ORDER ON PETITIONER'S MOTION TO AMEND PETITION FOR COLLATERAL REVIEW AND ORDER AFFIRMING RECOMMENDED DECISION OF THE MAGISTRATE JUDGE MOTION TO AMEND PETITION
The petitioner moves under Federal Rule of Civil Procedure15(a) for leave to amend his 28 U.S.C § 2255 petition to allegesentencing error under United States v. Booker, 125 S. Ct. 738(2005), a case decided about two-and-a-half years after thepetitioner's sentencing. The petitioner contends that he shouldbe able to amend his petition because Booker appliesretroactively to 18 U.S.C. § 2255 cases on collateral review.See Mot. to Amend Pet. for Collateral Review at 2-6 (DocketItem 14). But the only courts of appeals to decide the questionso far have consistently held that Booker does not applyretroactively to cases on collateral review. See Humphress v.United States, 398 F.3d 855, 860 (6th Cir. 2005); Varela v.United States, 400 F.3d 864, 868 (11th Cir. 2005); McReynoldsv United States, 397 F.3d 479, 481 (7th Cir. 2005); cf. UnitedStates v. Price, 400 F.3d 844, 849 (10th Cir. 2005) (holdingthat Blakely v. Washington, 124 S. Ct. 2531 (2004), does notapply to convictions already final when it was decided). TheFirst Circuit has not yet addressed the issue but would likelyagree with this consensus, particularly in light of its holdingin Sepulveda v. United States, 330 F.3d 55, 63 (1st Cir. 2003),that Apprendi v. New Jersey, 530 U.S. 466 (2000), announced anew rule of criminal procedure that does not apply retroactivelyto cases on collateral review. The reasoning in Sepulvedaapplies to Booker, which extended the rule announced inApprendi. See Sepulveda, 330 F.3d at 60 ("The proceduralerror to which the petitioner adverts may raise questions as tothe length of his sentence, but inaccuracies of this nature,occurring after a defendant has been duly convicted, are mattersof degree and do not trump . . . the general rule ofnonretroactivity") (internal quotations omitted). BecauseBooker does not apply retroactively to cases on collateralreview, it would be futile to amend the section 2255 petition toadd Booker claims.
Even if Booker applied retroactively in this case, amendmentof the petition to add Booker claims would be futile becausethe petitioner would receive the same sentence under the current,post-Booker system of advisory Sentencing Guidelines as he didunder the system of mandatory Sentencing Guidelines in effect athis sentencing. As the sentencing judge, I am in a uniqueposition to evaluate the petitioner's Booker claim.1 I sentencedthe petitioner in July 2002. The guideline range for his sentencewas 210 to 262 months. Based on the Government's motion for adownward departure under Guideline 5K1.1, I sentenced thepetitioner below the guideline minimum to 174 months, a sentencelower than the Government had requested.
I would not have reached a different result using advisoryguidelines. I already exercised discretion to sentence outsidethe guidelines based on the Government's motion for a downwarddeparture (albeit a discretion limited to factors listed andfactors like those listed in Guideline 5K1.1). I did not expressany reservations about following the guidelines. My analysiswould differ somewhat under the current system because, aftercalculating the now-advisory guideline sentence, I woulddetermine whether to apply that sentence by considering thesentencing factors in 18 U.S.C. § 3553(a). See, e.g., UnitedStates v. Revock, 353 F. Supp.2d 127, 129 (D. Me. 2005). Butbased on my review of the transcript of the sentencing hearing,the sentencing memoranda, the Presentence Report and my notes and knowledge of the petitioner'scase, none of the section 3553(a) factors would have led me to alower sentence. There is no point in the petitioner addingBooker claims to his petition when his sentence would be thesame under Booker as it was when he was sentenced.
The petitioner moves in the alternative to amend his petitionto claim ineffective assistance of counsel because his counsel athis plea, sentencing and appeal did not argue for the use ofadvisory guidelines, the approach later mandated byBooker.2 For the petitioner to succeed on hisineffective assistance of counsel claim, he "must establish thathis counsel's performance fell below an objective standard ofreasonableness and `that there was a reasonable probability that,but for counsel's unprofessional errors, the results of theproceeding would have been different.'" United States v.Theodore, 354 F.3d 1, 5-6 (1st Cir. 2003) (quoting Stricklandv. Washington, 466 U.S. 668, 694 (1984)). Even if the petitionersatisfied the first prong of the Strickland test by showingthat his counsel acted unreasonably in failing to argue foradvisory guidelines, the petitioner could not, under the secondprong of the test, show that his sentence would have been different, as noted above. Amendment would befutile because the petitioner would be unable to satisfy therequirements for his ineffective assistance claim.
I therefore DENY the motion to amend the petition forcollateral review.
The United States Magistrate Judge filed with the court onJanuary 24, 2005, with copies to the parties, her RecommendedDecision on the petitioner's 28 U.S.C. § 2255 motion. Thedefendant filed his objection to the Recommended Decision onMarch 10, 2005. I have reviewed and considered the RecommendedDecision, together with the entire record; I have made a denovo determination of all matters adjudicated by the RecommendedDecision; and I concur with the recommendations of the UnitedStates Magistrate Judge for the reasons set forth in theRecommended Decision, and determine that no further proceeding isnecessary.
It is therefore ORDERED that the Recommended Decision of theMagistrate Judge is hereby ADOPTED. The petitioner's28 U.S.C. § 2255 motion is DENIED without an evidentiary hearing.
Finally, I also find at this time that no certificate ofappealability should issue because there is no substantial issuethat could be presented on appeal. See Fed.R.App.P.22(b)(1); 1st Cir. R. 22.1(a).
1. If the First Circuit considered (and the rule ofnonretroactivity did not bar) the petitioner's Booker claim,under the plain error test used for Booker claims not argued indistrict court, the First Circuit would consider whether I wouldhave imposed "a lesser sentence in a post-Booker regime ofadvisory guidelines." United States v. Heldeman, No. 04-1915,___ F.3d ___, 2005 WL 708397, at *3 (1st Cir. March 29, 2005). Ifthe petitioner could show a reasonable indication that the resultwould have been different, then the First Circuit would remandthe case, and I could "say no with a minimum expenditure ofeffort if the sentence imposed under the pre-Booker guidelinesregime is also the one that [I] would have imposed under the morerelaxed post-Booker framework." Id. Guided by the FirstCircuit's plain error analysis, I say now, reviewing a sentencethat I imposed, that the sentence that I imposed pre-Booker isthe same as the sentence I would have imposed under thepost-Booker system of advisory guidelines.
2. The petitioner contends that his counsel should have raised"the Booker issue," characterized as "the mandatory/advisoryconsideration of the Guidelines and whether the Guidelines weresubject to the jury trial requirements of the Sixth Amendmentsuch that a jury must find certain sentencing facts." Mot. toAmend at 6. I only address whether the petitioner's counselshould have argued for advisory guidelines, because "[t]he[Booker] error is not that a judge (by a preponderance of theevidence) determined facts under the Guidelines which increased asentence beyond that authorized by the jury verdict or anadmission by the defendant; the error is only that the judge didso in a mandatory Guidelines system." United States v.Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005).