Amicus Curiae Brief — Burton v. Stewart

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FILED

(1) “OCT 4 - 2006

OFFICE OF THE CLERK

No. 05-9222 | SUPREME COURT, U.S._|

In the Supreme Court of the Gnited States

LONNIE LEE BURTON, PETITIONER

Vv.

DOUG WADDINGTON, SUPERINTENDENT, STAFFORD

CREEK CORRECTIONS CENTER

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

PAUL D. CLEMENT

Solicitor General

Counsel of Record

ALICE S. FISHER

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

MATTHEW D. ROBERTS

Assistant to the Solicitor

General

JOEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

©UESTIONS PRESENTED

The United States will address the following questions:

1. Whether Blakely v. Washington, 542 U.S. 296 (2004),

which held that facts, other than a prior conviction, support-

ing a sentence above the standard sentencing range in a

legislatively preseribed sentencing guidelines system must be

found by a jury and proved beyond a reasonable doubt, an-

nounced a new rule.

2. If Blakely announced a new rule, whether its

requirement of proof beyond a reasonable doubt applies

retroactively on collateral review.

(I)

TABLE OF CONTENTS

Page

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NN bn ss cabkeebERaesEdOde renee wee 4

Argument:

Blakely v. Washington does not apply retroactively to

cases On Collateral TEVIEW 2.2... cscs cccccccccccccivess 8

A. Blakely announced a newrule .................245- 9

B. Blakely did not establish a watershed procedural

EE vec eh tet spiancnteleaed iaatenidbe isp cekane? 17

1. Blakely did not announce a bedrock rule

CI EE hsb ook cede ncegesccencdas 18

2. Violation of the Blakely rule does not

seriously diminish accuracy .................. 25

PED yc bcusdscssdascadidivenssuhnseitacanakanen 30

TABLE OF AUTHORITIES

Cases:

Apprendi v. New Jersey, 530 U.S. 466 (2000) ..... passim

Beard v. Banks, 542 U.S. 406 (2004) ...... 10, 15, 18, 19, 29

Blakely v. Washington, 542 U.S. 296 (2004) ...... passim

Bourjaily v. United States, 483 U.S. 171 (1987) ........ 26

Butler v. McKellar, 494 U.S. 407 (1990) ............... 17

Caldwell v. Mississippi, 472 U.S. 320 (1985) ........... 19

Caspari v. Bohlen, 510 U.S. 383 (1994) ............... 20

Cirilo-Munoz v. United States, 404 F.3d 527 (1st Cir.

DE btn kdad.ddtaaobenateked savaehdens inked downs i)

Colorado v. Connelly, 479 U.S. 157 (1986) ............. 26

DeStefano v. Woods, 392 U.S. 631 (1968) .............. 24

(IIT)

Cases—Continued: Page

Dixon v. United States, 126 8. Ct. 2437 (2006) ......... 22

‘Duncan v. Louisiana, 391 U.S. 145 (1968) ..........0. 24

Gideon v. Wainwright, 372 U.S. 335 (1963) .......... 6, 18

Godfrey v. Georgia, 446 U.S. 420 (1980) ............... 16

Hankerson v. North Carolina, 482 U.S. 233 (1977) ..... 29

Harris v. United States, 536 U.S. 545 (2002) ....... 21, 27

Ivan V. v. City of New York, 407 U.S. 203 (1972) ....... 28

Lambrix v. Singletary, 520 U.S. 518 (1997) ........ 10, 14

Lego v. Twomey, 404 U.S. 477 (1972)... 0... eee eee eee 26

Martin v. Ohio, 480 U.S. 228 (1987) ...............2.. 22

McCloud v. State, 803 So. 2d 821 (Fla. Dist. Ct. App.

SEE inn bh MbRCEM ON SOE ea ds kek Dineeeeeeeeeiat 15

McMillan v. Pennsylvania, 477 U.S. 79 (1986) ..... 20, 27

McReynolds v. United States, 397 F.3d 479 (7th Cir.),

cert. denied, 545 U.S. 1110 (2005) ................... 1

Mempa v. Rhay, 389 U.S. 128 (1967) ........... 2000 27

Michael v. Crosby, 430 F.3d 1310 (11th Cir. 2005),

cert. denied, 126 S. Ct. 2025 (2006) ........ i ta a )

Miller-El v. Dretke, 545 U.S. 231 (2005) ............05. 17

Mullaney v. Wilbur, 421 U.S. 684 (1975) ..........245. 29

Neder v. United States, 827 U.S. 1(1999) .......... 21, 23

Nichols v. United States, 511 U.S. 738 (1994) .......... 21

Niz v. Williams, 467 U.S. 431 (1984) .............245- 26

O’Dell v. Netherland, 521 U.S. 151 (1997) .... 10,17, 19, 25

Oyler v. Boles, 368 U.S. 448 (1962) ........... cee eeee 27

Patterson v. New York, 432 U.S. 197 (1977) ........ 22, 29

Penry v. Lynaugh, 492 U.S. 302 (1989)... 6... eee eee 16

People v. Allen, 78 P.3d 751 (Colo. Ct. App. 2001) ...... 15

Cases—Continued: | Page

People v. Johnson, No. 05SC408, 2006 WL 2589170

EEE vc don dodeccccactboasessveeees i)

Personal Restraint of Woods, In re, 114 P.3d 607

I Ae TRE ees de cca neéenees binedas 26

Ring v. Arizona, 536 U.S. 584 (2002) ........2.... 3, 8, 18

Saffle v. Parks, 494 U.S. 484 (1990) 20... eee eee eee 18

Sawyer v. Smith, 497 U.S. 227 (1990) ........ 10, 19, 21, 29

Schardt v. Payne, 414 F.3d 1025 (9th Cir. 2005),

petition for cert. pending, No. 05-9237 (filed Nov.

EE EE SY Se a Se ee aa y

Schriro v. Summerlin, 542 U.S. 348 (2004) ....... passim

Simmons v. South Carolina, 512 U.S. 154 (1994) ...... 19

Simpson v. United States, 376 F.3d 679 (7th Cir.

a ss a emnscagee 12

State v. Brown, 70 P.3d 454 (Ariz. Ct. App. 2003) ...... 15

State v. Dilts, 82 P.3d 593 (Or. 2008), vacated, 542

a cds cee cecctencees 15

State v. Evans, 114 P.3d 627 (Wash. 2005) ............. i)

State v. Gore, 21 P.38d 262 (Wash. 2001), overruled by

State v. Hughes, 110 P.3d 192 (Wash. 2005) ......... 15

State v. Houston, 702 N.W.2d 268 (Minn. 2005) ......... i)

State v. Huntley, No. 02CA15, 2002 WL 31769238

SM REED ccnccnccccceccesececce 15

State v. Shattuck, No. C6-03-361, 2004 WL 772220

(Minn. Ct. App. Apr. 13, 2004), rev’d, 704 N.W.2d

EE a a ee 15

State v. Shepherd, 41 P.3d 1235 (Wash. Ct. App. 2002) .. 26

Stringer v. Black, 503 U.S. 222 (1992) ............005 16

Casee-——Continucd:' Page

Sullivan v. Louisiana, 508 U.S. 275 (1993) ............ 23

Teague v. Lane, 489 U.S. 288 (1989) ......... 4, 8, 9, 17, 29

Tyler v. Cain, 533 U.S. 656 (2001) 2.0.0.0... 0c cece eee 18

United States v. Anderson:

236 F.3d 427 (8th Cir.), cert. denied, 534 U.S. 956

SED aha dddduwecsddcs ds chad babies Sacwsacibes 28

289 F.3d 1321 (11th Cir. 2002), cert. denied, 537

Se ED bb dnd i nedus chines dees duc 28

United States v. Baptiste, 309 F.3d 274 (5th Cir.

2002), cert. denied, 538 U.S. 947 (2008) ............. 28

United States v. Booker, 543 U.S. 220 (2005) .. 1,17, 21,27

United States v. Campbell, 295 F.3d 398 (3d Cir.

2002), cert. denied, 537 U.S. 1239 (2008) ............ 28

United States v. Candelario, 240 F.3d 1300 (11th

Cir.), cert. denied, 533 U.S. 922 (2001) ............. 28

United States v. Carrington, 301 F.3d 204 (4th Cir.

Dl cudadeccsibuvengdabh suleebdaticsntnenes ides 28

United States v. Copeland, 321 F.3d 582 (6th Cir

DE eniei¢ duindid@iateeis ib deeirie mie cies Jecuals 28

United States v. Henry, 325 F.3d 93 (2d Cir.), cert.

CE ET ED. 6 odie cecdecccceccocssss 28

United States v. Hernandez, 436 F.3d 851 (8th Cir.),

cert. denied, 126 S. Ct. 2341 (2006) .................. i)

United States v. Lawson, 16 Fed. Appx. 205 (4th Cir.

