Lloyd v. United States

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

5-17-2005

Lloyd v. USA

Precedential or Non-Precedential: Precedential

Docket No. 04-3549

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation

"Lloyd v. USA" (2005). 2005 Decisions. Paper 1092.

http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1092

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-3549

GARRY D. LLOYD,

Appellant

v.

UNITED STATES OF AMERICA

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

D.C. Civil No. 04-cv-03687

District Judge: The Honorable Joseph E. Irenas

Submitted Under Third Circuit LAR 34.1(a)

April 7, 2005

Before: BARRY, AMBRO, and GREENBERG, Circuit Judges

(Opinion Filed: May 17, 2005)

Richard Coughlin, Esq.

Anne E. Blanchard, Esq.

Office of the Federal Public Defender

800-840 Cooper Street, Suite 350

Camden, New Jersey 08102

Counsel for Appellant

1

George S. Leone, Esq.

Office of the United States Attorney

970 Broad Street, Room 700

Newark, New Jersey 07102

Counsel for Appellee

OPINION OF THE COURT

BARRY, Circuit Judge

All courts of appeals to have considered the issue of

whether the rule of law announced in United States v. Booker,

543 U.S. __, 125 S. Ct. 738 (2005), applies retroactively to

prisoners who were in the initial § 2255 motion stage as of the

date that Booker issued have concluded that it does not. We now

join those courts.

I. BACKGROUND

Appellant Garry D. Lloyd was charged with bank fraud,

in violation of 18 U.S.C. §§ 1344 and 2, and was convicted by a

jury. When determining Lloyd’s sentence, the District Court

found facts, under a preponderance of the evidence standard, that

had not been found by the jury, including (1) that Lloyd had

engaged in more than minimal planning; (2) that Lloyd had

caused a financial loss of more than $120,000 but less than

$200,000; and (3) that Lloyd had committed an obstruction of

justice. Application of the Federal Sentencing Guideline

enhancements called for by these fact-findings resulted in a total

offense level of 17 and, given Lloyd’s criminal history category

of V, a Guideline imprisonment range of forty-six to fifty-seven

months. The District Court sentenced Lloyd, as relevant here, to

fifty months imprisonment, followed by five years of supervised

release. We affirmed the judgment. See United States v. Lloyd,

No. 02-2394, 58 Fed. Appx. 928 (3d Cir. 2003). Lloyd did not

2

seek a writ of certiorari, and his conviction became final on May

6, 2003.

On June 24, 2004, the Supreme Court issued its opinion

in Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531 (2004).

The Court held that Washington State’s determinate sentencing

scheme, a scheme similar to the Federal Sentencing Guidelines,

violated the Sixth Amendment right to a jury trial. Id. at 2538.

Blakely’s reasoning was that judges were imposing sentences

that were not based solely on facts reflected in the verdict of the

jury or admitted by the defendant, and were using a

preponderance of the evidence standard to find the facts

necessary to that imposition. Id. at 2536-39.

On August 3, 2004, Lloyd filed a motion to vacate his

sentence pursuant to 28 U.S.C. § 2255. He argued that the facts

supporting the enhancements he received were not found by a

jury beyond a reasonable doubt and, thus, that the sentence

imposed was in violation of Blakely. Moreover, he argued,

although his motion was filed more than a year after his

conviction became final, and therefore would otherwise be

barred by the one-year limitation period of § 2255, Blakely

created a new right. As such, Lloyd reasoned that the one-year

period should run from the date of the Blakely decision, thereby

rendering his motion timely. See 28 U.S.C. § 2255 para. 6(3).

The District Court disagreed, and dismissed the § 2255

motion. Blakely, the Court explained, did not rule that the

Federal Sentencing Guidelines were unconstitutional, but even if

it had done so, there had been no determination, as is required

under § 2255 para. 6(3), that Blakely applies retroactively to

cases on collateral review. Booker, of course, had yet to be

decided.

Lloyd now appeals, post-Booker, to this Court. The

District Court had jurisdiction pursuant to 28 U.S.C. § 2255. We

have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).

