Appendix — Valentine v. United States (No. 07-1426)

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JIMMY RAY VALENTINE (04-2116); KENNETH

JEROME VALENTINE (05-1877),

Petitioners-Appellants,

V. Nos. 04-2116; 05-1877

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Michigan at Grand

Rapids.

Nos. 99-00001; 05-00004—Richard A. Enslen,

District Judge.

Argued: October 26, 2006

Decided and Filed: May 14, 2007

Before: MARTIN and COOK, Circuit Judges;

BUNNING, District Judge.”

* The Honorable David L..Bunning, United States District Judge

for the Eastern District of Kentucky, sitting by designation.

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COUNSEL

ARGUED: Jennifer L. Swize, JONES DAY,

Washington, DC, Timothy M. Holloway, Taylor,

Michigan, for Appellants. Phillip J. Green,

ASSISTANT UNITED STATES ATTORNEY, Grand

Rapids, Michigan, for Appellee. ON BRIEF:

Jennifer L. Swize, Lawrence D. Rosenberg, JONES

DAY, Washington, DC, Timothy M. Holloway, Taylor,

Michigan, for Appellants. Brian -K:. Delaney,

ASSISTANT UNITED STATES ATTORNEY, Grand

Rapids, Michigan, for Appellee.

COOK, J., delivered the opinion of the court, in

which BUNNING, DJ., joined. MARTIN, J. (pp.

14-24), delivered a separate opinion concurring in part

and dissenting in part.

OPINION

COOK, Circuit Judge. Jimmy Ray and Kenneth

Valentine were convicted of conspiring to possess and

distribute cocaine powder and crack cocaine. They

now raise numerous challenges to their convictions

pursuant to 28 U.S.C. § 2255. The Valentines, jointly

and severaily, make a number of arguments based on

United States v. Booker, 543 U.S. 220 (2005). Largely

for reasons this court articulated in Humphress v.

United States, 398 F.3d 855 (6th Cir. 2005), these

claims fail. Petitioners also make a number of

ineffective-assistance claims, all but one of which lack

merit. On that ground, we reverse and hold that

Jimmy Ray Valentine is, entitled to an evidentiary

hearing to determine whether his trial counsel

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thwarted his efforts to accept a plea bargain. We

affirm the district court on all other grounds.

I, Background

A. Jimmy Ray Valentine

Jimmy Ray was convicted in February 2000 of

conspiracy to possess with intent to distribute cocaine

and cocaine base. His 292-month sentence resulted

from the district court’s finding him responsible for at

least 1.5 kilograms of cocaine base. Jimmy Ray

appealed his sentence, arguing, inter alia, that he

should be resentenced in light of the Supreme Court’s

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

This court rejected that argument and affirmed his

conviction, United States v. Valentine, 70 F. App’x 314

(6th Cir. 2003), which became final on October 20,

2003.

The following year, Jimmy Ray moved for relief

under 28 U.S.C. § 2255, alleging ineffective assistance

of counsel. While his motion was pending in the

district court, Jimmy Ray moved for leave to amend

his petition to include an argument based on the

intervening decision in Blake/y v. Washington, 542

U.S. 296 (2004). The district court denied him leave to

amend, concluding that Blakely did not apply to

defendants on collateral review. The district court

also denied his ineffective-assistance claims. Jimmy

Ray then filed a notice of aj:peal and applied for a

certificate of appealability, which the district court

denied. While his application was pending, the

Supreme Court announced its decision in United

States v. Booker, 543 U.S. 220 (2005), to which Jimmy

Ray directed this court’s attention pursuant to Fed. R.

App. P. 28). This court then granted a certificate of

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appealability on both his _ineffective-assistance

arguments and his) Booker claim.

B. Kenneth J. Valentine

Kenneth was tried with his brother Jimmy Ray and

six other defendants, and was convicted of conspiracy

to possess with intent to distribute cocaine base.

Kenneth was sentenced to 292 months, predicated on

the district court’s finding that at least 1.5 kilograms

of cocaine base were involved in the offense. Kenneth

appealed, asserting, inter alia, arguments based on

Apprendi and ineffective assistance of counsel. This

court rejected his appeal in 2003, Valentine, 70 F.

Appx at 314, and his conviction became final on

January 26, 2004. Following the Supreme Court’s

issuance of Booker, Kenneth filed a motion pursuant

to 28 U.S.C. § 2255, which the district court denied.

Kenneth then appealed, and this court granted a

certificate of appealability, allowing Kenneth to raise

his ineffective-assistance and Booker claims.

Il. Apprendi/Blakely/Booker

A. Procedural Issues

Although Jimmy Ray and Kenneth both rely on

Booker to challenge aspects of their sentences, their

cases arrive in different procedural postures. The

merits of Kenneth’s Booker challenge are properly

before us, but Jimmy Ray’s case arrives in the

procedural posture of a denied motion for leave to

amend. ‘This distinction is irrelevant, however,

because the district court based its ruling on the legal

conclusion that Jimmy Ray’s proposed amendment to

include a Blakely argument would be futile as Blakely

was inapplicable on collateral review, a conclusion we

review de novo. Parry v. Mohawk Motors of Mich.,

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Inc., 236 F.3d 299, 306 (6th Cir. 2000). The issue in

both cases is essentially the same: Kenneth is entitled

to relief if Booker is applicable to his case on collateral

review, and Jimmy Ray is entitled to amend his

petition to include a Booker argument if Booker

applies on collateral review. Were Booker applicable

to their cases, both Valentines state cognizable Booker

claims éntitling them to resentencing.

B. Booker Is a New Rule of Criminal Procedure:

Jimmy Ray and Kenneth

Jimmy Ray and Kenneth both contend that the

district court erred and that Booker applies to their

cases on collateral review because Booker did not

announce a “new rule” of criminal procedure. Blakely

and Booker were mer# applications of Apprendi, they

argue, and not “new rules” for purposes of collateral

review of their convictions, which became final after

Apprendi.

In most instances, defendants seeking collateral

relief may not rely on new rules of criminal procedure

announced after their convictions have become final

on direct appeal. Schriro v. Summerlin, 542 U.S. 348,

352 (2004). In Teague v. Lane, 489 U.S. 288 (1989),

the Supreme Court announced a three-step analysis

for determining when a new procedural rule will apply

retroactively to cases on collateral review. As the

Supreme Court explained in Beard v. Banks, 542 U.S.

406, 411 (2004) (internal citations omitted):

First, the court must determine when the

defendant’s conviction became final. Second, it

must ascertain the “legal landscape as it then

existed,” and ask whether the Constitution, as

interpreted by the precedent then existing, compels

the rule. That is, the court must decide whether the

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rule is actually “new.” Finally, if the rule is new,

the court must consider whether it falls within

either of the two exceptions to nonretroactivity.

The Beard Court further explained that the second

step of the Yeague analysis asks “whether the

[relevant] rule... was dictated by then-existing

precedent-whether, that is, the unlawfulness of

{petitioners conviction[s] was apparent to all

reasonable jurists.” Jd. at 413 (internal citations

omitted). Jimmy Ray’s and Kenneth’s convictions

became final after Apprendi and prior to Blakely. Our

Humphress decision addressed Booker's retroactivity,

however, and held that Booker does not apply

retroactively to cases on collateral review. 398 F.3d at

860-63. The Valentines attempt to distinguish their

case, however, on the ground that Humphress’s

conviction became final prior to Apprendi whereas

their convictions became final after Apprendi, but

before Blakely and Booker.'

But this argument ignores several key facts about

the Humphress decision. First, the Humphress court

actually decided that Booker was not dictated by

Blakely, and therefore Booker created a “new rule”

that could not be raised by defendants whose

convictions became final at any time prior to Booker's

January 12, 2005, issuance. 398 F.3d at 860-52. If

1 In support of this distinction, the Valentines point to the

Humphress court’s framing of the issue before it: “We must

therefore assay the legal landscape as of [January 2000] and ask

‘whether the rule later announced in [Booker| was dictated by

then-existing precedent-whether, that is, the unlawfulness of

[respondent’s] conviction was apparent to all reasonable jurists.”

Humphress, 398 F.3d at 860 (quoting Beard, 542 U.S. at 413).

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Booker was a new rule despite Blakely, it follows that

it was a new rule despite Apprendi. Put simply, the

timing of Apprendi had no bearing on this court’s

decision in Humphress. .

Second, the Humphress court pointed out that

dissents in Booker made clear that Booker's result

was not preordained by Bilzkely. See id. at 861 (citing

Booker, 543 U.S. at 334 (Breyer, J., dissenting)

(opining that factual distinctions “offer a principled

basis” for refusing to extend Blakely and Apprendi to

the Federal Sentencing Guidelines)). The views

expressed in dissent, as the Humphress court

explained, were indicative of the MSeoker rule’s

“newness’ :

Although Justice O’Connor’ observed that

“Washington’s scheme is almost identical to the

upward departure regime established by 18 U.S.C.

§ 3553(b) and implemented in USSG

§ 5K2.0,” Blakely, 124 S. Ct. at 2549 (O’Connor, J.,

dissenting), it was by no means a foregone

conclusion that the rule in Blakely rendered the

Federal Guidelines unconstitutional, as Justice

Breyer’s dissent in Booker proves. Booker, 125 S.

Ct. at 802-03 (Breyer, J., dissenting).

Id, at 861 n. 2.

Third, the Humphress court also noted that “the

differing interpretations of Blakely announced by the

United States Courts of Appeals also indicate that not

all reasonable jurists believed that the Booker rule

was compelled by Blakely.” Id. at 861. The

Humphress court pointed out that this circuit, in

United States v. Koch, 383 F.3d 436 (6th Cir. 2004)

(en banc), joined the “Second, Fourth and Fifth

Circuits in holding that Blakely did not compel the

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conclusion that the Federal Sentencing Guidelines

violate the Sixth Amendment.” 398 F.3d at 861 (citing

Unitec States v. Mincey, 380 F.3d 102 (2d Cir. 2004),

United States v. Hammoud, 378 F.3d 426 (4th Cir.

2004) (en banc), and United States v. Pineiro, 377

F.3d 464 (5th Cir. 2004)). The court went on to

explain:

Even those Circuits that have applied Blakelys rule

to the Federal Guidelines have done so over

disse.its.... Weare mindful of the observation in

Beard that “[b]ecause the focus of the inquiry is

whether reasonable jurists could differ as to

whether precedent compels the sought-for rule, we

do not suggest that the mere existence of a dissent

suffices to show that the rule is new.” Beard, 124 S.

Ct. at 2513 n.5. We are confident, however, not only

that the jurists who authored those majority

opinions and dissents are reasonable, but that these

opinions and dissents make it manifest that the

rule of Booker is new.

Humphress, 398 F.3d at 861-62 (citations omitted).

To the extent that Humphress does not strictly

control this issue because of the timing of

Humphress’s conviction vis-a-vis Apprendi, its

reasoning remains persuasive.2 Moreover, other

courts of appeals have considered and rejected the

same arguments in cases involving similarly situated

petitioners whose convictions became final after

Apprendi. See, e.g., Never Misses A Shot v. United

2 Indeed, although Lang v. United States, 474 F.3d 348, 353 (6th

Cir. 2007), did not have occasion to address the issue as argued

by the Valentines here, it could be read to foreclose this claim.

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States, 413 F.3d 781, 782-83 (8th Cir. 2005)

(petitioner whose conviction became final after

Apprendi but before Booker could not raise Booker

claims because “the ‘new rule’ announced in Booker

does not apply to criminal convictions that became

final before the rule was announced, and thus does not

benefit movants in collateral proceedings”); Lioyd v.

United States, 407 F.3d 608, 612-14 (8d Cir. 2005)

(same); Guzman v. United States, 404 F.3d 139, 142

(2d Cir. 2005) (same); United States v. Price, 400 F.3d

844, 848-49 (10th Cir. 2005) (holding that while

Blakely interpreted Apprendi, it was not compelled by

Apprendi, and thus petitioner whose conviction

became final post-Apprendi but pre- Blakely could not

raise Blakely claims’ on_ collateral review);

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

Cir. 2008) (“Booker does not apply retroactively to

criminal cases that became ffinal before its

release.... Blakely reserved decision about the status of

the federal Sentencing Guidelines... so Booker itself

represents the establishment of a new rule about the

federal system.”).

We find the views expressed by this court in

Humphress and those presented by our sister circuits

persuasive. We therefore cannot conclude that “the

rule later announced in [Booker] was dictated by

then-existing precedent [such that] the unlawfulness

of [petitioners’] conviction was apparent to all

reasonable jurists.” Beard, 542 U.S. at 413 (second

emphasis added). We hold that petitioners whose

convictions became final prior to Booker may not rely

on Booker's rule on collateral review.

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C. Booker Is Procedural, Not Substantive: Kenneth

Only

Kenneth also contends that Apprendi and its

progeny have “redefined the substantive law

regarding federal narcotics prosecutions.” Kenneth

presumably makes this argument because the Jeague

rule of nonretroactivity does not apply to new

substantive rules. See Teague, 489 U.S. at 311. As we

noted in Humphress, however, “Without question, this

rule is a procedural one,” 398 F.3d at 860 n.1 (citing

Schriro, 542 U.S. at 348), and Kenneth’s argument

fails.

D. Booker Is Not a “Watershed Rule of Criminal

Procedure”: Kenneth Only

Teague nonretroactivity contains a_ second

exception for new rules of criminal procedure that are

“watershed rules of criminal procedure implicating

the fundamental fairness and accuracy of the criminal

proceeding.” Beard, 542 U.S. at 417. This rule, as the

Court in Beard pointed out, has “limited scope” and “is

clearly meant to apply only to a small core of rules

requiring observance of those procedures that... are

implicit in the concept of ordered liberty.” dd.

Moreover, the Beard Court explained that “because

any qualifying rule would be so central to an accurate

determination of innocence or guilt [that it is] unlikely

that many such components of basic due process have

yet to emerge, it should come as no surprise that we

have yet to find a new rule that falls under the second

Teague exception.” Id.

Kenneth nevertheless argues that the “reasonable

doubt rulings in the Apprendi line of cases establish a

watershed rule that must be applied retroactively

under Teague due to its impact on the truth-finding

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function of a trial.” But the Supreme Court’s

reasonable doubt rulings form the core of Apprendi,

they are not a separate strand of principles which

have not been analyzed for purposes of this issue.

Moreover, this court addressed this issue in

Humphress, holding that Booker did not create a

watershed rule of criminal procedure. 398 F.3d at 863.

This argument fails as well.

E. Application of Equity to Booker Issues: Kenneth

Only

In his final Booker argument, Kenneth asks the

court to create an equitable rule to allow defendants

who raised an Apprendi argument on direct review to

raise a Booker argument on collateral review. Teague

forecloses such relief.

Ill. Ineffective Assistance of Counsel

A. Standard of Review

In reviewing a district court’s ruling on a § 2255

petition, this court reviews findings of fact for clear

error and conclusions of law de novo. Paulino v.

United States, 352 F.3d 1056, 1058 (6th Cir. 2003).

B. The Intersection of 28 U.S.C. § 2255 and

Strickland v. Washington

A prisoner who proves that the process leading to

his conviction was tainted by an “error of

constitutional magnitude” is entitled to relief under

§ 2255. Weinberger v. United States, 268 F.3d 346,

351 (6th Cir. 2001). The Valentines claim they were

denied the effective assistance of counsel guaranteed

by the Sixth Amendment. See McMann v. Richardson,

397 U.S. 759, 771 n.14 (1970). Their challenges here

are therefore governed by the well-known

“performance” and “prejudice” standard established in

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Strickland v. Washington, 466 U.S. 668 (1984). To

establish constitutionally ineffective assistance of

counsel, a petitioner must show that (1) his “counsel’s

representation fell below an objective standard of

reasonableness,” Strickland, 466 U.S. at 688, and

(2) “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different.” Jd. at 694.

C. Trial Counsel’s Alleged Failure to Communicate

Jimmy Ray’s Desire to Accept a Plea

1. Factual Background

Jimmy Ray claims that he learned in February or

March 1999 that the government had offered him a

ten-year plea arrangement, but his trial counsel

advised him there was “no rush” to accept because he

believed the government would make a better offer

later in the proceedings. According to Jimmy Ray,

however, the government made no additional offers,

and he repeatedly told his trial counsel that he would

like to accept the government’s ten-year offer. Trial

counsel ignored Jimmy Ray’s wishes, he alleges, and

took the case to trial in January 2000, where Jimmy

Ray was convicted and sentenced to 292 months.

The government disputes Jimmy Ray’s factual

allegations, contending (1) that it never offered Jimmy

Ray a ten-year plea agreement, and (2) that Jimmy

Ray made his own decisions about his trial. The

government points to a colloquy at Jimmy Ray’s

sentencing hearing in which defense counsel made the

following representations to the district court:

And he would have taken a deal, Your Honor, he

would have taken a deal in a second had the

Government chose to give him a crime that he felt

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he was guilty of instead of something he wasn’t. He

adamantly maintained from day one, “I did not do

this. I am no leader. I did not move millions of

dollars worth of crack cocaine. I don’t have millions

of dollars. I don’t even have thousands of dollars. I

didn’t do this.” That’s what he told me time and

time again.

He is not a stupid man, but he is not a brilliant

man, but he understands what I told him, “You go

to trial and lose, it is life.” I told him that. He will

tell you that. He said, “I don’t care, I didn’t do what

they say I did.”