2001), cert. denied, 534 U.S. 1168 (2002) .... ....... 28

United States v. Longoria, 298 F.3d 367 (5th Cir.),

cert. denied, 537 U.S. 1038 (2002) ................. 28

Vil

Cases—Continued: Page

United States v. Lopez, 309 F.3d 966 (6th Cir. 2002),

cert. denied, 537 U.S. 1178 (2008) ................. 28

United States v. Mansoori, 304 F.3d 635 (7th Cir. |

2002), cert. denied, 5388 U.S. 967 (2003) ............. 28

United States v. Matlock, 415 U.S. 164 (1974) ......... 26

United States v. Parilia-Sanes, 6 Fed. Appx. 38 (1st

Cir.), cert. denied, 534 U.S. 937 (2001) ............. 28

United States v. Perry, 25 Fed. Appx. 713 (10th Cir.

BE Souk cvivdcchvudeasesescdedncucesdetcudavans 28

United States v. Pimentel-Tafolla, 60 Fed. Appx. 656

(9th Cir.), cert. denied, 5388 U.S. 1036 (2003) ....... . 28

United States v. Price, 400 F.3d 844 (10th Cir. 2005) . 9,12

United States v. Smith, 282 F.3d 758 (9th Cir. 2002) .... 28

United States v. Soto-Beniquez, 356 F.3d 1 (1st Cir.

2003), cert. denied, 541 U.S. 1074 (2004) ............ 28

United States v. Watts, 519 U.S. 148 (1997) ............ 21

United States v. Webb, 255 F.3d 890 (D.C. Cir. 2001) ... 28

United States v. Wheat, 278 F.3d 722 (8th Cir. 2001),

cert. denied, 537 U.S. 850 (2002) .................. 28

Walton v. Arizona, 497 U.S. 639 (1990), overruled by

Ring v. Arizona, 536 U.S. 584 (2002) .............. 13

Washington v. Recuenco, 126 8S. Ct. 2546

DD: cuidudsseuiasdedustaneneebeousuwnt 6, 21, 23, 24

Williams v. Taylor, 529 U.S. 362 (2000) .............. 17

Winship, In re, 397 U.S. 358 (1970) .......... 19, 20, 23, 25

Yates v. Aiken, 484 U.S. 211 (1988) ................... 17

Vill

Constitution and statutes: Page

U.S. Const.:

PEE OEE hock nw es cinicdn cd ccccctaesduennneed 10

Amend. VHI ...... ee kstescetthis caseats iébeteka 19

Amend. XIV (Due Process Clause) ................ 10

Pa OED © Kev pbddcadcudisicsasatteirs 27

SP ED * ondccdcsncecdasdecakaneeoen 27

18 U.S.C. 1111 (2000 & Supp. IV 2004) ............... 27

FP ED Kes Sccraccotdeanscevicessece ebwece 17

Wash. Rev. Code (1996 & Supp. 1997): .

PUREE dudhe suds ciwisvddecuncueneedsaxees 2,14

DOD cncunsidbcubadciccscdamsosndasaus 2,14

SEE ¢ oh.'4bnckCavndsbectcshedurseduneyees 2,14

PED. Gddénn pucceecsnseskdodiedbeshennel 2

In the Supreme Court of the United States

No. 05-9222

LONNIE LEE BURTON, PETITIONER

Vv.

DOUG WADDINGTON, SUPERINTENDENT, STAFFORD

CREEK CORRECTIONS CENTER

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

Blakely v. Washington, 542 U.S. 296 (2004), held that

facts, other than a prior conviction, supporting a sentence

_ above the standard sentencing range in a legislatively pre-

scribed sentencing guidelines system must be found be a jury

and proved beyond a reasonable doubt. This case addresses

whether Blakely is retroactive on collateral review. Although

this Court extended the Blakely rule to the federal Sentenc-

ing Guidelines in United States v. Booker, 543 U.S. 220 (2005),

the retroactivity of Booker presents distinct issues because of

Booker’s remedial holding. See, e.g., McReynolds v. United

States, 397 F.3d 479, 481 (7th Cir.), cert. denied, 545 U.S. 1110

(2005). Nevertheless, the questions presented in this case

require the Court to consider more generally the standards

governing the availability of new rules on collateral review.

The United States therefore has a substantial interest in this

case.

(1)

STATEMENT

1. On October 18, 1991, petitioner followed a 15-year-old

boy home from school. Petitioner forced his way into the

boy’s house at gunpoint and raped him both orally and anally.

After the rape, petitioner told the boy not to move for 15 min-

utes or petitioner would shoot him. Petitioner then stole $160

and left the house. When the boy’s father returned home, the

boy was lying motionless, frightened that petitioner might

still be in the house. In 1994, a jury found petitioner guilty of

rape, robbery, and burglary. J.A. 23, 27, 44-45.

At that time, Washington’s sentencing guidelines provided

that sentences for multiple offenses “shall be served concur-

rently,” and “[cJonsecutive sentences may only be imposed

under the exceptional sentence provisions of” the Revised

Code of Washington, Sections 9.944.120 and 9.944.390. Wash.

Rev. Code § 9.94A.400.' Section 9.94A.120(2) stated that the

“court may impose a sentence outside the standard range for

[the] offense if its finds * * *~thatthere are substantial and

compelling reasons justifying an exceptional sentence.” /d.

§ 9.944.120(2). The statute provided a non-exhaustive list of

“illustrative factors which the court may consider in the exer-

cise of its discretion to impose an exceptional sentence,” in-

cluding that the “operation of the multiple offense policy of

RCW 9.944.400 results in a presumptive sentence that is

clearly too lenient in light of the purpose of this chapter.” /d.

§ 9.94A.390(2)(1).

The standard sentencing ranges were 234 to 304 months

for petitioner’s rape conviction, 153 to 195 months for his rob-

bery conviction, and 105 to 134 months for his burglary con-

viction. J.A. 26. On March 16, 1998, the trial court sentenced

petitioner to 304 months for the rape, 153 months for the rob-

bery, and 105 months for the burglary. The court ordered the

' Citations to the Revised Code of Washington are to the version in

existence at the time of petitioner’s sentencing in 1998.

three sentences to run consecutively for a total sentence of

562 months. J.A. 9. The court relied on three factors in im-

posing consecutive sentences, including that petitioner’s “long

criminal history, combined with the ‘multiple offense policy,’

results in a sentence that is clearly too lenient.” J.A. 29-31.

The court found that each factor, “standing alone, is a sub-

stantial and compelling reason and justification for imposing

an exceptional sentence.” J.A. 30-31.”

The Washington Court of Appeals affirmed. J.A. 43-54.

The appeals court held that the trial court did not err in run-

ning petitioner’s sentences consecutively because “the multi-

ple offense policy justifies the exceptional sentence.” J.A. 51.

The Washington Supreme Court denied review. J.A. 55.

2. In January 2002, petitioner filed a federal habeas peti-

tion claiming that his sentence violated due process because

the facts supporting imposition of consecutive sentences were

not submitted to a jury and proved beyond a reasonable

doubt. J.A. 61. He relied on Apprendi v. New Jersey, 530

U.S. 466, 490 (2000), which held that any fact (other than a

prior conviction) thet increases the penalty for a crime beyond

the statutory maximum must be proved to a jury beyond a

reasonable doubt, and on Ring v. Arizona, 536 U.S. 584, 609

(2002), which applied Apprendi’s rule to hold that an aggra-

vating factor that is statutorily necessary for imposition of the

death penalty must be found by a jury. See J.A. 75.

A magistrate judge recommended that the petition be

denied. J.A. 56-76. He concluded that petitioner’s sentence

did not violate Apprendi or Ring because petitioner “received

an aggregate 562-month sentence for all three” offenses, and

his sentence for each offense did not exceed the standard sen-

tencing range for the offense. J.A. 76. The district court

* Petitioner had heen sentenced in 1994 and then resentenced in 1996 after

@ prior conviction was reversed. The Washington Court of Appeals had

reversed that sentence on grounds that are not relevant here and remanded for

resentencing. J.A. 45.

adopted the magistrate’ judge’s report and recommendation

and denied the habeas petition. J.A. 77. Petitioner appealed.

While the appeal was pending, this Court decided Blakely

v. Washington, 542 U.S. 296 (2004). Blakely extended the

rule of Apprendi to Washington’s sentencing guidelines sys-

tem. The Court held unconstitutional an exceptional sentence

imposed under the Washington guidelines because the facts

supporting the sentence, which was above the standard sen-

tencing range for the defendant’s offense, had not been

proved to a jury beyond a reasonable doubt. /d. at 303-305.