3

II. DISCUSSION

The Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) provides that a one-year period of limitation

applies to a motion to vacate, set aside, or correct a sentence

under 28 U.S.C. § 2255. See 28 U.S.C. § 2244(d)(1). Section

2255 states, in relevant part, that the limitation period shall run

from the latest of: “(1) the date on which the judgment of

conviction becomes final . . . [or] (3) the date on which the right

asserted was initially recognized by the Supreme Court, if that

right has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review.” 28 U.S.C.

§ 2255 para. 6. Because Lloyd concededly filed his motion more

than a year after his conviction became final, his motion would

only have been timely filed if the Supreme Court announced a

newly recognized right or a “new rule” that has been made

“retroactively applicable to cases on collateral review.” See id.

Lloyd initially argued to us that his sentence was imposed

in violation of Blakely. That argument is now, of course,

governed by the intervening decision, issued on January 12,

2005, in Booker, which concluded that the holding in Blakely

applies to the Federal Sentencing Guidelines. 543 U.S. at __,

125 S.Ct. at 756.1 We hardly break new ground when we note

that Booker was decided by two opinions. The first, authored by

Justice Stevens, held that because the Federal Sentencing

Guidelines allowed judges to find facts (other than the fact of a

prior conviction) that lead to a greater sentence than that

1

We note in passing that some courts, when considering the

issues now before us, refer to the “Blakely rule” and others refer to

the “Booker rule.” We believe it is appropriate to refer to the

“Booker rule.” It is the date on which Booker issued, rather than

the date on which Blakely issued, that is the “appropriate dividing

line.” McReynolds v. United States, 397 F.3d 479, 481 (7th Cir.

2005). Blakely, as the Court of Appeals for the Seventh Circuit

pointed out, reserved decision about the status of the Federal

Sentencing Guidelines, and Booker established a new rule for the

federal system. See id.

4

authorized by the facts established by a plea of guilty or a jury

verdict, the Guidelines were unconstitutional. The second,

authored by Justice Breyer, devised the remedy of excising the

statutory provision that made the Guidelines mandatory.

Generally, a new rule of criminal procedure “will not be

applicable to those cases which have become final before the

new [rule is] announced.” Teague v. Lane, 489 U.S. 288, 310

(1989). This bar applies equally to a federal habeas corpus

petitioner who wishes to collaterally attack his conviction, unless

an exception applies. Accordingly, in order for Lloyd to benefit

from Booker, it must be determined that the rule announced

therein applies retroactively.

Under Teague, the determination of whether a rule of

criminal procedure applies retroactively to a case on collateral

review requires a three-step inquiry. In terms of this case, then,

we must first determine if Lloyd’s conviction became final prior

to the Supreme Court’s decision in Booker. See Beard v. Banks,

542 U.S. __, 124 S. Ct. 2504, 2510 (2004). Second, we must

determine whether the rule announced in Booker qualifies as

“new.” 2 See id. Third, if those two conditions are satisfied, we

must examine whether the new procedural rule qualifies under

one of Teague’s two narrow exceptions to the non-retroactive

application of such rules. See id. As relevant here, a new rule of

criminal procedure will apply retroactively if it is deemed a

“watershed [rule] of criminal procedure implicating the

fundamental fairness and accuracy of the criminal proceeding.”

Id. at 2513 (internal quotation and citation omitted).

2

Teague differentiates between new substantive rules and

new procedural rules. See Teague, 489 U.S. at 311. The Supreme

Court has unequivocally stated that the Apprendi line of cases, of

which Booker is surely one, announced a new rule of criminal

procedure. Schriro v. Summerlin, 542 U.S. , 124 S.Ct. 2519,

2523-24 (2004).

5

A.

It bears repeating, and the parties do not dispute, that

Lloyd’s conviction became final on May 6, 2003. See Kapral v.

United States, 166 F.3d 565, 572 (3d Cir. 1999) (explaining that

when a defendant does not seek a writ of certiorari, the judgment

of conviction becomes final upon the expiration of the time

allowed for certiorari review); see also 28 U.S.C. § 2101(c)

(allowing for ninety days, post-conviction, for certiorari review).

This date is thirteen months prior to the issuance of the decision

in Blakely, and twenty months prior to the issuance of the

decision in Booker. Clearly, then, both Blakely and

Booker would have to be given retroactive effect in order for

them to be applied to Lloyd’s case.

