                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-17-2005

Lloyd v. USA
Precedential or Non-Precedential: Precedential

Docket No. 04-3549




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"Lloyd v. USA" (2005). 2005 Decisions. Paper 1092.
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                                          PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 04-3549


                     GARRY D. LLOYD,
                                 Appellant

                              v.

              UNITED STATES OF AMERICA


APPEAL FROM THE UNITED STATES DISTRICT COURT
        FOR THE DISTRICT OF NEW JERSEY
                D.C. Civil No. 04-cv-03687
     District Judge: The Honorable Joseph E. Irenas


          Submitted Under Third Circuit LAR 34.1(a)
                       April 7, 2005


Before: BARRY, AMBRO, and GREENBERG, Circuit Judges


                (Opinion Filed: May 17, 2005)


Richard Coughlin, Esq.
Anne E. Blanchard, Esq.
Office of the Federal Public Defender
800-840 Cooper Street, Suite 350
Camden, New Jersey 08102

Counsel for Appellant

                               1
George S. Leone, Esq.
Office of the United States Attorney
970 Broad Street, Room 700
Newark, New Jersey 07102

Counsel for Appellee




                  OPINION OF THE COURT




BARRY, Circuit Judge

       All courts of appeals to have considered the issue of
whether the rule of law announced in United States v. Booker,
543 U.S. __, 125 S. Ct. 738 (2005), applies retroactively to
prisoners who were in the initial § 2255 motion stage as of the
date that Booker issued have concluded that it does not. We now
join those courts.

                       I. BACKGROUND

        Appellant Garry D. Lloyd was charged with bank fraud,
in violation of 18 U.S.C. §§ 1344 and 2, and was convicted by a
jury. When determining Lloyd’s sentence, the District Court
found facts, under a preponderance of the evidence standard, that
had not been found by the jury, including (1) that Lloyd had
engaged in more than minimal planning; (2) that Lloyd had
caused a financial loss of more than $120,000 but less than
$200,000; and (3) that Lloyd had committed an obstruction of
justice. Application of the Federal Sentencing Guideline
enhancements called for by these fact-findings resulted in a total
offense level of 17 and, given Lloyd’s criminal history category
of V, a Guideline imprisonment range of forty-six to fifty-seven
months. The District Court sentenced Lloyd, as relevant here, to
fifty months imprisonment, followed by five years of supervised
release. We affirmed the judgment. See United States v. Lloyd,
No. 02-2394, 58 Fed. Appx. 928 (3d Cir. 2003). Lloyd did not

                                2
seek a writ of certiorari, and his conviction became final on May
6, 2003.

       On June 24, 2004, the Supreme Court issued its opinion
in Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531 (2004).
The Court held that Washington State’s determinate sentencing
scheme, a scheme similar to the Federal Sentencing Guidelines,
violated the Sixth Amendment right to a jury trial. Id. at 2538.
Blakely’s reasoning was that judges were imposing sentences
that were not based solely on facts reflected in the verdict of the
jury or admitted by the defendant, and were using a
preponderance of the evidence standard to find the facts
necessary to that imposition. Id. at 2536-39.

       On August 3, 2004, Lloyd filed a motion to vacate his
sentence pursuant to 28 U.S.C. § 2255. He argued that the facts
supporting the enhancements he received were not found by a
jury beyond a reasonable doubt and, thus, that the sentence
imposed was in violation of Blakely. Moreover, he argued,
although his motion was filed more than a year after his
conviction became final, and therefore would otherwise be
barred by the one-year limitation period of § 2255, Blakely
created a new right. As such, Lloyd reasoned that the one-year
period should run from the date of the Blakely decision, thereby
rendering his motion timely. See 28 U.S.C. § 2255 para. 6(3).

        The District Court disagreed, and dismissed the § 2255
motion. Blakely, the Court explained, did not rule that the
Federal Sentencing Guidelines were unconstitutional, but even if
it had done so, there had been no determination, as is required
under § 2255 para. 6(3), that Blakely applies retroactively to
cases on collateral review. Booker, of course, had yet to be
decided.

       Lloyd now appeals, post-Booker, to this Court. The
District Court had jurisdiction pursuant to 28 U.S.C. § 2255. We
have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).




