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A U.S. Supreme Court ruling upending the federal sentencing guidelines does not apply retroactively to cases on collateral review, the 2nd U.S. Circuit Court of Appeals has ruled. Joining several other circuits, the 2nd Circuit said the Supreme Court’s Jan. 12 ruling in U.S. v. Booker was neither a “substantive” nor a “watershed” rule change that would require retroactivity under the U.S. Constitution. In Booker, the Court found that the Sixth Amendment right to trial by jury was violated when judges, and not juries, find facts that require them to sentence a defendant within a higher, “enhanced” range. The decision effectively made the U.S. Sentencing Guidelines advisory in nature, with courts of appeals left to review sentences for “reasonableness.” But while Booker explicitly stated that its holding applied to cases currently on direct review, it was silent as to whether its logic applied to cases where the conviction was final as of that date and was under collateral attack. The 2nd Circuit took on the issue in the appeal of prisoner Michael Guzman, who was convicted in 1998 on racketeering and drug trafficking counts. He was ordered to serve six life terms plus 145 years in prison. The sentence was meted out by Southern District Judge Shira A. Scheindlin, who had found several facts that enhanced Guzman’s sentencing range. Once Booker was issued, the 2nd Circuit expanded the certificate of appealability in Guzman’s case to include the issues raised by the Supreme Court decision. Writing for the 2nd Circuit in Guzman v. United States, 03-2446-pr, Judge Dennis Jacobs said that, under the analysis of Teague v. Lane, 489 U.S. 288 (1989), and subsequent Supreme Court case law, “a new rule of constitutional law does not apply retroactively to cases on collateral review unless that rule is substantive or a ‘watershed’ rule of procedure that affects ‘the fundamental fairness and accuracy of the criminal proceeding.’” While Booker clearly announced a new rule, Jacobs said, it did not establish a “substantive” rule, which the Supreme Court has stated is a change that “narrows the scope of a criminal statute by interpreting its terms” or places “particular conduct or persons covered by [a criminal] statute beyond the State’s power to punish.” Booker, Jacobs said, “did not alter the range of conduct subject to any sentence” and there was no conduct that was forbidden before Booker that is permitted today. Jacobs also said the rule announced in Booker was not a watershed rule because it did not implicate the fundamental fairness and accuracy of the criminal proceeding. “The procedural defect identified in Booker is that sentence-enhancing factors were found by judges rather than by juries, and by a preponderance rather than beyond a reasonable doubt; but the remedy — to render the Guidelines advisory — vested greater discretion in judges, not less,” he said. Jacobs went on to note that the decision to adopt the sentencing guidelines was driven by the desire to reduce what was called at the time the “disparity and inherent unfairness” caused by discretionary sentencing. “We cannot say that the Guidelines actually advanced that goal, and mitigated unwarranted disparity and unfairness,” he said. “By the same token, we cannot assume that the mandatory Guidelines system under which Guzman was sentenced seriously diminished the accuracy or fundamental fairness of the sentencing process.” The result of the circuit’s ruling is that Guzman’s sentence stands. Judges Sonia Sotomayor and Peter Hall joined in the opinion. Ruth M. Liebesman represented Guzman. Assistant U.S. Attorney Daniel L. Stein represented the government.

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