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No. 05-9222

In the Supreme Court of the United States

LONNIE LEE BURTON, PETITIONER

v.

DOUG WADDINGTON, SUPERINTENDENT, STAFFORD CREEK CORRECTIONS CENTER

ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

PAUL D. CLEMENT
Solicitor General
Counsel of Record

ALICE S. FISHER
Assistant Attorney General

MICHAEL R. DREEBEN
Deputy Solicitor General

MATTHEW D. ROBERTS
Assistant to the Solicitor
General

JOEL M. GERSHOWITZ
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

The United States will address the following questions:

1. Whether Blakely v. Washington, 542 U.S. 296 (2004), which held that facts, other than a prior conviction, support ing a sentence above the standard sentencing range in a legislatively prescribed sentencing guidelines system must be found by a jury and proved beyond a reasonable doubt, an nounced a new rule.

2. If Blakely announced a new rule, whether its requirement of proof beyond a reasonable doubt applies retroactively on collateral review.

In the Supreme Court of the United States

No. 05-9222

LONNIE LEE BURTON, PETITIONER

v.

DOUG WADDINGTON, SUPERINTENDENT, STAFFORD CREEK CORRECTIONS CENTER

ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

Blakely v. Washington, 542 U.S. 296 (2004), held that facts, other than a prior conviction, supporting a sentence above the standard sentencing range in a legislatively pre scribed sentencing guidelines system must be found be a jury and proved beyond a reasonable doubt. This case addresses whether Blakely is retroactive on collateral review. Although this Court extended the Blakely rule to the federal Sentenc ing Guidelines in United States v. Booker, 543 U.S. 220 (2005), the retroactivity of Booker presents distinct issues because of Booker's remedial holding. See, e.g., McReynolds v. United States, 397 F.3d 479, 481 (7th Cir.), cert. denied, 545 U.S. 1110 (2005). Nevertheless, the questions presented in this case require the Court to consider more generally the standards governing the availability of new rules on collateral review. The United States therefore has a substantial interest in this case.

STATEMENT

1. On October 18, 1991, petitioner followed a 15-year-old boy home from school. Petitioner forced his way into the boy's house at gunpoint and raped him both orally and anally. After the rape, petitioner told the boy not to move for 15 min utes or petitioner would shoot him. Petitioner then stole $160 and left the house. When the boy's father returned home, the boy was lying motionless, frightened that petitioner might still be in the house. In 1994, a jury found petitioner guilty of rape, robbery, and burglary. J.A. 23, 27, 44-45.

At that time, Washington's sentencing guidelines provided that sentences for multiple offenses "shall be served concur rently," and "[c]onsecutive sentences may only be imposed under the exceptional sentence provisions of" the Revised Code of Washington, Sections 9.94A.120 and 9.94A.390. Wash. Rev. Code § 9.94A.400.1 Section 9.94A.120(2) stated that the "court may impose a sentence outside the standard range for [the] offense if its finds * * * that there are substantial and compelling reasons justifying an exceptional sentence." Id. § 9.94A.120(2). The statute provided a non-exhaustive list of "illustrative factors which the court may consider in the exer cise of its discretion to impose an exceptional sentence," in cluding that the "operation of the multiple offense policy of RCW 9.94A.400 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter." Id. § 9.94A.390(2)(i).

The standard sentencing ranges were 234 to 304 months for petitioner's rape conviction, 153 to 195 months for his rob bery conviction, and 105 to 134 months for his burglary con viction. J.A. 26. On March 16, 1998, the trial court sentenced petitioner to 304 months for the rape, 153 months for the rob bery, and 105 months for the burglary. The court ordered the three sentences to run consecutively for a total sentence of 562 months. J.A. 9. The court relied on three factors in im posing consecutive sentences, including that petitioner's "long criminal history, combined with the 'multiple offense policy,' results in a sentence that is clearly too lenient." J.A. 29-31. The court found that each factor, "standing alone, is a sub stantial and compelling reason and justification for imposing an exceptional sentence." J.A. 30-31.2

The Washington Court of Appeals affirmed. J.A. 43-54. The appeals court held that the trial court did not err in run ning petitioner's sentences consecutively because "the multi ple offense policy justifies the exceptional sentence." J.A. 51. The Washington Supreme Court denied review. J.A. 55.

2. In January 2002, petitioner filed a federal habeas peti tion claiming that his sentence violated due process because the facts supporting imposition of consecutive sentences were not submitted to a jury and proved beyond a reasonable doubt. J.A. 61. He relied on Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), which held that any fact (other than a prior conviction) that increases the penalty for a crime beyond the statutory maximum must be proved to a jury beyond a reasonable doubt, and on Ring v. Arizona, 536 U.S. 584, 609 (2002), which applied Apprendi's rule to hold that an aggra vating factor that is statutorily necessary for imposition of the death penalty must be found by a jury. See J.A. 75.

A magistrate judge recommended that the petition be denied. J.A. 56-76. He concluded that petitioner's sentence did not violate Apprendi or Ring because petitioner "received an aggregate 562-month sentence for all three" offenses, and his sentence for each offense did not exceed the standard sen tencing range for the offense. J.A. 76. The district court adopted the magistrate judge's report and recommendation and denied the habeas petition. J.A. 77. Petitioner appealed.

While the appeal was pending, this Court decided Blakely v. Washington, 542 U.S. 296 (2004). Blakely extended the rule of Apprendi to Washington's sentencing guidelines sys tem. The Court held unconstitutional an exceptional sentence imposed under the Washington guidelines because the facts supporting the sentence, which was above the standard sen tencing range for the defendant's offense, had not been proved to a jury beyond a reasonable doubt. Id. at 303-305.