The court of appeals affirmed the denial of the habeas

petition. J.A. 78-82. On the merits of petitioner’s challenge

to his exceptional sentence, the court held that he could not

rely on Blakely because it “established a new rule that does

not apply retroactively on collateral review.” J.A. 81. Al-

though petitioner could rely on Apprendi, which was decided

before his convictions and sentence became final, the court

held that there was no Apprendi violation because “the sen-

tence on any individual count, and the total sentence imposed

does not exceed the statutory maximum.” /bid.

SUMMARY OF ARGUMENT

Under Teague v. Lane, 489 U.S. 288, 311 (1989) (plurality

opinion), new constitutional rules of criminal procedure do not

apply retroactively on collateral review unless they are “wa-

tershed” rules. Because Blakely v. Washington, 542 U.S. 296

(2004), announced a new rule of procedure that is not a “wa-

tershed” rule, it does not apply retroactively.

A. Arule is “new” unless it was so dictated by precedent

that no reasonable jurist could have declined to adopt it. Peti-

tioner contends that Blakely was dictated by Apprendi v. New

Jersey, 530 U.S. 466 (2000), which held that any fact (other

than a prior conviction) that increases the penalty for a crime

beyond the “statutory maximum” must be proved to a jury

beyond a reasonable doubt. Petitioner is incorrect.

Blakely extended Apprendi to facts supporting a sentence

above the standard sentencing range in a legislatively pre-

scribed sentencing guidelines system. In so doing, Blakely

defined “statutory maximum” in a way that was not dictated

either by the most straightforward reading of that phrase or

by Apprendi. The sentence in Blakely was below the maxi-

mum penalty specified in the Revised Code of Washington for

the defendant’s offense, even though it was above the stan-

dard sentencing range established by the State’s statutory

guidelines system. Thus, the sentence in Blakely was invalid

only if the top of the standard range was the “statutory maxi-

mum.” Apprendi, which did not involve a guidelines system,

did not decide that question. A reasonable jurist could have

concluded—as many did—that, in a guidelines system, the

“statutory maximum” is the maximum penalty specified by

statute for the offense rather than the top of the guidelines,

range. Indeed, among the federal and state appeals courts

that had considered the issue, ali but one had held that

Apprendi did not restrict guidelines systems.

Two other features of the Washington sentencing system

also would have permitted reasonable jurists to reach a differ-

ent result in Blakely. First, the legislature did not specify the

exclusive set of facts authorizing a sentence above the stan-

dard range. Instead, the sentencing judge could impose an

exceptional sentence based on a wide range of facts of his own

choosing. Second, factual findings alone did not authorize the

higher punishment. The judge also had to make a qualitative

judgment that those findings provided “substantial and com-

pelling reasons” for an exceptional sentence. The judge thus

effectively had discretion to decide both what facts might

support a higher sentence and whether the facts actually jus-

tified such a sentence. In that respect, a reasonable jurist

could analogize the Washington system to traditional, indeter-

minate sentencing systems, under which judges may find

facts by a preponderance of the evidence without violating the

Constitution. A reasonable jurist therefore could have con-

cluded that the Washington guidelines system did not violate

the Constitution.

B. Blakely’s requirement of proof beyond a reasonable

doubt for facts supporting a sentence above the standard

range in a statutory guidelines system is not a “watershed”

rule. A rule is “watershed” only if (1) it alters our under-

standing of the bedrock procedural elements essential to a

fair trial and (2) infringement of the rule so seriously dimin-

ishes accuracy that it creates an impermissibly large risk of

injustice. Blakely’s reasonable doubt rule satisfies neither

requirement.

1. Blakely did not alter our understanding of the bedrock

elements essential to a fair trial. Blakely has nowhere near

the fundamental and sweeping importance of Gideon v. Wain-

wright, 372 U.S. 335 (1963), the only rule that this Court has

identified as “watershed.” Gideon announced the core right

to counsel for every felony defendant. Blakely, in contrast,

did not announce the core rule that the elements of a crime

must be proved beyond a reasonable doubt; nor did it an-

nounce that the reasonable doubt requirement sometimes

applies to penalty enhancing facts that are not formal offense

elements. Blakely merely clarified that the reasonable doubt

requirement applies to a certain category of penalty enhanc-

ing facts. Moreover, unlike Gideon, which pervasively affects

the fairness of every aspect of a trial, Blakely applies only to

those defendants who have already been found guilty of an

offense. It applies only in jurisdictions that use a mandatory

guidelines system and, even then, only to defendants whose

punishment is increased beyond the standard sentencing

range by the finding of an aggravating fact. It is therefore no

surprise that this Court has concluded that Blakely error does

not require automatic reversal on direct review because it

“does not necessarily render a criminal trial fundamentally

unfair or an unreliable vehicle for determining guilt or inno-

cence.” Washington v. Recuenco, 126 S. Ct. 2546, 2551 (2006)

(citation and emphasis omitted).

Another indication that Blakely is not as essential to fun-

damental fairness as Gideon is that many facts with as much

or more impact on punishment as facts covered by Blakely

may constitutionally be established by a preponderance of the

evidence. Those include facts that increase a sentence within

the statutory range, facts that trigger a statutory mandatory

minimum, and even facts that support a sentence above the

standard range in an advisory guidelines system. They also

include facts that determine guilt or innocence if the legisla-

ture has declared those facts to be defenses rather than ele-

ments. These examples demonstrate that the reason for the

Apprendi and Blakely rules is not that no system of justice

can tolerate the use of the preponderance standard to find

facts with a significant impact on punishment. That happens

frequently. And, even without the Blakely rule, no defendant

faces any punishment at all unless the government has proved

the elements of a criminal offense beyond a reasonable doubt.

Once that has occurred, it does not offend bedrock notions of

fairness to find facts that bear on the extent of punishment by

a preponderance of the evidence. :

2. In addition, infringement of the Blakely rule does not

so seriously diminish accuracy that it creates an imper-

missibly large risk of injustice. The preponderance of the

evidence standard is a reliable method for finding facts. It is

considered sufficiently accurate for many important determi-

nations in criminal cases—including whether a defendant’s

confession was voluntary, whether he validly waived his

Miranda rights, and whether he voluntarily consented to a

search. The reliability of the preponderance standard in de-

termining facts that bear on punishment is particularly well

established. The preponderance standard is the ordinary

standard of proof for finding facts in traditional, indetermi-

nate sentencing systems—even though those facts can have

a substantial impact on the defendant’s punishment. It is

difficult to conceive how it could be constitutional to find those

facts by the preponderance standard if using that standard to

find penalty enhancing facts created the serious risk of inac-

curacy required by the “watershed” exception.

ARGUMENT

BLAKELY v. WASHINGTON DOES NOT APPLY RETROAC-

TIVELY TO CASES ON COLLATERAL REVIEW

In Apprendi v. New Jersey, 530 U.S. 466 (2000), this Court

held that, “[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to the jury, and proved

beyond a reasonable doubt.” /d. at 490. In Blakely v. Wash-

ington, 542 U.S. 296 (2004), the Court held that the jury trial

and reasonable doubt requirements also apply to facts that

support a sentence above the standard sentencing range in a

legislatively prescribed guidelines system. The questions

presented are whether Blakely announced a new rule and, if

so, whether its requirement of proof beyond a reasonable

doubt applies retroactively on collateral review.*

Under Teague v. Lane, 489 U.S. 288, 311 (1989) (plurality

opinion), new constitutional rules of criminal procedure gen-

erally do not apply retroactively on collateral review. That

general bar against retroactivity recognizes that “[a]pplica-

tion of-constitutional rules not in existence at the time a con-

viction became final seriously undermines the principle of

finality which is essential to the operation of our criminal jus-

* Schriro v. Summerlin, 542 U.S. 348 (2004), already makes clear that, if

Blakely is a new rule, its jury trial requirement is not retroactive on collateral

review. Summerlin held that Ring v. Arizona, 536 U.S. 584 (2002), which

extended Apprendi’s jury trial requirement to the aggravating circumstances

that make a defendant eligible for the death penalty, is not retroactive because

deprivation of the jury trial right does not seriously diminish the accuracy of

a criminal proceeding. Summerlin's reasoning about the jury trial right in

Ring applies with equal force to the jury trial right in Blakely. Therefore, as

petitioner acknowledges in his questions presented, if Blakely is a new rule,

only the retroactivity of its reasonable doubt requirement is at issue. See Pet.

Br. i (second question).

tice system.” Jd. at 309. Teague’s bar against retroactivity is

therefore subject to only a narrow exception for “a small set

of watershed rules of criminal procedure implicating the fun-

damental fairness and accuracy of the criminal proceeding.”

Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (internal quo-

tation marks and citations omitted). Because Blakely is a

new rule, and its requirement that facts supporting an upward

departure from a statutory sentencing guidelines range must

be proved beyond a reasonable doubt is not a “watershed rule

of criminal procedure,” Blakely does not apply retroactively

on collateral review.”

A. Blakely Announced A New Rule

Teague’s bar on retroactive application of new rules seeks

“to ensure that gradual developments in the law over which

* Although the Court has sometimes identified another exception to the

Teague bar for rules that place conduct or persons beyond the reach of the

State’s power to punish, the Court has more recently stated that such rules

“are more accurately characterized as substantive rules not subject to the bar.”

Summerlin, 542 U.S. at 352 n.4. Petitioner does not contend that Blakely

established a substantive rule, and for good reason. A rule is substantive only

“if it alters the range of conduct or the class of persons that the law punishes.”

Id. at 353. Blakely did not prohibit States from punishing any particular

conduct or persons. It only held that, if a State conditions punishment above

a statutorily mandated guidelines range on the existence of aggravating facts,

those facts must be proved to a jury beyond a reasonable doubt. Thus, Blakely

merely “altered the range of permissible methods for determining * * *

essential facts bearing on punishment,” and it is a procedural rule. /bid.

* Every federal court of appeals and state court of last resort that has

addressed the issue has reached that conclusion. See United States v.

Hernandez, 436 F.3d 851, 855 (8th Cir.), cert. denied, 126 S. Ct. 2341 (2006);

Michael v. Crosby, 430 F.3d 1310 (11th Cir. 2005), cert. denied, 126 S. Ct. 2025

(2006); Schardt v. Payne, 414 F.3d 1025, 1034-1036 (9th Cir. 2005), petition for

cert. pending, No. 05-9237 (filed Nov. 10,2005); Cirilo-Mumoz v. United States,

404 F.3d 527, 532-533 (1st Cir. 2005); United States v. Price, 400 F 3d 844, 846-

849 (10th Cir. 2005); People v. Johnson, No. 05SC408, 2006 WL 2589170 (Colo.

Sept. 11, 2006) (holding Blakely not retroactive on state habeas using Teague

analysis); State v. Evans, 114 P.3d 627, 632-633 (Wash. 2005) (same); State v.

Houston, 702 N.W.2d 268, 273 (Minn. 2005) (same).

reasonable jurists may disagree are not later used to upset

the finality of state convictions valid when entered.” Sawyer

v. Smith, 497 U.S. 227, 234 (1990). That purpose is reflected

in the standard for determining whether a decision announces

a new rule: A rule is “new” unless it was so “dictated” by

precedent in effect when the defendant’s conviction became

final that it “was apparent to all reasonable jurists.” Beard v.

Banks, 542 U.S. 406, 413 (2004) (citation omitted). The ques-

tion is whether a “reasonable jurist * * * could have

reached a conclusion different from the one” this Court ulti-

mately announced. Lambrix v. Singletary, 520 U.S. 518, 532

(1997). In other words, a rule is new unless a state or lower

federal court “would have acted objectively unreasonably” in

declining to adopt it. O’Dell v. Netherland, 521 U.S. 151, 156

(1997).

Petitioner contends (Br. 12-26) that Blakely is not a new

rule because it was compelled by Apprendi, which was de-

cided before his convictions became final. Contrary to that

contention, Blakely was not compelled by Apprendi, much

less “dictated” by Apprendi to the extent that “no other inter-

pretation was reasonable.” Lambriz, 520 U.S. at 538.

1. Blakely extended Apprendi to facts supporting a sen-

tence above the standard sentencing range in a legislatively

prescribed guidelines system. In so doing, Blakely defined

“statutory maximum” for Apprendi purposes in an innovative

way that was not dictated by Apprendi itself.

In Apprendi, the defendant had been convicted of posses-

sion of a firearm for an unlawful purpose, an offense for which

New Jersey law prescribed a maximum penalty of 10 years in

prison. He was sentenced to 12 years in prison, however,

because a separate statute increased the authorized punish-

ment if the sentencing judge found, by a preponderance of the

evidence, that the defendant acted with a purpose to intimi-

date an individual because of race. This Court concluded that

the enhanced sentence violated the defendant’s rights under

the Sixth Amendment and the Due Process Clause. The

Court held that, “[o}ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to the jury,

and proved beyond a reasonable doubt.” 530 U.S. at 490.

In Blakely, the defendant pleaded guilty to kidnapping, a

. felony for which Washington law prescribed a maximum

prison term of 10 years. Washington’s legislatively enacted

sentencing guidelines, however, required a standard sentence

of between 49 and 53 months in prison, unless the sentencing

judge found aggravating circumstances that justified an ex-

ceptional sentence. The sentencing judge found, by a prepon-

derance of the evidence, that the defendant had acted with

_ deliberate cruelty, and the judge concluded that an excep-

tional sentence of 90 months in prison was therefore justified.

This Court held that the enhanced sentence violated the rule

enunciated in Apprendi, because the top of the standard sen-

tencing range, rather than the ultimate statutory cap of 10

years, qualified as the “statutory maximum” for purposes of

the Apprendi rule. 542 U.S. at 303-304.

The sentence in Apprendi exceeded the 10-year maximum

prescribed by New Jersey statute for the defendant’s offense.

In contrast, the sentence in Blakely was below the 10-year

maximum specified in the Revised Code of Washington for the

defendant’s offense, even though it was above the standard

sentencing range established by the State’s statutory guide-

lines system. Thus, the sentence in Blakely was subject to the

Apprendi rule only if the top of that standard sentencing

range, rather than the ultimate statutory limit, was the “stat-

utory maximum” for purposes of the rule. Apprendi had not

decided whether the top of a standard sentencing range that

is lower than the maximum penalty otherwise prescribed by

statute for the offense qualifies as the “statutory maximum.”

Apprendi did not involve a sentencing guidelines system, and

the Court therefore had no occasion to consider whether or

how its rule would apply in that situation.

Petitioner incorrectly asserts that Apprendi defined

“statutory maximum” as the maximum sentence a defendant

could receive “if punished according to the facts reflected in

the jury verdict alone.” Pet. Br. 18 (quoting Apprendi, 530

U.S. at 483). To be sure, the Apprendi opinion included the

language quoted by petitioner, and, in Blakely, this Court

relied in part on that language to support its holding. See 542

US. at 303. But the Court in Apprendi did not use the quoted

language in defining (or even in discussing) the term “statu-

tory maximum.” See 530 U.S. at 483, 494. In fact, the Court

did not define “statutory maximum” at all. The Court had no

occasion to do so because there was no dispute in Apprendi

that the sentence exceeded the 10-year statutory maximum.

“It was not until Blakely that [the Court] clarified 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.’”

United States v. Price, 400 F.3d 844, 847 (10th Cir. 2005)

(quoting Blakely, 542 U.S. at 303)); see Simpson v. United

States, 376 F.3d 679, 681 (7th Cir. 2004) (“Blakely * * *

alter[ed] courts’ understanding of ‘statutory maximum.’”).

Given the limited guidance in the Apprendi opinion on the

meaning of “statutory maximum,” a state or lower federal

court applying Apprendi to a guidelines system could reason-

ably have concluded—as those courts did almost universally

conclude (see p. 15, infra)—that the “statutory maximum”

was the maximum penalty specified by statute for the offense

rather than the top of the guidelines range. And, under that

interpretation, facts supporting upward departures from the

guidelines range would not have had to be proved to a jury

beyond a reasonable doubt. Indeed, Justice O’Connor, joined

by the other three dissenting Justices in Apprendi, suggested

just such an interpretation of the Apprendi decision. She

noted that, “under one reading” of the Court’s opinion, “[a]

State could * * * remove from the jury (and subject to a

standard of proof below ‘beyond a reasonable doubt’) the as-

sessment of those facts that define narrower ranges of pun-

ishment, within the overall statutory range, to which the de-

fendant may be sentenced.” 530 U.S. at 540 (dissenting opin-

ion). The Court’s response was not that her proposed inter-

pretation was foreclosed by Apprendi. Instead, the Court

argued that use of that kind of sentencing system would be

constrained by political considerations and by precedent other

than Apprendi. See id. at 490 n.16 (majority opinion).

The reading of Apprendi that Justice O’Connor proposed

was supported by the Apprendi Court’s claim that its decision

was consistent with Walton v. Arizona, 497 U.S. 639 (1990).

