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September 28, 2005

Sixth Circuit rejects effort to use mandate recall to achieve Booker retroactivity

Today, in US v. Saikaly, No. 01-4001 (6th Cir. Sept. 28, 2005) (available here), the Sixth Circuit issued an order which rejects a defendant's effort to use a motion to recall the mandate to have Booker applied to a case that became final in early 2004.  Here is the heart of the Sixth Circuit's discussion:

The defendant [asks] this court to recall its mandate and to reopen his prior appeal to this court, a procedural maneuver that would permit him to raise a Booker claim as part of that appeal.  Although courts of appeals have the inherent authority to recall a mandate, such power should only be exercised in extraordinary circumstances because of the profound interests in repose attached to a court of appeals mandate....

Although this court has granted motions to recall the mandate in cases which were not yet final at the time the motion was filed, other courts of appeals which have addressed similar motions based upon Booker (or the earlier decisions in Apprendi and Blakely) have found no extraordinary circumstances warranting the recall of a mandate issued in a prior (and final) direct appeal. These decisions hold that the proper remedy to attack a sentence in a final criminal proceeding lies under § 2255, and the fact that such remedy is no longer available does not warrant a recall of the mandate. [Cites to cases from the 1st, 2d, 7th, and 10th Circuits.]

These decisions deny any avenue of relief under Booker to defendants whose direct appeals were final at the time that decision was rendered.  Although the defendant may argue that there is an element of unfairness in this result, it is the same element found in any Supreme Court decision which announces a new rule applicable to criminal defendants with pending prosecutions or appeals, but which is not made retroactive to defendants whose cases are final. The incremental change in the law as evidenced by Apprendi, Blakely, and Booker simply is not the type of unforeseen contingency which warrants recall of the mandate to permit yet another round of appellate review.

Significantly, this Saikaly ruling does not mention the Ninth Circuit's recent ruling in Crawford which seemed to permit using motions to recall the mandate as a means to have Booker applied to cases that had become final before January 2005.  As explained here and here, the Ninth Circuit's Crawford decision indicated that some defendants may 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 28, 2005 at 11:48 AM | Permalink


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Isn't it a bit disingenuous for the Sixth Circuit to assert that Apprendi, Blakely, and Booker are only an "incremental change in the law"? In fact, the Circuit should look to its own precedent to see why such a claim in faulty at best, or hypocritical at worst. Consider that the same Circuit has previously asserted that these cases represent "a sea change" in sentencing law. United States v. Montgomery, 03-5256, 2004 FED App. 0226P (6th Cir. July 14, 2004).

While the court’s ultimate holding may be correct, I would have liked to think that it would have been more honest when evaluating a claim of such importance.

Posted by: DEJ | Sep 28, 2005 1:46:25 PM

The 6th Circuit made Apprendi retroactive in limited cases where the decision of the Court of Appeals was announced after Apprendi in United States v. Green. Counsel dshould review that unpublished opinion.

Posted by: Ronald Reece | Sep 30, 2006 10:15:06 AM

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Posted by: | Oct 14, 2008 9:30:29 PM

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