                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0009p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                X
                                                 -
 DARRYL PAUL DUNCAN,
                                                 -
                           Petitioner-Appellant,
                                                 -
                                                 -
                                                     No. 06-5021
          v.
                                                 ,
                                                  >
                                                 -
                       Respondent-Appellee. -
 UNITED STATES OF AMERICA,
                                                 -
                                                N
                  Appeal from the United States District Court
                for the Western District of Tennessee at Jackson.
                 No. 05-01265—James D. Todd, District Judge.
                              Submitted: October 31, 2008
                          Decided and Filed: January 9, 2009
        Before: MARTIN, BATCHELDER, and DAUGHTREY, Circuit Judges.

                                  _________________

                                      COUNSEL
ON BRIEF: David W. Camp, LAW OFFICE OF DAVID CAMP, Jackson, Tennessee, for
Appellant. R. Leigh Grinalds, ASSISTANT UNITED STATES ATTORNEY, Jackson,
Tennessee, for Appellee.
     MARTIN, J., delivered the opinion of the court, in which DAUGHTREY, J., joined.
BATCHELDER, J. (p. 8), delivered a separate opinion concurring in the result.
                                  _________________

                                       OPINION
                                  _________________

       BOYCE F. MARTIN, JR., Circuit Judge. This case presents the question whether
the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), applies
retroactively on collateral review to sentences imposed before Booker but after the Court
decided Blakely v. Washington, 542 U.S. 296 (2004). We hold that it is not retroactive and
therefore affirm petitioner Darryl Duncan’s sentence.



                                            1
No. 06-5021          Duncan v. United States                                            Page 2


        In 2002, Duncan was stopped by an officer who knew of Duncan’s outstanding
warrants. The officer approached Duncan, determined he had a gun, and arrested him. In
2004, Duncan pleaded guilty to being a felon in possession of a firearm. In calculating the
appropriate Sentencing Guidelines range, the sentencing judge cited Duncan’s criminal
history and stated that “since armed career criminal applies, I’m stuck with a guideline range
of 188 to 235 months.” The judge gave Duncan 188 months, the lowest available sentence
under the Guidelines, “because the only reason [he] got up into that range was because [he
was an] armed career criminal.” The judge observed that without the armed career criminal
guideline Duncan “would have been in the 70-87 month range” and that 188 months was the
“minimum that [was] available.” In September 2005, Duncan moved pursuant to 18 U.S.C.
§ 2255 for the district court to vacate his sentence; the court denied the motion. This Court
then granted Duncan a “certificate of appealability with respect to the issue of whether [he]
is entitled to be resentenced in the wake of Booker.” We thus address whether Booker applies
retroactively to sentences imposed after the Supreme Court decided Blakely.

        This question’s resolution matters to Duncan because if Booker applies retroactively
he is entitled to resentencing. Duncan preserved his Sixth Amendment challenge, and it is
not dispositive that he suffered no direct constitutional violation because his Guidelines
range would have been the same absent any judge-found facts. This is because the Supreme
Court in Booker consolidated the cases of Booker and Fanfan and ultimately invalidated both
their sentences. While Booker’s sentence was improper because it had been increased on the
basis of judge-found facts not submitted to a jury, Booker, 543 U.S. at 244, “the Court held
that the district court had violated Fanfan’s statutory right to be sentenced under the advisory
guidelines,” “because Fanfan was sentenced under the erroneous assumption that the
guidelines were mandatory,” and thus he could seek “resentencing under the advisory
guidelines.” United States v. Hochschild, 442 F.3d 974, 980 (6th Cir. 2006).

        In other words, a defendant “has both constitutional and statutory rights under
Booker,” Hochschild, 442 F.3d at 980, and defendants sentenced under the erroneous belief
that the guidelines are mandatory suffer non-constitutional Booker-error. United States v.
No. 06-5021             Duncan v. United States                                                      Page 3


                                                          1
Barnett, 398 F.3d 516, 524-25 (6th Cir. 2005). There is every indication here that the
sentencing judge felt constrained by the mandatory guidelines, and, post-Booker,
defendants have the right to individualized sentencing in light of the statutory sentencing
factors, 18 U.S.C. § 3553, because “as a general matter, courts may vary from Guidelines
ranges based solely on policy considerations, including disagreements with the
Guidelines.” United States v. Kimbrough, 552 U.S. ___, 128 S.Ct. 558, 578 (2007)
(internal quotations and citations omitted).

         So, we must determine whether Booker is retroactive back to Blakely. In Teague
v. Lane, 489 U.S. 288 (1989), and subsequent cases, the Supreme Court explained the
framework for determining when rules apply retroactively to final criminal judgments.2
Under Teague, an old rule applies both on direct and collateral review, but a new rule
is generally applicable only to cases still on direct review. See Griffith v. Kentucky, 479
U.S. 314 (1987). Yet a “new rule” also applies retroactively in a collateral proceeding
if (1) the rule is substantive or (2) the rule is a “watershed rule of criminal procedure
implicating the fundamental fairness and accuracy of the criminal proceeding.” Schriro
v. Summerlin, 542 U.S. 348, 353 (2004) (quotations omitted).

