Carrington v. U.S., 05-36143.

• Decision Date: 13 December 2006
• Docket Number: No. 05-36144.,No. 05-36143.,05-36143.,05-36144.
• Citation: 470 F.3d 920
• Parties: Craig Anthony CARRINGTON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Robert Charles Tillitz, Petitioner-Appellant, v. United States of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

470 F.3d 920

Craig Anthony CARRINGTON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Robert Charles Tillitz, Petitioner-Appellant, v. United States of America, Respondent-Appellee.

No. 05-36143.

No. 05-36144.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 18, 2006.

Filed December 13, 2006.

Russell V. Leonard, Assistant Federal Public Defender, Tacoma, Washington, for petitioner-appellant Robert Charles Tillitz.

Carol A. Elewski, Tumwater, Washington, for petitioner-appellant Craig Anthony Carrington.

Helen J. Brunner, Assistant United States Attorney, Seattle, Washington, for the respondent-appellee.

Appeal from the United States District Court for the Western District of Washington; Robert J. Bryan, District Judge, Presiding. D.C. Nos. CV-05-05286-RJB, CV-05-05144-RJB, CR-94-05074-RJB.

Before: PREGERSON, NOONAN, and CALLAHAN, Circuit Judges.

PREGERSON, Circuit Judge:

The two sentencing cases before us present unusual circumstances. In both, the district court expressed its dissatisfaction with the United States Sentencing Guidelines on the record during the sentencing hearing, at a time when the Guidelines' constitutionality was accepted. In addition, post-Booker, the district court implored us to recall our mandate in these two cases so that it could sentence Carrington and Tillitz to a just and proper sentence. We believe that these cases present extraordinary circumstances and accordingly, we recall our mandate and remand for re-sentencing.

I. Factual Background

A. Craig Carrington's Original Sentencing Hearing

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 commented:

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....

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 sentenced Carrington to 324 months in prison, the low end of the applicable Guidelines range. Carrington's conviction and sentence were upheld on direct and collateral appeals.

B. Robert Tillitz's Original Sentencing Hearing

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, in pro per, before Judge Bryan for sentencing. Tillitz argued, inter alia, that the Sentencing Guidelines were unconstitutional. In response, Judge Bryan commented:

It might interest you to know, Mr. Tillitz, 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.

When Tillitz asked Judge Bryan for the name of the case in which he had discussed the constitutionality of the Guidelines, Judge Bryan answered: "It's past history now and it's of no assistance to us."

Judge Bryan then sentenced Tillitz to a 360-month term of imprisonment, the low end of the applicable Guidelines range. Tillitz's conviction and sentence were upheld on direct and collateral appeals.

C. Hearing on Writ of Audita Querela

On March 2, 2005, Tillitz filed a writ of audita querela "for relief from an unconstitutional sentence" based on United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). On April 15, 2005, 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.

On September 13, 2005, Judge Bryan noted substantial similarities between the cases of Carrington and Tillitz and entered a minute order joining the two cases. Carrington and Tillitz argued that the district court should grant a writ of audita querela because their sentences are unconstitutional. Carrington also argued that his sentence should be modified under 18 U.S.C. § 3582(c)(2).

Judge Bryan denied relief on the grounds raised by the parties. Sua sponte, Judge Bryan asked this court to recall our mandate based on the existence of extraordinary circumstances, as we had done in United States v. Crawford, 422 F.3d 1145 (9th Cir.2005), and to give him an opportunity to re-sentence these two defendants. See Tillitz v. United States, No. C05-5144RJB, 2005 WL 2921957, at *12-13 (W.D.Wash. Nov.3, 2005). Judge Bryan then transferred these cases to this court for us to determine whether the petitioners were entitled to relief, including recall of the mandate. See id. at *13.

II. Analysis

A. Grounds Raised by Petitioners

The district court properly concluded that the grounds for relief raised by Carrington and Tillitz in their initial motions are foreclosed by our case law. A writ of audita querela¹ is not an available remedy where the claims raised would be cognizable in a § 2255 habeas petition. See United States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir.2001). Rather, common law writs such as audita querela and coram nobis survive "only to the extent that they fill `gaps' in the current systems of postconviction relief." Id. at 1079.

These 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, 237 F.3d at 1080. Moreover, even if petitioners had been granted permission to file a second or successive habeas petition under 28 U.S.C. § 2244(b)(3), we have held that Booker does not apply to cases on collateral appeal. See United States v. Cruz, 423 F.3d 1119, 1121 (9th Cir.2005) (per curiam). Therefore, petitioners are not entitled to relief on collateral review, however it is labeled.

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 sentence. Booker did not lower sentencing ranges, nor was Booker an action "by the Sentencing Commission"; therefore § 3582(c)(2), by its own terms, does not apply here. See United States v. Moreno, 421 F.3d 1217, 1220-21 (11th Cir.2005). To accept the Petitioners' construction of § 3582(c)(2) would be to stretch that provision beyond what its language can bear.

Accordingly, the district court is correct that the only relief available to these petitioners would be for this court to recall our mandate. We now turn to that question.

B. Recall of the Mandate

A mandate should be recalled only "in extraordinary circumstances." Calderon v. Thompson, 523 U.S. 538, 550, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). Our authority to recall the mandate should be exercised only "for good cause or to prevent injustice." Zipfel v. Halliburton Co., 861 F.2d 565, 567 (9th Cir.1988) (internal citations and quotation marks omitted).

We have held that the Supreme Court's decision in Booker was not, by itself, sufficient to justify recall of the mandate in cases finalized before Booker was filed. See United States v. King, 419 F.3d 1035, 1036 (9th Cir.2005). But Booker was an extraordinarily important decision that may, when combined with other extraordinary circumstances, justify recall of the mandate. In United States v. Crawford, 422 F.3d 1145 (9th Cir.2005), we recalled the mandate in a pre-Booker sentence to allow the district court to re-sentence under Booker. We based our decision on the existence of two extraordinary circumstances: (a) that the sentencing judge had expressed reservations at the time of sentencing about the sentence required under the mandatory Guidelines; and (b) that the Supreme Court's decision in Blakely, which "foreshadowed" its holding in Booker, was rendered before our mandate issued in Crawford. See id. at 1145-46.

Here, the first basis for our decision in Crawford is present. In both Carrington and Tillitz's original sentencing hearing, Judge Bryan expressed his frustration with the lack of discretion afforded to district court judges by the Guidelines. The second basis is not present, purely by the "accident of timing" as Judge Bryan noted. In Crawford, however, we emphasized that this combination of circumstances was not the only one that would justify recalling our mandate. See id. at 1146 n. 2. Instead, we noted that "future panels will necessarily evaluate the existence of `extraordinary circumstances' warranting the recall of a mandate based on the...