Carrington v. U.S.

• Decision Date: 11 September 2007
• Docket Number: No. 05-36144.,No. 05-36143.,05-36143.,05-36144.
• Citation: 503 F.3d 888
• 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

503 F.3d 888

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 14, 2006.

Filed September 11, 2007.

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

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

Helen J. Brunner, Assistant United States Attorney, Seattle, WA, 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, CR-89-00088-RJB, CV-05-05144-RJB CR-94-05074-RJB.

Before: HARRY PREGERSON, JOHN T. NOONAN, and CONSUELO M. CALLAHAN, Circuit Judges.

Opinion by Judge CALLAHAN; Concurrence by Judge NOONAN; Partial Concurrence and Partial Dissent by Judge PREGERSON.

ORDER

The opinion filed on December 13, 2006, is hereby withdrawn. A Superseding Opinion is filed simultaneously with this order.

OPINION

CALLAHAN, Circuit Judge:

In these sentencing cases Robert Tillitz and Craig Carrington (petitioners) assert a number of creative arguments in an attempt to have their final sentences reconsidered in light of the Supreme Court's opinion in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We conclude that petitioners have not presented exceptional circumstances sufficient to support a grant of extraordinary relief such as the recall of our prior mandates.

I.

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 expressed his frustration with mandatory sentencing guidelines and sentenced Carrington to 324 months in prison, the low end of the applicable range under the United States Sentencing Guidelines. Carrington's conviction and sentence were upheld on direct and collateral appeals.

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 pro se before Judge Bryan for sentencing. Tillitz argued, inter alia, that the Sentencing Guidelines were unconstitutional. In response, Judge Bryan indicated that while he might agree, the issue had been laid to rest by the United States Supreme Court. 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 reviews.

On March 2, 2005, Tillitz filed a writ of audita querela "for relief from an unconstitutional sentence" based on Booker. A month later, 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. In September 2005, Judge Bryan consolidated the cases because of their substantial similarities. Thereafter, both argued that their sentences were unconstitutional and also should be modified under 18 U.S.C. § 3582(c)(2).

On November 3, 2005, Judge Bryan denied relief on the grounds raised by the parties. He noted, however, that in United States v. Crawford, 422 F.3d 1145 (9th Cir.2005), the Ninth Circuit had recalled its mandate in a sentencing case that involved "extraordinary circumstances." Judge Bryan observed that although neither petitioner had filed a motion to recall the mandate, this distinction "may be more form rather than substance" and the availability of such relief was "for the Ninth Circuit to decide." These appeals followed.¹

II.

The district court properly concluded that the grounds for relief raised by petitioners in their initial motions are foreclosed by our case law. A writ of audita querela² 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.

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 second or successive habeas petitions under 28 U.S.C. § 2244(b)(3), we have held that Booker does not apply to cases on collateral review. 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 petitioners' construction of § 3582(c)(2) would be to stretch that provision beyond what its language can bear. Accordingly, the district court correctly denied petitioners relief.

III.

The district court speculated that this court might be able to grant petitioners relief by recalling its mandates, and petitioners press that argument on appeal. We conclude, however, that to the extent that such relief is not barred by our opinions in Cruz, 423 F.3d at 1121, and United States v. King, 419 F.3d 1035 (9th Cir. 2005), petitioners have not presented the exceptional circumstances and equities necessary for a grant of extraordinary relief.

We have the inherent power to recall our mandate in order to protect the integrity of our processes, but should only do so in exceptional circumstances. Zipfel v. Halliburton, Co., 861 F.2d 565, 567 (9th Cir.1988). In Calderon v. Thompson, 523 U.S. 538, 549-50, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998), the Supreme Court affirmed our inherent power to recall our mandate. The Court, however, held that recalling the mandate in that case was "a grave abuse of discretion." Id. at 541, 118 S.Ct. 1489. The Court noted:

In light of "the profound interests in repose" attaching to the mandate of a court of appeals, however, the power can be exercised only in extraordinary circumstances. 16 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3938, p. 712 (2d ed.1996). The sparing use of the power demonstrates it is one of last resort, to be held in reserve against grave, unforeseen contingencies.

Id. at 550, 118 S.Ct. 1489.³ The question then becomes whether petitioners have presented "grave, unforeseen contingencies" that will support the extraordinary relief of a recall of mandate.

The essence of petitioners' claim is that they are entitled to relief in light of the Supreme Court's decision in Booker. We, however, have held that Booker is not retroactive and is not by itself sufficient to justify a recall of the mandate in cases finalized before Booker was decided. King, 419 F.3d at 1036.

An argument, however, has been made that this case presents the type of extraordinary circumstances that led us to recall our mandate in United States v. Crawford, 422 F.3d 1145 (9th Cir.2005). There we found "extraordinary circumstances" to recall the mandate because (1) "the sentencing judge had expressed explicit reservations on the record about the sentence required under the previously mandatory Sentencing Guidelines," and (2) "the Supreme Court's decision in Blakely v. Washington, [542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)] . . . foreshadowing its holding in . . . Booker . . . was rendered before the mandate issued." Crawford, 422 F.3d at 1145-46.⁴

Neither of the two factors that supported relief in Crawford are present here. First, although Judge Bryan readily expressed his disapproval of mandatory sentences, his statements do not suggest that there are any exceptional circumstances that distinguish either petitioner from other persons sentenced under the Guidelines prior to Booker. Indeed, in his November 2005 order Judge Bryan observed neutrally that the "sentences may have been appropriate at the time they were imposed, or they may not have been."

Second, Crawford presented a unique question of timing that favored equitable relief. The panel had just decided Crawford's direct appeal, when it recalled its own mandate. In fact, the motion to recall the mandate was made less than a month after the panel issued its memorandum disposition⁵ and within weeks of the issuance of the court's mandate. Thus, although the mandate had issued, Crawford's direct challenge to his conviction and sentence had not become "final" because the time for filing a petition for a writ of certiorari had not expired.⁶ See SUP. CT. R. 13 (allowing 90 days from a circuit court's decision for the filing of a petition for certiorari).

The...