Third Circuit joins non-retroactivity bandwagon

The Third Circuit on Tuesday in Lloyd v. US, No. 04-3549 (3d Cir. May 17, 2005) (available here) formally joined other circuits in ruling that “the rule of law announced in Booker” does not apply retroactively “to prisoners who were in the initial § 2255 motion stage as of the date that Booker issued.”  Here are some key passages from the Lloyd decision’s notable, though unsurprising, retroactivity conclusions:

Every court of appeals to have considered the issue has concluded that, whether denominated as the “Blakely rule” or the “Booker rule,” that rule was “new.”… Every federal court of appeals to have considered whether Booker‘s new rule constituted a “watershed rule” that would satisfy Teague‘s second exception has held that it does not and, thus, has held that Booker does not apply retroactively to cases on collateral review.  We join those courts….

It would be one thing if we were only dealing with Justice Stevens’s opinion in Booker, which held the Federal Sentencing Guidelines unconstitutional because their mandatory nature required judges to find facts that increased sentences based on a preponderance of the evidence.  But in the opinion authored by Justice Breyer, the unconstitutionality of the Guidelines was remedied by excising the provision, at 18 U.S.C. § 3553(b)(1), that made their application mandatory. By creating an advisory federal sentencing regime, the Booker Court did not announce a new rule of criminal procedure that significantly increases the “certitude” or “accuracy” of the sentencing process.  As the Court of Appeals for the Seventh Circuit put it, Booker was not a “‘watershed’ change that fundamentally improves the accuracy of the criminal process” because defendants’ sentences “would be determined in the same way if they were sentenced today; the only change would be the degree of flexibility judges would enjoy in applying the guideline system.”