According to the government, this statement

“establishes that the government never offered a

ten-year plea agreement” to Jimmy Ray and that

Jimmy Ray “was not kept in the dark on anything and

freely made his own decision to go to trial.” The

government observes that Jimmy Ray maintained his

innocence during his sentencing hearing, apparently

implying that he would not have accepted any plea,

had one been offered. Moreover, the government

points out that Jimmy Ray had ten months in which to

complain about his lawyer’s alleged dereliction, but he

made no complaints during pretrial proceedings, at

trial, or at his sentencing hearing.

Jimmy Ray disputes the government’s

characterization of his counsel’s statements at the

sentencing hearing and contends that they illustrate

his trial counsel’s dishonesty. Jimmy Ray argues that

his attorney's statement “that his client would have

taken a deal ‘had the Government chose[n] to give him

a crime that he felt he was guilty of instead of

something that he wasn’t” can be interpreted as an

attempt by his attorney to “conceal his failure to

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communicate Mr. Valentine’s acceptance of the

ten-year plea offer.” Jimmy Ray also accuses the

government of dissembling in its interpretation of his

attorney's statement and his own statement at the

sentencing hearing, which he maintains should be

interpreted in the context of “disputing the

Government’s leadership charge,” rather than as

general claims of innocence.

2. Analysis

Jimmy Ray highlighted his claim in his § 2255

motion, but the district court denied him an

evidentiary hearing on the matter. We need only

determine whether Jimmy Ray is entitled to an

evidentiary hearing to resolve whether’ the

government offered him a plea that his lawyer

essentially prevented aim from accepting. If Jimmy

Ray’s trial counsel prevented him from accepting a

plea, his assistance was clearly ineffective and,

because the alleged plea agreement offered Jimmy

Ray substantially less prison time (120 months rather

than his 292-month sentence), he could show

sufficient prejudice to satisfy Strickland‘s second

prong. The district court denied Jimmy Ray’s claim,

finding that the “[djefendant has not presented

specific, credible evidence supporting his claim [on

this ground.”] This court reviews that determination

for abuse of discretion. Arredondo v. United States,

178 F.3d 778, 782 (6th Cir. 1999).

In reviewing a § 2255 motion in which a factual

dispute arises, “the habeas court must hold an

evidentiary hearing to determine the truth of the

petitioner's “claims.” Turner v. United States, 183

F.3d 474, 477 (6th Cir. 1999). “[T]he burden on the

petitioner in a Aabeas case for establishing an

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entitlement to an evidentiary hearing is relatively

light.” Jd. More is required, however, than mere

assertions of innocence. See id. (“[Ijt would be

nonsensical to conclude that the petitioner could meet

that burden simply by proclaiming his innocence.”).

Nevertheless, “[aJn evidentiary hearing is required

unless the record conclusively shows that the

petitioner is entitled to no relief.” Arredondo, 178

F.3d at 782 (internal quotations omitted). Stated

another way, “no hearing is required if the petitioner’s

allegations cannot be accepted as true because they

are contradicted by the record, inherently incredible,

or conclusions rather than statements of fact.” Jd.

(internal quotations omitted).

We conclude, for several reasons, that Jimmy Ray

met his burden, and the district court erred in

declining to hold a hearing. First, although the

government implies that Jimmy Ray’s protestations of

innocence discredit his argument that he was willing

to accept a plea, this circuit has rejected this

reasoning in the past. See Griffin v. United States,

330 F.3d 733, 738 (6th Cir. 2003) (citing North

Carolina v. Alford, 400 U.S. 25, 33 (1970)) (“Griffin’s

repeated declarations of innocence do not prove, as the

government claims, that he would not have accepted a

guilty plea.”). This court has also explained that

“{njrotestations of innocence throughout trial are

properly a factor in the trial court’s analysis, however

they do not, by themselves, justify summary denial of

relief without an evidentiary hearing.” Smith v.

United States, 348 F.3d 545, 552 (6th Cir. 2003).

Second, the authority relied on by the district court,

Moss v. United States, 323 F.3d 445 (6th Cir. 2003),

does not support its conclusion that a defendant’s

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affidavit alone could not present sufficient evidence

supporting his request for a hearing. The Moss

district court reached its conclusion only after an

extensive three-day hearing on the _ evidence

surrounding the defendant’s ineffective-assistance

and other claims. Jd, at 453.

Third, the conclusions the government draws from

Jimmy Ray’s counsel’s statement at his sentencing

hearing are unsupported by the record. From the

statement, “he would have taken a deal... had the

Government chosen to give him a crime that he felt he

was guilty of,” the government draws the conclusion

that “the Government never offered a ten-year plea

agreement to the Defendant.” But the government's

reasoning is flawod. Taking the statement at. face

value, it proves only that Jimmy Ray was never

offered a plea to a “crime that he felt he was guilty of,”

not that he was never offered a plea at all. The

government’s assertion may be correct, but it does not

follow from the colloquy it quotes. Furthermore, it is

strange that the government claims it never offered

Jimmy Ray a plea, but imen relies on an ambiguous

statement by Jimmy Ray’s counsel to prove this claim

in its brief, rather than an affidavit from Jimmy Rav’s

trial counsel or its own trial attorneys who litigated

the matter.

The defendant's burden to show his right to a

hearing is significantly lower than his burden to show

he is entitled to § 2255 relief. See Turner, 183 F.3d at

477. Here, Jimmy Ray offers more than a mere

assertion of his innocence; he presents a factual

narrative of the events that is neither contradicted by

the record nor “inherently incredible.” His claim may

prove false at the evidentiary hearing, but it is

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impossible to assess its veracity based on this record

alone. The purpose of the hearing, however, is to

allow the court to make these factual determinations

based on more than a defendant’s affidavit and the

contrary representations of the government.

Therefore, we reverse the district court’s judgment on

this issue and remand for an evidentiary hearing on

this claim.

D. Jury Communication/Denial of Counsel: Jimmy

Ray Only

1. Factual Background

Jimmy Ray alleges he was denied counsel during a

critical stage of his trial. The relevant facts are as

follows. The jury began deliberating at approximately

9:00 a.m. on Thursday, February 10, 2000. The next

morning, when the jury reconvened to continue its

deliberations, the court sent it the following message:

Dear jury, there is no time limit nor is there any

hurry in your deliberations. However, I must catch

a plane today at 1:30. Therefore, if you do nei have

a verdict by 12:00, I will discharge you until

Tuesday morning at 8:30, February the 15th, 2000.

The court did not contact the defendants’ attorneys

prior to delivering its message. During the morning,

however, the court gave defense counsel an

opportunity to submit a substitute note, which he

declined. Court was reconvened later that morning

after the jury delivered a note to the court indicating

that it had reached a verdict on all but one defendant,

and had deliberated about that defendant for six

hours. Defense attorney Mitchell objected to the note,

arguing that “it had the potential of creating a verdict

before the verdict’s time.” The court overruled the

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objection. The district court asked if*the note made

the jury feel rushed in reaching its verdicts, and the

jury also answered “No.” The jury then delivered its

verdicts with respect to all defendants but one, and

reconvened the following Tuesday to continue

deliberations.

2. Analysis

In his brief, Jizimy Ray frames this scenario as a

Sixth Amendment “denial of counsel” claim, rather

than an instance of ineffective assistance by his trial

counsel (his § 2255 petition argued both theories).

Because the court gave its message to the jury after

trying and failing to gather the defendants’ lawyers, it

is difficult for counsel to be considered ineffective.

Thus, if Jimmy Ray is entitled to relief under this

claim, it would be because he was denied counsel, not

because counsel was ineffective.

Jimmy Ray invokes the principle that “denial of

counse! during a critical stage of a judicial proceeding

mandates a presumption of prejudice.” Roe v.

Flores-Ortega, 528 U.S. 470, 483 (2000); see also

United States v. Cronic, 466 U.S. 648, 659 n.25 (1984).

Stated another way, denial of counsel is considered a

“structural error,” which entitles a defendant to a new

trial without showing prejudice under Strickland’s

second prong-prejudice is presumed because the error

makes “the adversary process itself presumptively

unreliable.” Cronic, 466 U.S. at 659. Jimmy Rav

must show that the district court's communication

with the jury constituted a “critical stage” of the trial,

recently defined by the Supreme Court as “a step of a

criminal proceeding, such as an arraignment, that

[holds] significant consequences for the accused.” Bel/

v. Cone, 535 U.S. 685, 695-96 (2002). Because this

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court has held that certain instances of jury

“re-instruction” and the reading of supplemental

instructions to the jury qualify as “critical stages,” see,

e.g., Caver v. Straub, 349 F.3d 340, 350 (6th Cir. 2003);

French v. Jones, 332 F.3d 430, 436 (6th Cir. 2003),

Jimmy Ray labels the district court’s note an

“instruction” given outside the presence of counsel.

We reject this characterization. Cases in which this

court has found denial of counsel at a critical stage

invariably involve a court instructing the jury about

the substantive elements of an offense or giving a

deadlocked jury further instructions about how to

proceed. See, e.g., Caver, 349 F.3d at 349 n.6 (counsel

was absent when the jury was re-instructed “on

certain elements of the offense after they had

deliberated”); French, 332 F.3d at 430 Gudge gave an

improvised deadlocked jury instruction, later

complained of as coercive, after hearing that the jury

had reached a third impasse).

In this case, however, the note conveyed only

scheduling information, with the caveat that jury

need not hurry its deliberations-arguably not an

‘Snstruciion” at all. The Tenth Circuit addressed a

factualiv similar situation in United States v.

McMurry, 818 F.2d 24 (10th Cir. 1987), where the

defendant challenged a statement the trial judge

made to the jury in the absence of his counsel as an

improper AJ/en charge. After several hours of

deliberations, the trial judge told the jury “that he had

to catch a plane in several hours and that if it had not

finished deliberating by then he would call a recess

over the weekend and allow deliberations to continue

the following week.” Jd. at 26-27. Although the

procedural posture and claims at issue in McMurry

20a

differ from this case, the Tenth Circuit’s conclusion is

informative:

The statement was simply not an instruction at

all.... The statement was made after the jury had

deliberated about four hours on a Thursday and

three hours on Friday. The judge had called the

jury into the courtroom to discuss’ lunch

arrangements. We must view this as no more than

an explanation about the schedule for lunch and for

subsequent deliberations. With the weekend

having arrived it was necessary to give the jury a

schedule for the balance of the day and the next

week. The jury was entitled to such an explanation

for its plans. It had nothing whatever to do with the

length of deliberations but was, again, a needed

schedule. The explanation can in no way be

considered as an instruction.

Id. We view the district court’s message in the same

way, as not fitting within the category of jury

instruction or re-instruction that demands the

presence of counsel. 3

And though a coercive instruction could be

characterized as a “critical stage,” which holds

“significant consequences for the accused,” Cone, 535

U.S. at 695-96, we have held similar statements not

coercive. See United States v. Markey, 693 F.2d 594,

597 (6th Cir. 1982); see also Gibson v. United States,

271 F.3d 247, 258 (6th Cir. 2001), overruled on other

grounds by United States v. Leachman, 309 F.3d 377

(6th Cir. 2002); United States v. Ratliff 63 F. App’x

192 (6th Cir. 2003) (unpublished opinion).

“In evaluating for coercive effect a judge’s

statement to the jury, this Court must consider the

statement in context, assessing it under the totality of

21a

the circumstances.” Gubson, 271 F.3d at 258. In

Markey, the defendant contended that the district

judge “coerced’ the jury into reaching a speedy verdict

[because the judge commented,] at the conclusion of

trial, that the courthouse would be available the

following morning (Christmas Eve) if the jury was

unable to reach a consensus that afternoon.” 693 F.2d

at 594. The Markey defendant’s coercion charge

mirrors Jimmy Ray’s: The court’s message in both

cases informed the jury that if it did not reach a

verdict by a certain time, it would have to return to

deliberate at a supposedly undesirable time, a holiday

in Markey and several days later in Jimmy Ray’s case.

The court in Markey found that “the trial judge’s

charge was not ‘likely to give the jury the impression

that it was more important to be quick than to be

thoughtful.” Jd. (quoting United States v. Green, 523

F.2d 229 (2d Cir. 1975)). Viewing this situation with

the lens Markey provides, we are confident the

message did not coerce the jury into reaching its

verdict, its quickness notwithstanding. This court has

repeatedly held that “the jury’s speed in reaching a

verdict is irrelevant to whether an instruction was

coercive.” Ratliff 63 F. App’x at 195-96 (citing United

States v. Giacalone, 588 F.2d 115%, 1168 (6th Cir.

1978)); United States v. Tines, 70 F.3d 891, 896 (6th

Cir. 1995). Therefore, we deny his petition for relief

on these grounds.

E. Ineffective Assistance of Appellate Counsel/

Batson: Jimmy Ray and Kenneth

1. Factual Background

Jimmy Ray and Kenneth claim their appellate

counsel was ineffective for failing to appeal the

district court’s decision to allow the government’s

22a

peremptory challenge to a prospective juror, Carl

Pratt. During jury selection, defense counsel objected

under Batson, explaining that only two members of

the panel were “people of color” and that one was

already excused for cause. Defense counsel stated:

“There is one other person and that’s Mr. Pratt. Id

say that he is a black man. I don’t know for sure, but

he certainly looks like a black man to me. And he has

been summarily excused by the prosecution.”

The district court then requested a response from

Assistant United States Attorney Brian Delaney.

Delaney respoaded with surprise, apparently because

he and none of the people sitting with him thought

that Pratt “was a black man.” The court then stated,

“Your non-discriminatory reason for challenging him

is because you did not know that he was an ethic [sic]

minority; is that a fair statement?” Delaney responded,

“That’s true, but we had reasons why we dismissed

him that had nothing to do with race.” Delaney

provided four reasons:

[1] He is only 46 years old and he shows that he is

retired. That kind of concerns me, someone who

isn’t working and involved in the community.

[2] Another concern was that instead of getting

workmen’s comp if it was a back injury he had, he

didn’t even get any, it makes me wonder about the

suspicious circumstances that might have

surrounded his leaving work. Usually people who

are legitimately injured get compensation for that

loss, rightfully, and he did not, which makes me

subject to think that perhaps there was something

missing there. He said he had resigned from his

employment. Just suspicious circumstances. I

mean, it’s not illegal to do it, but it makes me

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wonder about the person. [3] He failed to place in

the upper-hand left corner or right corner the city

from which he lived. [4] I did notice, it’s just my

own feelings, that he had an earring that we could

notice in his left ear. I tend to kick some people off,

males that have earrings, just because sometimes a

lot of law enforcement officers wear them, but just

as an idea of whether someone is conservative or

not. That’s somewhat unusual. That’s the only

male on the panel that’s wearing an earring. And

whether that is a good reason or not, it was one of

the reasons.

The district court responded, correctly, that “it doesn’t

have to be a good reason, it has to be a

non-discriminatory reason.” He then gave defense

counsel an opportunity to respond. Defense counsel

responded to Delaney’s worker’s compensation reason

by pointing out that

Mr. Pratt told this court why he did not bother to

get worker’s comp. He said his wife had died last

year and that he was getting over that and working

through all that. There is nothing unusual about

that. If Mr. Delaney is telling you that’s his reason,

I think it’s not a good reason. I realize it’s probably

a non-discriminatory reason, but it’s not a very: good

reason.

Defense counsel also discussed the earring: “[t]he fact

he has an earring, I can’t believe that’s a reason the

government goes around getting rid of people.”

Defense counsel continued, explaining that he is

“looking for black people on my juries, especially when

I look around and see eight black defendants sitting

behind eight white lawyers. There ought to be black

people on juries and I don’t believe that this is a valid

24a

reason for peremptory challenging this juror. I think

they have expressed discriminatory reasons for

getting rid of this.” The court then asked, “What was

the discriminatory reason they expressed?” Defense

counsel responded, “The earring seems,” to which the

court replied, “White people wear earrings.” Defense

counsel then attempted again to articulate a rationale

for his feeling that prosecutors challenged Pratt for a

discriminatory reason:

I can’t express it, other than to say that what

they've expressed is inadequate. It doesn’t explain

to me why they got rid of Mr. Pratt. There is no

reason that I can see, other than the fact I think he

is black and that’s why they got rid of him. That’s

my belief.

The court concluded as follows:

As far as Mr. Pratt is concerned, the Court’s

observations are that his race was unclear. He

didn’t put anything on his card, nor did he say that

he was or was not a member of some race. Like

Mr. Mitchell, I believe him to be a black man. But

that’s how I look at things. I have to accept the

word of Mr.Lennon and Mr. Delaney and

Mr. DiBrito when they tell me they did not think so.

And for that reason the motion is denied.

The district court then offered defense counsel the

opportunity to “cross-examine or examine people from

the clerk’s office who selected this jury” to give defense

counsel the chance to investigate why there were only

two black people on the panel. Defense counsel

declined this opportunity. Before bringing the jury

back into the courtroom, the court stated,

“Mr. Delaney, I'll give you a chance to reconsider on

Pratt. I think he was black. I’m not going to konor the

25a

objection. But if you, now having been told he is black,

want to invite him back on the jury, you may.”

Delaney responded, “I don’t agree with the assertion

that he is black. I mean, I don’t understand that, Your

Honor, by saying now that he is black. I mean, I can

only say.” The court then said,

Pll let you in on a little tip. When I asked the

question about are any of you black, he nodded

affirmatively. He’s the only person who did. I said,

I don’t think any of you are African-American, but I

don’t know. He clearly indicated he was an

African-American. Clearly. But you had to be

looking to see it. If you weren’t looking, you didn’t

see it.