                                 3
                         II. DISCUSSION

       The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) provides that a one-year period of limitation
applies to a motion to vacate, set aside, or correct a sentence
under 28 U.S.C. § 2255. See 28 U.S.C. § 2244(d)(1). Section
2255 states, in relevant part, that the limitation period shall run
from the latest of: “(1) the date on which the judgment of
conviction becomes final . . . [or] (3) the date on which the right
asserted was initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review.” 28 U.S.C.
§ 2255 para. 6. Because Lloyd concededly filed his motion more
than a year after his conviction became final, his motion would
only have been timely filed if the Supreme Court announced a
newly recognized right or a “new rule” that has been made
“retroactively applicable to cases on collateral review.” See id.

       Lloyd initially argued to us that his sentence was imposed
in violation of Blakely. That argument is now, of course,
governed by the intervening decision, issued on January 12,
2005, in Booker, which concluded that the holding in Blakely
applies to the Federal Sentencing Guidelines. 543 U.S. at __,
125 S.Ct. at 756.1 We hardly break new ground when we note
that Booker was decided by two opinions. The first, authored by
Justice Stevens, held that because the Federal Sentencing
Guidelines allowed judges to find facts (other than the fact of a
prior conviction) that lead to a greater sentence than that



       1
        We note in passing that some courts, when considering the
issues now before us, refer to the “Blakely rule” and others refer to
the “Booker rule.” We believe it is appropriate to refer to the
“Booker rule.” It is the date on which Booker issued, rather than
the date on which Blakely issued, that is the “appropriate dividing
line.” McReynolds v. United States, 397 F.3d 479, 481 (7th Cir.
2005). Blakely, as the Court of Appeals for the Seventh Circuit
pointed out, reserved decision about the status of the Federal
Sentencing Guidelines, and Booker established a new rule for the
federal system. See id.

                                 4
authorized by the facts established by a plea of guilty or a jury
verdict, the Guidelines were unconstitutional. The second,
authored by Justice Breyer, devised the remedy of excising the
statutory provision that made the Guidelines mandatory.

       Generally, a new rule of criminal procedure “will not be
applicable to those cases which have become final before the
new [rule is] announced.” Teague v. Lane, 489 U.S. 288, 310
(1989). This bar applies equally to a federal habeas corpus
petitioner who wishes to collaterally attack his conviction, unless
an exception applies. Accordingly, in order for Lloyd to benefit
from Booker, it must be determined that the rule announced
therein applies retroactively.

        Under Teague, the determination of whether a rule of
criminal procedure applies retroactively to a case on collateral
review requires a three-step inquiry. In terms of this case, then,
we must first determine if Lloyd’s conviction became final prior
to the Supreme Court’s decision in Booker. See Beard v. Banks,
542 U.S. __, 124 S. Ct. 2504, 2510 (2004). Second, we must
determine whether the rule announced in Booker qualifies as
“new.” 2 See id. Third, if those two conditions are satisfied, we
must examine whether the new procedural rule qualifies under
one of Teague’s two narrow exceptions to the non-retroactive
application of such rules. See id. As relevant here, a new rule of
criminal procedure will apply retroactively if it is deemed a
“watershed [rule] of criminal procedure implicating the
fundamental fairness and accuracy of the criminal proceeding.”
Id. at 2513 (internal quotation and citation omitted).




       2
       Teague differentiates between new substantive rules and
new procedural rules. See Teague, 489 U.S. at 311. The Supreme
Court has unequivocally stated that the Apprendi line of cases, of
which Booker is surely one, announced a new rule of criminal
procedure. Schriro v. Summerlin, 542 U.S.      , 124 S.Ct. 2519,
2523-24 (2004).

                                 5
                                A.

       It bears repeating, and the parties do not dispute, that
Lloyd’s conviction became final on May 6, 2003. See Kapral v.
United States, 166 F.3d 565, 572 (3d Cir. 1999) (explaining that
when a defendant does not seek a writ of certiorari, the judgment
of conviction becomes final upon the expiration of the time
allowed for certiorari review); see also 28 U.S.C. § 2101(c)
(allowing for ninety days, post-conviction, for certiorari review).
This date is thirteen months prior to the issuance of the decision
in Blakely, and twenty months prior to the issuance of the
decision in Booker. Clearly, then, both Blakely and
Booker would have to be given retroactive effect in order for
them to be applied to Lloyd’s case.