Walton had upheld Arizona’s death penalty system, which

required, after a jury found a defendant guilty of first-degree

murder, that a judge find additional aggravating factors be-

fore imposing a death sentence. See 530 U.S. at 541 (dissent-

ing opinion). The Apprendi majority asserted that the Ari-

zona system was consistent with Apprendi because Arizona’s

first-degree murder statute specified death as the maximum

penalty. See id. at 497. But, as Justice O’Connor noted, id. at

541 (dissenting opinion)—and the Court later acknowledged

when overruling Walton in Ring v. Arizona, 536 U.S. 584, 604

(2002)—other provisions of Arizona law made clear that life

imprisonment was the most serious penalty that could be im-

posed unless the judge found additional facts. The Apprendi

Court’s refusal to overrule Walton thus supported a reading

of Apprendi under which the “statutory maximum” was the

highest penalty specified by statute for the offense, even

when other provisions of law restricted the circumstances

under which that penalty could be imposed."

* In ultimately holding that Walton was inconsistent with Apprendi, Ring

provided some clarification of the meaning of “statutory maximum.” But Ring

still did not resolve the meaning of that term in the context of a sentencing

guidelines system like Washington's, and Blakely was therefore not dictated

by Ring. In any event, Ring had not been decided when petitioner's convic-

tions and sentence became final, so he cannot rely on Ring in arguing that

Blakely is not a new rule. See p. 10, supra.

If this Court had adopted the reading of Apprendi that

Justice O’Connor identified as a possible interpretation, the

Court would have not have reached the result it did in

Blakely. It is therefore clear that reasonable jurists “could

have reached a conclusion different from the one” that this

Court announced in Blakely. Lambrix, 520 U.S. at 532.

2. Two other differences between the Washington sen-

tencing guidelines system and the sentencing statutes in

Apprendi also would have permitted reasonable jurists to

reach a different result in Blakely.

In Apprendi, the increase in the statutory maximum de-

pended on a fact specified by the legislature—that the defen-

dant acted for the purpose of intimidation based on race. 530

U.S. at 468-469. Under the Washington system, in contrast,

the legislature did not specify the exclusive set of facts autho-

rizing a sentence above the standard range. Instead, a sen-

tencing judge could impose an exceptional sentence based on

a wide range of facts of his own choosing, so long as they pro-

vided “substantial and compelling reasons” for the enhanced

sentence. Wash. Rev. Code §§ 9.94A.120, 9.94A.390.

The Washington system also differed from the one in

Apprendi in another significant way. In Apprendi, the factual

finding was itself sufficient to authorize tue enhanced sen-

tence. 530 U.S. at 468-469. Under the Washington system, in

contrast, factual findings alone did not authorize the higher

punishment. The judge had to make an additional, qualitative

judgment that the factual findings provided “substantial and

compelling reasons” for an exceptional sentence. Wash. Rev.

Code § 9.94A.120(2). The judge was not required to reach

that conclusion even if he found an aggravating circumstance

specifically identified by the legislature. See U.S. Amicus Br.

at 19-20, Blakely, supra (No. 02-1632) (citing cases).

Because of these features of the Washington system, a

sentencing judge effectively had discretion to decide both

what facts might support a higher sentence and whether those

facts actually justified such a sentence. In that respect, the

Washington system resembled traditional, indeterminate sen-

tencing systems, under which judges may find facts by a pre-

ponderance of the evidence without violating the Constitution.

See U.S. Amicus Br. at 7-8, 15-22, Blakely, supra (No. 02-

1632). A reasonable jurist therefore could have concluded

that the Washington guidelines did not violate Apprendi.

3. Not only could reasonable jurists have concluded that

Apprendi did not dictate the invalidation of sentencing guide-

lines systems, but the vast majority of state and federal

courts reached just that conclusion. See Blakely, 542 U.S. at

320 n.1 (dissenting opinion) (citing cases). Before Blakely,

only one appeals court had applied Apprendi to invalidate a

guidelines scheme. See ibid. In contrast, numerous state

appellate courts had held that Apprendi did not restrict state

sentencing guidelines.’ And every federal court of appeals

had held that Apprendi did not apply to sentences under the

federal Sentencing Guidelines that were within the maximum

for the offense specified by statute. See 542 U.S. at 320 n.1

(dissenting opinion) (citing cases). In light of the virtually

unanimous rejection of the Blakely rule by the state and

lower federal courts, it is difficult to conclude that the rule

should have been “apparent to all reasonable jurists.” Banks,

542 U.S. at 413 (citation omitted).

Morecver, Blakely was a close decision that generated

four dissenting votes. The existence of those dissents also

suggests that “reasonable jurists could have differed as to

whether” Apprendi compelled Blakely. Banks, 542 U.S. at

414-415; O'Dell, 521 U.S. at 159-160. Noting that the Blakely

* See, e.g., State v. Dilts, 82 P.3d 593, 599 (Or. 2003), vacated, 542 U.S. 934

(2004); State v. Gore, 21 P.3d 262, 276-277 (Wash. 2001), overrruled by State v.

Hughes, 110 P.3d 192 (Wash. 2005); State v. Shattuck, No. C6-03-361, 2004 WL

772220, at *6 (Minn. Ct. App. Apr. 13, 2004), rev’d, 704 N.W.2d 131 (Minn.

2005); State v. Brown, 70 P.3d 454, 461-462 (Ariz. Ct. App. 2003); People v.

Allen, 78 P.3d 751, 755 (Colo. Ct. App. 2001); McCloud v. State, 803 So. 2d 821,

827 (Fla. Dist. Ct. App. 2001); State v. Huntley, No. 02CA15, 2002 WL 31769238

(Ohio Ct. App. Dee. 9, 2002).

dissenters criticized Apprendi itself, petitioner argues (Br.

20-21) that they must have accepted that Apprendi compelled

Blakely. On the contrary, the dissenters argued that Ap-

prendi did not require the result in Blakely. Writing for all

four dissenters, Justice O’Connor repeatedly criticized the

Court’s “extension of Apprendi” to sentencing guidelines sys-

tems. 542 U.S. at 314, 318, 320 n.1. She argued that the

Washington guidelines “did not alter the statutory maximum

sentence to which [Blakely] was exposed,” id. at 320, and were

“as inoffensive to the holding of Apprendi as a regime of

guided discretion could possibly be,” id. at 325. Justice

Breyer, joined by Justice O’Connor, also lamented that,

“(ujntil now, [he] would have thought the Court might have

limited Apprendi so that its underlying principle would not

undo sentencing reform efforts.” Jd. at 346.

4. Petitioner observes that this Court said in Blakely that

it was “apply[ing]” Apprendi. Pet. Br. 19 (quoting 542 U.S. at

301). And he contends (Br. 12-17) that the application of a

rule announced in a previous decision cannot constitute a new

rule. That is incorrect. Teague’s bar on retroactivity retains

its full force when a “prior decision is applied in a novel set-

ting thereby extending the precedent.” Stringer v. Black, 503

U.S. 222, 228 (1992). That is precisely what occurred in

Blakely. Applying Apprendi in the novel setting of statutory

sentencing guidelines, Blakely extended Apprendi to cover

facts supporting a sentence above the standard sentencing

range, even when the sentence is below the maximum penalty

otherwise identified by statute for the crime of conviction.

The cases that petitioner cites (Br. 13-17) establish only

that applying a prior decision to govern a “closely analogous”

case does not create a new rule when the result is “dictated”

by the prior decision. Penry v. Lynaugh, 492 U.S. 302, 314

(1989) (citation omitted). See id. at 319 (concluding that the

Penry rule was “dictated” by precedent); Stringer, 503 U.S.

at 229 (concluding that it would not create a new rule to apply

Godfrey v. Georgia, 446 U.S. 420 (1980), to Mississippi’s capi-

tal sentencing system because that result followed “a fortiori”

from Godfrey). Those cases do not assist petitioner because

the result in Blakely did not follow a fortiori from Apprendi.

Petitioner also points to language in Blakely and United

States v. Booker, 543 U.S. 220 (2005), suggesting that the re-

sult in Blakely was “clear” and reflected. “respect for long-

standing precedent.” Pet. Br. 19-20 (citations omitted). But,

as this Court has repeatedly observed, courts “frequently”

use language suggesting that their decisions are required by

precedent “even when aware of reasonable contrary conclu-

sions reached by other courts.” Butler v. McKellar, 494 U.S.

407, 415 (1990); see O’Dell, 521 U.S. at 161 n.2.°

B. Blakely Did Not Establish A Watershed Procedural Rule

Because Blakely established a new rule, its requirement

of proof beyond a reasonable doubt for facts supporting an

upward departure in a statutory guidelines system applies

retroactively only if that requirement is a “watershed rule[]

of criminal procedure.” Teague, 489 U.S. at 311 (plurality

opinion). That category “is extremely narrow,” Summerlin,

* ‘Two of the cases cited by petitioner did not involve Teague’s new rule

principle but instead involved statutory limits on habeas relief imposed by 28

U.S.C. 2254(d). See Williams v. Taylor, 529 U.S. 362 (2000); Miller-El v.