B.

Neither do the parties dispute that the Booker rule

constituted a new rule of criminal procedure for purposes of

Teague. We agree, and believe it appropriate to briefly explain

our reasoning.

To determine if the rule announced in Booker was “new,”

we are required to review the “legal landscape” at the time

Lloyd’s conviction became final to see if the rule “was dictated

by the then existing precedent–whether, that is, the unlawfulness

of respondent’s [sentence] was apparent to all reasonable

jurists.” Beard, 542 U.S. at , 124 S.Ct. at 2511 (internal

quotation and citation omitted) (emphasis in original). If it was

not “dictated” by past precedent, then Booker created a new rule.

Prior to Blakely and Booker, Apprendi established that, at

sentencing, a judge could enhance a sentence based on facts not

admitted by the defendant or found by the jury, so long as the

enhancement did not increase the defendant's sentence beyond

the prescribed statutory maximum. Apprendi v. New Jersey, 530

6

U.S. 466, 490 (2000).3 Blakely simply applied Apprendi to a

different statutory scheme, clarifying “that ‘the statutory

maximum’ for Apprendi purposes is the maximum sentence a

judge may impose solely on the basis of the facts reflected in the

jury verdict or admitted by the defendant.” Blakely, 542 U.S. at

__, 124 S.Ct. at 2537 (internal citation omitted) (emphasis in

original).4 The Booker Court, of course, subsequently applied

Blakely’s holding to the Federal Sentencing Guidelines.

Every court of appeals to have considered the issue has

concluded that, whether denominated as the “Blakely rule” or the

“Booker rule,” that rule was “new.” For example, the Court of

Appeals for the Tenth Circuit reasoned that while Blakely

interpreted Apprendi, it was not compelled by Apprendi. See

United States v. Price, 400 F.3d 844, 848-49 (10th Cir. 2005).

That is, post-Apprendi but pre-Blakely, a court would not have

believed itself compelled to conclude that what became the

“Blakely rule” was constitutionally required. Blakely changed

courts’ understanding of Apprendi’s statutory maximum and

announced a new rule.

The Court of Appeals for the Sixth Circuit also

concluded that what it called the “Booker rule” was “clearly

new.” See Humphress v. United States, 398 F.3d 855, 861 (6th

3

The courts of appeals have unanimously held that while

Apprendi set forth a new rule of criminal procedure, that rule is not

retroactively applicable to cases on collateral review where the

judgments had already become final when Apprendi was decided.

We so held in United States v. Swinton, 333 F.3d 481 (3d Cir.

2003).

4

Justice Stevens, in Booker, explained the holding in

Blakely: “The [judge’s] determination that the defendant acted with

deliberate cruelty, like the determination in Apprendi that the

defendant acted with racial malice, increased the sentence that the

defendant could have otherwise received. Since this fact was

found by a judge using a preponderance of the evidence standard,

the sentence violated Blakely’s Sixth Amendment rights.” 543

U.S. __, __, 125 S.Ct. 738, 749 (2005).

7

Cir. 2005). That rule, the Court found, “was not dictated by

precedent” when Humphress’s conviction became final, and “it

would not have been apparent to ‘all reasonable jurists’ that his

conviction was unlawful.” Id. Moreover, the Court continued,

prior to Booker, the federal judiciary had been deeply divided as

to whether Blakely applied to the Federal Sentencing Guidelines,

and conflicting opinions issued as to whether Blakely rendered

those Guidelines unconstitutional. Id. at 861-62. Differences

among reasonable jurists, subsequently resolved by a Supreme

Court ruling, suggest that the rule resolving those differences

was “new.” Id.; see also Beard, 542 U.S. at __, 124 S.Ct. at

2512-13 (noting that when four justices dissent, this may be

sufficient to show that a new rule was announced).

Most recently, the Court of Appeals for the Second

Circuit has weighed in, concluding that the result in Booker “was

not dictated by Apprendi or, for that matter, the Court’s later

decision in Blakely. . . .” Guzman v. United States, 404 F.3d

139, 142 (2d Cir. 2005). It “cannot be said that the result in

Booker was apparent to ‘all reasonable jurists.’” Id. Booker, the

Court concluded, announced a new rule. Id.