The court of appeals affirmed the denial of the habeas petition. J.A. 78-82. On the merits of petitioner's challenge to his exceptional sentence, the court held that he could not rely on Blakely because it "established a new rule that does not apply retroactively on collateral review." J.A. 81. Al though petitioner could rely on Apprendi, which was decided before his convictions and sentence became final, the court held that there was no Apprendi violation because "the sen tence on any individual count, and the total sentence imposed does not exceed the statutory maximum." Ibid.

SUMMARY OF ARGUMENT

Under Teague v. Lane, 489 U.S. 288, 311 (1989) (plurality opinion), new constitutional rules of criminal procedure do not apply retroactively on collateral review unless they are "wa tershed" rules. Because Blakely v. Washington, 542 U.S. 296 (2004), announced a new rule of procedure that is not a "wa tershed" rule, it does not apply retroactively.

A. A rule is "new" unless it was so dictated by precedent that no reasonable jurist could have declined to adopt it. Peti tioner contends that Blakely was dictated by Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that any fact (other than a prior conviction) that increases the penalty for a crime beyond the "statutory maximum" must be proved to a jury beyond a reasonable doubt. Petitioner is incorrect.

Blakely extended Apprendi to facts supporting a sentence above the standard sentencing range in a legislatively pre scribed sentencing guidelines system. In so doing, Blakely defined "statutory maximum" in a way that was not dictated either by the most straightforward reading of that phrase or by Apprendi. The sentence in Blakely was below the maxi mum penalty specified in the Revised Code of Washington for the defendant's offense, even though it was above the stan dard sentencing range established by the State's statutory guidelines system. Thus, the sentence in Blakely was invalid only if the top of the standard range was the "statutory maxi mum." Apprendi, which did not involve a guidelines system, did not decide that question. A reasonable jurist could have concluded-as many did-that, in a guidelines system, the "statutory maximum" is the maximum penalty specified by statute for the offense rather than the top of the guidelines range. Indeed, among the federal and state appeals courts that had considered the issue, all but one had held that Apprendi did not restrict guidelines systems.

Two other features of the Washington sentencing system also would have permitted reasonable jurists to reach a differ ent result in Blakely. First, the legislature did not specify the exclusive set of facts authorizing a sentence above the stan dard range. Instead, the sentencing judge could impose an exceptional sentence based on a wide range of facts of his own choosing. Second, factual findings alone did not authorize the higher punishment. The judge also had to make a qualitative judgment that those findings provided "substantial and com pelling reasons" for an exceptional sentence. The judge thus effectively had discretion to decide both what facts might support a higher sentence and whether the facts actually jus tified such a sentence. In that respect, a reasonable jurist could analogize the Washington system to traditional, indeter minate sentencing systems, under which judges may find facts by a preponderance of the evidence without violating the Constitution. A reasonable jurist therefore could have con cluded that the Washington guidelines system did not violate the Constitution.

B. Blakely's requirement of proof beyond a reasonable doubt for facts supporting a sentence above the standard range in a statutory guidelines system is not a "watershed" rule. A rule is "watershed" only if (1) it alters our under standing of the bedrock procedural elements essential to a fair trial and (2) infringement of the rule so seriously dimin ishes accuracy that it creates an impermissibly large risk of injustice. Blakely's reasonable doubt rule satisfies neither requirement.

1. Blakely did not alter our understanding of the bedrock elements essential to a fair trial. Blakely has nowhere near the fundamental and sweeping importance of Gideon v. Wain wright, 372 U.S. 335 (1963), the only rule that this Court has identified as "watershed." Gideon announced the core right to counsel for every felony defendant. Blakely, in contrast, did not announce the core rule that the elements of a crime must be proved beyond a reasonable doubt; nor did it an nounce that the reasonable doubt requirement sometimes applies to penalty enhancing facts that are not formal offense elements. Blakely merely clarified that the reasonable doubt requirement applies to a certain category of penalty enhanc ing facts. Moreover, unlike Gideon, which pervasively affects the fairness of every aspect of a trial, Blakely applies only to those defendants who have already been found guilty of an offense. It applies only in jurisdictions that use a mandatory guidelines system and, even then, only to defendants whose punishment is increased beyond the standard sentencing range by the finding of an aggravating fact. It is therefore no surprise that this Court has concluded that Blakely error does not require automatic reversal on direct review because it "does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or inno cence." Washington v. Recuenco, 126 S. Ct. 2546, 2551 (2006) (citation and emphasis omitted).

Another indication that Blakely is not as essential to fun damental fairness as Gideon is that many facts with as much or more impact on punishment as facts covered by Blakely may constitutionally be established by a preponderance of the evidence. Those include facts that increase a sentence within the statutory range, facts that trigger a statutory mandatory minimum, and even facts that support a sentence above the standard range in an advisory guidelines system. They also include facts that determine guilt or innocence if the legisla ture has declared those facts to be defenses rather than ele ments. These examples demonstrate that the reason for the Apprendi and Blakely rules is not that no system of justice can tolerate the use of the preponderance standard to find facts with a significant impact on punishment. That happens frequently. And, even without the Blakely rule, no defendant faces any punishment at all unless the government has proved the elements of a criminal offense beyond a reasonable doubt. Once that has occurred, it does not offend bedrock notions of fairness to find facts that bear on the extent of punishment by a preponderance of the evidence.

2. In addition, infringement of the Blakely rule does not so seriously diminish accuracy that it creates an imper missibly large risk of injustice. The preponderance of the evidence standard is a reliable method for finding facts. It is considered sufficiently accurate for many important determi nations in criminal cases-including whether a defendant's confession was voluntary, whether he validly waived his Miranda rights, and whether he voluntarily consented to a search. The reliability of the preponderance standard in de termining facts that bear on punishment is particularly well established. The preponderance standard is the ordinary standard of proof for finding facts in traditional, indetermi nate sentencing systems-even though those facts can have a substantial impact on the defendant's punishment. It is difficult to conceive how it could be constitutional to find those facts by the preponderance standard if using that standard to find penalty enhancing facts created the serious risk of inac curacy required by the "watershed" exception.