Dretke, 545 U.S. 231 (2005). The final case on which petitioner relies, Yates v.

Aiken, 484 U.S. 241 (1988), was decided before Teague.

* Even if Blakely had not announced a new rule, applying Blakely to grant

relief to petitioner would announce one. The sentence for each of petitioner’s

offenses fel) within the standard sentencing range for that offense. The

sentence for each offense therefore did not exceed the “statutory maximum”

for that offense as defined in Blakely. Petitioner contends tha* his verall

sentence nonetheless violates Blakely because the trial court urdered the

individual sentences to run consecutively based on its finding by a preponder-

ance of the evidence that concurrent sentences would be “clearly toc lenient.”

J.A. 29. Thus, to grant petitioner relief, a court would have to decide that the

Blakely rule applies to findings that support the imposition of consecutive

sentences on multiple offenses. Neither Blakely nor any other decision of this

Court resolves that issue.

542 U.S. at 352, and “it is unlikely that any of these watershed

rules ha(s] yet to emerge.” Tyler v. Cain, 533 U.S. 656, 667

n.7 (2001) (internal quotation marks and citation omitted).

Blakely’s reasonable doubt requirement is not a “watershed”

rule.

To qualify for “watershed” status, a rule must “implicat[e]

the fundamental fairness and accuracy of the criminal pro-

ceeding.” Saffle v. Parks, 494 U.S. 484, 495 (1990). A rule

implicates fundamental fairness if it “‘alter[s] our under-

standing of the bedrock procedural elements’ essential to the

fairness of a proceeding.” Tyler, 533 U.S. at 665 (citation

omitted). A rule.implicates accuracy if its infringement “so

seriously diminishe|s]| accuracy that there is an impermissibly

large risk of punishing conduct the law does not reach.”

Summerlin, 542 U.S. at 355-356 (internal quotation marks

and citation omitted). The “watershed” exception does not

apply unless both of those standards are satisfied. Tyler, 533

U.S. at 665. Blakely’s requirement of proof beyond a reason-

able doubt satisfies neither standard.

1. Blakely did not announce a bedrock rule essential to

a fair trial

a. To satisfy the first part of the test for “watershed”

rules, a rule must make a “fundamental shift” in “our under-

standing of the bedrock procedural elements essential to fun-

damental fairness.” Banks, 542 U.S. at 419-420 (internal quo-

tation marks, citation, and emphasis omitted). This Court has

identified only one rule that has had that dramatic effect:

Gideon v. Wainwright, 372 U.S. 335 (1963). See Banks, 542

U.S. at 417. Before Gideon, this Court had held that an indi-

gent defendant charged with a felony offense could, in some

' cases, receive a fair trial without the option of assistance of

appointed counsel. In Gideon, the Court repudiated that no-

tion and held that, absent a waiver of counsel, a felony trial

conducted without a defense lawyer is inherently unfair. Gid-

eon thus altered our understanding of the procedures that are

indispensable to a fair trial by adding the right to appointed

counsel to that core set of rules.

Rules that are “less sweeping and fundamental” than Gid-

eon do not qualify as “watershed” rules. Banks, 542 U.S. at

418 (citation omitted). For example, in Sawyer, the Court

considered the retroactivity of Caldwell v. Mississippi, 472

U.S. 320 (1985), which held that the Eighth Amendment bars

imposition of a capit al sentence when a prosecutor mistakenly

informs the jury that responsibility for the death penalty

rests elsewhere. Even though the Caldwell rule was a “sys-

temic rule enhancing reliability,” the Court concluded that it

was not a “watershed” rule because it only “added to an exist-

ing guarantee of due process protection against fundamental

unfairness.” Sawyer, 497 U.S. at 244. Similarly, in O'Dell, the

Court rejected “watershed” status for Simmons v. South

Carolina, 512 U.S. 154 (1994), which held that a capital defen-

dant has a due process right to introduce evidence of his pa-

role ineligibility to rebut a prosecutor’s future dangerousness

argument. The Court explained that, “[uJnlike the sweeping

rule of Gideon,” which established a broad right to counsel in

all felony cases, the Simmons rule is a “narrow right” that

applies only in “a limited class of capital cases.” 521 U.S. at

167.

These cases establish that rules that apply or extend bed-

rock constitutional guarantees are not “watershed” unless

they have the same “primacy and centrality” as Gideon.

Banks, 542 U.S. at 420 (citation omitted). Thus, rules lack

“watershed” status when they make only an “incremental

change” in notions of fundamental fairness, or when they ap-

ply “narrowly” to a limited class of cases or defendants. /d.

~ at 419-420. Blakely is just such a rule.

Blakely, like Apprendi before it, added a novel corollary

to well established constitutional principles. The basic rule

that the government must prove all elements of a criminal

offense beyond a reasonable doubt was well settled even be-

fore In re Winship, 397 U.S. 358 (1970). Indeed, the reason-

able doubt rule “dates at least from our early years as a Na-

tion.” Jd. at 361. This Court had also already made clear,

before Apprendi, that facts that enhance punishment may

————soemetimes be subject to the reasonable doubt requirement

even if they are not formally designated as elements of the

offense. See McMillan v. Pennsylvania, 477 U.S. 79, 88

(1986) (suggesting that proof beyond a reasonable doubt

would be required for a sentencing enhancement that

amounted to “a tail which wags the dog of the substantive

offense”). Apprendi determined that facts that enhance pun-

ishment beyond the statutory maximum are subject to the

well-established reasonable doubt rule. And Blakely made an

even more incremental change. As discussed above, Blakely

simply extended the Apprendi rule to facts that are necessary

to authorize a sentence within the maximum for the offense

but above a legislatively prescribed sentencing guidelines

range. Line-drawing decisions like Blakely may be of sub-

stantial importance and have significant practical impact, but

they are not the kind of “groundbreaking” decisions, compa-

rable to Gideon, that qualify as “watershed” rules. Caspari

v. Bohlen, 510 U.S. 383, 396 (1994).

Nor does the Blakely rule have the sweep and importance

of a bedrock rule. Gideon’s rule against complete denial of

counsel applies to every felony trial and affects every stage of

the trial and every defendant. The Blakely rule, by contrast,

does not even apply to the determination whether a defendant

is guilty of a crime established by the legislature. Rather, it

affects the procedure for determining punishment. Thus, the

Blakely rule applies only to those defendants who have al-

ready been found guilty of an offense. In addition, the rule

applies only in jurisdictions that have a guidelines system

using mandatory, standard sentencing ranges with circum-

scribed grounds for departure. And, even in those jurisdic-

tions, the rule applies only to the subclass of defendants

- whose punishment is increased over the standard sentencing

range by the finding of an aggravating fact.

This Court, in holding that Blakely error is not structural,

has already made clear that Blakely does not have compara-

ble sweep and importance to Gideon. Because the presence

of counsel pervasively affects all aspects of a trial, a complete

denial of the right to counsel makes a fair trial impossible.

This Court has therefore stated that Gideon error is struc-

tural and requires automatic reversal when properly raised on

direct review. See Neder v. United States, 527 U.S. 1, 8

(1999). In contrast, the Court has held that Blakely error is

not structural and does not require automatic reversal.

Washington v. Recuenco, 126 S. Ct. 2546 (2006). In Recuenco,

the Court concluded that failure to require proof beyond a

reasonable doubt of a penalty enhancing fact “does not neces-

sarily render a criminal trial fundamentally unfair or an unre-

liable vehicle for determining guilt or innocence.” /d. at 2551

(citation and emphasis omitted). That conclusion makes clear

that the Blakely rule is not the kind of “absolute prerequisite

to fundamental fairness” that qualifies for “watershed” status.

Sawyer, 497 U.S. at 244 (citation omitted).

b. Another indication that Blakely is not of bedrock char-

acter is that fact-finders may constitutionally use the prepon-

derance of the evidence standard to determine many facts

that have as much or more impact on punishment as the facts

covered by Blakely. For example, facts on which a judge re-

lies to increase a sentence within statutory limits may be de-

termined by a preponderance. United States v. Watts, 519

U.S. 148, 156 (1997) (per curiam); Nichols v. United States,

511 U.S. 738, 747-748 (1994). The same is true for facts that

trigger a statutory mandatory minimum sentence and for

facts that reduce the statutory maximum. Harris v. United

States, 5386 U.S. 545, 568-569 (2002); Apprendi, 530 U.S. at 491

n.16. Even facts that support a sentence above a guidelines

range may be proved by a preponderance if the guidelines are

advisory rather than mandatory. See Booker, 543 U.S. at 233,

259.

