Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona FREDERICK A. BATTISTA Assistant U.S. Attorney Maryland State Bar Member [email protected] Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

10 United States of America, 11 12

CR-03-116-PHX-EHC SUPPLEMENTAL AUTHORITY IN SUPPORT OF MOTION TO DISMISS DEFENDANT'S MOTION TO REVIEW AND REFORM JUDGEMENT IN A CRIMINAL CASE

Plaintiff, v.

13 Omar Gutierrez-Ochoa, 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendant.

The United States of America, by and through its attorneys undersigned, hereby submits additional authority in support of its responses to defendant's Motion to Review and Reform Judgement in a Criminal Case, pursuant to 18 U.S.C. §§ 3582 and 3742, and requests that this Honorable Court deny the original and amended motions for lack of jurisdiction. This authority is set forth in the attached Supplemental Memorandum of Points and Authorities. Respectfully submitted this 11th day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/ Frederick A. Battista FREDERICK A. BATTISTA Assistant U.S. Attorney

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Supplemental Memorandum of Points and Authorities The Ninth Circuit recently held that the Supreme Court's Decision in United States v. Booker, 125 S.Ct. 738 (2005), is not retroactive. Specifically, the Ninth Circuit stated: Under the framework originated in Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), a new rule of constitutional law generally does not apply to convictions that have become final, unless it falls under certain exceptions. Cruz' conviction became final on May 7, 2001, well before Booker was published. In order to have retroactive effect, new rules either must be substantive or, if procedural, they must be "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 2523, 159 L.Ed.2d 442 (2004) (internal quotations omitted). We now join every other circuit that has considered the question in holding that the rule announced by Booker does not meet any of the Teague exceptions, and thus does not operate retroactively. See United States v. Bellamy, 411 F.3d 1182 (10th Cir.2005); Lloyd v. United States, 407 F.3d 608 (3rd Cir.2005); Guzman v. United States, 404 F.3d 139 (2nd Cir.2005); Humphress v. United States, 398 F.3d 855 (6th Cir.2005); Varela v. United States, 400 F.3d 864 (11th Cir.2005); McReynolds v. United States, 397 F.3d 479 (7th Cir.2005). Given the dissenting opinions in Booker and the previous cases, it is apparent that the rule was not in fact "apparent to all reasonable jurists," and thus, under the Supreme Court's definition, it was in fact a "new rule." See, e.g., Beard v. Banks, 542 U.S. 406, 124 S.Ct. 2504, 2511, 159 L.Ed.2d 494 (2004). Nor is Booker's holding a new substantive rule, as opposed to a new procedural rule. In holding that Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), does not operate retroactively, the Court clarified that "[r]ules that allocate decisionmaking authority in this fashion are prototypical procedural rules." Schriro, 124 S.Ct. at 2523. We recently applied Schriro to decide that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), did not announce a new substantive rule. Schardt v. Payne, 414 F.3d 1025, 1036 (9th Cir.2005). That rationale applies just as clearly to the Court's application of the Blakely rule to the federal Guidelines. Because Booker announced a new procedural rule, it may operate retroactively only if it is a watershed rule of criminal procedure. Schriro, 124 S.Ct. at 2523. As we held with respect to Blakely, the Booker rule fits squarely within the Court's holding that a "change in the law requiring that juries, rather than judges, make the factual findings on which a sentence is based [does] not announce a watershed rule of criminal procedure." Schardt, 414 F.3d at 1036 (citing Schriro, 124 S.Ct. at 2524- 26). III. CONCLUSION

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Booker is not retroactive, and does not apply to cases on collateral review where the conviction was final as of the date of Booker's publication. United States v. Cruz, 2005 WL 2243113 (9th Cir.(Alaska)).

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For the reasons set forth in all of the government's pleadings to date, defendant's Review and Reform Judgement in a Criminal Case should be dismissed because the defendant has waived his right to raise all claims regarding the terms of his sentence and the subject petition is untimely. Respectfully submitted this 11th day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/ Frederick A. Battista

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FREDERICK A. BATTISTA Assistant U.S. Attorney

CERTIFICATE OF SERVICE
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I hereby certify that on October 11, 2005, I caused the attached document to be electronically transmitted to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice 15 of Electronic Filing and a copy of the foregoing was mailed via U.S. Postal Service this 11th day of October, 2005, to:
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Omar Gutierrez-Ochoa Federal Reg. No. 44015-008 Federal Correctional Institution ­ Beckley 18 Post Office Box 350 Beaver, West Virginia 25813
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s/ Frederick A. Battista
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FREDERICK A. BATTISTA
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