ARGUMENT

BLAKELY v. WASHINGTON DOES NOT APPLY RETROAC TIVELY TO CASES ON COLLATERAL REVIEW

In Apprendi v. New Jersey, 530 U.S. 466 (2000), this 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 the jury, and proved beyond a reasonable doubt." Id. at 490. In Blakely v. Wash ington, 542 U.S. 296 (2004), the Court held that the jury trial and reasonable doubt requirements also apply to facts that support a sentence above the standard sentencing range in a legislatively prescribed guidelines system. The questions presented are whether Blakely announced a new rule and, if so, whether its requirement of proof beyond a reasonable doubt applies retroactively on collateral review.3

Under Teague v. Lane, 489 U.S. 288, 311 (1989) (plurality opinion), new constitutional rules of criminal procedure gen erally do not apply retroactively on collateral review. That general bar against retroactivity recognizes that "[a]pplica- tion of constitutional rules not in existence at the time a con viction became final seriously undermines the principle of finality which is essential to the operation of our criminal jus tice system." Id. at 309. Teague's bar against retroactivity is therefore subject to only a narrow exception for "a small set of watershed rules of criminal procedure implicating the fun damental fairness and accuracy of the criminal proceeding." Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (internal quo tation marks and citations omitted).4 Because Blakely is a new rule, and its requirement that facts supporting an upward departure from a statutory sentencing guidelines range must be proved beyond a reasonable doubt is not a "watershed rule of criminal procedure," Blakely does not apply retroactively on collateral review.5

A. Blakely Announced A New Rule

Teague's bar on retroactive application of new rules seeks "to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered." Sawyer v. Smith, 497 U.S. 227, 234 (1990). That purpose is reflected in the standard for determining whether a decision announces a new rule: A rule is "new" unless it was so "dictated" by precedent in effect when the defendant's conviction became final that it "was apparent to all reasonable jurists." Beard v. Banks, 542 U.S. 406, 413 (2004) (citation omitted). The ques tion is whether a "reasonable jurist * * * could have reached a conclusion different from the one" this Court ulti mately announced. Lambrix v. Singletary, 520 U.S. 518, 532 (1997). In other words, a rule is new unless a state or lower federal court "would have acted objectively unreasonably" in declining to adopt it. O'Dell v. Netherland, 521 U.S. 151, 156 (1997).

Petitioner contends (Br. 12-26) that Blakely is not a new rule because it was compelled by Apprendi, which was de cided before his convictions became final. Contrary to that contention, Blakely was not compelled by Apprendi, much less "dictated" by Apprendi to the extent that "no other inter pretation was reasonable." Lambrix, 520 U.S. at 538.

1. Blakely extended Apprendi to facts supporting a sen tence above the standard sentencing range in a legislatively prescribed guidelines system. In so doing, Blakely defined "statutory maximum" for Apprendi purposes in an innovative way that was not dictated by Apprendi itself.

In Apprendi, the defendant had been convicted of posses sion of a firearm for an unlawful purpose, an offense for which New Jersey law prescribed a maximum penalty of 10 years in prison. He was sentenced to 12 years in prison, however, because a separate statute increased the authorized punish ment if the sentencing judge found, by a preponderance of the evidence, that the defendant acted with a purpose to intimi date an individual because of race. This Court concluded that the enhanced sentence violated the defendant's rights under the Sixth Amendment and the Due Process Clause. 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 the jury, and proved beyond a reasonable doubt." 530 U.S. at 490.

In Blakely, the defendant pleaded guilty to kidnapping, a felony for which Washington law prescribed a maximum prison term of 10 years. Washington's legislatively enacted sentencing guidelines, however, required a standard sentence of between 49 and 53 months in prison, unless the sentencing judge found aggravating circumstances that justified an ex ceptional sentence. The sentencing judge found, by a prepon derance of the evidence, that the defendant had acted with deliberate cruelty, and the judge concluded that an excep tional sentence of 90 months in prison was therefore justified. This Court held that the enhanced sentence violated the rule enunciated in Apprendi, because the top of the standard sen tencing range, rather than the ultimate statutory cap of 10 years, qualified as the "statutory maximum" for purposes of the Apprendi rule. 542 U.S. at 303-304.

The sentence in Apprendi exceeded the 10-year maximum prescribed by New Jersey statute for the defendant's offense. In contrast, the sentence in Blakely was below the 10-year maximum specified in the Revised Code of Washington for the defendant's offense, even though it was above the standard sentencing range established by the State's statutory guide lines system. Thus, the sentence in Blakely was subject to the Apprendi rule only if the top of that standard sentencing range, rather than the ultimate statutory limit, was the "stat utory maximum" for purposes of the rule. Apprendi had not decided whether the top of a standard sentencing range that is lower than the maximum penalty otherwise prescribed by statute for the offense qualifies as the "statutory maximum." Apprendi did not involve a sentencing guidelines system, and the Court therefore had no occasion to consider whether or how its rule would apply in that situation.

Petitioner incorrectly asserts that Apprendi defined "statutory maximum" as the maximum sentence a defendant could receive "if punished according to the facts reflected in the jury verdict alone." Pet. Br. 18 (quoting Apprendi, 530 U.S. at 483). To be sure, the Apprendi opinion included the language quoted by petitioner, and, in Blakely, this Court relied in part on that language to support its holding. See 542 U.S. at 303. But the Court in Apprendi did not use the quoted language in defining (or even in discussing) the term "statu tory maximum." See 530 U.S. at 483, 494. In fact, the Court did not define "statutory maximum" at all. The Court had no occasion to do so because there was no dispute in Apprendi that the sentence exceeded the 10-year statutory maximum. "It was not until Blakely that [the 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.'" United States v. Price, 400 F.3d 844, 847 (10th Cir. 2005) (quoting Blakely, 542 U.S. at 303)); see Simpson v. United States, 376 F.3d 679, 681 (7th Cir. 2004) ("Blakely * * * alter[ed] courts' understanding of 'statutory maximum.'").

