U.S. v. Gentry, 04-11221.

• Decision Date: 08 December 2005
• Docket Number: No. 04-11221.,04-11221.
• Citation: 432 F.3d 600
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenesha GENTRY, Defendant-Appellant,
• Court: U.S. Court of Appeals — Fifth Circuit

432 F.3d 600

UNITED STATES of America, Plaintiff-Appellee, v. Kenesha GENTRY, Defendant-Appellant,

No. 04-11221.

United States Court of Appeals, Fifth Circuit.

December 8, 2005.

Angie Lee Henson, Asst. U.S. Atty., Fort Worth, TX, for U.S.

Kenesha Gentry, Bryan, TX, pro se.

Appeal from the United States District Court for the Northern District of Texas.

Before GARWOOD, CLEMENT and PRADO, Circuit Judges.

PRADO, Circuit Judge:

The question presented in this case is whether United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), applies retroactively on collateral review to a federal prisoner's initial 28 U.S.C. § 2255 motion. Because we determine that Booker does not apply retroactively on collateral review to an initial 28 U.S.C. § 2255 motion, we affirm the district court's denial of Gentry's § 2255 motion.

I. Background

On December 9, 2003, a jury convicted Kenesha Gentry, federal prisoner #30395-177, of (1) possession with the intent to distribute 100 or more grams of heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(b), and 18 U.S.C. § 2; and (2) possession with the intent to distribute a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c), and 18 U.S.C. § 2. Pursuant to her conviction, on March 26, 2004, the district court sentenced Gentry to 97 months of imprisonment on each count, to run concurrently; a four-year term of supervised release on count one (heroin), and a concurrent two-year term of supervised release on count two (cocaine); and a $200 special assessment. Gentry filed a direct appeal, which was dismissed by this Court on May 17, 2004, for want of prosecution.

Gentry then filed a motion in the district court under 28 U.S.C. § 2255. Appellant argued that her sentence was unconstitutionally imposed in view of the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Additionally, Gentry initially requested that the district court hold her § 2255 motion in abeyance until the Supreme Court decided Booker, the then pending case in which the Court addressed whether Blakely applied to the United States Sentencing Guidelines. The district court, however, summarily denied Gentry's § 2255 motion because her sentence did not exceed the statutory maximum, and thus did not violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court also ruled that Gentry was not entitled to relief under Blakely based on this Court's decision in United States v. Pineiro, 377 F.3d 464 (5th Cir.2004), vacated, ___ U.S. ___, 125 S.Ct. 1003, 160 L.Ed.2d 1006 (2005).

Upon Appellant's timely filing of a notice of appeal, the district court determined that a certificate of appealability ("COA") should not be issued. This Court granted a COA on the issue of whether the district court erred in determining that Gentry's sentence was not unconstitutionally imposed, and requested additional briefing addressing the issue of whether Booker is retroactively applicable on collateral review to Gentry's § 2255 motion.

II. Discussion

We review conclusions of law underlying the denial of a § 2255 motion de novo and factual findings for clear error. United States v. Stricklin, 290 F.3d 748, 750 (5th Cir.2002).

Gentry argues that her sentence was imposed in violation of Booker because the trial judge increased her sentence based on findings of fact made by the judge. Booker held that: 1.) "[a]ny 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 or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt," 125 S.Ct. at 756; and 2.) the remedy was to make the Guidelines advisory, id. at 756-57. Additionally, the Booker Court expressly articulated that these holdings were applicable to all cases pending on direct review. Booker, however, made no indication regarding retroactivity to collateral cases.