Delaney responded, “I can only say for the record I

didn’t see it, it never even crossed my mind, Your

”

Honor.” The court said, “Again, I’m inviting you to

invite him back, but I’m not requiring you to.”

Delaney responded, “I would still, I mean, peremptory

challenge I have non-discriminatory purpose for doing

it and I’m going to stand by that.” The court replied,

“And I upheld it. Bring the jury back without

Mr. Pratt. Tell him he is excused.”

2. Analysis

Defendants raising claims of ineffective assistance

by appellate counsel must meet Strickland ‘s

two-prong test. McFarland v. Yukins, 356 F.3d 688,

699 (6th Cir. 2004). In the appellate context, the court

must first assess the strength of the claim appellate

counsel failed to raise. “Counsel’s failure to raise an

issue on appeal could only be ineffective assistance if

there is a reasonable probability that inclusion of the

issue would have changed the result of the appeal.” Jd.

As the court in McFarland explained, “fi]f there is a

26a

reasonable probability that [the defendant] would

have prevailed on appeal had the claim been raised,

we can then consider whether the claim’s merit was so

compelling that appellate counsel’s failure to raise it

amounted to ineffective assistance of appellate

counsel.” Jd. at 700. In order to assess the

effectiveness of Jimmy Ray’s and Kenneth’s appellate

counsel, then, the court must first consider whether a

Batson claim on appeal had a reasonable probability

of success. Applying this court’s precedent to the facts

in the record, a Batson claim had little probability of

success.

The Equal Protection Clause prohibits a

prosecutor’s use of peremptory challenges in a racially

discriminatory manner. Batson v. Kentucky, 476 U.S.

79 (1986). In assessing Batson claims, we employ a

three-step analysis: “Under Batson, a defendant must

first establish a prima facie case showing that the

prosecution exercised peremptory strikes on the basis

of race. If the defendant satisfies this requirement,

the prosecution must articulate a _ race-neutral

explanation for the challenges. The trial court must

then decide if the defendant has carried the burden of

proving purposeful discrimination.” United States v.

Tucker, 90 F.8d 1135, 1142 (6th Cir. 1996) (citing

Batson, 476 U.S. at 96-98).

In assessing the prosecutor’s articulated reasons,

the Supreme Court has provided, and the district

correctly recognized, that “[t]he second step of this

process does not demand an explanation that is

persuasive, or even plausible.... [T]he issue is the

facial validity of the prosecutor’s explanation. Unless

a discriminatory intent is inherent in the prosecutor’s

explanation, the reason offered will be deemed race

27a

neutral.” Purkett v. Elem, 514 U.S. 765, 767-68

(1995). Our review of the district court’s resolution of

the ultimate issue-whether the defendant has

established purposeful discrimination-is limited:

“{b]ecause this determination turns largely on the

evaluation of credibility, reviewing courts give the

findings of the district court great deference.” United

States v. Harris, 192 F.3d 580, 586 (6th Cir. 1999)

(citing Batson, 476 U.S. at 98 n.21), “We may reverse

that finding of fact only where we find clear error.”

United States v. Hill, 146 F.3d 337, 341 (6th Cir. 1998)

(citing Hernandez v. New York, 500 U.S. 352, 369

(1991)) (emphasis added). As the Supreme Court

counseled in FPurkett, “the ultimate burden of

persuasion regarding racial motivation rests with,

and never shifts from, the opponent of the strike.”

514 U.S. at 768.

Although the district court in this case could have

provided a more precise analysis of the issue, the

record reveals no clear error in the court’s finding that

there was no discrimination. The prosecutor

articulated several reasons, none of which contained

discriminatory undertones or implications. The

district court considered the government’s reasons

and provided defense counsel the opportunity to meet

his burden by showing a discriminatory implication in

Delaney’s statements, but defense counsel did not

meet his burden and instead merely said that he had a

“belief? that the government's reasons were

discriminatory. This “belief’ does not meet defense

counsel’s “ultimate burden of persuasion regarding

racial motivation[, which] rests with, and never shifts

from, the opponent of the strike.” Jd. The district

court ultimately denied the objection, stating that

Pratt’s race was unclear and he “had to accept the

28a

word” of the prosecutors that they were unaware of

Pratt's race and thus did not strike him for that

reason. In other words, the district judge found

Delaney’s explanation credible, and this kind of

determination is given “great deference.” Harris, 192

F.3d at 586 (citing Batson, 476 U.S. at 98 n.21).

Therefore, the district court’s Batson ruling was nct

clear error. Given this conclusion, Jimmy Ray’s and

Kenneth’s ineffective-assistance-of-appellate-counsel

claims must also fail, as they cannot show that their

appellate counsel failed to include an issue that had a

reasonable probability of changing the result of the

appeal. See McFarland, 356 F.3d at 699.

IV. Conclusion

We affirm the district court’s denial of Jimmy Ray’s

and Kenneth’s challenges based on Booker, and their

ineffective-assistance claims, but we reverse the

district court’s decision denying Jimmy Ray an

evidentiary hearing on whether his trial counsel

denied him the opportunity to accept a plea bargain

and remand to the district court for a hearing on this

issue.

3 The record is unclear why the district court then asked Delaney

if he would like to voluntarily invite Pratt back on the jury, given

that the court ultimately decided that Pratt was black. The

record is clear, however, that the district court maintained its

initial ruling on the issue, and we review that ruling.

29a

CONCURRING IN PART,

DISSENTING IN PART

BOYCE F. MARTIN, JR., Circuit Judge, concurring

in part and dissenting in part. I join the result

reached by the majority, except for its conclusion in

Part II.B. regarding the retroactive application of the

Supreme Court’s decision in United States v. Booker,

543 U.S. 220 (2005). The majority’s analysis presents

this issue fairly, and finds support in our precedent.

Even so, I dissent to underscore what | believe to be

an important theoretical difference that I have

regarding Booker’s retroactive application.

I have previously written, and continue to believe,

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

commanded the Supreme Court’s. subsequent

decisions in Blakely v. Washington, 542 U.S. 296

(2004), and Booker. See United States v. Koch, 383

F.3d 436, 443 (6th Cir. 2004) (en banc) (Martin, J.,

dissenting) (“The seeds of Blakely were sown in

Apprendi |, in which the Supreme Court held that

‘other 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

a jury, and proved beyond a reasonable doubt.”). The

Supreme Court confirmed this belief in Booker itself

when it stated, succinctly and unequivocally, that “we

reaffirm our holding in Apprendr. Any fact (other than

a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the

facts established by a plea of guilty or a jury verdict

must be admitted by the defendant or proved to a jury

30a

beyond a reasonable doubt.” Booker, 543 U.S. at 244.

As I am inclined to think the Court meant what it said,

I believe that neither Blakely nor Booker created a

new rule, but merely applied the rule already laid

down in Apprendi. The rule from Booker should

therefore apply retroactively to habeas -petitioners,

like the Valentines, whose convictions became final

after the Court issued its decision in Apprendi.

I.

At the outset, I do not believe that this Court’s

decision in Humphress v. United States, 398 F.3d 855

(6th Cir. 2005), controls the result here. The

conviction of the defendant in HumphAress became

final before the Supreme Court’s decision in Apprendi,

as the majority acknowledges. As a result, the

question faced by the panel in Humphress was not, as

it is here, whether Apprendi dictated the result in

Booker, but rather whether the rule from Booker was

dictated by precedent that predated Apprendi. I agree

with the end result reached in Humphress because I

believe that Apprendi itself announced a new rule,

and that petitioners whose convictions predated this

decision would be barred from obtaining relief under

Apprendi, Blakely, or Booker. To the extent that the

Humphress panel discussed whether Blakely or

Apprendi dictated the result in Booker, however, this

analysis is dicta, as it was unnecessary to reach the

conclusion that no precedent at the time the

petitioner’s conviction became final (before Apprendt! )

dictated the result in Booker.' See Central Virg. Cmty.

1 This is not to suggest that the Humphress opinion somehow

overreached or was off-base for the analytical approach that it

3la

College v. Katz, 546 U.S. 356: (2006) (“[W]e are not

bound to follow our dicta in a prior case in which the

point now at issue was not fully debated.”) (citing

Cohens v. Virginia, 19 U.S. 264 (1821) (“It is a maxim

not to be disregarded, that general expressions, in

every opinion, are to be taken in connection with the

case in which those expressions are used. If they go

beyond the case, they may be respected, but ought not

to control the judgment in a subsequent suit when the

very point is presented for decision.”)). The panel’s

view in Humphress may well be informative with

respect to the question of whether reasonable jurists

believed Booker was compelled by Blakely for

purposes of examining Booker’s retroactive

application under Teague v. Lane, 489 U.S. 288 (1989).

It does not, however, act as a binding precedent from

this Court on the issue we face here.?

followed. If, as the panel clearly believed, Blakely and Apprendi

did not dictate Booker, then it naturally follows that no

pre-Apprendi precedent dictated Booker either. This may have

been a simple way of reaching its conclusion regarding Booker’s

retroactive application to a pre-Apprendi_ conviction.

Nevertheless, this portion of its reasoning went beyond the

precise question presented to the panel, and does not bind us to

follow it.

2 Nor is it clear to me why the majority suggests that Lang v.

United States, 474 F.3d 348, 353 (6th Cir. 2007), “could be read

to foreclose” the “issue as gggued by the Velgnynes here.” Maj.

Op. at 4. As the majomty acknowledges, “Lang in no way

addressed whether Booker was dictated by Apprendi, apparently

because the petitioner in Lang did not raise this argument. The

majority's suggestion that Lang is somehow controlling would

allow precedential decisional law to be created on a given issue

where a losing party fails to raise that issue, simply because the

facts or procedural posture of his case would theoretically have

32a

Under Teague, “[ujnless they fall within an

exception to the general rule, new constitutional rules

of criminal procedure will not be applicable to those

cases which have become final before the new rules

are announced.” 489 U.S. at 310. Thus, if the rule

from Booker was new, and not dictated by Apprendi,

there is little doubt that the petitioners here could not

benefit from it, as it was not part of the legal

landscape at the time of their convictions (leaving to

the side for now any discussion of the Teague

exceptions). See Beard v. Banks, 542 U.S. 406 (2004).

The majority effectively catalogues a number of

judicial opinions that like Humphress, concluded that

Apprendi did not dictate Booker, either in holdings or

in dicta. These opinions are relevant to show that not

all reasonable jurists believed in the inevitability of

Booker, which, under Teague’s progeny, indicates that

Booker created a new rule after the petitioners’

convictions became final and from which they cannot

now benefit. See Beard, 542 U.S. at 413. Under this

conventional approach, even if all the members of our

panel were inclined to believe that Booker was

dictated by Apprendi, the fact that many of our

colleagues previously believed otherwise would render

the rule from Booker new, despite our current beliefs

to the contrary. This leads me to ponder a question

that I am not sure has been answered by the Supreme

allowed him to raise it. Essentially, by failing to raise the

argument and losing his case on other grounds, the Lang

petitioner would not only waive the unlitigated claim in his own

case, but would close the door on that claim on behalf of all other,

similarly situated habeas petitioners. This is a legal principle

with which I, at least, am unfamiliar.

33a

Court or this Court: Does the “apparent to all

reasonable jurists” inquiry, which is relevant under

Teague and its progeny to determining a rule’s

“newness,” apply with the same force to a strictly

federal rule of criminal procedure, raised in a habeas

challenge to a federal conviction under 28 U.S.C.

§ 2255, as it does in habeas proceedings addressing

state convictions under 28 U.S.C. § 2254?

Teague itself arose in the context of a habeas review

of a state court conviction, and did not address the

appropriate retroactivity analysis in habeas reviews

of federal conviction. 489 U.S. 288, 328 (Brennan, J.,

dissenting) (“The plurality does not address the

question whether the rule it announces today extends

to claims brought by federal, as well as state,

prisoners.”). The Yeague majority justified its rule

against the retroactive application of new rules of

3 Other Courts of Appeals have concluded that Teague applies to

section 2255 petitions, and have not acknowledged any difference

between the analysis for habeas petitions seeking relief from

federal convictions versus those seeking relief from state

convictions. See Daniels v. United States, 254 F.3d 1180, 1194

(10th Cir. 2001); United States v. Martinez, 139 F.3d 412, 416

(4th Cir. 1998); Van Daalwyk v. United States, 21 F.3d 179, 183

(7th Cir. 1994); Gilberti v. United States, 917 F.2d 92, 95 (2d Cir.

1990). As Justice Brennan pointed out in his dissent in 7eague,

however, the Court’s opinion had nothing to do with section 2255

petitions. 489 U.S. at 328 (Brennan, J., dissenting); see also

United States v. Payne, 894 F. Supp. 534, 542 (D. Mass. 1995)

(ruling that Teague does not apply in section 2255 cases.). I

would not take issue with the general conclusion reached by

other courts that 7eague is relevant to the retroactivity inquiry

in habeas petitions brought by federal prisoners; rather, as

discussed below, I think that its application should be somewhat

different in this context.

34a

criminal procedure on two grounds: (1) comity toward

state court adjudications, and (2) the finality of

criminal judgments. Teague, 489 U.S. at 308 (“[W]e

have recognized that interests of comity and finality

must also be considered in determining the proper

scope of habeas review.”); Beard, 542 U.S. at 412

(“Teagués nonretroactivity principle acts as a

limitation on the power of federal courts to grant

‘habeas corpus relief to... state prisoner[s]’.... This

should make clear that the Teague principle protects

not only the reasonable judgments of state courts but

also the States’ interest in finality quite apart from

their courts.”). Only one of these justifications-the

finality of criminal judgments-is relevant in habeas

cases seeking relief from convictions in federal court.

Teague’s concern with finality on its own likely

supports the general rule of applying the case’s basic

premise to section 2255 petitions. That is to say that

as a general matter, as with state court prisoners,

federal prisoners should only be able to rely on rules

that were part of the legal landscape at the time their

convictions became final, based on the value of repose,

and the importance of having some eventual end-point

in all litigation. Because concerns with comity are

reduced-if not nonexistent-in the context of section

2255, however, it would seem to me that a bit more

scrutiny is warranted in determining what the legal

landscape actually was, and whether a given rule was

“dictated by precedent existing at the time the

defendant’s conviction became final.” Teague, 489 U.S.

at 301 (emphasis in original).

As discussed above, the “dictated by prior

precedent” inquiry typically turns on whether

reasonable jurists, in cases prior to the decision in

35a

which the “new rule” was announced, would have

deemed its outcorme to be ordained by then-existing

precedent. See, eg, Beard, 542 U.S. at 413

(grounding the inquiry in whether “the unlawfulness

of [respondent’s] conviction was apparent to all

reasonable jurists”); Humphress, 398 F.3d at 860

(same). This deferential approach might make good

sense in the section 2254 context. Its focus on the

divergent opinions of federal and state.court judges

recognizes that sometimes reasonable minds can

differ over the development of legal rules. In such

instances, where the application of an existing rule to

a somewhat nuanced situation is debatable, the state

courts should not necessarily be subject to

Monday-morning quarterbacking every time they are

eventually proven wrong on an issue. See, e.g., Beard,

542 U.S. at 412 (“Jeagués nonretroactivity principle

acts as a limitation on the power of federal courts to

grant ‘habeas corpus relief to...state prisoner{s].”’)

(quoting Caspari v. Bohlen, 510 U.S. 383, 390 (1994)

(emphasis added)); zd. at 423 (Souter, J., dissenting)

(“(T]he function of Teagues reasonable-jurist

standard is to distinguish those developments in this

Court’s jurisprudence that state judges should have

anticipated from those they could not have been

expected to foresee.” (emphasis added)); Butler v.

McKellar, 494 U.S. 407, 414 (1990) (“The ‘new rule’

principle therefore validates reasonable, good-faith

interpretations of existing precedents made by state

courts even though they are shown to be contrary to

later decisions.”(emphasis added)). This concern is

explicitly recognized in Teague: “[s]tate courts are

understandably frustrated when they faithfully apply

existing constitutional law only to have a federal court

discover, during a _ fhabeas] proceeding, new

36a

constitutional commands.” 489 U.S. at 310 (quoting

Engle v. Isaac, 456 U.S. 107, 128 n.33 (1982)

(emphasis added)).

These quotations clearly reveal that the standard

new rule inquiry and its reference to opinions of

reasonable jurists is largely based on concerns with

federalism and comity, and demonstrates deference to

reasonable state court interpretations of the law.

Even where the “reasonable jurists” to whom we look

for guidance are federal judges, their opinions can

serve as a proxy for whether a similar state court

decision. was reasonable. So long as state courts are

applying Supreme Court case law in good faith, there

is diminished justification fer burdening their

quasi-sovereign judicial machinery’ with the

retroactive application of new rules in cases that have

become final.

In a section 2255 case, however, where comity and

federalism are irrelevant, there is much less need to

defer to the divergent views of federal judges who, in

hindsight, did not correctly apply existing precedent

to a new case. We are, after all, members of inferior

courts established by the same sovereign (unlike state

court judges), and if the Supreme Court says we were

wrong, we should take our medicine and gladly apply

the correct rule retroactively, rather than clinging to

vacated misapplications of the law to prove that a

Supreme Court rule is “new” (which conveniently

allows us to convince ourselves that we could not have

been wrong in the first place). Nor can our difference

of opinion serve as a proxy for why a prior, now

invalidated decision should be deferred to as a

reasonable application of the Constitution, as it might

in the section 2254 context.

