Rucker v. U.S., No. 2:04-CV-00914PGC.

CourtUnited States District Courts. 10th Circuit. United States District Court of Utah
Writing for the CourtCassell
Citation382 F.Supp.2d 1288
PartiesStacy RUCKER Plaintiff, v. UNITED STATES of America Defendant.
Docket NumberNo. 2:04-CV-00914PGC.
Decision Date10 February 2005

Page 1288

382 F.Supp.2d 1288
Stacy RUCKER Plaintiff,
UNITED STATES of America Defendant.
No. 2:04-CV-00914PGC.
United States District Court, D. Utah, Central Division.
February 10, 2005.

Page 1289

Stacy Rucker, Sheridan, OR, pro se.


CASSELL, District Judge.

In October 2003, Stacy Rucker was sentenced to serve 121 months in prison for armed bank robbery. That sentence was determined, in part, by reference to the Sentencing Guidelines. Since then the United States Supreme Court has held in Blakely v. Washington1 that the Sixth Amendment Right to a Jury Trial requires jury fact-finding before a defendant's sentence can be enhanced under the Washington guideline system. More recently, in United States v. Booker,2 the Court applied the Blakely holding to the federal guidelines, finding the Guidelines unconstitutional because they were based on judicial fact-finding.

Mr. Rucker has now filed a motion to set aside his 121-month sentence under 28 U.S.C. § 2255. He contends that Blakely (and implicitly Booker) should be applied retroactively to him and, therefore, that his sentence was unconstitutional.

Mr. Rucker's claim is without merit. The approach to sentencing required by the Blakely and Booker decisions is a new rule. Moreover, it is a procedural rule about the allocation of fact-finding power between judge and jury and about proof beyond a reasonable doubt. Such a new procedural rule applies retroactively only where it implicates the fundamental fairness and accuracy of a criminal proceeding. The Blakely/Booker rule does not implicate fundamental fairness. Indeed, Booker itself requires the courts to continue to "consider" the Guidelines in imposing sentence. Accordingly, the Blakely/Booker rule does not apply retroactively to Mr. Rucker (and others whose convictions became final before Blakely). Therefore, his motion is denied.


The plaintiff, Stacy Rucker, was charged in a three-count indictment with armed bank robbery,3 using a firearm during a crime of violence,4 and felon in possession of a firearm.5 On July 8, 2003, he pled guilty to armed bank robbery, waiving his right to appeal and to collateral review. In exchange, the government agreed to move for dismissal of the other charges and to recommend a substantial assistance departure.

Mr. Rucker's sentence was calculated based on the 2002 Guidelines Manual.

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The base offense level for Armed Bank Robbery under 18 U.S.C. § 2113(a),(d) was 20.6 A two-level enhancement was given for property taken from a financial institution,7 a seven-level increase for discharging a firearm,8 and a one-level increase for a loss exceeding $10,000.9 The court also granted a three-level reduction for acceptance of responsibility. The result was an offense level of 31. Mr. Rucker's past crimes placed him in Criminal History Category IV. Finally, the government filed a substantial assistance motion, recommending a two-level reduction from 31 to 29. The court granted that motion and agreed that a two-level reduction appropriately reflected Mr. Rucker's cooperation. The final calculation was a sentencing range of 121-151 months. On October 27, 2003, the court followed the government's recommendation and sentenced Mr. Rucker to 121 months.

On September 29, 2004, Mr. Rucker (proceeding pro se) filed this § 2255 motion, arguing that his sentence was determined in violation of the Sixth Amendment, citing Blakely v. Washington. While his motion was pending, the Supreme Court decided United States v. Booker.


I. The Government Has Waived The Right to Rely on Its Appeal Waiver.

As part of his plea agreement, Mr. Rucker waived the right to appeal his sentence, including any right to file any "motion brought under 28 U.S.C. § 2255." The government, however, has chosen not to invoke this provision in the agreement. Because this provision is designed for the benefit of the government, the court finds that the government has waived the right to rely on this provision.

II. The Court Need Not Address Whether the Defendant Has Procedurally Defaulted the Right to Raise a Blakely/Booker Claim.

Mr. Rucker's claim may be procedurally barred. Mr. Rucker did not appeal his sentence. An argument generally cannot be raised for the first time on collateral review unless the petitioner can show (1) cause and prejudice; or (2) a fundamental miscarriage of justice.10 Neither exception appears to be available to Mr. Rucker.

The "cause and prejudice" exception requires the petitioner to show "that his efforts to raise the claim at an earlier stage were `impeded' by `some objective factor external to the defense,' for example, where `the factual or legal basis for a claim was not reasonably available to counsel' during earlier proceedings."11 A change in the law can sometimes signify that a claim was not reasonably available at an earlier period.