         The first question is whether Booker, in light of Blakely, applied an old rule or
announced a new one. A case announces a new rule when “it breaks new ground or
imposes a new obligation on the States or the Federal Government.” Teague, 489 U.S.
at 301. A new rule is further defined as “a rule that . . . was not dictated by precedent
existing at the time the defendant’s conviction became final,” Schriro, 542 U.S. at 352,




         1
            See also Gall v. United States,128 S. Ct. 586, 597 (2007) (“Regardless of whether the sentence
imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an
abuse-of-discretion standard. It must first ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines
as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence – including an explanation for any deviation
from the Guidelines range.”) (emphasis added).
         2
          It is not entirely clear that Teague’s framework is appropriate for federal habeas petitions under
18 U.S.C. § 2255 because many of the comity and federalism concerns animating Teague are lacking. See
Valentine v. United States, 488 F.3d 325, 341 (6th Cir. 2007) (Martin, J., dissenting). But it has been this
Court’s practice to apply Teague to § 2255 petitions, and we adhere to it today.
No. 06-5021        Duncan v. United States                                          Page 4


and a decision does not announce a new rule when it is “merely an application of the
principle that governed” a prior Supreme Court case. Teague, 489 U.S. at 307.

       We have previously held that Booker is not retroactive back to the time that the
Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000), see Valentine v.
United States, 488 F.3d 325 (6th Cir. 2007), but the Apprendi line of cases is long.
Logically, at some point in this chain – stretching from Apprendi to Ring v. Arizona, 536
U.S. 584 (2002), and through Blakely, Booker, Rita v. United States, 127 S. Ct. 2456,
2465 (2007), Gall v. United States,128 S. Ct. 586, 597 (2007), and Kimbrough v. United
States, 128 S. Ct. 558, 570 (2007) – the rule Apprendi announced must stop being a new
rule in every varying application and instead must become an old one that applies on
collateral review. Duncan argues that this switch occurred after Blakely but before
Booker; the government disagrees, though it need not specify the exact break.

       Duncan is right that the argument that Blakely dictated Booker is considerably
stronger than the argument that Apprendi did. Although the Supreme Court ignited the
Apprendi revolution with the rule announced there – “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,”
Apprendi, 530 U.S. at 490 – it was Blakely that clarified the meaning of “statutory
maximum”: “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence
a judge may impose solely on the basis of the facts reflected in the jury verdict or
admitted by the defendant.” 542 U.S. at 303 (emphasis in original). And when the
Booker Court struck down the federal Sentencing Guidelines, it observed that as “the
dissenting opinions in Blakely recognized, there is no distinction of constitutional
significance between the federal Sentencing Guidelines and the Washington procedures
at issue in that case.” Booker, 543 U.S. at 233.

       Nevertheless, before Booker was handed down (but after certiorari had been
granted) a majority of this Court held that Blakely did not require us to strike down the
federal Sentencing Guidelines. United States v. Koch, 383 F.3d 436 (6th Cir. 2004) (en
banc). In Koch, though we observed that “[i]t may be that the trajectory of Apprendi,
No. 06-5021             Duncan v. United States                                                   Page 5


Ring, and Blakely will end with a nullification of the Guidelines,” we declined to do so
for prudential reasons. Id. at 442. Specifically, we observed that lower courts should not
overrule Supreme Court decisions – even when their reasoning has been undermined –
and we interpreted Edwards v. United States, 523 U.S. 511 (1998), as established
precedent upholding the Guidelines against a Sixth Amendment challenge. We also
relied on the fact that the sentencing scheme struck down in Blakely, although identical
in effect to the Federal Guidelines, differed in form: the sentencing scheme struck down
in Blakely was promulgated by Washington’s legislature while the federal Guidelines
were promulgated by the Sentencing Commission, although we admitted that both had
the force of law and both similarly bound courts. Koch, 383 F.3d at 439 (citing Stinson
v. United States, 36 U.S. 36, 42 (1993)).

         Of course, in Booker, the Supreme Court stated that Edwards’s holding was not
germane to deciding whether or not the Guidelines were unconstitutional, Booker, 543
U.S. 240-41, and it further held that “the fact that the Guidelines were promulgated by
the Sentencing Commission, rather than Congress, lack[ed] constitutional significance.”
Id. at 237. This latter conclusion was informed by the Court’s prior decision in Mistretta
v. United States, 488 U.S. 361, 371, 393-94 (1989), in which the Court, in upholding the
Guidelines against delegation and separation-of-powers challenges, observed that the
Sentencing Commission was “quasi-legislative” in function.3

         And, there are pragmatic reasons to believe that Blakely dictated Booker. Justice
O’Connor, whose Blakely dissent prophesized the Guidelines’s demise, described the
Blakely decision at the Ninth Circuit judicial conference as a “number ten earthquake.”4