                                B.

       Neither do the parties dispute that the Booker rule
constituted a new rule of criminal procedure for purposes of
Teague. We agree, and believe it appropriate to briefly explain
our reasoning.

        To determine if the rule announced in Booker was “new,”
we are required to review the “legal landscape” at the time
Lloyd’s conviction became final to see if the rule “was dictated
by the then existing precedent–whether, that is, the unlawfulness
of respondent’s [sentence] was apparent to all reasonable
jurists.” Beard, 542 U.S. at     , 124 S.Ct. at 2511 (internal
quotation and citation omitted) (emphasis in original). If it was
not “dictated” by past precedent, then Booker created a new rule.

       Prior to Blakely and Booker, Apprendi established that, at
sentencing, a judge could enhance a sentence based on facts not
admitted by the defendant or found by the jury, so long as the
enhancement did not increase the defendant's sentence beyond
the prescribed statutory maximum. Apprendi v. New Jersey, 530




                                 6
U.S. 466, 490 (2000).3 Blakely simply applied Apprendi to a
different statutory scheme, clarifying “that ‘the statutory
maximum’ for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.” Blakely, 542 U.S. at
__, 124 S.Ct. at 2537 (internal citation omitted) (emphasis in
original).4 The Booker Court, of course, subsequently applied
Blakely’s holding to the Federal Sentencing Guidelines.

       Every court of appeals to have considered the issue has
concluded that, whether denominated as the “Blakely rule” or the
“Booker rule,” that rule was “new.” For example, the Court of
Appeals for the Tenth Circuit reasoned that while Blakely
interpreted Apprendi, it was not compelled by Apprendi. See
United States v. Price, 400 F.3d 844, 848-49 (10th Cir. 2005).
That is, post-Apprendi but pre-Blakely, a court would not have
believed itself compelled to conclude that what became the
“Blakely rule” was constitutionally required. Blakely changed
courts’ understanding of Apprendi’s statutory maximum and
announced a new rule.

       The Court of Appeals for the Sixth Circuit also
concluded that what it called the “Booker rule” was “clearly
new.” See Humphress v. United States, 398 F.3d 855, 861 (6th


       3
        The courts of appeals have unanimously held that while
Apprendi set forth a new rule of criminal procedure, that rule is not
retroactively applicable to cases on collateral review where the
judgments had already become final when Apprendi was decided.
We so held in United States v. Swinton, 333 F.3d 481 (3d Cir.
2003).
       4
        Justice Stevens, in Booker, explained the holding in
Blakely: “The [judge’s] determination that the defendant acted with
deliberate cruelty, like the determination in Apprendi that the
defendant acted with racial malice, increased the sentence that the
defendant could have otherwise received. Since this fact was
found by a judge using a preponderance of the evidence standard,
the sentence violated Blakely’s Sixth Amendment rights.” 543
U.S. __, __, 125 S.Ct. 738, 749 (2005).

                                 7
Cir. 2005). That rule, the Court found, “was not dictated by
precedent” when Humphress’s conviction became final, and “it
would not have been apparent to ‘all reasonable jurists’ that his
conviction was unlawful.” Id. Moreover, the Court continued,
prior to Booker, the federal judiciary had been deeply divided as
to whether Blakely applied to the Federal Sentencing Guidelines,
and conflicting opinions issued as to whether Blakely rendered
those Guidelines unconstitutional. Id. at 861-62. Differences
among reasonable jurists, subsequently resolved by a Supreme
Court ruling, suggest that the rule resolving those differences
was “new.” Id.; see also Beard, 542 U.S. at __, 124 S.Ct. at
2512-13 (noting that when four justices dissent, this may be
sufficient to show that a new rule was announced).

       Most recently, the Court of Appeals for the Second
Circuit has weighed in, concluding that the result in Booker “was
not dictated by Apprendi or, for that matter, the Court’s later
decision in Blakely. . . .” Guzman v. United States, 404 F.3d
139, 142 (2d Cir. 2005). It “cannot be said that the result in
Booker was apparent to ‘all reasonable jurists.’” Id. Booker, the
Court concluded, announced a new rule. Id.

