# Amicus Curiae Brief — Burton v. Stewart

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0275%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 549 U.S. 147

## Text

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
SebatOat of thee TSE GAMNGR «oc cicccpecvctsctiscsccocces 1
En cto Kun oe Nuceapearckauteeseeeseeniaeesenneea 2
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

Vi

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.

3

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.

4

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.

5

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-

6

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).

7

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

8

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).

9

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).

10

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

ll

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.

12

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-

13

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.

14

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

15

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).

16

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-

17

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.

18

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

19

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-

20

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.

21

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.

22

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-

23

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

24

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).

25

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-

26

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-

27

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.

28

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).

29

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

30

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.

PAUL D. CLEMENT
Solicitor General

ALICE 8S. FISHER
Assistant Attorney General

MICHAEL R. DREEBEN
Deputy Solicitor General

MATTHEW D. ROBERTS
Assistant to the Solicitor
General
JOEL M. GERSHOWITZ
Attorney

OCTOBER 2006

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0275%3A10. Public record. Not legal advice.