C.

And so we turn to whether Booker’s new rule of criminal

procedure qualifies under the second exception to Teague’s non-

retroactivity bar.5 Teague’s prohibition against the retroactive

application of new rules of criminal procedure does not apply to

“watershed rules of criminal procedure implicating the

fundamental fairness and accuracy of the criminal proceeding.”

Beard, 542 U.S. at , 124 U.S. at 2513 (internal quotation and

citation omitted). We explained in United States v. Swinton that

Teague’s second exception is reserved for watershed rules that

5

The first exception applies to a new 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 (internal quotation and citation omitted). Booker does not

implicate this exception.

8

“not only improve the accuracy of trial, but also ‘alter our

understanding of the bedrock procedural elements’ essential to

the fairness of a proceeding.” 333 F.3d 481, 487 (3d Cir. 2003)

(quoting Sawyer v. Smith, 497 U.S. 227, 242 (1990)) (emphasis

in original). To say that this exception is extremely narrow is to

understate the issue for, as the Supreme Court itself has noted, it

has “yet to find a new rule that falls under the Teague

exception.” Beard, 542 U.S. at __, 124 S. Ct. at 2513-14.6

Every federal court of appeals to have considered whether

Booker’s new rule constituted a “watershed rule” that would

satisfy Teague’s second exception has held that it does not and,

thus, has held that Booker does not apply retroactively to cases

on collateral review. See, e.g., Guzman, 404 F.3d at 143-44 ;

Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005);

Price, 400 F.3d at 845; Humphress, 398 F.3d at 857;

McReynolds, 397 F.3d at 481. We join those courts.7

6

Including the Batson rule at issue in Teague, the Court has

refused to apply twelve new rules of criminal procedure

retroactively on collateral review. See United States v. Mandanici,

205 F.3d 519, 529 (2d Cir. 2000) (collecting ten such cases); see

also Summerlin, 542 U.S. at , 124 S.Ct. at 2525-26. Indeed, as

the Guzman Court noted, “[n]o such watershed rule has been

identified by the Court since that standard was adopted.” Guzman,

404 F.3d at 143.

7

We have recently held, in the context of a prisoner’s

request under 28 U.S.C. § 2244 for leave to file a second or

successive motion to vacate his sentence under § 2255, that the

prisoner cannot make a “prima facie showing” under §

2244(b)(3)(C) that Booker constitutes “a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.” In re Olopade, 403 F.3d

159, 164 (3d Cir. 2005) (quoting 28 U.S.C. § 2255). We concluded

that the Supreme Court has not held that Booker is applicable to

cases on collateral review, that no combination of Supreme Court

decisions dictates that Booker has retroactive force on collateral

review, and that the Court’s holding in Summerlin “strongly

suggests” that Booker is not retroactively applicable to cases on

9

At the outset, we reject the government’s contention that

the “watershed rule” exception only applies to new procedural

rules that improve the accuracy of the guilt or innocence of a

defendant. It is just not so that because Booker only impacts

sentencing, the “watershed rule” exception cannot apply.

In Schriro v. Summerlin, the Supreme Court examined

whether the holding of Ring v. Arizona, 536 U.S. 584 (2002),

applied retroactively to cases on collateral review. 542 U.S. __,

124 S.Ct. 2519, 2524-25. Ring, which was decided in the wake

of Apprendi, struck down an Arizona law permitting a judge,

rather than a jury, to find certain aggravating factors beyond a

reasonable doubt that would warrant imposition of the death

penalty. Id. at 2522. The Summerlin Court emphasized that the

question before it was “whether judicial factfinding so seriously

diminishes accuracy that there is an impermissibly large risk of

punishing conduct the law does not reach.” Id. at 2525 (internal

quotation marks and citation omitted) (emphasis in original).

Because the evidence as to whether juries are more accurate

factfinders than judges was “simply too equivocal,” id., the

Court could not say that the rule announced in Ring so

significantly improved accuracy that it should apply retroactively

to cases already final on direct review. See id.