37a

In fact, a less deferential approach in section 2255

cases to the divergent opinions of reasonable jurists

than in section 2254 cases would parallel the standard

of review codified by the Antiterrorism and Effective

Death Penalty Act (“AEDPA”). Specifically, section

2254(d)(1) imposes a very deferential standard .of

review in habeas cases challenging state court

convictions, allowing reversal only where the state

court decision “was contrary to, or involved an

unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of

the United States.” This provision has no counterpart

providing a standard of review in section 2255 cases,

and they are generally reviewed de novo. See Moss v.

United States, 323 F.3d 445, 454 (6th Cir. 2003).4 The

4 Moss refers to the standard by which our Court of Appeals

reviews a district court’s disposition of a section 2255 petition,

rather than how the district court reviews the prior, direct

proceedings in the underlying criminal case. But the fact that

the district court in which the petition is filed is usually the same

court that originally handled the case, and has the opportunity to

correct any errors it may have made, without showing any sort of

awkward deference to its own earlier decision, indicates even less

concern with deference in the first instance. See Weinberger v.

United States, 268 F.3d 346, 351 (6th Cir. 2001) (“A motion

brought under § 2255 must allege one of three bases as a

threshold standard: (1) an error of constitutional magnitude;

(2) a sentence imposed outside the statutory limits; or (3) an

error of fact or law that was so fundamental as to render the

entire proceeding invalid.”). Further, some claims, such as those

for ineffective assistance of counsel, can only be heard in the first

instance in a petition for habeas relief under section 2255, see

United States v. Aguwa, 123 F.3d 418, 423 (6th Cir. 1997),

providing additional support for the view of such a petition as

part of the ongoing adjudication of a federal criminal case, rather

38a

different standard of review used in habeas petitions

challenging state court convictions versus that used in

petitions challenging federal convictions supports, at

least by analogy, a similar context-based difference in

the manner in which Jeague applies to determine a

rule’s newness.

than some separate, isolated proceeding, the conclusions of

which are entitled to some sort of deference.

Another judge who has questioned Teague's applicability in

federal habeas cases has suggested that concerns of both comity

and finality are diminished in section 2255 cases, in light of the

fact that to a large extent, they are a continuation of the original

federal criminal proceeding, rather than a purely separate and

distinct lawsuit:

To this Court, the difference in the nature of proceedings

under sections 2254 and 2255 precludes application of Teague

to federai prisoners, at least in the present circumstances:

In contrast to the “civil” and “collateral” section 2254

remedy for state prisoners, the section 2255 remedy. for

federal prisoners bears the markings of an integral part of

a continuous criminal proceeding that is segmented by no

event or condition decisive of finality. This characteristic

of section 2255 proceedings creates the possibility, ignored

by most courts and commentators that have faced the issue,

that Teague does not apply in section 2255 proceedings....

The legislative history of section 2255 supports the view that

2255 actions are part of the criminal proceedings and that the

conviction or sentence is not “final” until disposition of the

habeas petition.

Payne, 894 F. Supp. at 543 (quoting James S. Liebman & Randy

Hertz, Federal Habeas Corpus Practice and Procedure § 22A.6,

at 272-74 (Michie Supp. 1993), and Rules Governing Section

2255 Proceedings in the United States District Courts, 1

Advisory Committee Note (1976 Adoption) (2255 motion “is a

further step in the movant’s criminal case and not a separate

civil action”)).

39a

This is all to say that there would be goad reason to

conclude that in section 2255 cases, divergent past

opinions of “reasonable” jurists should not be enough

to demonstrate that a rule is new.5 This approach

would not undermine the central premise of Teague’s

general rule against retroactivity. Rather than

hanging onto the now-vacated opinions of reasonable

jurists, I would focus primarily on the straightforward

question of whether the new decision “simply applie[s]

a well-established constitutional principle to govern a

case which is closely analogous to those which have

been previously considered in the prior case law.”

Penry v. Lynaugh, 492 U.S. 302, 314 (1989) (quoting

Mackey v. United States, 401 U.S. 667 (1971) (Harlan,

5’ This view might seem somewhat novel among federal judges,

but I would note that at least one commentator has made similar

observations pertaining to “7eague-light” in federal habeas

petitions:

[Ujnlike motions filed under the state habeas statute, which

are governed by 2254, 2255 motions are filed in the federal

district court that originally imposed the _ sentence.

Consequently, the great fear in Veague that retroactivity

would upset federal-state relations by interfering with the

finality of state court judgments and unduly burdening state

court systems with rehearings is simply not present with 2255

motions. As recently as 2004, the Court acknowledged that

the justification for the Teague ban hinged on the fact that

Teague involved state habeas petitioners. [citing Beard]...

In the wake of Blakely and Booker, however, lower federal

courts and commentators seem oblivious to the difference

between state and federal habeas challenges and why each

might fare differently under the principles of Teague.

Nicholas J. Eichenseer, Comment, Reasonable Doubt in the

Rear-View Mirror: The Case for Blakely-Booker Retroactivity in

the Federal System, 2005 Wis. L.Rev. 1137, 1167 (2005).

40a

J., concurring in part and dissenting in part)). To the

extent there is a need to articulate what my

“federal- Teague “ or “Teague-light” standard would be,

this language from VPenry would encapsulate it

precisely.

IT.

This discussion brings me to the question of

whether Booker created a new rule. In my mind,

there can be little argument that Booker did nothing

more than “simply appl[y] a_ well-established

constitutional principle [the rule from Apprendi] to

govern a case which is closely analogous.” The

well-established constitutional principle is_ that

“fo]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

a jury, and proved beyond a reasonable doubt.”

Apprendi, 530 U.S. at 490. The closely analogous

question presented in Booker, was, in the Court’s own

words, “whether our Apprendi line of cases applies to

the sentencing guidelines.”® 543 U.S. at 229.

Justice Stevens’s opinion for the Court in

Booker-the portion of the opinion that addressed the

constitutionality (but not the remedy) of mandatory

application of the Federal Sentencing

6 The Court explained the issue somewhat more thoroughly by

quoting the first question presented: “|wjhether the Sixth

Amendment is violated by the imposition of an enhanced

sentence under the United States Sentencing Guidelines based

on the sentencing judge’s determination of a fact (other than a

prior conviction) that was not found by the jury or admitted by

the defendant.” 543 U.S. at 229 n.1.

4la

Guidelines-made explicit that it was a

straightforward application of Apprendi to the

Sentencing Guidelines, rather than the creation of a

new rule: “we reaffirm our holding in Apprendr. Any

fact (other than a prior conviction) which is necessary

to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty

or a jury verdict must be admitted by the defendant or

proved to a jury beyond a reasonable doubt.” Jd. at

244 (emphasis added). I am mindful of the Supreme

Court’s warning that “the fact that a court says that

its decision is within the ‘logical compass’ of an earlier

decision, or indeed that it is ‘controlled’ by a prior

decision, is not conclusive for purposes of deciding

whether the current decision is a ‘new rule’ under

Teague.” Butler, 494 U.S. at 415. Even so, Bookerdid

not create a new rule because it did not “break new

ground.” Teague, 489 U.S. at 301. Instead of creating

some new principle of law, or making an extension of

the law that was “controlled” by a prior holding, it

simply applied the same legal principles it had

articulated in Apprendi and Blakely to a new

sentencing scheme: “More important than _ the

language used in our holding in Apprendi are the

principles we sought to vindicate. Those principles

are unquestionably applicable to the Guidelines.”

Booker, 543 U.S. at 238 (emphasis added).

Revolutionary as the holding in Booker may have

seemed, the true upheaval actually occurred in

Apprendi through its resuscitation of the Sixth

Amendment jury trial right.

Unlike today’s majority and the Humphress Court,

I am unconvinced that the dissents in Booker and

Blakely were “indicative of the Booker rule’s

9?

‘newness.” Although I tend not to engage in the

42a

practice of counting justices, it is apparent from a

review of the opinions in these cases and Apprendi

that the dispute between justices is over the

fundamental premise of Apprendi rather than

whether or not it foreordained Booker’s constitutional

holding. This observation is based not only on the

identities of the individual dissenters, but the legal

principles they relied upon in each of the three cases.

See, e.g., Apprendi, 530 U.S. at 543-544 (O’Connor, J.,

dissenting) (“The actual principle underlying the

Court’s decision ... would apply not only to schemes

like New Jerseys, under which a _ factual

determination exposes the defendant to a sentence

beyond the prescribed statutory maximum, but also to

all determinate-sentencing schemes in which the

length of a defendant’s sentence within the statutory

range turns on specific factual determinations (e.g.,

the federal Sentencing Guidelines).”); id at 565

(Breyer, J., dissenting) (“As Justice O’Connor points

out, the majority’s rule creates serious uncertainty

about the constitutionality of such statutes and about

the constitutionality of the confinement of those

punished under them.”); Blakely, 542 U.S. at 323,

324-25 (O’Connor, J., dissenting) (“It is no answer to

say that today’s opinion impacts only Washington’s

scheme and not others, such as, for example, the

Federal Sentencing Guidelines .... The fact that the

Federal Sentencing Guidelines are promulgated by an

administrative agency nominally located in the

Judicial Branch is irrelevant to the mayjority’s

reasoning. The Guidelines have the force of law, ...

and Congress has unfettered control to reject or accept

any particular guideline. The structure of the Federal

Guidelines likewise does not, as the Government

half-heartedly suggests, provide any grounds for

43a

distinction.”); id. at 346 (Breyer, J., dissenting)

(“Taken together these three sets of considerations,

concerning consequences, concerning history,

concerning institutional reliance, leave me where |

was in Apprendi, i.e., convinced that the Court is

wrong.”); Booker, 543 U.S. at 327, 330 (Breyer, J.,

dissenting) (“The Chief Justice, Justice O’Connor,

Justice Kennedy, and I have previously explained at

length why we cannot accept the Court’s

constitutional analysis....The upshot is that the

Court’s Sixth Amendment decisions-Apprendi,

Blakely, and today’s-deprive Congress and state

legislatures of authority that is constitutionally

theirs.”); see also id. at 288 (Stevens, J., dissenting in

part) (“In reality, the [remedial] ma)jority’s

concerns... are nothing more than an objection to

Apprendi itself.”).

Of course, Supreme Court justices have the luxury

of being able to vote to overturn the Court’s prior

precedent, unlike the rest of us who must fall in line

once the magic number of five votes is cast. There is

no reason for us to be surprised by the Apprendi

dissenters’ continued opposition to the rule from that

case, which is justified by both their viewpoints and

their jobs. A candid look at the differences of opinion

between the Justices in these three cases does not

suggest to me, however, anything more than an

ongoing dispute over the premise underlying

Apprendi. Therefore, I cannot read their divergent

44a

viewpoints regarding Apprendi to suggest that it did

not command the result in Booker.”

In fact, the Apprendi dissenters said at the time of

the decision that it would require reversal of the

Guidelines, as quoted above. Further, like the Booker

constitutional majority eventually held, the Apprendi

7 There are many areas of the law where particular Supreme

Court justices have continued to argue against a certain legal

rule even after it is established as precedential authority. As an

example, for fourteen years after the Court declared in Gregg v.

Georgia, 428 U.S. 153, 169 (1976) that “the.punishment of death

does not invariably violate the Constitution,” Justices Brennan

and Marshall adhered to their dissenting opinions from Gregg

that the death penalty always violates the Eighth and

Fourteenth Amendments. See, e.g., Walton v. Arizona, 497 U.S.

639, 674-75 (1990) (Brennan, J., with whom Marshall J., joins,

dissenting) (“I also adhere to my view that the death penalty is in

all circumstances a cruel and unusual punishment.”) (citing

Gregg, 428 U.S. at 230-31 (Brennan, J., dissenting)). In fact, a

Lexis-Nexis search for “Dissentby (Brennan) and Dissentby

(Marshall) and death penalty” yields 1440 cases since 1976, the

vast majority of which appear to contain the oft recited phrase

“fa]jdhering to our views that the death penalty is in all

circumstances cruel and unusual punishment pre -ibited by the

Eighth and Fourteenth Amendments....”"See, eg., Boggs v.

Muncy, 497 U.S. 1043 (1990). Well placed as their arguments

may have been, it would be an uphill battle to point to this

entrenched resistance by these two esteemed justices as

diminishing the precedential significance of Gregg, or as

indicating that the death sentences of subsequent litigants were

somehow less controlled by the Court’s prior death penalty

jurisprudence.

See also Gonzales v. Carhart, 550 U.S.__, Nos. 05-380 and

1382 (2007) (Thomas, J., joined by Scalia, J., concurring) (“I write

separately to reiterate my view that the Court’s abortion

jurisprudence, including Casey and Roe v. Wade, 410 U.S. 113

(1973), has no basis in the Constitution.”).

45a

dissenters made clear that any distinctions based on

the structure or the source of authority

(administrative versus legislative) of the federal

guidelines was not a meaningful one.® For their part,

the majority opinions in Apprendi and Blakely only

stated that the federal guidelines were not in front of

the Court, rendering it impossible to make any

judgment with regard to the constitutionality of their

applicatior.2 530 U.S. at 497 n.21. Five years later,

the dissenters’ prediction proved correct, in a

remarkably straightforward application of Apprendi

to the Sentencing Guidelines. I therefore believe that

8 It seems that the United States had accepted this reality as well

after Apprendi, or at least by the time Blakely was argued in the

Supreme Court. See Blakely, 542 U.S. at 305 n.9 (“The United

States, as amicus curiae, urges us to affirm. It notes differences

between Washington’s sentencing regime and the Federal

Sentencing Guidelines but questions whether those differences

are constitutionally significant.”).

® As the majority points out, other federal courts have pointed to

the Supreme Courts “reserving judgment” on_ the

constitutionality of the guidelines in Apprendi and Blakely in

support of their determination that Booker created a new rule.

See, e.g., McReynolds v. United States, 397 F.3d 479, 481 (7th

Cir. 2005). In my mind, these statements about reserving

judgment have nothing to do with the newness inquiry. It is a

fundamental principle of the judicial process that courts can only

consider one case at a time, see Griffith v. Kentucky, 479 U.S.

314, 323 (1987), and the Supreme Court’s refusal to reach past

the case presented to it has little to do with whether the opinion

in one case dictates the result in a subsequent case. The Seventh

Circuit’s reasoning in McReynolds would essentially mean that

every Supreme Court decision announces a “new rule,” except in

the unlikely scenario where the Court grants certiorari to hear a

case presenting an issue identical to one it has already decided

and then decides it in an identical fashion.

46a

Booker “simply applied a_ well-established

constitutional principle to govern a case which is

closely analogous to those which have been previously

considered in the prior case law.” FPenry, 492 U.S. at

314.10

10 Although the focus of my dissent is that Booker should apply

retroactively to convictions that became final after Apprendi

because it did not create a new rule, a strong argument can also

be made that Booker fits into one of the exceptions to Teague’s

general prohibition of the retroactive application of new rules.

See David E. Johnson, Note, Justice for All: Analyzing Blakely

Retroactivity and Ensuring Just Sentences in Pre-Blakely

Sentences, 66 Ohio St. L.J. 875, 908-22 (2005). Specifically, /

where a new rule is deemed a “watershed rule [ } of criminal

procedure implicating the fundamental fairness and accuracy of

the criminal proceeding,” it still can apply retroactively. Beard,

542 U.S. at 417 (quoting O'Dell v. Netherland, 521 U.S. 151, 157

(1997)). The command from Apprendi, Blakely, and Booker that

facts necessary to support a sentence beyond the maximum

authorized by a conviction “must be admitted by the defendant or

proved to a jury beyond a reasonable doubt,” would clearly

appear to amount to a rule implicating fundamental fairness and

accuracy.

The Supreme Court has partially rejected this argument,

holding that assignment of the factfinding role to a jury, rather

than a judge, does not necessarily increase the accuracy of a

criminal proceeding. Schriro v. Summerlin, 542 U.S. 348, 356

(2004) (“[FJor every argument why juries are more accurate

factfinders, there is another why they are less accurate.”). In

holding that Booker was a new rule, our Circuit’s Humphress

opinion relied on Schrirdés conclusion that a jury does not

necessarily make more accurate factual determinations than a

judge. Schriro, however, did not analyze the separate but related

requirement of Apprendi that facts necessary to the sentence

must be found beyond a reasonable doubt. See Johnson, 66 Ohio

St. L.J. at 915. Mumphress did not account for the increased

standard of proof required by Apprendi. Raising the standard of

47a

II.

It is easy to lose sight of, but essential to bear in

mind, what the Court meant when it “reaffirmed” its

holding from Apprendi in Booker, and why and to

what extent, for purposes of fetroactivity, Booker

applied the holding from Apprendi. Booker’s

remedial resolution to the Constitutional problems

created by mandatory application of the Federal

Sentencing Guidelines was delivered in a complicated

opinion that continues to cause confusion for the lower

federal courts two years after it was decided.

Although in my view Booker’s constitutional holding

resulted from a_ straightforward application of

Apprendi, anyone who could have predicted the case’s

remedial holding would have been several steps ahead

of the proverbial reasonable jurist, if not a bona fide

fortune-teller.!!

proof from the pre- Booker preponderance of the evidence to the

Apprendi-mandated beyond a reasonable doubt must clearly

have a profound effect on the accuracy of sentencing procedures.

