
    UNITED STATES of America, Plaintiff, v. Joel Phillip ARGENTO, Defendant.
    No. CR-94-0851-AK.
    United States District Court, C.D. California.
    April 27, 2005.
    
      Andrew Cowan, Assistant U.S. Attorney, Office of U.S. Attorney, Los Angeles, CA, for Plaintiff.
    Karen L. Landau, Karen L. Landau Law Offices, Oakland, CA, for Defendant.
   ORDER

ALEX KOZINSKI, Circuit Judge.

Defendant moves pursuant to 28 U.S.C. § 2255 that the court vacate his sentence. He argues that, under United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), “it is clear that [his] sentence was imposed in violation of the Fifth and Sixth Amendments, because his mandatory guideline sentence was increased based on judicially found facts neither inherent in the jury verdict nor admitted by him.”

The parties agree that defendant’s sentence became final on September 29, 2003. At that time, the Supreme Court had not yet decided Booker. The key issue is whether Booker applies retroactively to defendant’s case. Under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion), “[ujnless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” Id. at 310, 109 S.Ct. 1060; see also United States v. Sanchez-Cervantes, 282 F.3d 664, 667-68 (9th Cir.2002) (“[T]he Teague retroactivity doctrine applies to ... § 2255 habeas petitions.”).

1. Initially, defendant argues that Booker did not announce a new rule. Rather, he contends, “Booker (like Blakely [v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ]) was but an application of the new rule announced in Apprendi v. New Jersey, [530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),] as explicated in Ring [v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)].” Both Apprendi and Ring were decided before defendant’s conviction became final. If Booker simply applied the rule announced in those eases, then it could be applied to defendant’s sentence consistent with Teague.

A case sets forth a new rule if its “result was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague, 489 U.S. at 301, 109 S.Ct. 1060; see also Butler v. McKellar, 494 U.S. 407, 415, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990) (holding that a case announced a new rule because its outcome was “susceptible to debate among reasonable minds”). The court concludes that Booker was not dictated by any prior Supreme Court opinion.

Blakely specifically reserved judgment on whether Apprendi’s rule applied to the Sentencing Guidelines. See Blakely, 124 S.Ct. at 2538 n. 9 (“The Federal Guidelines are not before us, and we express no opinion on them.”). That suggests “the Court did not view its holding in [Booker ] as in any sense foreordained by its holding in [Blakely]’’ See Shults v. Whitley, 982 F.2d 361, 362-63 (9th Cir.1992) (per curiam). Moreover, in the aftermath of Blakely, the circuits split over what bearing the case had on the Guidelines. Compare United States v. Koch, 383 F.3d 436, 438-43 (6th Cir.2004) (en banc) (declining to apply Blakely to the Guidelines), United States v. Reese, 382 F.3d 1308, 1310-12 (11th Cir.2004) (same), United States v. Hammoud, 381 F.3d 316, 348-53 (4th Cir.2004) (en banc) (same), United States v. Mincey, 380 F.3d 102, 105-06 (2d Cir.2004) (per curiam) (same), and United States v. Pineiro, 377 F.3d 464, 467-73 (5th Cir.2004) (same), with United States v. Ameline, 376 F.3d 967, 974-78 (9th Cir.2004) (holding that Blakely applies to the Guidelines), and United States v. Booker, 375 F.3d 508, 510-15 (7th Cir.2004) (same). Even those circuits that applied Blakely to the Guidelines, as the Supreme Court ultimately did in Booker, did so over dissent. See Ameline, 376 F.3d at 984 (Gould, J., dissenting); Booker, 375 F.3d at 515 (Easterbrook, J., dissenting).

Because the Supreme Court’s rule in Booker was not dictated by its prior decision in Blakely — nor, a fortiori, by its earlier decisions in Apprendi and Ring — it announced a new rule of constitutional law. See, e.g., Humphress v. United States, 398 F.3d 855, 861 (6th Cir.2005) (“The Booker rule is clearly new.”).

2. In addition, Booker’s new rule is procedural. See id. at 860 n. 1 (“Without question, [Booker’s] rule is a procedural one.”); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir.2005) (“Booker, like Apprendi and Ring, must be treated as a procedural decision for purposes of retroactivity analysis.”). In Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), the Supreme Court declared that “[a] rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes. In contrast, rules that regulate only the manner of determining the defendant’s culpability are procedural.” Id. at 2523 (citation omitted). After Booker, no conduct that was previously legal has been made illegal, nor is there any difference in who may be punished for illegal conduct. Instead, Booker dealt only with the manner of determining a defendant’s sentence. Booker “rested entirely on the Sixth Amendment’s jury-trial guarantee, a provision that has nothing to do with the range of conduct a State may criminalize.” See id.

3. Because Booker announced a new procedural rule, it may be applied retroactively under Teague only if it is a “watershed rule[] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” Id. (quoting Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (quoting Teague, 489 U.S. at 311, 109 S.Ct. 1060)) (internal quotation marks omitted).

Defendant maintains that Booker is a watershed rule because it “substantially] increase[d] ... the burden of proof from a mere preponderance to beyond a reasonable doubt.” Although Apprendi made such a change, the same is not true of Booker. Booker left intact the Guidelines’ provisions for judicial factfinding, as well as their standard of proof. After Booker, district judges must calculate the Guidelines range as they did before' — based on their own factual findings made by a preponderance of the evidence. The only difference is that the range they calculate is no longer mandatory. See McReynolds, 397 F.3d at 481 (“[T]he only change [is] the degree of flexibility judges ... enjoy in applying the guideline system.”)

The change from mandatory to advisory sentencing is not itself sufficient to make Booker a watershed rule. The starting— and, in many cases, ending — point is still the Guidelines range. While some defendants might receive a lighter sentence now than they would have when district judges lacked discretion to sentence outside of that range, this change alone does not place Booker within the “small core of rules requiring observance of those procedures that ... are implicit in the concept of ordered liberty.” Graham v. Collins, 506 U.S. 461, 478, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (quoting Teague, 489 U.S. at 311, 109 S.Ct. 1060 (quoting Mackey v. United States, 401 U.S. 667, 693, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in judgments in part and dissenting in part) (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937)))) (omission in original) (internal quotation marks omitted).

The court holds, consistent with the views of every circuit that has addressed the issue, that Booker does not apply retroactively to cases that became final before it was decided. See Guzman v. United States, 404 F.3d 139, 140-42 (2d Cir.2005); Varela v. United States, 400 F.3d 864, 866-68 (11th Cir.2005) (per curiam); Humphress, 398 F.3d at 860-63; McReynolds, 397 F.3d at 480-81.

Defendant’s motion to vacate his sentence is DENIED. 
      
       Sitting by designation pursuant to 28 U.S.C. § 291(b).
     