                                 C.

        And so we turn to whether Booker’s new rule of criminal
procedure qualifies under the second exception to Teague’s non-
retroactivity bar.5 Teague’s prohibition against the retroactive
application of new rules of criminal procedure does not apply to
“watershed rules of criminal procedure implicating the
fundamental fairness and accuracy of the criminal proceeding.”
Beard, 542 U.S. at , 124 U.S. at 2513 (internal quotation and
citation omitted). We explained in United States v. Swinton that
Teague’s second exception is reserved for watershed rules that



       5
        The first exception applies to a new rule that “places certain
kinds of primary, private individual conduct beyond the power of
the criminal law-making authority to proscribe.” Teague, 489 U.S.
at 307 (internal quotation and citation omitted). Booker does not
implicate this exception.

                                  8
“not only improve the accuracy of trial, but also ‘alter our
understanding of the bedrock procedural elements’ essential to
the fairness of a proceeding.” 333 F.3d 481, 487 (3d Cir. 2003)
(quoting Sawyer v. Smith, 497 U.S. 227, 242 (1990)) (emphasis
in original). To say that this exception is extremely narrow is to
understate the issue for, as the Supreme Court itself has noted, it
has “yet to find a new rule that falls under the Teague
exception.” Beard, 542 U.S. at __, 124 S. Ct. at 2513-14.6

        Every federal court of appeals to have considered whether
Booker’s new rule constituted a “watershed rule” that would
satisfy Teague’s second exception has held that it does not and,
thus, has held that Booker does not apply retroactively to cases
on collateral review. See, e.g., Guzman, 404 F.3d at 143-44 ;
Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005);
Price, 400 F.3d at 845; Humphress, 398 F.3d at 857;
McReynolds, 397 F.3d at 481. We join those courts.7


       6
        Including the Batson rule at issue in Teague, the Court has
refused to apply twelve new rules of criminal procedure
retroactively on collateral review. See United States v. Mandanici,
205 F.3d 519, 529 (2d Cir. 2000) (collecting ten such cases); see
also Summerlin, 542 U.S. at      , 124 S.Ct. at 2525-26. Indeed, as
the Guzman Court noted, “[n]o such watershed rule has been
identified by the Court since that standard was adopted.” Guzman,
404 F.3d at 143.
       7
        We have recently held, in the context of a prisoner’s
request under 28 U.S.C. § 2244 for leave to file a second or
successive motion to vacate his sentence under § 2255, that the
prisoner cannot make a “prima facie showing” under §
2244(b)(3)(C) that Booker constitutes “a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” In re Olopade, 403 F.3d
159, 164 (3d Cir. 2005) (quoting 28 U.S.C. § 2255). We concluded
that the Supreme Court has not held that Booker is applicable to
cases on collateral review, that no combination of Supreme Court
decisions dictates that Booker has retroactive force on collateral
review, and that the Court’s holding in Summerlin “strongly
suggests” that Booker is not retroactively applicable to cases on

                                 9
        At the outset, we reject the government’s contention that
the “watershed rule” exception only applies to new procedural
rules that improve the accuracy of the guilt or innocence of a
defendant. It is just not so that because Booker only impacts
sentencing, the “watershed rule” exception cannot apply.

        In Schriro v. Summerlin, the Supreme Court examined
whether the holding of Ring v. Arizona, 536 U.S. 584 (2002),
applied retroactively to cases on collateral review. 542 U.S. __,
124 S.Ct. 2519, 2524-25. Ring, which was decided in the wake
of Apprendi, struck down an Arizona law permitting a judge,
rather than a jury, to find certain aggravating factors beyond a
reasonable doubt that would warrant imposition of the death
penalty. Id. at 2522. The Summerlin Court emphasized that the
question before it was “whether judicial factfinding so seriously
diminishes accuracy that there is an impermissibly large risk of
punishing conduct the law does not reach.” Id. at 2525 (internal
quotation marks and citation omitted) (emphasis in original).
Because the evidence as to whether juries are more accurate
factfinders than judges was “simply too equivocal,” id., the
Court could not say that the rule announced in Ring so
significantly improved accuracy that it should apply retroactively
to cases already final on direct review. See id.