Id. at 915-22; see also In re Winship, 397 U.S. 358, 363 (1970)

(“The reasonable-doubt standard ... is a prime instrument for

reducing the risk of convictions resting on factual error.”).

11 In a particularly thorough opinion, United States District

Judge William Young of the District of Massachusetts has set

forth an insightful historical account of the developments leading

up to the Booker decision, and how he has implemented the

requirements of Apprendi, Blakely, and Booker in his court.

United States v. Kandirakis, 441 F. Supp. 2d 282 (D. Mass. 2006).

Judge Young anticipated the Constitutional problems with the

Federai Sentencing Guidelines, and ruled them unconstitutional

prior to the Supreme Court’s decision in Blakely. Jd. (citing

United States v. Green, 346 F. Supp. 2d 259 (D. Mass. 2004)). As

a result, prior to the Booker decision, he implemented a

48a

The fact that the remedial holding from Booker was

not entirely predictable, however, dces not diminish

the significance of the dictated-by-prior-precedent

Constitutional holding. The invalidation of sentences

imposed under a mandatory application of the

sentencing scheme that he referred to as “Blakely-izing” the

Guidelines by requiring the government to prove to the jury

beyond a reasonable doubt any sentencing enhancements that it

would seek, a process that as he explained “reflected the

preferred remedy of the dissenting Justices in Remedial Booker.”

Id. at 318-19.

Although, as Judge Young notes, “[t]he consequences of

Apprendi for the Federal Sentencing Guidelines were

immediately apparent,”sd. at 287, his opinion makes clear that

these consequences primarily played out in Sooker'’s

Constitutional holding. As for Booker’s remedial opinion, which

Judge Young described learning of with the following humorous

anecdote, he was left rather puzzled:

I well remember the advent of Booker. We were trying a

jury case. The law clerks, recognizing my continuing

interest in these matters, e-mailed the decision to my

courtroom deputy clerk, Elizabeth Smith, in the courtroom.

She began printing out the decision. The courtroom printer

is notoriously slow. As the first page came out of the printer,

she slapped on a “Post-It” note and, grinning, passed it up to

me. On the note was a litile smiley face and the words

“You'll love this!” Page by page, Justice Stevens’s majority

opinion was passed up to me until it was fully assembled.

The printer kept on humming.

Ms. ‘Smith stopped passing the pages in order to scan for

herself what turned out to be Remedial Booker. After three

or four pages had printed out, she applied another “Post-It”

and, crestfallen, passed them up. The second note read,

“How can there be two different majority opinions in the

same case?” How indeed?

Td. at 319.

49a

guidelines is enough to justify retroactivity analysis

on its own, aside from the predictability of the remedy

that was chosen to fix the Constitutional violation.

Further, while the remedy preferred by the dissenters

from Booker's remedial holding would appear to have

had a more significant effect on the actual length of

sentences, the remedial holding still carries profound

implications regarding both the length of sentences

and the methods by which they are imposed. The

opinion’s remedial holding might mathematically

reduce the disparity between the duration of an

unconstitutional sentence under the mandatory

guidelines and that of an acceptable post-Booker

sentence that treats the guidelines as advisory.!2 See

12 It also does not require profound statistical analysis to

understand that the presumption of reasonableness afforded a

within-guidelines sentence by the Courts of Appeals, including

ours, has tended to diminish any meaningful difference in

sentence length between pre-Booker sentences under the

mandatory guidelines and post- Booker sentences. Douglas A.

Berman, Reasoning through Reasonableness, 115 Yale L.J.

Pocket Part 142, 143 (Jyly/Aug.2006) (“Post- Booker circuit

doctrines and practices encourage the sort of rote, mechanistic

reliance on the Guidelines that Justice Stevens’s merits opinion

found constitutionally problematic.”). When consulted, the

statistics paint an even starker picture than an observer might

have hypothesized. Essentially, the presumption of

reasonableness has functioned to vitiate both holdings of Booker

by placing non-subtle pressure on district courts to institute a

within-guidelines sentence so as to avoid reversal. See Brief for

New York Counsel of Defense Lawyers as Amicus Curiae, Rita v.

United States, No. 06-5754 (U.S. Dec. 18, 2006) (surveying

appellate decisions regarding sentencing appeals and concluding

that of 1,152 within-guidelines sentences appealed by defendants,

only 16 were reversed, while 60 of 71 below-guidelines sentences

appealed by the government have been reversed, yet only 7 of 154

50a

Booker, 543 U.S. at 302 (Stevens, J., dissenting in

part) (“[T]he Court [in Remedial Booker] has

effectively eliminated the very constitutional right

Apprendi sought to vindicate.”). The positions of the

petitioners in the instant case illustrates, however,

how a defendant sentenced under the post-Booker

advisory guidelines regime still stands to serve a

shorter sentence, rendering the question of Booker’s

retroactive application something more than a purely

academic exercise.

Each petitioner was sentenced under the

pre-Booker mandatory Guidelines scheme. For each,

therefore, the maximum sentence authorized by the

facts established by the jury verdict was set by the

range required by the Sentencing Guidelines.!3 See,

e.g., United States v. Blood, 435 F.3d 612, 630 (6th Cir.

2006); United States v. Oliver, 397 F.3d 369, 378 (6th

Cir. 2005) (“Given that the federal sentencing

guidelines were mandatory at the time the district

court sentenced Oliver, it seems clear now in light of

Booker that the sentence imposed violated the Sixth

Amendment.”); United States v. Davis, 397 F.3d 340,

351 (6th Cir. 2005). It is undisputed that the 292

month sentences that both petitioners received were

predicated on the district judge finding, based on a

preponderance of the evidence, that 1.5 kilograms of

above-guidelines sentences appealed by defendants have been

reversed).

13 This analysis would be different had they been sentenced

under the post-Booker, advisory Guidelines regime, as the

statutory maximum sentence for the crime of which they were

convicted, not the Guidelines range, would set the ceiling. See

United States v. Duckro, 466 F.3d 438, 443 (6th Cir. 2006).

5la

crack cocaine could be attributed to each. The drug

amount calculation made by the judge by a

preponderance of the evidence resulted in each

petitioner going from one extreme of the Guidelines

based on the Drug Quantity Table of section 2D1.1 to

the other extreme-that is to say they each received the

highest possible base offense level based on a quantity

of drugs alone of 38. Jimmy Ray Valentine also

received a two-point offense level enhancement based

on the district judge’s determination that he played an

aggravated leadership role in the drug conspiracy,

resulting in a total offense level of 40.

Based on the jury verdict alone, which included no

finding of an amount of drugs, the highest possible

base offense level was 12. See U.S.S.G. § 2D1.1 (c). At

this level, Jimmy Ray would have received a 10-16

month sentence (for his criminal history category of I),

and Kenneth would have received a 15-21 month

sentence (for his criminal history category of III).

Instead, in stark contrast, they both received

sentences of 292 months. This equates to a

twenty-four year, four month sentence for each-the

difference of time each will spend in prison based on

facts that were not found by a jury beyond a

reasonable doubt is over twenty-two and a half years.

14 The judge’s finding that Jimmy Ray had an aggravating role in

the conspiracy and the resulting two point enhancement gave

him an offense level of 40 with a criminal history category of I,

which amounted to the functional equivalent of Kenneth’s

offense level of 38 with a criminal history of III. Each calculation

led to a guideline range of 292-365 months, and the district judge

gave both the minimum sentence allowed.

52a

This is not to suggest that the petitioners have some

claim to these specific shorter sentences, because were

we to remand for resentencing under remedial Booker,

the district court could certainly give a sentence

within the same guideline range based on judge-found

facts, so long as the guidelines range was applied in

an advisory fashion. In Jimmy Ray’s case, however,

the district court would not be able to impose a

sentence over 240 months at his hypothetical-

resentencing, as that is the statutory maximum for

his offense. See Duckro, 466 F.3d at 443 (“[I]n cases

where sentencing occurred post-Booker, with the

sentencing guidelines applying in only an advisory

fashion, the maximum sentence authorized by the

facts established through a guilty plea is the

‘maximum sentence prescribed by the applicable

statutory provision.”). That is to say that Jimmy Ray

would stand to have more than four years reduced

from*his sentence under Booker and Apprendi.

Although Kenneth’s sentence would not be similarly

limited, as his prior drug conviction raises the

statutory maximum to thirty years, the district court

could have also, of course, chosen to sentence below

the guidelines range of 292 months-a realistic

possibility in light of its selection of the very bottom of

the then-mandatory guidelines range. The upshot of

the complicated effect of the guidelines is that both

petitioners would have much to gain from a remand

for resentencing under Booker, as they would stand to

get sentences that were both shorter and

Constitutional. Not only did their sentences violate

Booker, but they violated the principle of Apprendi

that any fact “necessary to support a sentence

exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must

53a

be admitted by the defendant or proved to a jury

beyond a reasonable doubt.”

Of perhaps greater importance than any numerical

disparities in the lengths of sentences, however, is the

less concrete but more profound value of imposing

criminal sentences only after ensuring that vital,

centuries-old Constitutional guarantees have been

met:

“What is overlooked in post- Booker discussions is

the fact that, for seventeen years, federal courts had

been sentencing offenders unconstitutionally.”

(quoting Professor Douglas Berman, Remarks at

Harvard Black Letter Law Association (Apr. 4,

2006)). For seventeen years federal courts had been

sentencing offenders unconstitutionally. Think

about that. The human cost is incalculable—

thousands of Americans languish in prison under

sentences that today are unconstitutional. The

institutional costs are equally enormous—for

seventeen years the American jury was disparaged

and disregarded in derogation of its constitutional

function; a generation of federal trial judges has lost

track of certain core values of an independent

judiciary because they have been brought up in a

sentencing system that strips the words “burden of

proof,” “evidence,” and “facts” of genuine meaning;

and the vulnerability of our fair and impartial

federal trial court system to attack from the

political branches of our government has been

exposed as never before in our history.

Kandirakis, 441 F. Supp. 2d at 283. Stated somewhat

differently, the Apprendi line of cases means much

more than how long the government can send a

defendant to jail-it speaks volumes about how we, as a

4

democratic society, are able to follow the strictures

that represent the very backbone of our legal and

Constitutional system. See, e.g., Apprendi, 530 U.S.

at 466 (“To guard against a spirit of oppression and

tyranny on the part of rulers,’ and ‘as the great

bulwark of [our] civil and political liberties,’ trial by

jury has been understood to require that ‘the truth of

every accusation, whether preferred in the shape of

indictment, information, or appeal, should afterwards

be confirmed by the unanimous suffrage of twelve of

[the defendant’s] equals and neighbours....””) (quoting

2 J. Story, Commentaries on the Constitution of the

United States 540-541 (4th ed. 1873) and 4 W.

Blackstone, Commentaries on the Laws of England

.343 (1769)). Apprendi and its offspring—Blakely and

Booker—recognize a_ critical, constitutionally

mandated check on the sentencing process, through

the grounding of sentencing determinations in facts

that have been proved to the jury beyond a reasonable

doubt. Our modern federal judiciary has been

reluctant to recognize this Sixth Amendment

limitation, 1 probably due to the primacy of the

mandatory sentencing guidelines that has been

ingrained in our approach to sentencing for seventeen

years. Although this is an innate and natural way for

anyone to think, federal] judges included, our personal

experience over seventeen years clearly must take a

backseat to the fundamental guarantees of the

Centuries-old Bill of Rights, with the benefit of the

' See, e.g. Koch, 383 F.3d at 438 (“[Wle conclude that Blakely

does not require us to invalidate the Guidelines.”).

55a

Supreme Court’s reinvigoration of these values

through Apprendi and its progeny (i.e. Booker).

IV.

Because I do not believe Booker to be a new rule but

rather to be a straightforward application of Apprendi,

federal habeas petitioners whose convictions became

final after Apprendi should be able to benefit from

Booker. For this reason, I respectfully dissent from

the majority opinion with respect to Part II. B.

56a

UNITED STATES OF AMERICA,

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN,

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Case No. 1:99-CR-01

Plaintiff,

vs.

JIMMY RAY VALENTINE, Hon. Richard Alan

KENNETH JEROME Enslen,

VALENTINE, Chief Judge

CHARLES EDWARD

BENNETT,

COREY TIWANE VALENTINE,

DEDRICK QUWANTA

VALENTINE,

JOHNNY VALENTINE,

ROBERT DONTRALL SHARP,

and

KENYA LEVELLE

VALENTINE,

Defendants.

VERDICT FORM AND SPECIAL

INTERROGAT .

1. As to Count One of the Indictment, charging a

conspiracy to possess with intent to distribute cocaine,

and/or cocaine base, and/or marijuana we, the jury,

57a

unanimously find defendant JIMMY RAY

VALENTINE

_____ Not Guilty

x Guilty

A. (Only complete this interrogatory if you find

the defendant guilty as to Count One.) We, the jury,

unanimously agree that JIMMY RAY VALENTINE has

conspired to possess with intent to distribute the

following drugs:

x __ Cocaine

x Cocaine Base (Crack

Cocaine)

Marijuana

2. As to Count One of the Indictment, charging a

conspiracy to possess with intent to distribute cocaine,

and/or cocaine base, and/or marijuana we, the jury,

unanimously find defendant KENNETH JEROME

VALENTINE

Not Guilty

x Guilty

A. (Only complete this interrogatory if you find

the defendant guilty as to Count One.) We, the jury,

unanimously agree that KENNETH JEROME

VALENTINE has conspired to possess with intent

to distribute the following drugs:

Cocaine

Cocaine Base (Crack

Cocaine)

Marijuana

3. As to Count One of the Indictment, charging a

conspiracy to possess with intent to distribute cocaine,

58a

and/or cocaine base, and/or marijuana we, the jury,

unanimously find defendant CHARLES EDWARD

BENNETT

Not Guilty

Guilty

A. (Only complete this interrogatory if you find

the defendant guilty as to Count One.) We, the jury,

unanimously agree that CHARLES EDWARD

BENNETT has conspired to possess with intent to

distribute the following drugs:

Cocaine

Cocaine Base (Crack

Cocaine)

Marijuana

4. As to Count One of the Indictment, charging a

conspiracy to possess with intent to distribute cocaine,

and/or cocaine base, and/or marijuana we, the jury,

unanimously find defendant COREY TIWANE

VALENTINE

Not Guilty

x Guilty

A. (Only complete this interrogatory if you find

the defendant guilty as to Count One.) We, the jury,

unanimously agree that COREY TIWANE

VALENTINE has conspired to possess with intent

to distribute the following drugs:

Cocaine

Cocaine Base (Crack

Cocaine)

Marijuana

59a

5. As to Count One of the Indictment, charging a

conspiracy to possess with intent to distribute cocaine,

and/or cocaine base, and/or marijuana we, the jury,

unanimously find defendant DEDRICK QUWANTA

VALENTINE |

x Not Guilty

Guilty

A. (Only complete this interrogatory if you find

the defendant guilty as to Count One.) We, the jury,

unanimously agree that DEDRICK QUWANTA

VALENTINE has conspired to possess with intent to

distribute the following drugs:

Cocaine

_______ Cocaine Base (Crack

Cocaine)

Marijuana

6. As to Count One of the Indictment, charging a

conspiracy to possess with intent to distribute cocaine,

and/or cocaine base, and/or marijuana we, the jury,

unanimously find defendant JOHNNY VALENTINE

Not Guilty

x Guilty

A. (Only complete this interrogatory if you find

the defendant guilty as to Count One.) We, the jury,

unanimously agree that JOHNNY VALENTINE has

conspired to possess with intent to distribute the

following drugs:

Cocaine

x Cocaine Base (Crack

Cocaine)

x Marijuana

60a

7. As to Count One of the Indictment, charging a

conspiracy to possess with intent to distribute cocaine,

and/or cocaine base, and/or marijuana we, the jury,

unanimously find defendant ROBERT DONTRALL

SHARP

x Not Guilty

Guilty

A. (Only complete this interrogatory if you find

the defendant guilty as to Count One.) We, the jury,

unanimously agree that ROBERT DONTRALL

SHARP has conspired to possess with intent to

distribute the following drugs:

Cocaine

Cocaine Base (Crack

Cocaine)

Marijuana

8. As to Count Two of the Indictment, charging

distribution of cocaine base, we, the jury,

unanimously find defendant DEDRICK

QUWANTA VALENTINE

Not Guilty

x Guilty

So, Say We All, this 11 day of February, 2000.

JURY FOREPERSON

6la

UNITED STATES DISTRICT COURT

Western District of Michigan

UNITED STATES OF Judgment in a

AMERICA Criminal Case

(for Offenses

Committed On or

After November 1,

1987)

Case Number

1:99-CR-1-02

JIMMY RAY VALENTINE Michael T. Maddaloni

Defendant’s Attorney

THE DEFENDANT was found guilty on Count One

after a plea of not guilty.

Accordingly, the defendant is adjudged guilty of

such count(s), which involve the following offenses:

Date Offense Count

Title & Section Concluded Number(s)

21:846 and January 12, One

841(a)(1) 1999

Nature of Offense

Conspiracy to Distribute and Possess With Intent to

Distribute Cocaine, Cocaine Base, and Marijuana

The defendant is sentenced as provided in pages 2

through 5 of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

IT IS FURTHER ORDERED that the defendant

shall notify the United States attorney for this district

within 30 days of any change of name, residence, or

62a

mailing address until all fines, restitution, costs, and

special assessments imposed by this judgment are

fully paid.