Given the limited guidance in the Apprendi opinion on the meaning of "statutory maximum," a state or lower federal court applying Apprendi to a guidelines system could reason ably have concluded-as those courts did almost universally conclude (see p. 15, infra)-that the "statutory maximum" was the maximum penalty specified by statute for the offense rather than the top of the guidelines range. And, under that interpretation, facts supporting upward departures from the guidelines range would not have had to be proved to a jury beyond a reasonable doubt. Indeed, Justice O'Connor, joined by the other three dissenting Justices in Apprendi, suggested just such an interpretation of the Apprendi decision. She noted that, "under one reading" of the Court's opinion, "[a] State could * * * remove from the jury (and subject to a standard of proof below 'beyond a reasonable doubt') the as sessment of those facts that define narrower ranges of pun ishment, within the overall statutory range, to which the de fendant may be sentenced." 530 U.S. at 540 (dissenting opin ion). The Court's response was not that her proposed inter pretation was foreclosed by Apprendi. Instead, the Court argued that use of that kind of sentencing system would be constrained by political considerations and by precedent other than Apprendi. See id. at 490 n.16 (majority opinion).

The reading of Apprendi that Justice O'Connor proposed was supported by the Apprendi Court's claim that its decision was consistent with Walton v. Arizona, 497 U.S. 639 (1990). Walton had upheld Arizona's death penalty system, which required, after a jury found a defendant guilty of first-degree murder, that a judge find additional aggravating factors be fore imposing a death sentence. See 530 U.S. at 541 (dissent ing opinion). The Apprendi majority asserted that the Ari zona system was consistent with Apprendi because Arizona's first-degree murder statute specified death as the maximum penalty. See id. at 497. But, as Justice O'Connor noted, id. at 541 (dissenting opinion)-and the Court later acknowledged when overruling Walton in Ring v. Arizona, 536 U.S. 584, 604 (2002)-other provisions of Arizona law made clear that life imprisonment was the most serious penalty that could be im posed unless the judge found additional facts. The Apprendi Court's refusal to overrule Walton thus supported a reading of Apprendi under which the "statutory maximum" was the highest penalty specified by statute for the offense, even when other provisions of law restricted the circumstances under which that penalty could be imposed.6

If this Court had adopted the reading of Apprendi that Justice O'Connor identified as a possible interpretation, the Court would have not have reached the result it did in Blakely. It is therefore clear that reasonable jurists "could have reached a conclusion different from the one" that this Court announced in Blakely. Lambrix, 520 U.S. at 532.

2. Two other differences between the Washington sen tencing guidelines system and the sentencing statutes in Apprendi also would have permitted reasonable jurists to reach a different result in Blakely.

In Apprendi, the increase in the statutory maximum de pended on a fact specified by the legislature-that the defen dant acted for the purpose of intimidation based on race. 530 U.S. at 468-469. Under the Washington system, in contrast, the legislature did not specify the exclusive set of facts autho rizing a sentence above the standard range. Instead, a sen tencing judge could impose an exceptional sentence based on a wide range of facts of his own choosing, so long as they pro vided "substantial and compelling reasons" for the enhanced sentence. Wash. Rev. Code §§ 9.94A.120, 9.94A.390.

The Washington system also differed from the one in Apprendi in another significant way. In Apprendi, the factual finding was itself sufficient to authorize the enhanced sen tence. 530 U.S. at 468-469. Under the Washington system, in contrast, factual findings alone did not authorize the higher punishment. The judge had to make an additional, qualitative judgment that the factual findings provided "substantial and compelling reasons" for an exceptional sentence. Wash. Rev. Code § 9.94A.120(2). The judge was not required to reach that conclusion even if he found an aggravating circumstance specifically identified by the legislature. See U.S. Amicus Br. at 19-20, Blakely, supra (No. 02-1632) (citing cases).

Because of these features of the Washington system, a sentencing judge effectively had discretion to decide both what facts might support a higher sentence and whether those facts actually justified such a sentence. In that respect, the Washington system resembled traditional, indeterminate sen tencing systems, under which judges may find facts by a pre ponderance of the evidence without violating the Constitution. See U.S. Amicus Br. at 7-8, 15-22, Blakely, supra (No. 02- 1632). A reasonable jurist therefore could have concluded that the Washington guidelines did not violate Apprendi.

3. Not only could reasonable jurists have concluded that Apprendi did not dictate the invalidation of sentencing guide lines systems, but the vast majority of state and federal courts reached just that conclusion. See Blakely, 542 U.S. at 320 n.1 (dissenting opinion) (citing cases). Before Blakely, only one appeals court had applied Apprendi to invalidate a guidelines scheme. See ibid. In contrast, numerous state appellate courts had held that Apprendi did not restrict state sentencing guidelines.7 And every federal court of appeals had held that Apprendi did not apply to sentences under the federal Sentencing Guidelines that were within the maximum for the offense specified by statute. See 542 U.S. at 320 n.1 (dissenting opinion) (citing cases). In light of the virtually unanimous rejection of the Blakely rule by the state and lower federal courts, it is difficult to conclude that the rule should have been "apparent to all reasonable jurists." Banks, 542 U.S. at 413 (citation omitted).

