FILED
United States Court of Appeals
Tenth Circuit

MAR 8 2005

PATRICK FISHER
Clerk

	PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

JOSHUA PRICE, JR.,

Defendant - Appellant.	No. 04-7058	

	ORDER DENYING REHEARING

Before EBEL, MURPHY and McCONNELL, Circuit Judges.

EBEL, Circuit Judge.

	Defendant‑Appellant Joshua Price, Jr., seeks rehearing, with suggestion for en banc consideration, from this panel’s decision denying him a certificate of appealability (COA), see 28 U.S.C. § 2253(c), to appeal the district court’s decision denying him 28 U.S.C. § 2255 relief from his federal drug trafficking convictions.  See United States v. Price, 265 F.3d 1097, 1100‑01 (10th Cir. 2001) (listing Price’s twenty‑one federal convictions).  In his rehearing petition, Price asks us to reconsider his claims that Blakely v. Washington, 124 S. Ct. 2531 (2004), requires us to vacate his sentences because the jury never found the type and quantity of drugs for which the district court sentenced him, and never found that Price killed a government witness, a factual finding the district court made in applying U.S.S.G. § 2A1.1 to enhance Price’s sentence.  See Price, 118 Fed. Appx. at 471.  In Blakely, the Supreme Court invalidated Washington’s sentencing scheme, holding that scheme violated the Sixth Amendment because it  required a sentencing court to impose a sentence “not solely based on ‘facts reflected in the jury verdict or admitted by the defendant.’” United States v. Booker, 125 S. Ct. 738, 749 (2005) (quoting Blakely, 124 S. Ct. at 2537).  
	In our prior decision in this case, we denied Price a COA on his Blakely claims because the Supreme Court had not extended Blakely’s holding to the federal sentencing guidelines and because, even if the Court did apply Blakely to the federal guidelines, Blakely would not apply retroactively to initial § 2255 motions for collateral relief.  See Price, 118 Fed. Appx. at 471.  After our panel decision, however, the Supreme Court did extend Blakely to the federal sentencing guidelines.  See Booker, 125 S. Ct. at 749‑50, 755‑56.  In light of Booker, Price asks us to reconsider our prior holding that Blakely does not apply retroactively to initial § 2255 motions.  (Reh’g petition at 1‑2.)  Reviewing this question de novo, see United States v. Mora, 293 F.3d 1213, 1216, 1217‑19 (10th Cir. 2002), we reaffirm that Blakely does not apply retroactively to Price’s initial § 2255 motion.  Therefore, we deny his petition for rehearing, with its suggestion for rehearing en banc.

I.  	Does Blakely set forth a substantive or a procedural rule?
	Where a Supreme Court decision “results in a ‘new rule,’ that rule applies to all criminal cases still pending on direct review.  As to convictions [like Price’s,] that are already final, however, the rule applies only in limited circumstances.”  Schriro v. Summerlin, 124 S. Ct. 2519, 2522 (2004) (citation omitted).   While new substantive rules generally apply retroactively, new procedural rules do not.  See  id. at 2522‑23.  As an initial matter, therefore, we must decide whether Blakely announced a procedural or a substantive rule.    
	“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.”  Summerlin, 124 S. Ct. at 2523 (citations omitted).   
	It is clear that Blakely did not alter the range of conduct or the class of persons that the law punishes.  Rather, Blakely “altered the range of permissible methods for determining” the appropriate length of punishment.  Summerlin, 124 S. Ct. at 2523.  “Rules that allocate decision‑making authority in this fashion are prototypical procedural rules.”  Id. (concluding holding in Ring v. Arizona, 536 U.S. 584 (2002), that jury, rather than judge, had to find existence of aggravating factors that would make capital defendant eligible for death sentence, was procedural rather than substantive rule).  Blakely, therefore, sets forth a procedural, rather than a substantive, rule.  See McReynolds v. United States, 397 F.3d 479, 480‑81 (7th Cir. 2005) (reaching same conclusion); United States v. Siegelbaum, Nos. CR 02‑179‑01‑PA, CV 04‑1380‑PA, 2005 WL 196526, at *2 (D. Or. Jan. 26, 2005) (same).