Use of the preponderance standard is not limited to facts

that bear only on the extent of punishment. Facts that deter-

mine the degree of an offense, and facts that determine guilt

or innocence of any offense, may be found under the prepon-

derance standard if the legislature declares those facts to be

defenses rather than offense elements. Indeed, the govern-

ment may even impose the burden of proving defenses on the

defendant. See, e.g., Dixon v. United States, 1268S. Ct. 2437

(2006) (duress); Martin v. Ohio, 480 U.S. 228 (1987) (self-de-

fense); Patterson v. New York, 432 U.S. 197 (1977) (extreme

emotional disturbance).

These examples demonstrate that the reason for the

Apprendi and Blakely rules is not that it is fundamentally

unfair for facts with a significant impact on punishment.-to be

found by a preponderance of the evidence. The reason for the

rules is, as this Court explained in Blakely, “the need to give

intelligible content” to the rights of jury trial and proof be-

yond a reasonable doubt. 542 U.S. at 305. The Court con-

cluded that, to prevent legislatures from eviscerating those

rights, there must be a constitutional line that establishes a

category of facts to which those rights always attach. But the

need for a line does not mean that a rule is of bedrock charac-

ter when, like the rule in Blakely, it merely clarifies that par-

ticular facts fall on one side of the line.

Even without the Blakely rule, no defendant is exposed to

any punishment at all unless the government has proved the

core elements of a criminal offense beyond a reasonable

doubt. Once that has occurred, the question whether ancillary

findings may be established by a preponderance of the evi-

dence does not implicate that small core set of rules that are

indispensable to justice, even if those findings have important

consequences for the authorization or extent of punishment.

ce. In arguing that.Blakely’s reasonable doubt rule is a

bedrock rule, petitioner relies primarily (Br. 31-32) on a state-

ment in Winship, and similar statements in other cases, that

“a person accused of a crime... would be at * * * a disad-

vantage amounting to a lack of fundamental fairness, if he

could be adjudged guilty and imprisoned for years on the

strength of the same evidence that would suffice in a civil

case.” Winship, 397 U.S. at 363 (citation omitted). Petitioner

ignores essential differences between Winship, which recog-

nized the basic rule that guilt of a crime must be proved be- .

yond a reasonable doubt, and Blakely, which extended the

reasonable doubt requirement to facts supporting upward

departures from sentencing guidelines.

Winship held that a family court violated due process by

committing a juvenile to a state institution based on findings

by a preponderance of the evidence that he had committed

acts that, if. done by an adult, would constitute larceny. 397

U.S. at 368. Thus, in a case of Winship error, the defendant

has been denied the right of proof beyond a reasonable doubt

on every element of the offense. The error calls into question

whether the defendant is guilty of any crime. In a case of

Blakely error, in contrast, the defendant has been provided

the right of proof beyond a reasonable doubt on the facts nec-

essary to establish that he committed a crime. The error does

not call into question whether he is guilty of an offense but

affects only the extent of punishment that is legally autho-

rized.

This Court’s structural error cases confirm that essential

difference between Winship and Blakely error. The failure

to require proof beyond a reasonable doubt for an entire of-

fense “vitiates all the jury’s findings” and pervasively affects

the trial in unmeasurable ways. Sullivan v. Louisiana, 508

U.S. 275, 281 (1993). Winship error is therefore subject to

automatic reversal if properly raised on direct review. See id.

at 281-282. In contrast, the failure to require proof beyond a

reasonable doubt for a penalty enhancing fact, or even for a

single element of a criminal offense, “d[oes] not ‘vitiat[e] all

the jury’s findings’” and does not have the same pervasive

effect on the trial. Neder, 527 U.S. at 11 (quoting Sullivan,

508 U.S. at 281); see Recwenco, 126 S. Ct. at 2551-2553. Asa

result, Blakely error does not necessarily render a criminal

trial fundamentally unfair. /d. at 2551.

d. Petitioner also argues (Br. 33-36) that Blakely satisfies

the bedrock component of the “watershed” test because the

right to a jury trial is essential to fundamental fairness. That

argument overlooks that the question before this Court is not

whether Blakely’s jury trial right is a “watershed” rule but

whether its reasonable doubt requirement has that status.

See note 3, supra. Summerlin already establishes that the

jury trial right guaranteed by the Apprendi line of cases is

not a “watershed” rule. See 542 U.S. at 355-358. Contrary to

petitioner’s assertion (Br. 33), Summerlin’s focus on the jury

trial right’s failure to satisfy the accuracy component of the

“watershed” test is of no moment. Summerlin held that the

jury trial right is not a “watershed” rule and does not apply

retroactively.’ As a result, if Blakely announced a new rule,

the only right protected by that decision that could apply ret-

roactively is the right of proof beyond a reasonable doubt.

In any event,-petitioner is not correct that Blakely’s jury

trial right is a bedrock requirement indispensable to funda-

mental fairness. To be sure, the jury trial right is “funda-

mental to the American scheme of justice.” Duncan v. Loui-

siana, 391 U.S. 145, 149 (1968). But that does not mean that

it implicates fundamental fairness. As the Court explained in

Blakely, the jury trial right is designed not to ensure fairness

but to ensure “the people’s ultimate control * * * in the judi-

ciary,” just as the right of suffrage ensures popular control of

the legislative and executive branches. 542 U.S. at 306. In-

deed, the Court suggested that fairness might arguably “be

better served by leaving justice entirely in the hands of pro-

fessionals” than by trial by jury. /d. at 313. See also Ring,

536 U.S. at 607; DeStefano v. Woods, 392 U.S. 631, 633-634

(1968) (per curiam).

2. Violation of the Blakely rule does not seriously di-

minish accuracy

The fact that Blakely’s reasonable doubt rule is not a bed-

rock element of fairness is itself sufficient to establish that

the rule is not a “watershed” rule. But the rule also does not

satisfy the second requirement for “watershed” status: in-

fringement of the rule does not “so seriously diminish[] accu-

racy that there is an impermissibly large risk of punishing

conduct the law does not reach.” Summerlin, 542 U.S. at 355-

356 (internal quotation marks and citation omitted). To meet

that requirement, it is not enough that infringement of the

rule may have some affect on the accuracy of the criminal

proceeding. /d. at 356. Tlie diminution in accuracy must

be so substantial that it creates an “impermissibly large risk

of injustice.” bid. (internal quotation marks omitted).

Blakely’s reasonable doubt rule does not satisfy that test.

a. The preponderance of the evidence standard is deemed

sufficiently reliable for numerous determinations in criminal

cases and has long been used in fixing the extent of punish-

_ment. Petitioner’s argument that there is an impermissibly

large risk of inaccuracy when the preponderance standard is

used to find facts supporting upward departures from guide-

lines ranges is premised on a misunderstanding of what the

standard requires. Invoking Winship, petitioner asserts that

“the preponderance standard ‘calls on the trier of fact merely

to perform an abstract weighing of the evidence in order to

determine which side has produced the greater quantum,

without regard to its effect in convincing his mind of the truth

of the proposition asserted.’” Pet. Br. 29 (quoting Winship,

397 U.S. at 368) In fact, Winship does not endorse that de-

scription of the preponderance standard. On the contrary,

Winship rejects that description as a “misinterpretation.”

397 U.S. at 367-368 (emphasis added and citation omitted).

The preponderance standard imposes a significantly

higher burden of proof than petitioner describes. The prepon-

derance standard requires that the fact-finder be convinced

that the existence of the fact at issue is more likely than not.

See, e.g., /n re Personal Restraint of Woods, 114 P.3d 607, 615

(Wash. 2005); State v. Shepherd, 41 P.3d 1235, 1238 (Wash. Ct.

App. 2002). Application of the preponderance standard, prop-

erly understood, to facts that enhance a defendant’s punish-

ment is not so unreliable that it creates an impermissibly

large risk of injustice.

A wide variety of findings that have a profound effect on

the outcome of a criminal proceeding may reliably be made by

a preponderance of the evidence. The preponderance stan-

dard is used to determine the voluntariness of a defendant’s

confession, the validity of his waiver of his Miranda rights,

and the voluntariness of his consent to search. Lego v.

Twomey, 404 U.S. 477, 489 (1972); Colorado v. Connelly, 479

U.S. 157, 168 (1986); United States v. Matlock, 415 U.S. 164,

177 (1974). The preponderance standard is used to decide

whether the discovery of incriminating evidence was inevita-

ble, so that the evidence may be used against the defendant

even if it was the product of a constitutional violation. Niz v.

Williams, 467 U.S. 431, 444 & n.5 (1984). And the preponder-

ance standard is used to resolve preliminary factual questions

about the admissibility of evidence under the Federal Rules.