Moreover, Blakely was a close decision that generated four dissenting votes. The existence of those dissents also suggests that "reasonable jurists could have differed as to whether" Apprendi compelled Blakely. Banks, 542 U.S. at 414-415; O'Dell, 521 U.S. at 159-160. Noting that the Blakely dissenters criticized Apprendi itself, petitioner argues (Br. 20-21) that they must have accepted that Apprendi compelled Blakely. On the contrary, the dissenters argued that Ap prendi did not require the result in Blakely. Writing for all four dissenters, Justice O'Connor repeatedly criticized the Court's "extension of Apprendi" to sentencing guidelines sys tems. 542 U.S. at 314, 318, 320 n.1. She argued that the Washington guidelines "did not alter the statutory maximum sentence to which [Blakely] was exposed," id. at 320, and were "as inoffensive to the holding of Apprendi as a regime of guided discretion could possibly be," id. at 325. Justice Breyer, joined by Justice O'Connor, also lamented that, "[u]ntil now, [he] would have thought the Court might have limited Apprendi so that its underlying principle would not undo sentencing reform efforts." Id. at 346.

4. Petitioner observes that this Court said in Blakely that it was "apply[ing]" Apprendi. Pet. Br. 19 (quoting 542 U.S. at 301). And he contends (Br. 12-17) that the application of a rule announced in a previous decision cannot constitute a new rule. That is incorrect. Teague's bar on retroactivity retains its full force when a "prior decision is applied in a novel set ting thereby extending the precedent." Stringer v. Black, 503 U.S. 222, 228 (1992). That is precisely what occurred in Blakely. Applying Apprendi in the novel setting of statutory sentencing guidelines, Blakely extended Apprendi to cover facts supporting a sentence above the standard sentencing range, even when the sentence is below the maximum penalty otherwise identified by statute for the crime of conviction.

The cases that petitioner cites (Br. 13-17) establish only that applying a prior decision to govern a "closely analogous" case does not create a new rule when the result is "dictated" by the prior decision. Penry v. Lynaugh, 492 U.S. 302, 314 (1989) (citation omitted). See id. at 319 (concluding that the Penry rule was "dictated" by precedent); Stringer, 503 U.S. at 229 (concluding that it would not create a new rule to apply Godfrey v. Georgia, 446 U.S. 420 (1980), to Mississippi's capi tal sentencing system because that result followed "a fortiori" from Godfrey). Those cases do not assist petitioner because the result in Blakely did not follow a fortiori from Apprendi.8

Petitioner also points to language in Blakely and United States v. Booker, 543 U.S. 220 (2005), suggesting that the re sult in Blakely was "clear" and reflected "respect for long standing precedent." Pet. Br. 19-20 (citations omitted). But, as this Court has repeatedly observed, courts "frequently" use language suggesting that their decisions are required by precedent "even when aware of reasonable contrary conclu sions reached by other courts." Butler v. McKellar, 494 U.S. 407, 415 (1990); see O'Dell, 521 U.S. at 161 n.2.9

B. Blakely Did Not Establish A Watershed Procedural Rule

Because Blakely established a new rule, its requirement of proof beyond a reasonable doubt for facts supporting an upward departure in a statutory guidelines system applies retroactively only if that requirement is a "watershed rule[] of criminal procedure." Teague, 489 U.S. at 311 (plurality opinion). That category "is extremely narrow," Summerlin, 542 U.S. at 352, and "it is unlikely that any of these watershed rules ha[s] yet to emerge." Tyler v. Cain, 533 U.S. 656, 667 n.7 (2001) (internal quotation marks and citation omitted). Blakely's reasonable doubt requirement is not a "watershed" rule.

To qualify for "watershed" status, a rule must "implicat[e] the fundamental fairness and accuracy of the criminal pro ceeding." Saffle v. Parks, 494 U.S. 484, 495 (1990). A rule implicates fundamental fairness if it "'alter[s] our under standing of the bedrock procedural elements' essential to the fairness of a proceeding." Tyler, 533 U.S. at 665 (citation omitted). A rule implicates accuracy if its infringement "so seriously diminishe[s] accuracy that there is an impermissibly large risk of punishing conduct the law does not reach." Summerlin, 542 U.S. at 355-356 (internal quotation marks and citation omitted). The "watershed" exception does not apply unless both of those standards are satisfied. Tyler, 533 U.S. at 665. Blakely's requirement of proof beyond a reason able doubt satisfies neither standard.

1. Blakely did not announce a bedrock rule essential to a fair trial

a. To satisfy the first part of the test for "watershed" rules, a rule must make a "fundamental shift" in "our under standing of the bedrock procedural elements essential to fun damental fairness." Banks, 542 U.S. at 419-420 (internal quo tation marks, citation, and emphasis omitted). This Court has identified only one rule that has had that dramatic effect: Gideon v. Wainwright, 372 U.S. 335 (1963). See Banks, 542 U.S. at 417. Before Gideon, this Court had held that an indi gent defendant charged with a felony offense could, in some cases, receive a fair trial without the option of assistance of appointed counsel. In Gideon, the Court repudiated that no tion and held that, absent a waiver of counsel, a felony trial conducted without a defense lawyer is inherently unfair. Gid eon thus altered our understanding of the procedures that are indispensable to a fair trial by adding the right to appointed counsel to that core set of rules.