Summerlin leaves little doubt that the “watershed rule”

exception can apply to a procedural rule that only affects

sentencing; indeed, were it otherwise, the Court would not have

needed to examine whether Ring’s holding applied retroactively.

More importantly, Apprendi and its progeny have made clear

that distinguishing between a conviction and a sentence obscures

what matters for constitutional purposes–namely, facts that

increase a defendant’s punishment. See, e.g., Booker, 543 U.S.

collateral review. Id. at 162-63.

But we were not required to do a Teague analysis in Olopade;

rather, we were required to read § 2255 in conjunction with §

2244(b)(3)(C) to determine whether a second or successive motion

should be certified. See id. at 161-62. We must, therefore, address

the “watershed rule” exception here.

10

at __, 125 S.Ct. at 748 (explaining that the fact that a state labels

a crime a “‘sentencing enhancement’ rather than a separate

criminal act” is irrelevant for constitutional purposes); see also

Ring, 536 U.S. at 610 (Scalia, J., concurring) (“[T]he

fundamental meaning of the jury-trial guarantee of the Sixth

Amendment is that all facts essential to the imposition of the

level of punishment that the defendant receives–whether the

statute calls them elements of the offense, sentencing factors, or

Mary Jane–must be found by the jury beyond a reasonable

doubt.”). Accordingly, while the Summerlin Court held that

Ring does not apply retroactively, it did not do so because Ring

merely affected sentencing decisions.

And so we move to Lloyd’s main argument: that by

requiring the factfinder to determine sentencing factors beyond a

reasonable doubt, Booker necessarily qualifies as a new rule of

criminal procedure “without which the likelihood of an accurate

conviction is seriously diminished.” Teague, 489 U.S. at 313.

After all, the argument goes, the Supreme Court has long held

that the “reasonable-doubt standard plays a vital role in the

American scheme of criminal procedure. It is a prime

instrument for reducing the risk of convictions resting on factual

error.” In re Winship, 397 U.S. 358, 363 (1970). Furthermore,

“a person accused of a crime . . . would be at a severe

disadvantage . . [,] amounting to a lack of fundamental fairness,

if he could be adjudged guilty and imprisoned for years on the

strength of the same evidence as would suffice in a civil case.”

Id. (internal quotation and citation omitted). The “use of the

reasonable doubt standard is indispensable, for it ‘impresses on

the trier of fact the necessity of reaching a subjective state of

certitude of the facts in issue.’” Id. at 364 (internal citation

omitted).

It would be one thing if we were only dealing with Justice

Stevens’s opinion in Booker, which held the Federal Sentencing

Guidelines unconstitutional because their mandatory nature

required judges to find facts that increased sentences based on a

preponderance of the evidence. But in the opinion authored by

Justice Breyer, the unconstitutionality of the Guidelines was

remedied by excising the provision, at 18 U.S.C. § 3553(b)(1),

11

that made their application mandatory. See Booker, 543 U.S. at

__, 125 S. Ct. at 756-757. By creating an advisory federal

sentencing regime, the Booker Court did not announce a new

rule of criminal procedure that significantly increases the

“certitude” or “accuracy” of the sentencing process. As the

Court of Appeals for the Seventh Circuit put it, Booker was not a

“‘watershed’ change that fundamentally improves the accuracy

of the criminal process” because defendants’ sentences “would

be determined in the same way if they were sentenced today; the

only change would be the degree of flexibility judges would

enjoy in applying the guideline system.” McReynolds, 397 F.3d

at 481; see also Guzman, 404 F.3d at 143-44; United States v.

Ordaz, 398 F.3d 236, 239 (3d Cir. 2005) (“The net result [of

Booker] was to delete the mandatory nature of the Guidelines

and transform them to advisory guidelines for the information

and use of the district courts in whom discretion has now been

reinstated.”).

III. CONCLUSION

Because Booker announced a rule that is “new” and

“procedural,” but not “watershed,” Booker does not apply

retroactively to initial motions under § 2255 where the judgment

was final as of January 12, 2005, the date Booker issued. We

will, therefore, affirm the August 11, 2004 order of the District

Court dismissing Lloyd’s § 2255 motion.

12