Bourjaily v. United States, 483 U.S. 171, 175-176 (1987). This

Court has repeatedly stated that there is “nothing to suggest”

that those determinations “have been unreliable or otherwise

wanting in quality because not based on some higher stan-

dard.” Lego, 404 U.S. at 488; Connelly, 479 U.S. at 168.

The reliability of the preponderance standard in determin-

ing facts that bear on the extent of punishment is particularly

well established. As described above, in traditional, indeter-

minate sentencing regimes, judges routinely use the prepon-

derance standard to find the facts on which they rely to in-

crease a defendant’s punishment within statutory limits. See

p. 21, supra. Even in determinate sentencing regimes, it is

constitutionally permissible to find facts under the preponder-

ance standard in a wide range of circumstances. See, e.g.,

Harris, 536 U.S. at 568-569 (mandatory minimums); Booker,

543 U.S. at 233, 259 (facts in advisory guidelines systems).

Those facts can have a “substantial impact” on the defen-

dant’s punishment. Harris, 536 U.S. at 549 (plurality opin-

ion). For example, they may determine whether someone who

uses a firearm in furtherance of a drug trafficking crime is

imprisoned for five years, 30 years, or life. See 18 U.S.C.

924(c)(1)(B)(ii), 924(c)(1)(C)ii). Similarly, they may deter-

mine whether a murderer spends only a few years or his en-

tire life in prison. See 18 U.S.C. 1111 (2000 & Supp. IV 2004).

It is difficult to conceive how it could be constitutional to find

those facts by the preponderance standard if using that stan-

dard to find penalty enhancing facts created the serious risk

of inaccuracy required by the “watershed” exception.

b. Facts bearing on punishment may be found with suffi-

- cient reliability using the preponderance standard because

determination of those facts occurs only after a defendant has

been found guilty of a criminal offense beyond a reasonable

doubt. “Once the reasonable doubt standard has been applied

to obtain a valid conviction, ‘the criminal defendant has been

constitutionally deprived of his liberty to the extent that the

State may confine him.’” McMillan, 477 U.S. at 92 n.8 (cita-

tion omitted). Under those circumstances, the preponderance

standard may be used to find additional facts that bear on the

extent of the defendant’s punishment without creating a risk

of inaccuracy to the degree required for retroactivity.

That is particularly true because other constitutional

protections promote the reliability of fact-finding at sentenc-

ing. For example, the defendant has the right to notice of the

faets on which the judge may rely to increase his punishment

and an opportunity to contest those facts. See Oyler v. Boles,

368 U.S. 448 (1962). In addition, the defendant has the right

to the assistance of counsel. See Mempa v. Rhay, 389 U.S.

128 (1967). Those protections mitigate any risk of inaccuracy

created by use of the preponderance standard.

The essential reliability of the preponderance standard for

determining facts that enhance punishment is borne out by

experience. On direct review, the federal courts of appeals

‘have frequently found Apprendi-type errors harmless be-

cause the quantum of proof made no difference to the accu-

racy of the factual findings.” Applying plain error review,

those courts have also frequently found that Apprendi-type

errors neither impaired substantial rights nor seriously af-

fected the fairness, integrity, or public reputation of judicial

proceedings, because the evidence was essentially

uncontroverted or so overwhelming that it did not affect the

reliability of the factual findings."

c. In arguing that violations of Blakely’s reasonable doubt

rule impermissibly diminish accuracy, petitioner invokes (Br.

28-29) two cases that predate Teague—I/van V. v. City of New

See, e.g., United States v. Soto-Beniquez, 356 F.3d 1, 46 (1st Cir. 2003),

cert. denied, 541 U.S. 1074 (2004); United States v: Lawson, 16 Fed. Appx. 205,

208 (4th Cir. 2001), cert. denied, 534 U.S. 1168 (2002); United States v. Baptiste,

309 F.3d 274, 278 (5th Cir. 2002), cert. denied, 538 U.S. 947 (2003); United

States v. Copeland, 321 F.3d 582, 605-606 (6th Cir. 2003); United States v.

Anderson, 236 F 3d 427, 430 (8th Cir.), cert. denied, 534 U.S. 956 (2001); United

States v. Smith, 282 F.3d 758, 771-772 (9th Cir. 2002); United States v.

Anderson, 289 F.3d 1321, 1328 (11th Cir. 2002), cert. denied, 537 U.S. 1195

(2003).

" See, e.g., United States v. Parrilla-Sanes, 6 Fed. Appx. 38, 40 (1st Cir.),

cert. denied, 534 U.S. 937 (2001); United States v. Henry, 325 F.3d 93, 102-108

(2d Cir. ), cert. denied, 540 U.S. 907 (2003); United States v. Campbell, 295 F.3d

398, 404-405 (3d Cir. 2002), cert. denied, 537 U.S. 1239 (2003); United States v.

Carrington, 301 F 3d 204, 212-213 (4th Cir. 2002); United States v. Longoria,

298 F .3d 367, 374 (5th Cir.), cert. denied, 537 U.S. 1038 (2002); United States v.

Lopez, 309 F.3d 966, 970-971 (6th Cir. 2002), cert. denied, 537 U.S. 1178 (2003);

United States v. Mansoori, 304 F.3d 635, 658 (7th Cir. 2002), cert. denied, 538

U.S. 967 (2003); United States v. Wheat, 278 F 3d 722, 741 (8th Cir. 2001), cert.

denied, 537 U.S. 850 (2002); United States v. Pimentel-Tafolla, 60 Fed. Appx.

656, 670 (9th Cir.), cert. denied, 538 U.S. 1036 (2003); United States v. Perry,

25 Fed. Appx. 713, 719 (10th Cir. 2001); United States v. Candelario, 240 F.3d

1300, 1311-1312 (11th Cir. ), cert. denied, 533 U.S. 922 (2001); United States v.

Webb, 255 F 3d 890, 901-902 (D.C. Cir. 2001).

York, 407 U.S. 203 (1972) (per curiam), and Hankerson v.

North Carolina, 432 U.S. 233 (1977). Those cases do not es-

tablish that Blakely’s reasonable doubt rule satisfies the accu-

racy component of the test for “watershed” rules.

Ivan V. held that Winship applied retroactively to cases

on direct review, and Hankerson held the same for Mullaney

v. Wilbur, 421 U.S. 684 (1975). In Mullaney, this Court ad-

dressed a State rule that required a defendant charged with

murder to prove that he acted in the heat of passion on sud-

den provocation in order to reduce the homicide to man-

slaughter. The Court held that a State that defines a particu-

lar fact as an element of an offense may not dispense with the

burden of proving that element to the jury beyond a reason-

able doubt by relying on a presumption arising from other

facts. See Patterson, 432 U.S. at 215.

Ivan V. and Hankerson offer scant guidance here because

they were decided before Teague and concerned retroactivity

on direct, rather than collateral, review. Petitioner nonethe-

less asserts that they “control” this case because (according

to him) they applied “the very same accuracy-diminishing

inquiry that Teague later adopted.” Pet. Br. 28-29. That is

incorrect. Those cases applied a retroactivity standard that

Teague repudiated as insufficiently responsive to the serious

costs to the criminal justice system from disturbing the final-

ity of convictions obtained in accordance with then-existing

law. Under the Teague standard, an impact on accuracy is

insufficient to justify applying a new rule retroactively unless

the rule also alters our understanding of the bedrock ele-

ments essential to fair criminal proceedings. See Sawyer, 497

U.S. at 242; Banks, 542 U.S. at 419-420. In addition, the accu-

racy component of the Teague inquiry is more demanding

than the accuracy inquiry under prior precedent. See Teague,

489 U.S. at 313 (plurality opinion). Under Teague, the Court

asks whether the diminishment in accuracy from infringing

the rule is “so serious{]” that it creates an “impermissibly

large risk of injustice.” Summerlin, 542 U.S. at 356 (internal

quotation marks omitted). The Court did not conduct that

inquiry in Jvan V. or Hankerson.

Moreover, /van V. and Hankerson involved more funda-

mental errors that pose a more serious risk of inaccuracy than

Blakely error. Ivan V. involved the use of the preponderance

standard for determining all the elements of an offense,

rather than the use of that standard to determine the extent

of punishment, as in cases of Blakely error. And Hankerson

did not involve the substitution of the preponderance stanh-

dard for the reasonable doubt standard. Rather, it involved

the allocation to the defense of the burden of disproving an

offense element, so that the State could prevail on that ele-

ment on a finding supported by even less than a preponder-

ance of the evidence. The Court’s views on whether the er-

rors in Jvan V. and Hankerson posed a risk of inaccuracy

therefore do not suggest that Blakely error “so seriously

diminishe[s] accuracy as to produce an impermissibly large

risk of injustice.” Summerlin, 542 U.S. at 356 (internal quota-

tion marks omitted).

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.