II.	Does Blakely’s procedural rule apply retroactively to initial § 2255 motions?   
  
	Because Blakely announces a procedural rule, we apply Teague v. Lane, 489 U.S. 288 (1989) (plurality), to determine whether Blakely applies retroactively to initial § 2255 motions.  See Mora, 293 F.3d at 1218; see also Bousley v. United States, 523 U.S. 614, 619‑20 (1998).  Teague requires a three‑step analysis.  See O’Dell v. Netherland, 521 U.S. 151, 156 (1997).  First, was Price’s conviction final prior to the Supreme Court’s decision in Blakely?  See O’Dell, 521 U.S. at 156.  Second, would a court considering Price’s claims “at the time his conviction became final[, feel] compelled by existing precedent to conclude” Blakely’s rule “was required by the Constitution”?  O’Dell, 521 U.S. at 156 (quotation omitted).  If not, then Blakely’s rule is new.  See O’Dell, 521 U.S. at 156.  If it is new, then the third Teague inquiry is whether the new rule fits into “one of the two narrow exceptions to the Teague doctrine.”  O’Dell, 521 U.S. at 156‑57.  Only if it fits into a Teague exception will a new procedural rule apply retroactively.  
		A.	Did Price’s conviction become final before the Supreme Court decided Blakely?

	We must first determine when Price’s conviction became final.  For Teague purposes, a conviction becomes final when the availability of a direct appeal has been exhausted, and the time for filing a certiorari petition with the Supreme Court has elapsed, or the Court has denied a timely certiorari petition.  See Caspari v. Bohlen, 510 U.S. 383, 390 (1994).  In Price’s case, we denied his direct appeal on September 11, 2001, see Price, 265 F.3d at 1097, and the Supreme Court denied his certiorari petition May 28, 2002, see Price v. United States, 535 U.S. 1099 (2002).  His convictions, therefore, were final on May 28, 2002, prior to the Supreme Court deciding Blakely on June 24, 2004. 

		B.	Would a court, considering Price’s claim on May 28, 2002, have felt compelled by existing precedent to conclude Blakely’s rule was constitutionally required?              

	We turn to the next Teague inquiry, which is whether, at the time Price’s convictions became final, on May 28, 2002, a court considering Price’s Sixth Amendment claims would have felt compelled by existing precedent to conclude Blakely’s rule was constitutionally required; that is, at that time, would a court have felt compelled by existing precedent to conclude that the Sixth Amendment precluded a federal sentencing court from imposing a sentence that was “not solely based on ‘facts reflected in the jury verdict or admitted by the defendant.’” Booker, 125 S. Ct. at 749 (quoting Blakely, 124 S. Ct. at 2537).  We conclude a court would not have felt so compelled.  Therefore, we hold that Blakely announced a new rule.  See O’Dell, 521 U.S. at 156. 
	“In general, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government”; that is, “a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.”  Teague, 489 U.S. at 301.  “The new rule principle . . . validates reasonable, good‑faith interpretations of existing precedents, . . . even if those good‑faith interpretations are . . . contrary to later decisions.”  Graham v. Collins, 506 U.S. 461, 467 (1993) (quotation omitted).       
	Blakely is part of a line of Sixth Amendment cases starting with Jones v. United States, 526 U.S. 227 (1999), and, most importantly, Apprendi v. New Jersey, 530 U.S. 466 (2000).  See Booker, 125 S. Ct. at 748.  At the time Price’s convictions became final, the Supreme Court had already decided Apprendi.  In Apprendi, the Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  Apprendi, 530 U.S. at 490.  Apprendi, itself, stated a new constitutional rule.  See Mora, 293 F.3d at 1218.     
	Based upon Apprendi’s language addressing situations where a sentencing court “increase[d] the penalty for a crime beyond the statutory maximum,” 530 U.S. at 490, this court subsequently applied Apprendi only where a sentencing court had imposed a sentence above the statutory maximum permitted by the statute of conviction, regardless of what fact finding the court, rather than the jury, conducted to impose a sentence within that statutory maximum.  See, e.g., United States v. O’Flanagan, 339 F.3d 1229, 1232 n. 2 (10th Cir. 2003) (holding defendant could not assert Apprendi error because “his sentence does not exceed the statutory maximum”); United States v. Bennett, 329 F.3d 769, 778 (10th Cir. 2003) (“Apprendi is not implicated . . . where judges find facts increasing the mandatory minimum sentence below the maximum sentence for the crime committed”); United States v. Fredette, 315 F.3d 1235, 1245 (10th Cir. 2003)  (“Apprendi does not apply to sentencing factors that increase a defendant’s guideline range but do not increase the statutory maximum.”).  So did other circuit courts.  See Simpson v. United States, 376 F.3d 679, 681 (7th Cir. 2004) (noting that, “before Blakely was decided, every federal court of appeals had held that Apprendi did not apply to guideline calculations made within the statutory maximum,” citing cases).  The Supreme Court also seemingly approved that interpretation of Apprendi when, in Harris v. United States, 536 U.S. 545 (2002), the Court held that judicial fact finding that increased a mandatory minimum sentence did not violate Apprendi so long as the resulting sentence was still below the statutory maximum authorized by the offense of conviction. See 536 U.S. at 550, 567‑69. 
	It was not until Blakely that the Supreme Court clarified that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  Blakely, 124 S. Ct. at 2537; see also Simpson, 376 F.3d at 681 (7th Cir. 2004) (noting “Blakely . . . alters courts’ understanding of [Apprendi’s] ‘statutory maximum’”).  Therefore, at the time Price’s convictions became final,  after Apprendi but before Blakely, a court would not have felt compelled to conclude Blakely’s rule was constitutionally required.  Blakely, therefore, announced a new rule.  See United States v. Sanchez‑Cruz, 392 F.3d 1196, 1201 (10th Cir. 2004) (referring to Blakely as announcing new criminal rule).
		C.	Does Blakely’s new rule fit into one of Teague’s two narrow exceptions to the non‑retroactive application of new procedural rules?    