The law has clearly changed since Mr. Rucker was sentenced. While Apprendi had been decided before Mr. Rucker was sentenced, it had not been applied to the Guidelines. But "`even if the law has changed since the earlier petition [a petitioner] also must show that he or his attorney reasonably should not have been aware of the possibility or legal basis for such a claim.'"12 This court would have a

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hard time concluding that Mr. Rucker's current claim was not reasonably available at the time he was sentenced. It is true that the Circuit courts, including the Tenth Circuit,13 had specifically held that Apprendi did not apply to the Guidelines. But "[e]ven if it appears `futile' to attempt a particular legal argument, that perceived futility `cannot constitute' cause if it means simply that a claim was `unacceptable to that particular court at that particular time.'"14 The claim that Apprendi applied to the Guidelines was clearly available to Mr. Rucker at the time he was sentenced. It should have been raised if for no other reason than to preserve the issue since the Supreme Court had not yet ruled. It would appear, then, that Mr. Rucker had no cause for failing to raise this issue on direct appeal.

The second exception allows a claim to be raised on collateral review for the first time if the court's refusal to hear the claim would result in a fundamental miscarriage of justice. This requires generally that the petitioner prove his actual innocence.15 Mr. Rucker pled guilty and no question has been raised since about his guilt.

But while there would appear to be a procedural bar to Mr. Rucker's habeas claim, the government has not raised the issue. This court could impose the bar sua sponte. The Tenth Circuit held in United States v. Wiseman16 that whether to do so "depends on a weighing of various factors, including the interests of finality and `the interests of judicial efficiency, conservation of scarce judicial resources, and orderly and prompt administration of justice.'"17 The Tenth Circuit faced a very similar situation in Wiseman and declined to impose the procedural bar sua sponte. The court noted that while doing so might serve the interests of finality, it would not preserve judicial resources since it would require giving notice and an opportunity to respond to the petitioner on the procedural issue, whereas the merits had already been fully briefed.18 The court also stated that the government's failure to raise the procedural bar "weighs heavily against its sua sponte enforcement."19

Weighing all these factors, the court concludes that it should not sua sponte raise a procedural bar to addressing Mr. Rucker's claim.

III. Blakely and Booker Do Not Apply Retroactively To Habeas Proceedings.

Mr. Rucker was sentenced while the Guidelines were still mandatory. Today, as a result of Booker (applying Blakely) the Guidelines are "advisory." In light of this change in the case law, Mr. Rucker contends that the enhancements in his case violated the Sixth Amendment in two ways. First, the enhancements were based upon fact-finding by the court rather than a jury. Second, the facts leading to the enhancements were found by a preponderance of the evidence rather than beyond a reasonable doubt.

Were the court to reach this issue on the caselaw available today, the court would conclude that Mr. Rucker's sentence was imposed in violation of the Sixth

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Amendment. The government does not argue otherwise. The real question presented here is whether the holdings of Blakely (and Booker) are retroactive to cases on collateral review, like Mr. Rucker's. Determining whether a constitutional holding of the Supreme Court applies retroactively involves three questions: (1) Was a "new" rule announced?; (2) Is the new rule substantive or procedural?; and (3) If procedural, does the new rule implicate the fundamental fairness and accuracy of criminal proceedings such that without the rule the accuracy of a criminal conviction is seriously diminished?

New rules apply to "all criminal cases still pending on direct review."20 Whether a new rule applies retroactively to final convictions, however, generally depends upon whether the rule is substantive or procedural. New substantive rules generally apply retroactively.21 New procedural rules generally do not apply retroactively unless they implicate the fundamental fairness and accuracy of criminal proceedings.22

Considering these questions, the court concludes that Blakely announced a new procedural rule that does not implicate the fundamental fairness and accuracy of criminal proceedings. Accordingly, Mr. Rucker is not entitled to any relief on his § 2255 claim.

1. Blakely Announced a New Rule.

As explained above, Mr. Rucker's motion rests on the Supreme Court's decision in Blakely. While his motion was pending, however, the Court decided Booker. Both cases are clearly relevant, so the court will begin with a discussion of Blakely.

The first question is whether Blakely announced a new...

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1 practice notes
  • U.S. v. Gill, No. Civ. 04-3365-SAC.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • February 28, 2005
    ...requiring jury fact-finding under the sentencing guidelines. Varela, at 867-68; McReynolds, 397 F.3d 479, 481; Rucker v. United States, 382 F.Supp.2d 1288, 1292-96, 2005 WL 331336 at *4-6 (D.Utah 2005). In support of its statement that the Booker holding applied to "all cases on direct revi......
1 cases
  • U.S. v. Gill, No. Civ. 04-3365-SAC.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • February 28, 2005
    ...requiring jury fact-finding under the sentencing guidelines. Varela, at 867-68; McReynolds, 397 F.3d 479, 481; Rucker v. United States, 382 F.Supp.2d 1288, 1292-96, 2005 WL 331336 at *4-6 (D.Utah 2005). In support of its statement that the Booker holding applied to "all cases on direct revi......

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