Rules that are "less sweeping and fundamental" than Gid eon do not qualify as "watershed" rules. Banks, 542 U.S. at 418 (citation omitted). For example, in Sawyer, the Court considered the retroactivity of Caldwell v. Mississippi, 472 U.S. 320 (1985), which held that the Eighth Amendment bars imposition of a capital sentence when a prosecutor mistakenly informs the jury that responsibility for the death penalty rests elsewhere. Even though the Caldwell rule was a "sys temic rule enhancing reliability," the Court concluded that it was not a "watershed" rule because it only "added to an exist ing guarantee of due process protection against fundamental unfairness." Sawyer, 497 U.S. at 244. Similarly, in O'Dell, the Court rejected "watershed" status for Simmons v. South Carolina, 512 U.S. 154 (1994), which held that a capital defen dant has a due process right to introduce evidence of his pa role ineligibility to rebut a prosecutor's future dangerousness argument. The Court explained that, "[u]nlike the sweeping rule of Gideon," which established a broad right to counsel in all felony cases, the Simmons rule is a "narrow right" that applies only in "a limited class of capital cases." 521 U.S. at 167.

These cases establish that rules that apply or extend bed rock constitutional guarantees are not "watershed" unless they have the same "primacy and centrality" as Gideon. Banks, 542 U.S. at 420 (citation omitted). Thus, rules lack "watershed" status when they make only an "incremental change" in notions of fundamental fairness, or when they ap ply "narrowly" to a limited class of cases or defendants. Id. at 419-420. Blakely is just such a rule.

Blakely, like Apprendi before it, added a novel corollary to well established constitutional principles. The basic rule that the government must prove all elements of a criminal offense beyond a reasonable doubt was well settled even be fore In re Winship, 397 U.S. 358 (1970). Indeed, the reason able doubt rule "dates at least from our early years as a Na tion." Id. at 361. This Court had also already made clear, before Apprendi, that facts that enhance punishment may sometimes be subject to the reasonable doubt requirement even if they are not formally designated as elements of the offense. See McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986) (suggesting that proof beyond a reasonable doubt would be required for a sentencing enhancement that amounted to "a tail which wags the dog of the substantive offense"). Apprendi determined that facts that enhance pun ishment beyond the statutory maximum are subject to the well-established reasonable doubt rule. And Blakely made an even more incremental change. As discussed above, Blakely simply extended the Apprendi rule to facts that are necessary to authorize a sentence within the maximum for the offense but above a legislatively prescribed sentencing guidelines range. Line-drawing decisions like Blakely may be of sub stantial importance and have significant practical impact, but they are not the kind of "groundbreaking" decisions, compa rable to Gideon, that qualify as "watershed" rules. Caspari v. Bohlen, 510 U.S. 383, 396 (1994).

Nor does the Blakely rule have the sweep and importance of a bedrock rule. Gideon's rule against complete denial of counsel applies to every felony trial and affects every stage of the trial and every defendant. The Blakely rule, by contrast, does not even apply to the determination whether a defendant is guilty of a crime established by the legislature. Rather, it affects the procedure for determining punishment. Thus, the Blakely rule applies only to those defendants who have al ready been found guilty of an offense. In addition, the rule applies only in jurisdictions that have a guidelines system using mandatory, standard sentencing ranges with circum scribed grounds for departure. And, even in those jurisdic tions, the rule applies only to the subclass of defendants whose punishment is increased over the standard sentencing range by the finding of an aggravating fact.

This Court, in holding that Blakely error is not structural, has already made clear that Blakely does not have compara ble sweep and importance to Gideon. Because the presence of counsel pervasively affects all aspects of a trial, a complete denial of the right to counsel makes a fair trial impossible. This Court has therefore stated that Gideon error is struc tural and requires automatic reversal when properly raised on direct review. See Neder v. United States, 527 U.S. 1, 8 (1999). In contrast, the Court has held that Blakely error is not structural and does not require automatic reversal. Washington v. Recuenco, 126 S. Ct. 2546 (2006). In Recuenco, the Court concluded that failure to require proof beyond a reasonable doubt of a penalty enhancing fact "does not neces sarily render a criminal trial fundamentally unfair or an unre liable vehicle for determining guilt or innocence." Id. at 2551 (citation and emphasis omitted). That conclusion makes clear that the Blakely rule is not the kind of "absolute prerequisite to fundamental fairness" that qualifies for "watershed" status. Sawyer, 497 U.S. at 244 (citation omitted).

b. Another indication that Blakely is not of bedrock char acter is that fact-finders may constitutionally use the prepon derance of the evidence standard to determine many facts that have as much or more impact on punishment as the facts covered by Blakely. For example, facts on which a judge re lies to increase a sentence within statutory limits may be de termined by a preponderance. United States v. Watts, 519 U.S. 148, 156 (1997) (per curiam); Nichols v. United States, 511 U.S. 738, 747-748 (1994). The same is true for facts that trigger a statutory mandatory minimum sentence and for facts that reduce the statutory maximum. Harris v. United States, 536 U.S. 545, 568-569 (2002); Apprendi, 530 U.S. at 491 n.16. Even facts that support a sentence above a guidelines range may be proved by a preponderance if the guidelines are advisory rather than mandatory. See Booker, 543 U.S. at 233, 259.

Use of the preponderance standard is not limited to facts that bear only on the extent of punishment. Facts that deter mine the degree of an offense, and facts that determine guilt or innocence of any offense, may be found under the prepon derance standard if the legislature declares those facts to be defenses rather than offense elements. Indeed, the govern ment may even impose the burden of proving defenses on the defendant. See, e.g., Dixon v. United States, 126 S. Ct. 2437 (2006) (duress); Martin v. Ohio, 480 U.S. 228 (1987) (self-de fense); Patterson v. New York, 432 U.S. 197 (1977) (extreme emotional disturbance).

These examples demonstrate that the reason for the Apprendi and Blakely rules is not that it is fundamentally unfair for facts with a significant impact on punishment to be found by a preponderance of the evidence. The reason for the rules is, as this Court explained in Blakely, "the need to give intelligible content" to the rights of jury trial and proof be yond a reasonable doubt. 542 U.S. at 305. The Court con cluded that, to prevent legislatures from eviscerating those rights, there must be a constitutional line that establishes a category of facts to which those rights always attach. But the need for a line does not mean that a rule is of bedrock charac ter when, like the rule in Blakely, it merely clarifies that par ticular facts fall on one side of the line.

