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September 16, 2005

Ninth Circuit officially holds Booker not retroactive

Back in July, though its ruling in Schardt v. Payne, No. 02-36164 (9th Cir. July 8, 2005) (discussed here), the Ninth Circuit decided that Blakely is not to be applied retroactively.  Today, in US v. Cruz, No. 03-35873 (9th Cir. Sept. 16, 2005) (available here), the other shoe dropped:

This appeal requires us to decide whether United States v. Booker, 125 S. Ct. 738 (2005), applies retroactively to cases on collateral review. We hold that Booker does not apply retroactively to convictions that became final prior to its publication.

Despite this (unsurprising) ruling in Cruz, as explained here and here, the Ninth Circuit's earlier decision in the Crawford case may allow some defendants in the Ninth Circuit to obtain a form of what I have called "equitable Booker retroactivity" by moving to recall the mandate and arguing that "the facts of their individual cases" constitute "extraordinary circumstances" justifying resentencing.

September 16, 2005 at 01:13 PM | Permalink


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Good evening Professor Berman,

I am an attorney with the Federal Bureau of Prisons. I enjoy your Blog; however, I must view it from home because my agency blocks access to all blogs.

On September 8, 2005, the panel in U.S. v. Crawford granted the Department of Justice's motion for extension of time in which to file a petition for rehearing en banc. The petition must be filed on or before October 24, 2005. This can be confirmed on the 9th Cir. PACER site. Crawford is not settled law yet.

Posted by: Douglas W. Curless | Sep 16, 2005 9:07:02 PM

Thanks for the info, Douglas. I would not be surprised by the en banc request, though whether the rehearing will be granted is another question.

Posted by: Doug B. | Sep 17, 2005 10:22:49 AM

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