Generally speaking, federal habeas corpus petitioners may not rely on new rules of criminal procedure decided after their convictions have become final on direct appeal. Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 2523, 159 L.Ed.2d 442 (2004). Nevertheless, in Teague v. Lane, 489 U.S. 288, 290, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Supreme Court set forth a three-prong analysis to determine whether a new constitutional rule of criminal procedure should be applied retroactively to cases on collateral review. First, the reviewing court must determine when the defendant's conviction became final. Beard v. Banks, 542 U.S. 406, 124 S.Ct. 2504, 2510, 159 L.Ed.2d 494 (2004). Next, the court must decide whether the rule in question is actually new. Id. Lastly, the court must determine whether the new rule falls into either of two exceptions to non-retroactivity. First, the non-retroactivity rule "does not apply to rules forbidding punishment `of certain primary conduct [or to] rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.'" Id. at 2513 (quoting Penry v. Lynaugh, 492 U.S. 302, 330, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)). "The second exception is for watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Id. at 2506. Because the Booker rule does not fall into either of the two Teague exceptions for non-retroactivity, we determine that Booker does not apply retroactively on collateral review to a federal prisoner's initial 28 U.S.C. § 2255 motion.¹ Therefore, we affirm the district court's denial of Gentry's § 2255 motion.

A. Booker Established a Procedural Rule.

Because the Teague analysis applies only to rules of procedure, we must first determine whether the rule established in Booker is substantive or procedural. Generally, substantive rules "narrow the scope of a criminal statute by interpreting its terms" or "place particular conduct or persons covered by [a criminal] statute beyond the State's power to punish." Summerlin, 124 S.Ct. at 2522. In Summerlin, the Supreme Court addressed the question of whether a substantive rule was established by Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which held that "a sentencing judge, sitting without a jury, [may not] find an aggravating circumstance necessary for imposition of the death penalty." The Summerlin Court asserted that because Ring did not "alter the range of conduct. . . subjected to the death penalty," but simply "altered the range of permissible methods for determining whether a defendant's conduct is punishable by death, requiring that a jury rather than a judge find the essential facts bearing on punishment," the rule was a "prototypical procedural rule[.]" Summerlin, 124 S.Ct. at 2523.

Similarly, Booker did not alter the range of conduct subject to any particular sentence. The Booker rule merely reallocates decision-making authority in a manner that is comparable to the rule promulgated in Ring. It is concerned with the identity of the decision-maker and the amount of evidence required for a sentence, rather than with what primary conduct is unlawful. Therefore, the Booker rule is procedural in nature.

The remedial portion of Booker is even more probative of the fact that Booker must be treated as a procedural decision for purposes of retroactivity. Although 18 U.S.C. § 3553(b)(1), which made the Guidelines mandatory, no longer governs, the Court held that the federal Sentencing Guidelines remain in force as written. Booker, 125 S.Ct. at 756-57. District judges must continue to follow their approach as guidelines, with appellate review to determine whether that task has been carried out reasonably. Id. No primary conduct has been made lawful, and none of the numerous factors that affect sentences under the Guidelines have been declared invalid. Consequently, Booker, like Ring, must be treated as a procedural decision for purposes of retroactivity analysis.

B. The Booker rule constitutes a "new" rule for the purposes of retroactivity.

Because it is clear that Gentry's conviction became final before Booker was decided,² we now consider whether or not the Booker holding constitutes a "new" rule for the purposes of retroactivity.³ See Beard, 124 S.Ct. at 2510. The Supreme Court has declared that a new rule is a rule that "breaks new ground." Teague, 489 U.S. at 301, 109 S.Ct. 1060. Thus, "a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id. Therefore, we must survey the "legal landscape" as of January 2000, and ask whether the rule announced by Booker was "dictated" by then-existing precedent, and would have been "apparent to all reasonable jurists." Beard, 124 S.Ct. at 2511.

There is no doubt that the Booker rule is new. It was not dictated by precedent existing at the time that Gentry's conviction became final. Moreover, the alleged unlawfulness of Appellant's conviction would not have been apparent to all reasonable jurists. First, the Booker court expressly stated that the holding applies to all cases on direct review. The Court wrote, "`[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases ... pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a "clear break" with the past.'" Booker, 125 S.Ct. at 769. The Court would not have engaged in this discussion if the rule was found in existing precedent.

Additionally, the fact that the entire federal judiciary had been so deeply at odds over the issue of whether the rule announced in Blakely applied to the Guidelines is also probative of the fact that Booker announced a new rule. Hence, not all reasonable jurists believed that Booker was compelled by Blakely. Consequently, we determine...