        Summerlin leaves little doubt that the “watershed rule”
exception can apply to a procedural rule that only affects
sentencing; indeed, were it otherwise, the Court would not have
needed to examine whether Ring’s holding applied retroactively.
More importantly, Apprendi and its progeny have made clear
that distinguishing between a conviction and a sentence obscures
what matters for constitutional purposes–namely, facts that
increase a defendant’s punishment. See, e.g., Booker, 543 U.S.



collateral review. Id. at 162-63.
    But we were not required to do a Teague analysis in Olopade;
rather, we were required to read § 2255 in conjunction with §
2244(b)(3)(C) to determine whether a second or successive motion
should be certified. See id. at 161-62. We must, therefore, address
the “watershed rule” exception here.

                                10
at __, 125 S.Ct. at 748 (explaining that the fact that a state labels
a crime a “‘sentencing enhancement’ rather than a separate
criminal act” is irrelevant for constitutional purposes); see also
Ring, 536 U.S. at 610 (Scalia, J., concurring) (“[T]he
fundamental meaning of the jury-trial guarantee of the Sixth
Amendment is that all facts essential to the imposition of the
level of punishment that the defendant receives–whether the
statute calls them elements of the offense, sentencing factors, or
Mary Jane–must be found by the jury beyond a reasonable
doubt.”). Accordingly, while the Summerlin Court held that
Ring does not apply retroactively, it did not do so because Ring
merely affected sentencing decisions.

         And so we move to Lloyd’s main argument: that by
requiring the factfinder to determine sentencing factors beyond a
reasonable doubt, Booker necessarily qualifies as a new rule of
criminal procedure “without which the likelihood of an accurate
conviction is seriously diminished.” Teague, 489 U.S. at 313.
After all, the argument goes, the Supreme Court has long held
that the “reasonable-doubt standard plays a vital role in the
American scheme of criminal procedure. It is a prime
instrument for reducing the risk of convictions resting on factual
error.” In re Winship, 397 U.S. 358, 363 (1970). Furthermore,
“a person accused of a crime . . . would be at a severe
disadvantage . . [,] amounting to a lack of fundamental fairness,
if he could be adjudged guilty and imprisoned for years on the
strength of the same evidence as would suffice in a civil case.”
Id. (internal quotation and citation omitted). The “use of the
reasonable doubt standard is indispensable, for it ‘impresses on
the trier of fact the necessity of reaching a subjective state of
certitude of the facts in issue.’” Id. at 364 (internal citation
omitted).

       It would be one thing if we were only dealing with Justice
Stevens’s opinion in Booker, which held the Federal Sentencing
Guidelines unconstitutional because their mandatory nature
required judges to find facts that increased sentences based on a
preponderance of the evidence. But in the opinion authored by
Justice Breyer, the unconstitutionality of the Guidelines was
remedied by excising the provision, at 18 U.S.C. § 3553(b)(1),

                                 11
that made their application mandatory. See Booker, 543 U.S. at
__, 125 S. Ct. at 756-757. By creating an advisory federal
sentencing regime, the Booker Court did not announce a new
rule of criminal procedure that significantly increases the
“certitude” or “accuracy” of the sentencing process. As the
Court of Appeals for the Seventh Circuit put it, Booker was not a
“‘watershed’ change that fundamentally improves the accuracy
of the criminal process” because defendants’ sentences “would
be determined in the same way if they were sentenced today; the
only change would be the degree of flexibility judges would
enjoy in applying the guideline system.” McReynolds, 397 F.3d
at 481; see also Guzman, 404 F.3d at 143-44; United States v.
Ordaz, 398 F.3d 236, 239 (3d Cir. 2005) (“The net result [of
Booker] was to delete the mandatory nature of the Guidelines
and transform them to advisory guidelines for the information
and use of the district courts in whom discretion has now been
reinstated.”).

                      III. CONCLUSION

        Because Booker announced a rule that is “new” and
“procedural,” but not “watershed,” Booker does not apply
retroactively to initial motions under § 2255 where the judgment
was final as of January 12, 2005, the date Booker issued. We
will, therefore, affirm the August 11, 2004 order of the District
Court dismissing Lloyd’s § 2255 motion.




                               12
