                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3968
                                   ___________

United States of America,               *
                                        *
               Appellee,                *    Appeal from the United States
                                        *    District Court for the
      v.                                *    District of Minnesota.
                                        *
James Clarence Stoltz,                  *    [UNPUBLISHED]
                                        *
               Appellant.               *
                                   ___________

                             Submitted: September 16, 2005
                                Filed: October 10, 2005
                                 ___________

Before MELLOY, BEAM, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

      At issue is whether Blakely v. Washington, 542 U.S. 296 (2004), applies
retroactively on collateral review of a conviction or sentence. This court holds that
it does not.


      On November 17, 1999, James Clarence Stoltz was convicted of conspiracy to
manufacture, distribute and possess with intent to distribute in excess of 500 grams
of methamphetamine. On appeal, this court affirmed the conviction and sentence.
United States v. Zimmer, 299 F.3d 710 (8th Cir. 2002). Stoltz did not seek certiorari
with the Supreme Court, rendering both his conviction and sentence final. On
October 20, 2003, Stoltz filed a habeas petition challenging both the conviction and
sentence. The district court1 denied all of Stoltz's claims except for the Blakely issue,
which it certified for appeal under 28 U.S.C. § 2253(c)(3).


      This case is controlled by United States v. Booker, 125 S. Ct. 738, 746 (2005),
and Never Misses a Shot v. United States, 413 F.3d 781 (8th Cir. 2005). In Never
Misses a Shot, this court held that Booker did not apply retroactively on collateral
review. This court followed the analysis in Teague v. Lane, 489 U.S. 288 (1989), and
Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 2522 (2004). Although a new
rule of criminal procedure announced by the Supreme Court applies to all criminal
cases then pending on direct appeal, it does not apply to convictions that are already
final, except in limited circumstances. See Never Misses a Shot, 413 F.3d at 783
(citing Summerlin, 542 U.S. at ___, 124 S. Ct. at 2522). Where a conviction is final,
the new rule is retroactive only if it is either a substantive rule or a "watershed rule"
of procedure "implicating the fundamental fairness and accuracy of the criminal
proceeding." Summerlin, 542 U.S. at ___, 124 S. Ct. at 2522–23 (quoting Saffle v.
Parks, 494 U.S. 488, 495 (1990)); Never Misses a Shot, 413 F.3d at 783 (citing
Summerlin, 542 U.S. at ___, 124 S.Ct. at 2523; Teague, 489 U.S. at 310–11; United
States v. Moss, 252 F.3d 993, 997 & n.3 (8th Cir. 2001)). A new rule is substantive
when "it alters the range of conduct or the class of persons the law punishes."
Summerlin, 542 U.S. at ___, 124 S. Ct. at 2523. A new procedural rule, however, is



      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
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fundamental only when without it "the likelihood of an accurate conviction is
seriously diminished." Id.


      The Eighth Circuit previously held in Moss that Apprendi v. New Jersey, 530
U.S. 466 (2000), is not of "watershed magnitude" and thus does not apply in collateral
proceedings. Moss, 252 F.3d at 997. Following Moss, Never Misses a Shot held that
Booker does not affect criminal convictions that became final before Booker was
decided. Never Misses a Shot, 413 F.3d at 783.


      Just as Booker cannot be applied retroactively, neither can Blakely. See
Booker, 125 S. Ct. at 746. The Blakely rule is not substantive because it does not
alter the range of conduct or the class of persons the law punishes — it only addresses
what facts a judge may use to determine a sentence. True, the rule announced in
Blakely is a new procedural rule because it was not compelled by Apprendi. See
United States v. Price, 400 F.3d 844, 848–49 (10th Cir. 2005), petition for cert. filed,
(May 31, 2005) (No. 04-10694). However, the Blakely rule, like the Booker rule, is
not of watershed magnitude. Cf. Never Misses a Shot, 413 F.3d at 783. The Blakely
rule is not so fundamental to fairness that without it the likelihood of an accurate
conviction or sentence is seriously diminished. Even after Blakely and Booker, the
federal sentencing guidelines are advisory, and a sentence within the guidelines is
presumptively reasonable. See Booker, 125 S. Ct. at 757; United States v. Lincoln,
413 F.3d 716, 717 (8th Cir. 2005).


      Every circuit court to consider the issue has held that Blakely is not retroactive.
See, e.g., Schardt v. Payne, 414 F.3d 1025, 1036 (9th Cir. 2005); Lloyd v. United

                                          -3-
States, 407 F.3d 608, 610–11, 615–16 (3d Cir. 2005), petition for cert. filed, (U.S.
Aug. 5, 2005) (No. 05-5769) (explaining appellant originally claimed relief under
Blakely, but holding "[t]hat argument is now, of course, governed by the intervening
decision . . . in Booker"); Price, 400 F.3d at 848; Varela v. United States, 400 F.3d
864, 866–67 (11th Cir. 2005), petition for cert filed, (U.S. June 30, 2005) (No. 05-
6041) (holding that although appellant claimed relief under Blakely, "[t]o the extent
Varela's appeal turns on the application of Blakely, it also turns on the application of
Booker"); Carmona v. United States, 390 F.3d 200, 202 (2d Cir. 2004); Cuevas v.
Derosa, 386 F.3d 367, 367 (1st Cir. 2004) (holding that appeal claiming relief under
Blakely was premature because Supreme Court had not decided if Blakely applied to
federal sentencing guidelines).


      Accordingly, this court holds that Blakely does not apply retroactively to
convictions or sentences on collateral review.
                        ______________________________




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