Date of Imposition of Sentence: May 18, 2000

Defendant’s Soc. Sec. No.: ***-**-****

Defendant’s Date of Birth: June 7, 1963

US Marshal’s No.: 09555-040

Defendant’s Address: 1980 Hatch

Benton Harbor, MI 49022

DATED: 5-24-2000

HON. RICHARD ALAN ENSLEN

CHIEF JUDGE

IMPRISONMENT

The defendant is hereby committed to the custody

of the United States Bureau of Prisons to be

imprisoned for a term of TWO HUNDRED NINETY

-TWO (292) MONTHS.

It is recommended that the defendant participate in

the Inmate Financial Responsibility Program to

provide for his dependent children. The defendant

shall not be deprived of prison employment or

UNICOR employment or educational opportunities

because the defendant is paying child support in lieu

of paying the fine and other financial obligations.

Friend of the Court Docket No.: 99-82106-DP-M

2nd Circuit Court

811 Port Street

St. Joseph, MI 49085

RETURN

I have executed this judgment as follows:

Defendant delivered on

to

with

certified copy of this judgment.

United States Marshal

By

Deputy Marshal

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shail

be on supervised release for a term of FIVE (5)

YEARS.

Within 72 hours of release from the custody of the

Bureau of Prisons, the defendant shall report in

persou to the probation department in the district to

which the defendant is released.

While on supervised release, the defendant shall not

commit another federal, state, or local crime, shall

comply with the standard conditions of supervision, and

shall comply with the following additional conditions:

The defendant shall not illegally possess a controlled

substance and shall refrain from the unlawful use of

controlled substances.

The defendant shall not possess a firearm, destructive

device or other dangerous weapon.

The defendant shall submit to one drug test within

fifteen (15) days of release on supervised release and

64a

at least two periodic drug tests thereafter within sixty

(60) days or as otherwise directed by the Court.

The defendant shall pay any financial penalty that is

imposed by this judgment that remains unpaid at the

commencement of the term of supervised release.

The defendant shall provide the probation officer with

access to any requested financial information.

The defendant shall participate in a program of

testing and treatment for drug abuse, as directed by

the probation officer, until such time as the defendant is

released from the program by the probation officer.

The defendant shali notify the Probation Officer at

least fifteen (15) days prior to any change in residence

in accordance with the Violent Crime Control and Law

Enforcement Act of 1994.

STANDARD CONDITIONS OF SUPERVISION

While the defendant is on supervised release

pursuant to this judgment, the defendant shall not

commit another federal, state or local crime. In

addition:

1) the defendant shall not leave the judicial

district without the permission of the court or

probation officer;

2) the defendant shall report to the probation

officer as directed by the court or probation

officer and shali submit a truthful and

complete written report within the first five

days of each month;

3) the defendant shall answer truthfully all

inquiries by the probation officer and follow

the instructions of the probation officer;

4) the defendant shall support his or her

65a

dependents and meet other’ family

responsibilities;

5) the defendant shall work regularly at a lawful

occupation unless excused by the probation

officer for schooling, training, or other

acceptable reasons;

6) the defendant shall notify the probation officer

15 days prior to any change in residence or

employment;

7) the defendant shall refrain from excessive use

of alcchol and shall not purchase, possess, use,

distribute, or administer any narcotic or other

controlled substance, or any paraphernalia

related to such substances, except as prescribed

by a physician;

8) the defendant shall not frequent places where

controlled substances are illegally sold, used,

distributed, or administered;

9) the defendant shall not associate with any

persons engaged in criminal activity, and

shall not associate with any person convicted

of a felony unless granted permission to do so

by the probation officer;

10) the defendant shall permit a probation officer

to visit him or her at any time at home or

elsewhere and shall permit confiscation of any

contraband observed in plain view by the

probation officer;

11) the defendant shall notify the probation

officer within seventy-two hours of being

arrested or questioned by a law enforcement

officer;

12) the defendant shall not enter into any

66a

agreement to act as an informer or a special

agent of a law enforcement agency without the

permission of the court;

as directed by the probation officer, the

defendant shall notify third parties of risks

that may be occasioned by the defendant’s

criminal record or personal history or

characteristics, and shall permit the probation

officer to make such notifications and to confirm

the defendant's compliance with such

notification requirement.

CRIMINAL MONETARY PENALTIES

The defendant shall pay the following criminal

monetary penalties in accordance with the schedule of

payments set forth below.

Assessment Fine Restitution

Totals: $100.00 $5,000.00 $0.00

SPECIAL ASSESSMENT

The defendant shall pay to the United States a

special assessment of $100.00.

CHILD SUPPORT OBLIGATION

Prior to the payment of the fine, the defendant shall

pay past due child support, as well as any other child

support obligations due or accruing while the defendant

is incarcerated or is on supervised release.

. After payment of the special assessment, the

obligation to pay child support shall take precedence

to all other financial obligations imposed by this

judgment, and should the defendant participate in the

Inmate Financial Responsibility Program, the

defendant’s child support obligations shall be paid

67a

prior to the payment of other obligations which are part

of that Program.

The defendant shall not be deprived of prison

employment or UNICOR employment or educational

opportunities because the defendant is paying child

suppoit in lieu of paying the fine and other financial

obligations.

Friend of the Court Docket No.: 99-82106-DP-M

2nd Circuit Court

811 Port Street

St. Joseph, MI 49085

FINE

The above fine includes costs of incarceration

and/or supervision in the amount of $5,000.00.

FORF E

The defendant shall forfeit to the United States of

America the defendant’s interest in United States

Currency as set forth in this Court’s May 17, 2000 Final

Order of Forfeiture.

SCHEDULE OF PAYMENTS

Payments shall be applied in the following order:

(1) assessment; (2) child support obligation;

(3) restitution; (4) fine principal; (5) cost of prosecution;

(6) interest; (7) penalties.

Payment of the criminal monetary penalties shall

be due in full immediately.

Unless the court has expressly ordered otherwise in

the special instructions above, if this judgment

imposes a period of imprisonment, payment of the

criminal monetary penalties shall be due during the

period of imprisonment. All criminal monetary payments

68a

are to be made as directed by the court, the probation

officer or the United States attorney.

STATEMENT OF REASONS

The court adopts the factual findings and guideline

application in the presentence report.

Guideline Range Determined by the Court:

Total Offense Level: 40

Criminal History Category: I

Imprisonment Range: 292 to 365

Supervised Release Range: at least 5 years

Fine Range: $25,000.00 to $4,000,000.00 - Fine is

waived because of the defendant’s inability to pay.

Restitution: not applicable

The sentence is within the guideline range, that

range exceeds 24 months, and the sentence is imposed

at the lowest end of the guideline range because, in this

Court’s opinion, the guideline’s call for much too severe a

punishment.

69a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NOT RECOMMENDED FOR FULL-TEXT

PUBLICATION

Nos. 00-1590, 00-1603, 00-1604, 00-1615, 00-1651,

00-1958

UNITED STATES of

America,

Plaintiff-Appellee,

On Appeal from the

United States

Johnny VALENTINE, District Court for

et al., the Western District

of Michigan

Defendants-

Appellants.

Before BOGGS, SUHRHEINRICH and CLAY, Circuit

Judges.

BOGGS, Circuit Judge. Appellants Johnny

Valentine, Corey Valentine, Dedrick Valentine,

Jimmy Ray Valentine, Kenneth Valentine, and

Charles Bennett appeal numerous aspects of their

70a

convictions and sentences.! The convictions in this

case arose from the prosecution of a drug distribution

organization based in Benton Harbor, Michigan. The

initial trial of the defendants lasted fourteen days.

We affirm on each issue in all of the appeals.

I

Johnny Valentine

Johnny Valentine was convicted of one count of

conspiracy to distribute and to possess with intent to

distribute cocaine base (crack) and marijuana, in

violation of 21 U.S.C. §§ 846 and 841(a)(1). According

to the government, Johnny was responsible for

purchasing large quantities of crack from Arkansas

for sale in Michigan. He operated several crack

houses in Benton Harbor. At his sentencing, the

district court found that he was responsible for at

least 1.5 kilograms of crack, which resulted in the

court assigning him a base offense level of 38. The

district court added two levels, pursuant to U.S.S.G.

§ 2D1.1(b)(1), for possession of a dangerous weapon

during criminal activity. His criminal history

category was determined to be I. He was sentenced to

the lowest end of the guideline range, 292 months of

imprisonment.

Corey Valentine?

Corey Valentine was convicted of one count of

conspiracy to distribute and to possess with intent to

! Due to the multiplicity of defendants with the same last name,

the Valentines will often be referred to by their first names,

2 Corey Valentine was granted permission to adopt the briefs of

his co-defendants.

Tla

distribute crack and marijuana, in violation of 21

U.S.C. §§ 846 and 841(a)(1). According to the

government, Corey was a key member of the

Valentine organization, responsible for transporting

crack from Arkansas to Michigan. At his sentencing

he was found responsible for 1.5 kilograms of crack,

which resulted in the district court assigning him a

base offense level of 38. The court determined that he

had a criminal history category of I. While the defense

argued that the district court should decrease Corey’s

base offense level by two levels because he was a

minor participant in the criminal activity, the district

court declined to do so. He was sentenced to the

lowest end of the guideline range, 235 months of

imprisonment.

Dedrick Valentine®

Dedrick Valentine was convicted of knowingly and

intentionally distributing a quantity of crack, in

violation of 21 U.S.C. § 841(a)(1). He was acquitted of

the conspiracy to distribute and possess with intent to

distribute charge.

His pre-sentence report characterizes him as a

low-level distributor of crack. At his sentencing, he

was found responsible for 283.5 grams of crack, which

resulted in a base offense level of 34. The district

court reduced his base offense level by two levels

because it found that Dedrick was a minor participant,

pursuant to U.S.S.G. § 3B1.2(b), and declined to grant

his motion for a downward departure. He was found

to have a criminal history category of IV. The court

3 Dedrick Valentine was granted permission to adopt the briefs of

his co-defendants

72a

sentenced him to the lowest end of the guideline range,

168 months of imprisonment.

Jimmy Ray Valentine

Jimmy Ray Valentine was convicted of one count of

conspiracy to distribute and to possess with intent to

distribute cocaine and crack, in violation of 21 U.S.C.

§§ 846 and 841(a)(1). According to the government,

Jimmy Ray would obtain drugs from his convicted

co-conspirator, Jerry Butler, in Arkansas, as well as

other drug suppliers in California, Texas, and other

locations, for distribution to drug dealers in southwest

Michigan. At his sentencing hearing, the district

court determined that he was responsible for over 1.5

kilograms of crack, which resulted in a base offense

level of 38. The district court increased his base

offense level by two levels, pursuant to U.S.S.G.

§ 3B1.1(c), finding that he was an organizer or a

leader of the conspiracy. The district court also

declined to grant a motion for a downward departure.

Jimmy Ray’s criminal history category was

determined to be I. The court sentenced him to the

lowest end of the guideline range, 292 months of

imprisonment.

Kenneth Valentine

Kenneth Valentine was convicted of one count of

conspiracy to distribute and to possess with intent to

distribute crack, in violation of 21 U.S.C. §§ 846 and

841(a)(1). According to his presentence investigation

report, he was responsible for arranging for the

purchase of crack in Arkansas and for paying the

couriers used to pick up the crack in Arkansas. At his

sentencing hearing, the district court determined that

he was responsible for over 1.5 kilograms of crack.

resulting in a base offense level of 38. The district

73a

court declined to grant a motion for a downward

departure. Kenneth’s criminal history category was

determined to be III. The court sentenced him to the

lowest end of the guideline range, 292 months of

imprisonment.

Charles Bennett

Charles Bennett was convicted after his second trial

of one count of conspiracy to distribute and to possess

with intent to distribute cocaine, crack, and

marijuana, in violation of 21 U.S.C. §§ 846 and

841(a)(1). His first trial ended in a mistrial after the

jury deadlocked.

During Bennett’s first trial, after the jury retired to

deliberate, a juror was replaced by an alternate juror

after she requested to be relieved due to a family

emergency. Prior to replacing the juror, the court

asked Bennett and his counsel to approve the change

in the jury’s composition, and they consented. After

the jury was brought in with the new juror, the

government asked for a waiver of objection to the

replacement of the juror by Bennett. Bennett again

consented to the replacement. After the jury began to

deliberate again, Bennett requested that the court

declare a mistrial due to the substitution of the

alternate juror. The district court denied the motion.

After supplemental instructions by the court (to which

Bennett did not object), the jury deadlocked and a

mistrial was ordered with respect to Bennett.

At his sentencing hearing following the second trial,

the district court determined that Bennett was

responsible for 1.5 kilograms of crack, which Bennett’s

74a

counsel states resulted in a base offense level of 40.4 It

was determined that Bennett’s criminal history

category was I. Prior to his sentencing hearing,

Bennett objected to any sentence of more than 240

months because the indictment did not specify any

amount of controlled substances, citing Apprendi! v.

New Jersey, 530 U.S. 466 (2000). At the sentencing

hearing, Bennett moved for a downward departure

because of his ailing health. The district court

sustained the Apprendi objection and determined that

Bennett’s maximum lawful sentence was 240 months.

The district court also departed downward and

sentenced Bennett to 180 months of imprisonment.

II. The Indictments

Appellants Jimmy Ray Valentine, Johnny

Valentine, Charles Bennett, Dedrick Valentine, and

Corey Valentine argue that the district court lacked

jurisdiction to enter a conviction and impose a

sentence because the indictment failed to list certain

“essential elements” of the charged offense,

specifically the quantity of drugs, and for which type

4 Bennett’s counsel wrote an Anders brief on appeal, which

notifies the court that counsel requests permission to withdraw

from the appeal because of a lack of any good-faith issues to

appeal, and identifies issues that arguably might be appealed.

Anders v. California, 386 U.S. 738. Bennett submitted a pro se

response to the Anders brief in which he raised issues he believed

worthy of appeal. Neither Bennett nor the government submitted

any of Bennett’s documents from the district court for inclusion

in the Joint Appendix. The government did not submit any

argument countering Bennett’s pro se appeal. As such, all facts

pertaining to Bennett included in this opinion are taken from the

Anders brief submitted by Bennett’s counsel.

75a

of drug they were to be held accountable. This

argument has become unavailing since appellants

filed their briefs. The Supreme Court held in United

States v. Cotton that a defective indictment does not

deprive a court of jurisdiction, in the sense of the

authority to adjudicate a case. 535 U.S. 625, 631

(2002).

Jimmy Ray, Johnny, Dedrick, and Corey Valentine

also argue that the indictment violated their Fifth and

Sixth Amendment rights to confront the evidence

against them, and that the judge’s failure to instruct

the jury that it must find a specific amount of drugs

attributable to the conspiracy amounted to a

“constructive amendment” to the indictment. They

argue that they were not afforded notice of the

charges against them as they were told at their

arraignments that the off2nse with which they were

charged, § 841(b)(1)(A), carried a penalty of ten years

to life. However, when the jury was instructed that

quantity was not an element of the offense, it was

being instructed pursuant to § 841(b)(1)(c), which

carries a maximum penalty of twenty years of

imprisonment. They argue that they may have been

more likely to plead guilty, and would have had more

leverage to do so, had they known their conviction

would result in only a twenty-year maximum.

The Supreme Court in Cotton rejected similar

arguments. The defendant in Cotton did not object in

the district court to the fact that the sentences were

based on a quantity not alleged in the indictment;

5 Any aspects of this second argument that deal with sentencing

issues will be addressed at part IV.E, infra.

76a

therefore the Court applied a plain error analysis,

pursuant to Federal Rule of Criminal Procedure 52(b).

Cotton, 535 U.S: at 631-32. The Court concluded that

there was plain error, but that even if the error

affected the substantial rights of the defendant, it did

not seriously affect the fairness, integrity or public

reputation of the judicial proceedings, because the

evidence was overwhelming and uncontroverted that

the conspiracy involved at least 50 grams of cocaine

base. Jd. at 623-33. The evidence in this case is

likewise overwhelming and essentially unrefuted that

the participants in this conspiracy were responsible

for at least 1.5 kilograms of crack.

As for appellants’ arguments regarding their lack of

notice, and the possibility that they might have

handled their plea negotiations differently, it is as

likely that they may have gone to trial knowing they

were only risking twenty years in prisor instead of a

maximum of a life sentence. Moreover, had they

pushed the issue in the district court, the court might

have acquiesced and given the jury a quantity

instruction.

Ill. The Trial

A. Sufficiency of the evidence to support appellants’

convictions

Appellants Dedrick, Jimmy \Ray, Johnny, and Corey

Valentine all argue that the evidence presented at

trial was not sufficient to support their convictions.

This court reviews a defendznt’s sufficiency of the

evidence claim by considering “whether, after viewing

the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

77a

319 (1979). However, none of the appellants moved

for judgment of acquittal at the close of the

government’s case-in-chief pursuant to Federal Rule

of Criminal Procedure Rule 29. This court has held

that failing to make this motion “constitutes a waiver

of any objection to the sufficiency of the evidence.”

United States v. Nesbitt, 90 F.3d 164, 167 (6th Cir.

1996). Therefore, we may only disturb the jury’s

verdict if it constitutes a miscarriage of justice.

United States v. Charles, 138 F.3d 257, 265 (6th Cir.

1998).