 	A new procedural rule, such as that announced in Blakely, will apply retroactively only if it falls into one of two narrow exceptions.  See Teague, 489 U.S. at 307.  The first exception applies to a new rule that “places certain kinds of primary, private individual conduct beyond the power of the criminal law‑making authority to proscribe.”  Teague, 489 U.S. at 307 (quotation omitted).  Blakely does not implicate that exception.  See Mora, 293 F.3d at 1218 (holding Apprendi does not implicate Teague’s first exception).    
	Teague’s second exception applies to “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.  O’Dell, 521 U.S. at 157 (quotation omitted).  “To qualify as a ‘watershed’ rule of criminal procedure, the rule must not only improve the accuracy with which defendants are convicted or acquitted, but also alter our understanding of the bedrock procedural elements essential to the fairness of the proceeding.”  Mora, 293 F.3d at 1218‑19 (quotations omitted).  “This exception is defined narrowly.”  Id. at 1219.  
	Blakely did not announce a new watershed rule of criminal procedure that implicates the “fundamental fairness and accuracy of the criminal proceeding.”  O’Dell, 521 U.S. at 157.  First, Blakely does not affect the determination of a defendant’s guilt or innocence.  Rather, it addresses only how a court imposes a sentence, once a defendant has been convicted.
	Further, the Supreme Court has previously determined that a change in the law requiring that juries, rather than judges, make the factual findings on which a sentence is based did not announce a watershed rule of criminal procedure.  See Summerlin, 124 S. Ct. at 2524‑26.  Similarly, we have previously held that a change in the law requiring juries to find these sentencing facts beyond a reasonable doubt, rather than by a preponderance of the evidence, also does not announce a watershed rule of criminal procedure.  See Mora, 293 F.3d at 1219 (holding Apprendi, including its quantum of proof requirement, did not announce watershed rule); see also Sepulveda v. United States, 330 F.3d 55, 61 (1st Cir. 2003) (holding, in addressing Apprendi’s retroactivity, that “‘a decision . . . by a judge (on a preponderance standard) rather than a jury (on the reasonable‑doubt standard) is not the sort of error that necessarily undermines the fairness . . . of judicial proceedings,’” quoting Curtis v. United States, 294 F.3d 841, 843 (7th Cir 2002)); Coleman v. United States, 329 F.3d 77, 88‑90 (2d Cir. 2003) (rejecting argument that Apprendi’s requiring Government to prove sentencing factors beyond a reasonable doubt was watershed rule of criminal procedure).  We conclude, therefore, that Blakely did not announce a watershed rule of criminal procedure that would apply retroactively to initial § 2255 motions.  See, e.g, Rowell v. Dretke, No. 04‑70013, 2005 WL 151916, at *8 (5th Cir. Jan. 25, 2005); Rucker v. United States, No. 2:04‑CV‑00914PGC, 2005 WL 331336, at *1 (D. Utah Feb. 10, 2005); Gerish v. United States, Nos. CIV. 04‑153‑P‑H, CIV. 04‑154‑P‑H, 2005 WL 159642, at *1 (D. Me. Jan. 25, 2005); United States v. Johnson, No. CR. 402CR3, 2005 WL 170708, at *1 (E.D. Va. Jan. 21, 2005); see also In re Anderson, 396 F.3d 1336, 1339 (11th Cir. 2005) (noting “the Supreme Court has strongly implied that Blakely is not to be applied retroactively”); cf. McReynolds, 397 F.3d at 481 (7th Cir. 2005) (holding Booker does not apply retroactively in initial § 2255 motions).
III.	Conclusion. 
	For these reasons, we hold that Blakely does not apply retroactively to convictions that were already final at the time the Court decided Blakely, June 24, 2004.  Because Price’s convictions were clearly final by that date, we DENY his petition for rehearing.    
	Price’s suggestion for rehearing en banc was transmitted to all the judges of the court who are in regular active service as required by Fed. R. App. P. 35.  No member of the panel and no judge in regular active service on the court requested that the court be polled on rehearing en banc.  Therefore, the suggestion for rehearing en banc is also DENIED.