United States v. Reese, 382 F.3d 1308 (11th Cir. 2004).
3. Is Booker 's Rule Retroactively Applicable Under an Exception to Teague ?
Procedural rules are not retroactively applicable to cases on collateral review unless they fall into one of Teague's two narrow exceptions. The first exception applies to a rule that "places certain kinds of primary private individual conduct beyond the power of the criminal law-making authority to proscribe." Teague, 489 U.S. at 307. This exception is clearly not implicated by Booker's holding. See Humphress, 2005 U.S. App. LEXIS at *6; see also United States v. Moss, 252 F.3d 993, 997 n. 3 (8th Cir. 2001) (holding Apprendi does not implicate Teague's first exception).
The second exception applies to "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." O'Dell, 521 U.S. at 157 (quotation omitted). The Supreme Court has defined this exception narrowly to include only a "small core of rules requiring the observance of those procedures that . . . are implicit in the concept of ordered liberty." Id.
Although the Supreme Court has not explicitly considered whether Booker's holding applies retroactively to cases on collateral review, the Court's decision in Summerlin is instructive. Summerlin held that Ring v. Arizona, 536 U.S. 584 (2002), which extendedApprendi to prohibit a judge, rather than a jury, from finding the existence of certain aggravating factors warranting imposition of the death penalty, did not announce a "watershed rule of criminal procedure." Summerlin, 124 S. Ct. at 2524-26;see also Blakely, 124 S. Ct. at 2548-49 (O'Connor, J., dissenting) (recognizing the Court's holding in Summerlin, "that Ring (and a fortiori Apprendi) does not apply retroactively on collateral review"). The Court reasoned that Ring did not announce a watershed procedural rule because it was implausible to believe "judicial factfinding so seriously diminishes accuracy as to produce an impermissibly large risk of injustice."Id. at 2525 (emphasis in original) (internal quotation marks omitted). As a result, the Court held Ring was not retroactively applicable to cases on collateral review. See also United States v. Moss, 252 F.3d at 997-1001 (finding that the Apprendi "rule is not of watershed magnitude").
Because Booker, like Ring, is based on an extension ofApprendi, Summerlin's reasoning applies to Booker with equal force. Booker effectively rendered the USSG advisory and provided appellate review to ensure district judges applied the USSG reasonably. As in Ring, "no primary conduct has been made unlawful, and none of the many factors that affect sentences under the Sentencing Guidelines have been declared invalid."McReynolds, 2005 U.S. App. LEXIS at *5. Booker does not shift any decision from judge to jury, or reallocate the burden of persuasion. It only provides judges with more flexibility in applying the guideline system. Consequently, nothing suggests the judicial factfinding at issue in Booker is "either less accurate or creates a greater risk of punishing conduct the law does not reach than did the judicial factfinding addressed inRing." Humphress, 2005 U.S. App. LEXIS at *20-21. As a result, there is no evidence thatBooker announced a watershed procedural rule.
For the aforementioned reasons, this Court concludes the rule announced in Booker is not applicable to cases on collateral review. As a result, Defendant's § 2255 motion must be denied.
IV. CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that Defendant's Motion to Vacate Sentencing Enhancement [Docket No. 46] is DENIED.