1, Dedrick Valentine

In order to establish the crime of distribution of

cocaine base, the government must prove that. the

defendant: (1) knowingly or intentionally distributed

cocaine base, and; (2) at the time of such distribution

knew that the substance was cocaine base. 21 U.S.C.

§ 841(a); United States v. Colon, 268 F.3d 367, 376

(6th Cir. 2001).

The main thrust of Dedrick’s argument is that the

witnesses who testified against him were not credible

because they were cooperating witnesses. He argues

that because the jury found him not guilty of the

conspiracy charge, and because these witnesses were

testifying against him as to his participation in the

conspiracy, the jury must have discounted their

testimony. He also takes issue with the testimony of

Melvin Ferguson and Detective John Briney, who

both testified regarding a “controlled buy” involving

Dedrick.

Ferguson, at the behest of law enforcement,

contacted Dedrick in order to make a purchase of

crack. Law enforcement taped the telephone

conversation between Dedrick and Ferguson, in which

78a

Dedrick agreed to sell a quarter-ounce of crack to

Ferguson and agreed to meet Ferguson ai a specific

place designated by Dedrick. This tape was played for

the jury. Detective Briney testified that he observed

Ferguson drive to the meeting place, observed Dedrick

approach the car and speak with Ferguson, observed

him walk away from the car and disappear from view

behind a house, and then return within less than two

minutes and meet again with Ferguson. Ferguson

drove away and was met by law enforcement.

Ferguson had previously been searched in order to

verify that he had no drugs on his person. He turned

over the cocaine base he had just purchased from

Dedrick. Ferguson also testified at trial that he had

purchased one-half to one ounce quantities of crack

from Dedrick on at least twelve occasions.

Dedrick argues that Detective Briney’s testimony

should be discounted because he was too far away tv

observe the transaction, and later admitted that he

did not observe the transaction take place. He also

argues that Ferguson should not be believed.

Credibility determinations are within the sole

province of the jury, and this court grants special

deference to the resolution of credibility questions by

the jury. United States v. Latouf, 132 F.3d 320,

330-31 (6th Cir. 1997). Dedrick’s counsel had ample

opportunity at trial to attack the credibility of all the

witnesses against him: As to Detective Briney’s

testimony, we have held that “circumstantial evidence

alone is sufficient to sustain a conviction and such

evidence need not remove every reasonable

hypothesis except that of guilt.” United States v.

Peters, 15 F.3d 540, 544 (6th Cir. 1994) (nternal

quotation marks and citations omitted). There was no

79a

manifest miscarriage of justice in Dedrick’s

conviction.

Z. Jimmy Ray, Johnny, and Corey

Valentine

Jimmy Ray, Johnny, and Corey Valentine were

convicted of conspiracy to distribute and possess with

intent to distribute cocaine base. In order to meet its

burden of proof, the government must show: (1) the

existence of.an agreement to violate the drug laws;

and (2) that the defendant knew of, intended to join,

and participated in the conspiracy. United States v.

Ferguson, 23 F.3d 135, 140 (6th Cir?1994).

Appellants argue that the witnesses who testified

against them were not credible because they were all

hoping for reduced sentences in exchange for their

cooperation. They also argue that their testimony was

impermissibly vague and unreliable because it did not

refer to exact amounts or specific dates of

transactions.

First, defense counsel had ample opportunity to

cross-examine the witnesses who testified against the

appellants. Moreover, the judge instructed the jury as

to how it should weigh the credibility of the witnesses,

and specifically mentioned that it should consider any

relationship the witness had with the government,

and any reason the witness might have to lie.

Credibility determinations are within the sole

province of the jury, and this court grants special

deference to the resoluticn of credibility questions by

the jury. Latouf 132 F.3d at 330-31.

A review of the evidence presented at trial reveals

that there was sufficient evidence to convict

appellants. Numerous witnesses testified to

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conducting crack business with appellants, including

principal suppliers to the conspiracy, Jerry Lee Butler

and Abdul Moore, and high-level distributors for the

conspiracy, Yusef Phillips, Lubert Brock, and Myron

Bennett. These witnesses testified that Jimmy Ray

operated a drug distribution organization, assisted by

members of his extended family and friends. Jimmy

Ray would arrange for the purchase of crack from

Arkansas, Corey made numerous trips to Arkansas to

transport the crack back to Michigan, and Johnny was

primarily responsible for its distribution in Michigan.

There was no manifest miscarriage of justice in the

convictions of Jimmy Ray, Johnny, and Corey

Valentine.

B. Government’s Motion in limine

Kenneth, Dedrick, and Corey Valentine argue that

the district court’s failure to allow them to impeach

Jerry Lee Butler and Yusef Phillips warrants reversal.

The government moved in limine for an order

preventing the defendants from recalling to the stand

Sergeant Roger Lange, citing Rule 613(b) of the

Federal Rules of Evidence. The defendants wished to

call Sergeant Lange in an effort to impeach Butler and

Phillips, two government witnesses. The motion was

granted by the district court on the grounds that it

was only proper to “cross-examine a witness whose

[sic] taken a statement... if the witness [has] adopted

the statement.” A trial court’s decision to exclude

evidence pursuant to a motion in limine is reviewed

for an abuse of discretion. United States v. Phibbs,

999 F.2d 1053, 1078 (6th Cir. 1993). Appellants assert

that they had intended to call Lange in order to

impeach Butler and Phillips with the previous

statements Butler and Phillips had made by asking

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Lange to state what they had told him upon first being

arrested. It appears that the intent of the defense was

to show that both Butler and Phillips had been more

forthcoming with inculpatory statements about the

defendants as it became clear they would be offered a

deal by the government. Appellants further assert

that they had no intention of introducing Lange’s

written report of the conversations, but only intended

to use it to refresh Lange’s recollection about the

conversations.

The government argues that first, appellants never

identified any inconsistent statements and were

attempting to impeach the witnesses’ present

testimony with prior silence. Moreover, the

government argues that neither Butler nor Phillips

adopted Lange’s report as a prior statement.

Federal Rule of Evidence 613(b) governs the use of

prior statements of witnesses. It states:

Extrinsic evidence of a prior inconsistent statement

by a witness is not admissible unless the witness is

afforded an opportunity to explain or deny the same

and the opposite party is afforded an opportunity to

interrogate the witness thereon, or the interests of

justice otherwise require.

Fed.R.Evid. 613(b). The district court was correct in

concluding that it would be improper to impeach

either Butler or Phillips with a third-party’s rendition

of his statements without Butler or Phillips adopting

the statement as his own. United States v. Saget, 991

F.2d 702, 710 (11th Cir.), cert. denied, 510 U.S. 950

(1993). However, the attempt to question Lange

regarding prior inconsistent statements made by

Butler and Phillips was proper, provided the defense

could identify any actual inconsistent statements. A

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statement used to impeach a witness must be in fact

inconsistent with the witness’s statements made at

trial, and the court must be persuaded that this is so.

United States v. Hale, 422 U.S. 171, 176 (1975).

Defense counsel argued to the district court that he

would ask Lange “did he mention [the defendant],”

and Lange would say “no, I don’t believe he did.”

Counsel further argued that the police report would

only be used to refresh Lange’s recollection. Counsel

did not identify any statements that were even

arguably inconsistent with the witnesses’ testimony.

Moreover, it appears from appellants’ brief that

counsel would have attempted to introduce Lange’s

testimony as to the witnesses’ silence at the initial

questioning and the additional information they

offered as a deal became available in order to discredit

the trial testimony Butler and Phillips gave. However

discrediting Lange’s testimony may have been, Lange

would not have been testifying as to prior inconsistent

statements. The district court did not abuse its

discretion in excluding Lange’s testimony regarding

his initial conversations with Butler and Phillips.

C, Statements by the Trial Court

Kenneth, Dedrick, and Corey Valentine argue that

the district court violated Federal Rule of Evidence

605, the Confrontation Clause, and the Due Process

Clause when it made statements to the jury during

the trial regarding the provisions of Jerry Butler’s

plea agreement and the sentencing guideline range

applicable to him. Butler, one of the prosecution’s

main witnesses, had been questioned extensively

throughout his testimony by both the prosecution and

the defense regarding the terms of his plea agreement,

what he understood of the sentencing guidelines, and

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the possible sentence he might expect in return for his

cooperation with the government. The government in

its brief characterizes Butler as “functionally

illiterate” and contends that he had difficulty

articulating answers to these questions.

After Butler’s testimony, the court stated to the jury:

“You should consider the testimony of Mr. Butler and

others with more caution than the testimony of other

witnesses and you must consider whether or not the

testimony was influenced by the Government’s

promises.” The court went on to go through Butler’s

plea agreement with the jury. The court also

explained to the jury what the sentencing guidelines

are and how they would be applied to Butler. At the

end of the explanation, the court stated: “What

sentence will he get next week? I don’t know. Will it

be influenced by his testimony here? I don’t know. It

doesn’t sound like any agreement it will. That’s all I

can say about it. Okay.”

On the day Butler was to be sentenced, the court

announced to the jury that it was sentencing Butler.

The court stated: “I now have a presentence report

and I know how the probation officer scored him. And

he scored him so that his minimum sentence would be

292 months or 24.4 years at the minimum. At the

maximum, 365 months, which is, of course, 30 years.”

Butler was eventually sentenced to 210 months of

imprisonment.

Appellants urge that the proper standard of review

for evaluating claims of improper judicial conduct is

de novo, as it is a mixed question of law and fact. They

argue that no objection is necessary to preserve the

error, citing Federal Rule of Evidence 605 (“The judge

presiding at the trial may not testify in that trial as a

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witness. No objection need be made in order to

preserve the point.”). The government argues that

without preservation by objection, the claim is

reviewed for plain error, citing United States v.

Owens, 159 F.3d 221, 227 (6th Cir. 1998).

Because Rule 605 states that no objection is

necessary to preserve a claim for its violation, the

proper standard of review is de novo. See United

States v. Paiva, 892 F.2d 148, 158 n. 8 (1st Cir. 1989);

Cohen v. United States, No. 02-4443, 2002 WL

31856828, at *1 (4th Cir. Dec. 23, 2002) (per curiam)

(unpublished disposition).

Rule 605 contemplates situations in which a

presiding judge is called to testify in the trial over

which he is presiding. Fed.R.Evid. 605 advisory

committee’s note. The rule “is a broad rule of

incompetency.” /bid. The appellants’ claim should be

addressed under federal caselaw that governs a

district court judge’s power of comment and the

limitations on this power. See, e.g., Quercia v. United

States, 289 U.S. 466 (1933).

In Quercia, the Supreme Court reversed a

conviction based upon the judge’s charge to the jury in

which he expressed his opinion, referring to the

defendant, that “every single word that man said,

except when he agreed with the Government’s

testimony, was a lie.” Jd at 468, 472. The Court

explained that a judge may help the jury by

“explaining and commenting upon the evidence.” Jd.

at 469. However, “[i]Jn commenting upon testimony he

may not assume the role of a witness. He may analyze

and dissect the evidence, but he may not either distort

it or add to it.” Jd. at 470.

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The district court judge committed error by adding

to the testimony presented at trial when he discussed

the details of Butler’s presentence report. Butler’s

plea agreement had already been entered into

evidence, and the judge was merely commenting on it

and explaining it to the jury. Nevertheless, Butler’s

presentence report was not entered into evidence. By

discussing its details, the judge was adding to the

evidence presented at trial. However, we conclude

that the judge’s error was harmless beyond a

reasonable doubt. See Chapman v. California, 386

U.S. 18, 22-24 (1967). The judge’s error did not deny

appellants a fair trial. Moreover, the judge stated to

the jury just before it entered into deliberations that

“(njothing I have said or done during this trial was

meant to influence your decision. You decide. for

yourselves whether the Government has proven the

defendants guilty beyond a reasonable doubt.” The

judge’s error does not require reversal.

IV. Sentencing

A. Sentencing for crack rather than marijuana

Charles Bennett, Dedrick Valentine, and Corey

Valentine argue that the district court committed

plain error when it sentenced them under 21 U.S.C.

§ 841(b)(1)(C) rather than § 841(b)(1)(D) because the

jury returned a general verdict.

This argument is without merit. The record clearly

shows that the verdict forms contained special

interrogatories. In the case of Charles Bennett, the

jury checked “Guilty,” and then checked “Cocaine

Base (Crack Cocaine)” in response to the statement:

“We, the jury, unanimously agree that CHARLES

EDWARD BENNETT has conspired to distribute and

possess with intent to distribute the following

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” District court docket R. 301. In the case of

Corey Valentine, the jury checked “Guilty,” and then

checked “Cocaine Base (Crack Cocaine)” and

“Marijuana” in response to the same statement.

District court docket R. 247. In the case of Dedrick

Valentine, in response to the statement “As to Count

Two of the Indictment, charging distribution of

cocaine base, we, the jury, unanimously find

defendant DEDRICK QUWANTA VALENTINE....”

the jury checked “Guilty.” Jbid. The district court did

not commit any error when it sentenced appellants

under 21 U.S.C. § 841(b)(1)(C).

B. Downward Departures

1. Dedrick Valentine

At his sentencing hearing, Dedrick made a motion

for a downward departure based on _ the

disproportionate impact of including acquitted

conduct in the computation of his sentence. A decision

not to depart downward from the _ sentencing

guidelines is not reviewable on appeal, unless the

district court was not aware of its authority to depart.

United States v. Butler, 207 F.3d 839, 843 (6th Cir.

2000).

The transcript from the sentencing hearing

indicates that the district court was well aware of its

discretion to depart downward on this basis, but chose

not to. The district court concluded that “because

Defendant’s base offense level only includes relevant

conduct in which he was personally engaged and does

not include the conduct of co-defendants, which

arguably could be attributed to him, the Court cannot

conclude this case falls outside the heartland.” The

district court’s discussion of “the heartland” expresses

its awareness of its discretion to depart downward.

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The district court’s decision not to depart downward is

not reviewable by this court.

2. Corey Valentine

Corey argues that his base offense level should have

been reduced by two levels because he was a minor

ynarticipant in the offense. A district court’s

determination that a defendant did not play a minor

role in the offense is reviewed for clear error. United

States v. Maliszewski, 161 F.3d 992, 1022 (6th Cir.

1998). U.S.S.G. § 3B1.2 provides that a district court

should decrease a defendant’s base offense level by

two levels “[iJf the defendant was a minor participant

in any criminal activity.” U.S.8.G. § 3B1.2(b). The

defendant bears the burden of proving by a

preponderance of the evidence the mitigating factors

that justify a reduction. Latouf 132 F.3d at 332. In

order to prevail, the defendant must show that he was

“substantially less culpable than the average

participant” in the criminal enterprise. United States

v. Miller, 56 F.3d 719, 720 (6th Cir. 1995) (citations

and quotation marks omitted).

Defense counsel argued at sentencing that Corey

was a minor participant because he was not as

“greatly involved as the other members of th[e]

conspiracy, and cited Butler's statements about

Corey, which essentially asserted that Corey just

carried the drugs and didn’t have much te do with the

conspiracy. The district court, citing other testimony

adduced at trial, concluded that # nile Corey may have

been “less culpable than others in the conspiracy, [his]

conduct indicates he was an average conspirator at

the very least,” and overruled the objection.

Corey did not present any persuasive argument or

evidence at sentencing that would indicate he was

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“substantially less culpable than the average

participant” in the conspiracy. The court carefully

considered his role and compared it to the role of all of

the other co-conspirators. The district court did not

commit any error in denying Corey’s motion for a

downward departure pursuant to U.S.S.G. § 3B1.2.

3. Kenneth Valentine

Kenneth argued at the sentencing hearing that the

100 to 1 sentencing ratio between crack and powder

cocaine merited a downward departure because the

disparity violates the United States Constitution. ®

The district court refused to grant the downward

departure, stating that the Sixth Circuit has rejected

every constitutional challenge to the disparity, citing

United States v. Gaines, 122 F.3d 324 (6th Cir. 1997),

United States v. Smith, 73 F.3d 1414 (6th Cir. 1996),

and United States v. Lloyd, 19 F.3d 1197 (6th Cir. °

1993).

Kenneth argues that the sentencing disparity

violates both the separation of powers doctrine and

the Equal Protection Clause. This court has already

rejected the equal protection challenge to the

sentencing scheme in Lioyd, 10 F.3d at 1220. This

court has not addressed a separation of powers

challenge to the sentencing disparity.

Kenneth argues that President Clinton’s failure to

nominate voting members to the United States

Sentencing Commission rendered the Commission

6 The Sentencing Guidelines treat 1 gram of crack cocaine as

equivalent to 100 grams of powder cocaine for sentencing

purposes.

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useless as four members are required to promulgate a

proposed guideline. On November. 15, 1999, seven

voting members were appointed. A bill was passed by

Congress and signed by President Clinton on October

31, 1995 that required the Commission to study and

make recommendations concerning the 100 to 1 ratio.

The Commission recommendation of a 5 to 1 ratio was

proposed in April 1997. Soon after, the Commission

lost all of its voting members. After October 31, 1998,

only two nonvoting members remained on the

Commission. On September 26, 2000, three months

after Kenneth Valentine was sentenced, the

Commission was able to begin considering limited

matters.

Kenneth claims that the Executive effectively

disabled the Commission (part of the judiciary) by

failing to appoint members. He argues that this

failure was essentially an “Executive Veto,” similar to

the “Legislative Veto” proscribed in JNS v. Chadha,

462 U.S. 919 (1983). He argues the President

prevented the judiciary from accomplishing its

function, and thus violated the separation of powers

doctrine.

