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August 24, 2005

Is the Ninth Circuit adopting a policy of equitable Booker retroactivity?

As regular readers know, the federal circuits have consistently held that neither Blakely or Booker are to be applied retroactively.  And the Ninth Circuit, which had declared Ring retroactive before being reversed by the Supreme Court, last month in Schardt v. Payne, No. 02-36164 (9th Cir. July 8, 2005), ruled that Blakely is not retroactive with language suggesting Booker is not either.

But today, in a little order in US v. Crawford, No. 03-30263 (9th Cir. Aug. 24, 2005) (available here), a panel of the Ninth Circuit, by recalling the mandate and ordering resentencing in a case that apparently became final before Booker, seems to be adopting what I would describe as a policy of equitable Booker retroactivity.  Here is the heart of the Crawford order (with cites omitted):

This case involves "extraordinary circumstances" sufficient to justify our recall of the mandate because: (1) the sentencing judge expressed explicit reservations on the record about the sentence required under the previously mandatory Sentencing Guidelines; and (2) the Supreme Court's decision in Blakely foreshadowing its holding in Booker was rendered before the mandate issued.  Accordingly, we recall the mandate, vacate the sentence, and remand to the district court for resentencing pursuant to Booker.

Importantly, the Crawford order also includes this tantalizing footnote:

Our decision in United States v. King, Nos. 99-10478, 01-10720 (9th Cir. August 16, 2005) (per curiam) [available here], where we addressed Booker in denying the defendant's motion to recall the mandate, is distinguishable because neither of the special circumstances that we highlight in Crawford's case were present in King.  At the same time, however, in stressing that our decision here rests on both the sentencing judge's expressed misgivings about the sentence required by the mandatory Guidelines as well as the relative timing of the Supreme Court's Blakely decision and the termination of our appellate jurisdiction, we do not suggest that these same elements must always be present in order for a mandate to be recalled.  Rather future panels will necessarily evaluate the existence of "extraordinary circumstances" warranting the recall of a mandate based on the facts of their individual cases.

The final two sentences of this footnote suggest to me that this panel of the Ninth Circuit is endorsing what I am calling a policy of equitable Booker retroactivity.  Apparently, even for cases with "final" sentences at the time of Booker, the door is (wide?) open in the Ninth Circuit for defendants to move to have the mandate recalled by arguing that "the facts of their individual cases" constitute "extraordinary circumstances" justifying resentencing. 

Because I am not an expert in Ninth Circuit practice, perhaps I am over-reading Crawford.  If this is so, I hope readers in the comments or the smart folks at the Ninth Circuit Blog will help set me straight.  But if I understand Crawford correctly, this seems like an extraordinarily important little order (and one that seems likely to get the attention of the government and other Ninth Circuit judges).

August 24, 2005 at 01:45 PM | Permalink


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Doug - It's not at all clear that Crawford's sentence in fact became "final" for retroactivity purposes before the Ninth Circuit opted to recall its mandate. True, more than 90 days from the date of judgment passed, but at the same time, there were (according to the docket sheet) several motions pending relative to the appointment of new counsel, their intent to seek rehearing, etc., so it would have been a bit unseemly for the defendant, while these motions for relief from the judgment were still pending in the court of appeals, to have simultaneously petitioned for cert. (though admittedly the question of whether he should have done so protectively is an interesting one). And if he had, the SCT likely would have GVRd the case anyway, thereby putting the case in the same position it's in now. None of this is to condone an overly liberal use of the mandate-recall power; rather, it's just to provide some context for the court's actions.

Posted by: anon | Aug 24, 2005 2:40:59 PM

A good point, anon, and the reason I described Crawford's case as "apparently" final. But, critically, the language of the footnote quoted above suggests that the technical status of a case as "final" (or not) will not be dispositive when considering a motion to recall the mandate (whereas, of course, a case's status as "final" is dispositive when considering traditional retroactivity issues).

Posted by: Doug B. | Aug 24, 2005 5:46:21 PM

Equitable Booker retroactivity...at least to the date of Blakely.

By explaining that "the Supreme Court's decision in Blakely foreshadowing its holding in Booker was rendered before the [case became final]," the Ninth Circuit implies that Booker may not be a new rule. If Booker is not a new rule, the holding would be retroactive to the date of Blakely. While the Ninth Circuit has ruled that Blakely is a new rule, Schardt v. Payne, 414 F.3d 1025 (9th Cir. 2005), it has yet to addressed whether Booker is. See id. at 1034 (noting only that "other circuits" have addressed the issue).

The court in Crawford explains that Blakely "foreshadow[s]" Booker. The standard for a new rule is to consider whether the rule was "compel[ed]," Beard v. Banks, 124 S. Ct. 2504, 2510 (2004), or "dictated by precedent." Teague v. Lane, 489 U.S. 288. 311 (1989).

Does "foreshadowing" a holding rise to the level of compelling or dictating a holding? C.f. Butler v. McKellar, 494 U.S. 407, 415 (1990) (“[T]he 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, [that language will] not [be] conclusive” when determining if a case declares a new rule.). In the Ninth Circuit, only time will tell.

Posted by: DEJ | Aug 24, 2005 9:01:47 PM

Fine work, DEJ, and very helpful. Thanks.

Posted by: Doug B. | Aug 24, 2005 10:08:50 PM

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