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March 9, 2005

Tenth Circuit addresses Blakely retroactivity

Standing out among other circuit dispositions this week is the Tenth Circuit's discussion of Blakely's retroactivity in US v. Price, 2005 WL 535361 (10th Cir. Mar 08, 2005).  The petitioner in Price had failed on his habeas claim in the wake of Blakely, but he sought rehearing after Booker, and the Tenth Circuit denies the rehearing petition with an opinion that provides an extended explanation for why "Blakely does not apply retroactively to convictions that were already final at the time the Court decided Blakely, June 24, 2004."

The Tenth Circuit thus becomes, I believe, the third circuit to address directly Blakely/Booker retroactivity after Booker, joining the Seventh Circuit in McReynolds and the Sixth Circuit in Humphress.  Unlike the plain-error splits for cases still on direct appeal, the circuits have been uniform to date in rejecting Blakely/Booker challenges in cases that have become final.

UPDATE: As Adam kindly notes in the comments to this post and as another fine reader has brought to my attention, I keep forgetting that the Eleventh Circuit in Varela has also ruled that that Blakely and Booker are not retroactively applicable to cases on collateral review.  So, we have four circuits that have officially spoken on this issue — the 6th, 7th, 10th and 11th — and I suspect that it is only a matter of time before the other eight follow suit.

March 9, 2005 at 06:09 AM | Permalink


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The Eleventh Circuit has ruled similarly in Varela v. United States.

Posted by: Adam | Mar 9, 2005 1:39:28 PM

fraud loss @ 2F1.1 v. tax loss @ 2T1.1.

In 2T1.1 the loss in taxes derives the base offense level or then if no tax losses the base offense level is 6.
In 2F1.1 the loss in fraud increases the beginning base offense level of 6 when the fraud loss exceeds $ 2000.00.

In both instances tax loss and fraud loss are not alleged in indictments nor found by jury at trial. Without any loss both make 6 points the base offense level.

What happens when the facts needed to derive the base offense level are not within any element of an alleged offense? This would mean the Judge would go from finding enhancements that enhance the base offense level to finding those facts which both find the base offense level and which enhance the base.

Regardless of application of Booker/Fanfan part II, it is clear that Booker/Fanfan part I simply reaffirms the 6th amendment right to a jury trial on all facts needed to find each element of an alleged crime. Part I also then must reaffirm that the indictment guaranteed under the Fifth Amendment must contain each alleged fact to which the Sixth Amendment Jury must consider to find the person charged guilty. If he is not guilty then he is not guilty.

Simply having the Jury find any fact or group of facts outside the elements of the crime is no good unless those facts were alleged by the Grand Jury. A Jury convicting on separate facts to which the Grand Jury alleged would require dismissal of the Grand Jury Indictment as there, in that instance, would be no probable cause to believe that a crime had committed (as the Grand Jury alleged). Other constitutional considerations most certainly would also apply.

Then there is due process of law. It seems that Part II is trying to evade the meaning and prohibitions against retroactivity while Part I is being held not to apply retroactively to cases not still on review.

What Booker/Fanfan cannot do is change what the law said prior to January 12, 2005. What it does show is what the law said prior to January 12, 2005 and at least goes as far back as to when the guidelines began.

How can Part I not apply retroactively to all persons imprisoned in violation of the sixth amendment while Courts construe Part II to apply retroactively to all cases Part II could reach?

How can being illegally in prison for direct violation of the Sixth Amendment Jury Trial not rise to the level that would trigger habeas relief? Someone needs to seek habeas relief under the Constitution and not under section 2255.

Thank God the S.Ct. cannot rewrite the law and then apply that rewritten construction retroactively. Ignorance of the law would then be an excuse and each could claim relief on grounds they were unaware of that construction.

I realize all the Judges that do agree with Booker/Fanfan part II disagree with what I have said. Likewise, all Judges that agree with what I have said are either unwilling or unable to take the position they agree with. In each instance America must, through attorneys and non attorneys, advance its awareness that not one single person walking in the USA has any authority to rewrite the law and change the date of enactment to the date the unchanged version was enacted.

The Blakely Court struck many people with the 6th Amendment prohibitions and Booker simply attempts to blurr that meaning.

Those who understand the meaning and reach of "retroactive" for Part I certainly understood retroactive application of a judicially construed statute in Part II. While Part I does not rewrite law Part II does. Lets see. Retroactive application of rewritten law. What is the date of enactment of rewritten law?

I hope the time I have spent on this helps someone do something good. I know I certainly will.

Posted by: Lindsey | Mar 14, 2005 2:31:46 PM

I am a student at Michigan State University College of Law.

When the Supreme Court announces a "new" Constitutional rule, does the new rule apply retroactively to--the person who brought the case before the Supreme Court in which the "new" rule was announced?

Thank you for your consideration.

Posted by: Drew Taylor | Mar 18, 2005 11:19:10 PM

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