Although this court has not addressed a separation

of powers challenge to the 100 to 1 sentencing ratio,

whatever the reasons that the disparity exists, it is

not a permissible basis for a downward departure.

Gaines, 122 F.3d at 331. The district court did not

abuse its discretion in refusing to depart downward as

it did not have the authority to do so on this basis.

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C. Sentencing Enhancements

1. Johnny Valentine

Johnny objected at his sentencing hearing to the

two-level enhancement pursuant to U.S.S.G.

§ 2D1.1(b)(1) for possession of a dangerous weapon

during criminal activity recommended in_ the

presentence report. He argues on appeal that the

district court erred in overruling that objection

because it did not apply the proper standard to

determine whether he had used a dangerous weapon.

He argues that the district court should have followed

the holding in Bailey v. United States, 516 U.S. 137

(1995), which established the standard for enhancing

a sentence pursuant to 18 U.S.C. § 924(c) for carrying

or using a firearm in connection with a drug

conspiracy.

A district court’s determination that a defendant

possessed a firearm during a drug crime is a factual

finding, subject to the “clearly erroneous” standard of

review. United States v. Elder, 90 F.3d 1110, 1133

(6th Cir.), cert. denied, 519 U.S. 1016 (1996). The

Sentencing Guidelines provide that “if a dangerous

weapon (including a firearm) was possessed, increase

[the base offense level] by 2 levels.” U.S.S.G. §

2D1.1(b)(1). “The adjustment should be applied if the

weapon was present, unless it is clearly improbable

that the weapon was connected with the offense.”

U.S.S.G. § 2D1.1, comment. (n.3). The district court

must first determine whether the defendant possessed

a firearm during the crime. If so, the burden shifts to

the defendant to show that it was clearly improbable

that the weapon was connected with the offense.

United States v. Cochran, 14 *.3d 1128, 1132 (6th Cir.

1994). “[PJossession of a gun by one coconspirator is

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attributable to another coconspirator if such

possession constitutes reasonably foreseeable

conduct.” bid. (quoting United States v. Chalkias,

971 F.2d 1206, 1217 (6th Cir.), cert. denied, 506 U.S.

926 (1992)).

In arguing that the district court applied the wrong

legal standard by not following the standard

established in Bailey, the appellant confuses the

guideline standards with the substantive law under

18 U.S.C. § 924(c). The Supreme Court in Bailey

specifically limited its holding to convictions under 18

U.S.C. § 924(c)(1), and indicated that its holding did

not apply to guideline enhancements for weapons

possession. Bailey, 516 U.S. at 150.

The district court did not err when it applied the

sentencing enhancement. At trial, witnesses testified

that Johnny and two co-conspirators drove to Grand

Rapids, Michigan in order to rob their drug supplier of

crack at gun point. Although Johiny stayed in the car

during the robbery, he was aware that a gun was to be

used, as the three men had discussed the matter

beforehand. After the robbery, they drove back and

divided up the stolen crack. Appellant argues that he

never physically possessed the firearm, and thus the

sentencing enhancement should not apply. Yet, if the

offense committed by a defendant is part of a

conspiracy, it is sufficient if the government

establishes “that a member of the conspiracy

possessed the firearm and that the member's

possession was reasonably foreseeable by other

members in the conspiracy.” United States v. Qwusu,

199 F.3d 329, 347 (6th Cir. 2000); Cochran, 14 F.3d at

1132. Johnny knew his co-conspirator possessed a

92a

weapon; thus the district court did not err in finding

that Johnny possessed a weapon.

Johnny Valentine did not present any evidence

during his sentencing to meet his burden of proving

that it was clearly improbable that the weapon was

connected with the offense. Therefore, the sentencing

enhancement was correctly applied.

2. Jimmy Ray Valentine

Jimmy Ray’s pre-sentence report recommended

that his base offense level be increased by four levels

because of his leadership role in the conspiracy,

pursuant to U.S.S.G. § 3Bl.1(a). The district court

declined to do so because it was “unconvinced that he

was an organizer/leader.” The court found that

Jimmy Ray “appears to have organized some of the

major crack purchases, but did not exercise such

control over the overall conspiracy that he can fairly

be considered a leader/organizer in that role.”

Therefore, the court increased his base offense level by

two levels, pursuant to U.S.S.G. § 3B1.1(c).

Jimmy Ray argues that the district court erred

when it applied the two-level sentencing enhancement

because Yusef Phillips was the kingpin of the

organization, not he.

The government bears the burden of proving the

applicability of an enhancement under § 3B1.1 of the

sentencing guidelines by a preponderance of the

evidence. United States v. Finkley, 324 F.3d 401, 403

(6th Cir. 2003). We review a district court’s factual

determinations on this issue under the “clearly

erroneous’ standard, and the application of the

sentencing guidelines to these facts is a question of

law that we review de novo. Ibid.

93a

In order for the court to apply an enhancement

under this section, a conspirator must be found to

have been “the organizer, leader, manager, or

supervisor of one or more other participants.” U.S.S.G.

§ 3Bl.1, comment. (n.2). Jimmy Ray points to

testimony at trial that indicates he was not a leader,

and that others including Phillips and Charles

Bennett were the organizers. However, it is clear that

there can “be more than one person who qualifies as a

leader or organizers of a criminal association or

conspiracy.” U.S.S.G. § 3B1.1, comment. (n.4).

There was more than enough uncontradicted

evidence at trial that Jimmy Ray was at least a

manager or supervisor of one or more other

participants in the conspiracy. Witnesses testified

that Jimmy Ray oversaw the activities of several other

co-conspirators, including Johnny, Corey, Dedrick,

and Kenya Valentine. The district court found that he

had organized some of the major crack purchases.

The district court did not err when it enhanced his

base offense level by two levels, pursuant to

§ 3B1.1(c).

D. Determination of Drug Amounts

Kenneth, Dedrick, and Corey Valentine argue that

the district court erred when it determined that

Kenneth and Corey were responsible for a course of

conduct that involved the distribution of at least 1.5

kilograms each of crack, and that Dedrick was

responsible for distributing 283.5 grams of crack.

Factual findings made by the district court are

subject to the “clearly erroneous” standard of review

on issues arising under the sentencing guidelines. 18

U.S.C. § 3741(e): United States v. Ledezma, 26 F.3d

636, 646 (6th Cir. 1994). The government must prove

94a

the amount of drugs involved for sentencing purposes

by a preponderance of the evidence. Ledezma, 26 F.3d

at 646.

1. Kenneth Valentine

Kenneth argues that the district court could not

specify the transactions for which he was responsible,

that the testimony regarding drug amounts was

vague, and that the witnesses were unreliable. He

argues that he should be held responsible only for

transactions that he agreed to jointly undertake, and

should not be held liable for previous or subsequent

transactions that he did not jointly undertake. He

also argues that some witnesses were not specific as to

whether he was buying or selling crack or powder

cocaine. :

The district court found that “[a] preponderance of

the evidence does support the conclusion that the

conspiracy purchased at least 1.5 kilograms of crack

cocaine and a great deal more. Furthermore,

preponderance of the evidence establishes this

quantity~-was. known by the Defendant or was

reasonably foreseeable to him.” The district court

made this finding in spite of its belief that the

quantity figures advanced by the government were

inflated.

The district court did not commit clear error in its

determination of the amount of drugs for which

Kenneth was responsible. The district court properly

erred on the side of caution and only held him

responsible for that quantity of drugs for which he

was more likely than not actually responsible. The

district court’s finding was valid because its

determination. was made on the basis of the totality of

the evidence, and because the witnesses corroborated

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each other’s testimony. See Owusu, 199 F.3d at 345.

Based on the testimony, the determination that the

conspiracy involved at least 1.5 kilograms of crack

was conservative.

2. Dedrick Valentine

Dedrick Valentine has adopted the claims of his

co-defendants, but has not submitted any argument

on this claim. He was found responsible for 283.5

grams of crack. The act that led to his conviction for

distribution of crack involved only 5.626 grams of

crack. The district court found that he could

reasonably foresee that at least 150 grams of crack

were involved in the drug activities that he and his

co-defendants undertook. The court was troubled by

inclusion of acquitted conduct as relevant conduct for

the purposes of sentencing, and did not hold: him

responsible for the conduct of other co-conspirators.

The district court noted, however, that the testimony

of three witnesses established that Dedrick himself

sold over 150 grams of crack, the minimum amount

necessary to establish a base offense level of 34. The

testimony of these witnesses was uncontradicted. The

district court did not err when it determined Dedrick

was responsible for over 150 grams of crack.

3. Corey Valentine

Corey Valentine also has not submitted any

argument on this claim. He was found responsible for

over 1.5 kilograms of crack. The district court found

that the government had carried its burden of proving

by a preponderance of the evidence that the

conspiracy was responsible for this amount. The court

found that the evidence established that this quantity

of crack was known to Corey, and was certainly

foreseeable to him as part of the conspiracy. The court

96a

noted that one witness stated that Corey made

approximately twenty trips to Arkansas to pick up

multiple kilograms of crack. The district court did not

clearly err when it determined that Corey was

responsible for 1.5 kilograms of crack.

E. Apprendi Claims

Jimmy Ray, Kenneth, Dedrick, Johnny, and Corey

Valentine argue that their sentences should be

vacated and remanded in light of the Supreme Court’s

decision in Apprendi. Apprendi was decided on June

26, 2000, after all the defendants had been sentenced.

However, the defendants did not object to the judge

making the determination of drug quantities, and

thus the review is for plain error. Fed.R.Crim.P. 52(b);

United States v. Page, 232 F.3d 536, 543 (6th Cir.

2000). Unless there is an “error” that is “plain” under

current law and that affects substantial rights, we

cannot correct an error. Johnson v. United States, 520

U.S. 461, 466-67 (1997); United States v. Calloway,

116 F.8d 1129, 1136 (6th Cir. 1997). If the three

conditions are met, we may then exercise discretion

and notice the error only if the error “seriously affect{s]

the fairness, integrity, or public reputation of judicial

proceedings.” Johnson, 520 U.S. at 467.

21 U.S.C. § 841(b)(1)(C) provides for a maximum

penalty of 20 years unless the crime involves a specific

quantity of drugs as set forth in subsections (A) or (B). -

These subsections provide for a maximum sentence of

40 years if the crime involved 5 grams or more of crack,

see § 841(b)(1)(B), and a maximum sentence of life in

prison if the crime involved 50 grams or more of crack,

see § 841(b)(1)(A).

97a

1. Dedrick and Corey Valentine

Dedrick and Corey Valentine argue that they were

deprived of their right to trial by jury because the

element of quantity of drugs was not submitted to the

jury. However, a jury did find Dedrick and Corey

guilty beyond a reasonable doubt of every element of

the crimes for which they were charged. Dedrick was

sentenced to 168 months of imprisonment, and Corey

was sentenced to 235 months of imprisonment.

Dedrick was convicted pursuant to 21 U.S.C.

§ 841(a)(1), and Corey was convicted pursuant to 21

U.S.C. §§ 846 and 841(a). Neither of their sentences

exceeds the statutory maximum of 240 months

prescribed for being found guilty of conspiracy to

possess with intent to distribute or distributing any

quantity of a controlled substance. 21 U.S.C.

§ 841(b)(1)(C). Thus, there was no error. Their

adopted arguments regarding the application of

Apprendi to the sentencing guidelines will be

addressed below.

2. Kenneth Valentine

Kenneth argues that he raised the issue of

Apprendi error before sentencing. However, as

discussed below, no error was committed.

Kenneth was sentenced to 292 months of

imprisonment. Kenneth had a previous drug

conviction. 21 U.S.C. § 851 provides the procedures

for enhancing a sentence for a prior conviction. The

government complied with § 851 when it served and

filed upon Kenneth Valentine an Information and

Notice of Defendant’s Prior Felony Drug Conviction.

The maximum sentence for a conviction under

§ 841(b)(1)(C) after a prior conviction for a felony drug

98a

offense is 30 years. Kenneth’s sentence did not exceed

this maximum, and thus was not error.

He also argues that Apprendi applies to the

sentencing guidelines as the guidelines are legislative

acts. We have previously held that Apprendi does not

apply to a penalty under the sentencing guidelines as

long as the penalty is not in excess of the statutory

maximum. United States v. Garcia, 252 F.3d 838, 843

(6th Cir. 2001).

3. Jimmy Ray Valentine and Johnny Valentine

Jimmy Ray and Johnny Valentine were. both

convicted pursuant to 21 U.S.C. §§ 846 and 841(a),

and both sentenced to 292 months of imprisonment.

Their sentences exceed the statutory maximum of 240

months, as the jury did not find beyond a reasonable

doubt drug quantities that would allow for a higher

statutory maximum. The government concedes for

the purposes of this appeal that the district court’s

instruction on quantity constituted plain error in light

of Apprendi.’ However, the government argues that

the error did not affect appellants’ substantial-rights,

and does not require reversal.

We follow the reasoning in Cotton, in which the

Supreme Court declined to address whether a similar

error affected the defendants’ substantial rights,

because even assuming they were affected, “the error

did not seriously affect the fairness, integrity, or

public reputation of judicial proceedings.” Jd. at

7 The district court instructed the jury that quantity was not an

element of the offense. This instruction was in actordance with

applicable circuit precedent at the time.

99a

632-33. As in Cotton, the evidence that the conspiracy

here involved at least 5 grams of crack is

“overwhelming” and “essentially uncontroverted.”

535 U.S. at 633.

The amount of drugs involved in the conspiracy was

conservatively estimated at between 50 and 75

kilograms of crack. It is clear beyond a reasonable

doubt that had the jury been properly charged, it

would have found the conspiracy to have involved at

least 5 grams of crack, which would allow a maximum

sentence of 40 years. 21 U.S.C. § 841(c)(1)(B)(iii). As

the error of sentencing Johnny and Jimmy Ray

Valentine in excess of the maximum allowable

statutory penalty “did not seriously affect the fairness,

integrity, or public reputation of judicial

proceedings,” Cotton, 535 U.S. at 632-33, because it is

clear beyond a reasonable doubt that any jury would

have found that the conspiracy involved more than 5

grams of crack, we decline to notice the error.

V

We therefore AFFIRM appellants’ convictions and

sentences.

Filed: July 17, 2003

100a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF

AMERICA,

Plaintiff, Case No. 1:99-CR-01-02

HON. RICHARD

ALAN ENSLEN

JIMMY RAY VALENTINE,

Defendant. ORDER

This matter is before the Court on Defendant’s

Motion for Leave of Court to Amend, in which

Defendant requesiz the Court grant him leave to

amend his M>tion brought under 28 U.S.C. § 2255 in

light of the Supreme Court’s decision of Blakely v.

Washington, Dkt. No. 02-1632, 2004 U.S. LEXIS 4573

(June 24, 2004). The court in Blakely redefined the

term “statutory maximum” as used in the Court’s prior

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

therefore, Blakely is an extension of the Apprendi rule

rather than a new rule in itself. Patterson v. United

States, No. 03-CV-74948, 2004 U.S. Dist. LEXIS

12402, at *13 n.3 (E.D. Mich. June 25, 2004). Those

courts that have addressed the issue of whether Blakely

is applicable retroactively have found that it is not.

Patterson, 2004 U.S. Dist. LEXIS 12402, at *13 n.3;

United States v. Traeger, No. 04-2685 (N.D. Ill. July

9, 2004). Furthermore, the Supreme Court’s recent

decision in Schriro v. Summerlin, 124 S. Ct. 2519

(U.S. June 24, 2004) suggests that Blakely is not

10la

applicable retroactively. This Court, therefore, finds

that Blakely may not be applied retroactively to

Defendant’s Motion and, as a result, any amendments

to his Motion based on Blakely would be futile.

THEREFORE, IT IS HEREBY ORDERED that

Defendant’s Motion for Leave to Amend (Dkt. No. 507)

is DENIED.

Richard Alan Enslen

United States District Judge

Dated in Kalamazoo, MI:

July 21, 2004

102a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF

AMERICA,

Plaintiff, Case No. 1:99-CR-1-2

v. HON. RICHARD

ALAN ENSLEN

JIMMY RAY VALENTINE,

Defendant. OPINION

This matter is before the Court on Defendant’s

Motion under 28 U.S.C. § 2255 to Vacate, Set Aside,

or Correct Sentence, in which Defendant claims he

was denied effective assistance of counsel. For the

reasons that follow, Defendant's Motion will be

denied.

I. Procedural History

On January 13, 1999, an Indictment was issued

against Defendant Jimmy Ray Valentine and several

other individuals, charging them with conspiracy to

distribute and possession with intent to distribute

cocaine, crack cocaine, and marijuana. A jury érial

commenced on January 24, 2000, and Defendant was

found guilty on February 11, 2000. Defendant

appealed his sentence to the Sixth Circuit Court of

Appeals, who affirmed the guilty verdict. Defendant

now moves for relief under 28 U.S.C. § 2255.

103a

Il. Standard of Review

A prisoner may bring a motion under 28 U.S.C.

§ 2255 if he claims his sentence was imposed in

violation of the Constitution. In his Motion,

Defendant claims he was denied effective assistance of

counsel in violation of the Sixth Amendment of the

Constitution. In order to prevail on a claim of

ineffective assistance, a defendant must show two

things: first, that his counsel made errors so serious

that he “was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment,”

and second, “that counsel’s errors were so serious as to

deprive the defendant of a fair tria

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