Even without the Blakely rule, no defendant is exposed to any punishment at all unless the government has proved the core elements of a criminal offense beyond a reasonable doubt. Once that has occurred, the question whether ancillary findings may be established by a preponderance of the evi dence does not implicate that small core set of rules that are indispensable to justice, even if those findings have important consequences for the authorization or extent of punishment.

c. In arguing that Blakely's reasonable doubt rule is a bedrock rule, petitioner relies primarily (Br. 31-32) on a state ment in Winship, and similar statements in other cases, that "a person accused of a crime . . . would be at * * * a disad vantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence that would suffice in a civil case." Winship, 397 U.S. at 363 (citation omitted). Petitioner ignores essential differences between Winship, which recog nized the basic rule that guilt of a crime must be proved be yond a reasonable doubt, and Blakely, which extended the reasonable doubt requirement to facts supporting upward departures from sentencing guidelines.

Winship held that a family court violated due process by committing a juvenile to a state institution based on findings by a preponderance of the evidence that he had committed acts that, if done by an adult, would constitute larceny. 397 U.S. at 368. Thus, in a case of Winship error, the defendant has been denied the right of proof beyond a reasonable doubt on every element of the offense. The error calls into question whether the defendant is guilty of any crime. In a case of Blakely error, in contrast, the defendant has been provided the right of proof beyond a reasonable doubt on the facts nec essary to establish that he committed a crime. The error does not call into question whether he is guilty of an offense but affects only the extent of punishment that is legally autho rized.

This Court's structural error cases confirm that essential difference between Winship and Blakely error. The failure to require proof beyond a reasonable doubt for an entire of fense "vitiates all the jury's findings" and pervasively affects the trial in unmeasurable ways. Sullivan v. Louisiana, 508 U.S. 275, 281 (1993). Winship error is therefore subject to automatic reversal if properly raised on direct review. See id. at 281-282. In contrast, the failure to require proof beyond a reasonable doubt for a penalty enhancing fact, or even for a single element of a criminal offense, "d[oes] not 'vitiat[e] all the jury's findings'" and does not have the same pervasive effect on the trial. Neder, 527 U.S. at 11 (quoting Sullivan, 508 U.S. at 281); see Recuenco, 126 S. Ct. at 2551-2553. As a result, Blakely error does not necessarily render a criminal trial fundamentally unfair. Id. at 2551.

d. Petitioner also argues (Br. 33-36) that Blakely satisfies the bedrock component of the "watershed" test because the right to a jury trial is essential to fundamental fairness. That argument overlooks that the question before this Court is not whether Blakely's jury trial right is a "watershed" rule but whether its reasonable doubt requirement has that status. See note 3, supra. Summerlin already establishes that the jury trial right guaranteed by the Apprendi line of cases is not a "watershed" rule. See 542 U.S. at 355-358. Contrary to petitioner's assertion (Br. 33), Summerlin's focus on the jury trial right's failure to satisfy the accuracy component of the "watershed" test is of no moment. Summerlin held that the jury trial right is not a "watershed" rule and does not apply retroactively. As a result, if Blakely announced a new rule, the only right protected by that decision that could apply ret roactively is the right of proof beyond a reasonable doubt.

In any event, petitioner is not correct that Blakely's jury trial right is a bedrock requirement indispensable to funda mental fairness. To be sure, the jury trial right is "funda mental to the American scheme of justice." Duncan v. Loui siana, 391 U.S. 145, 149 (1968). But that does not mean that it implicates fundamental fairness. As the Court explained in Blakely, the jury trial right is designed not to ensure fairness but to ensure "the people's ultimate control * * * in the judi ciary," just as the right of suffrage ensures popular control of the legislative and executive branches. 542 U.S. at 306. In deed, the Court suggested that fairness might arguably "be better served by leaving justice entirely in the hands of pro fessionals" than by trial by jury. Id. at 313. See also Ring, 536 U.S. at 607; DeStefano v. Woods, 392 U.S. 631, 633-634 (1968) (per curiam).

2. Violation of the Blakely rule does not seriously di minish accuracy

The fact that Blakely's reasonable doubt rule is not a bed rock element of fairness is itself sufficient to establish that the rule is not a "watershed" rule. But the rule also does not satisfy the second requirement for "watershed" status: in fringement of the rule does not "so seriously diminish[] accu racy that there is an impermissibly large risk of punishing conduct the law does not reach." Summerlin, 542 U.S. at 355- 356 (internal quotation marks and citation omitted). To meet that requirement, it is not enough that infringement of the rule may have some affect on the accuracy of the criminal proceeding. Id. at 356. The diminution in accuracy must be so substantial that it creates an "impermissibly large risk of injustice." Ibid. (internal quotation marks omitted). Blakely's reasonable doubt rule does not satisfy that test.

a. The preponderance of the evidence standard is deemed sufficiently reliable for numerous determinations in criminal cases and has long been used in fixing the extent of punish ment. Petitioner's argument that there is an impermissibly large risk of inaccuracy when the preponderance standard is used to find facts supporting upward departures from guide lines ranges is premised on a misunderstanding of what the standard requires. Invoking Winship, petitioner asserts that "the preponderance standard 'calls on the trier of fact merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted.'" Pet. Br. 29 (quoting Winship, 397 U.S. at 368). In fact, Winship does not endorse that de scription of the preponderance standard. On the contrary, Winship rejects that description as a "misinterpretation." 397 U.S. at 367-368 (emphasis added and citation omitted).