         3
            Although we ask whether “reasonable jurists could differ as to whether precedent compel[led]
the sought-for rule,” Beard v. Banks, 542 U.S. 406, 416 n.5 (2004), that inquiry does not compel us to
simply count dissenting Justices or lower court judges. Indeed, the Teague Court’s primary example of a
case that did not announce a new rule was Francis v. Franklin, 471 U.S. 307 (1985), which was a 5-4
decision holding that a jury instruction allowing the jury to presume malice unconstitutionally relieved a
state of its burden of proof beyond a reasonable doubt. Three years after Francis was decided, the Court,
in Yates v. Aiken, 484 U.S. 211, 216-17 (1988), quoted in Teague, 489 U.S. at 307, held that Francis did
not announce a new rule because it “was merely an application” of principles the Court had previously
established. Justice O'Connor, Teague’s author, dissented in Francis.
         4
             Lyle Denniston, Justices Agree to Consider Sentencing, N.Y. TIMES, Aug. 3, 2004, at
A14.
No. 06-5021        Duncan v. United States                                          Page 6


This was not hyperbole. Within a month of Blakely, thousands of criminal appeals
challenging the federal Sentencing Guidelines were filed, several federal courts had
struck down some or all of the Guidelines, and the Acting Solicitor General sought
expedited review in the Supreme Court of two decisions questioning the Guidelines’s
constitutionality. See, e.g., Douglas A. Berman, Reconceptualizing Sentencing, 2005 U.
CHI. LEGAL F. 1, 34-36 (2005). Blakely’s significance for the mandatory Guidelines’s
future viability could not be missed: the “entire federal criminal justice system came to
a standstill in anticipation of the Court’s decision in Booker.” United States v. Paladino,
401 F.3d 471, 485 (7th Cir. 2005) (Ripple, J., dissenting). After Blakely, the writing was
on the wall that the Guidelines were doomed in a way that was not the case after
Apprendi was decided. Indeed, this case is yet another of the Blakely earthquake’s many
reverberations, and thus it is at least arguable that Booker should operate retroactively
back to when the Supreme Court decided Blakely.

       Yet this case does not arise in a vacuum. Our holding in Koch that Blakely did
not require us to strike the Guidelines down, though ultimately proven incorrect,
nevertheless gives us great pause in considering Duncan’s argument. And though they
were decided in different postures than this case and thus do not directly control our
decision today, the sweeping language of Humphress v. United States, 398 F.3d 855 (6th
Cir. 2005) and Valentine, 488 F.3d at 330, counsels against holding that Booker merely
announced an old rule. We thus hold that Booker announced a new rule and did not
merely apply the rule announced in Blakely.

       Summerlin forecloses Duncan’s remaining avenues for retroactivity: that either
the Booker rule is “substantive” or that it announced a “watershed rule of criminal
procedure.” In Summerlin, the Supreme Court held that Ring – one of the many cases
following Apprendi – is not retroactive on collateral review. Ring held that defendants
are entitled to a jury trial on all aggravating factors possibly leading to the imposition
of the death penalty. 536 U.S. at 609. In Summerlin, the Court determined that Ring did
not “alter[] the range of conduct or the class of persons that the law punishes,” and thus
was not a “substantive” rule. Summerlin, 542 U.S. at 353. Instead, Ring merely
No. 06-5021        Duncan v. United States                                          Page 7


“allocate[d] decisionmaking authority” by requiring a jury rather than a judge find the
facts essential to punishment and thus was a “prototypical procedural rule[.]” Id. This
logic equally applies to both Blakely and Booker, so the rules announced in both are, like
the rule announced in Ring, procedural.

       Second, Summerlin held that Ring did not announce a “watershed rule of criminal
procedure” because the Court could not determine whether juries were so much more
accurate than judges such that the change brought about by Ring “implicat[ed] the
fundamental fairness and accuracy of the criminal proceeding”; indeed, the Summerlin
Court found that it could not say either way: the evidence was simply “too equivocal.”
Id. at 355. Moreover, the Booker remedial opinion left sentencing authority, albeit with
increased discretion, with sentencing judges when it made the Guidelines “effectively
advisory,” so Booker could not have announced a “watershed rule.”

       Finally, informing our decision today is the recognition that to accept Duncan’s
argument that Booker operates retroactively back to Blakely would create a split with our
sister circuits where one did not exist before, see e.g., McReynolds v. United States, 397
F.3d 479, 481 (7th Cir. 2005), which we are wary of doing. Thus, we decline Duncan’s
invitation to create this split and hold that the Supreme Court’s decision in Booker is not
retroactive on collateral review for sentences imposed after Blakely. We therefore
AFFIRM Duncan’s sentence.
No. 06-5021        Duncan v. United States                                      Page 8


                 _________________________________________

                       CONCURRING IN THE RESULT
                 _________________________________________

       ALICE M. BATCHELDER, Circuit Judge, concurring. Because I believe that
Duncan’s claim is entirely governed by our decisions in Humphress v. United States, 398
F.3d 855 (6th Cir. 2005) and Valentine v. United States, 488 F.3d 325 (6th Cir. 2007),
I concur in the result reached by the lead opinion.