The preponderance standard imposes a significantly higher burden of proof than petitioner describes. The prepon derance standard requires that the fact-finder be convinced that the existence of the fact at issue is more likely than not. See, e.g., In re Personal Restraint of Woods, 114 P.3d 607, 615 (Wash. 2005); State v. Shepherd, 41 P.3d 1235, 1238 (Wash. Ct. App. 2002). Application of the preponderance standard, prop erly understood, to facts that enhance a defendant's punish ment is not so unreliable that it creates an impermissibly large risk of injustice.

A wide variety of findings that have a profound effect on the outcome of a criminal proceeding may reliably be made by a preponderance of the evidence. The preponderance stan dard is used to determine the voluntariness of a defendant's confession, the validity of his waiver of his Miranda rights, and the voluntariness of his consent to search. Lego v. Twomey, 404 U.S. 477, 489 (1972); Colorado v. Connelly, 479 U.S. 157, 168 (1986); United States v. Matlock, 415 U.S. 164, 177 (1974). The preponderance standard is used to decide whether the discovery of incriminating evidence was inevita ble, so that the evidence may be used against the defendant even if it was the product of a constitutional violation. Nix v. Williams, 467 U.S. 431, 444 & n.5 (1984). And the preponder ance standard is used to resolve preliminary factual questions about the admissibility of evidence under the Federal Rules. Bourjaily v. United States, 483 U.S. 171, 175-176 (1987). This Court has repeatedly stated that there is "nothing to suggest" that those determinations "have been unreliable or otherwise wanting in quality because not based on some higher stan dard." Lego, 404 U.S. at 488; Connelly, 479 U.S. at 168.

The reliability of the preponderance standard in determin ing facts that bear on the extent of punishment is particularly well established. As described above, in traditional, indeter minate sentencing regimes, judges routinely use the prepon derance standard to find the facts on which they rely to in crease a defendant's punishment within statutory limits. See p. 21, supra. Even in determinate sentencing regimes, it is constitutionally permissible to find facts under the preponder ance standard in a wide range of circumstances. See, e.g., Harris, 536 U.S. at 568-569 (mandatory minimums); Booker, 543 U.S. at 233, 259 (facts in advisory guidelines systems).

Those facts can have a "substantial impact" on the defen dant's punishment. Harris, 536 U.S. at 549 (plurality opin ion). For example, they may determine whether someone who uses a firearm in furtherance of a drug trafficking crime is imprisoned for five years, 30 years, or life. See 18 U.S.C. 924(c)(1)(B)(ii), 924(c)(1)(C)(ii). Similarly, they may deter mine whether a murderer spends only a few years or his en tire life in prison. See 18 U.S.C. 1111 (2000 & Supp. IV 2004). It is difficult to conceive how it could be constitutional to find those facts by the preponderance standard if using that stan dard to find penalty enhancing facts created the serious risk of inaccuracy required by the "watershed" exception.

b. Facts bearing on punishment may be found with suffi cient reliability using the preponderance standard because determination of those facts occurs only after a defendant has been found guilty of a criminal offense beyond a reasonable doubt. "Once the reasonable doubt standard has been applied to obtain a valid conviction, 'the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him.'" McMillan, 477 U.S. at 92 n.8 (cita tion omitted). Under those circumstances, the preponderance standard may be used to find additional facts that bear on the extent of the defendant's punishment without creating a risk of inaccuracy to the degree required for retroactivity.

That is particularly true because other constitutional protections promote the reliability of fact-finding at sentenc ing. For example, the defendant has the right to notice of the facts on which the judge may rely to increase his punishment and an opportunity to contest those facts. See Oyler v. Boles, 368 U.S. 448 (1962). In addition, the defendant has the right to the assistance of counsel. See Mempa v. Rhay, 389 U.S. 128 (1967). Those protections mitigate any risk of inaccuracy created by use of the preponderance standard.

The essential reliability of the preponderance standard for determining facts that enhance punishment is borne out by experience. On direct review, the federal courts of appeals have frequently found Apprendi-type errors harmless be cause the quantum of proof made no difference to the accu racy of the factual findings.10 Applying plain error review, those courts have also frequently found that Apprendi-type errors neither impaired substantial rights nor seriously af fected the fairness, integrity, or public reputation of judicial proceedings, because the evidence was essentially uncontroverted or so overwhelming that it did not affect the reliability of the factual findings.11

c. In arguing that violations of Blakely's reasonable doubt rule impermissibly diminish accuracy, petitioner invokes (Br. 28-29) two cases that predate Teague-Ivan V. v. City of New York, 407 U.S. 203 (1972) (per curiam), and Hankerson v. North Carolina, 432 U.S. 233 (1977). Those cases do not es tablish that Blakely's reasonable doubt rule satisfies the accu racy component of the test for "watershed" rules.

Ivan V. held that Winship applied retroactively to cases on direct review, and Hankerson held the same for Mullaney v. Wilbur, 421 U.S. 684 (1975). In Mullaney, this Court ad dressed a State rule that required a defendant charged with murder to prove that he acted in the heat of passion on sud den provocation in order to reduce the homicide to man slaughter. The Court held that a State that defines a particu lar fact as an element of an offense may not dispense with the burden of proving that element to the jury beyond a reason able doubt by relying on a presumption arising from other facts. See Patterson, 432 U.S. at 215.

Ivan V. and Hankerson offer scant guidance here because they were decided before Teague and concerned retroactivity on direct, rather than collateral, review. Petitioner nonethe less asserts that they "control" this case because (according to him) they applied "the very same accuracy-diminishing inquiry that Teague later adopted." Pet. Br. 28-29. That is incorrect. Those cases applied a retroactivity standard that Teague repudiated as insufficiently responsive to the serious costs to the criminal justice system from disturbing the final ity of convictions obtained in accordance with then-existing law. Under the Teague standard, an impact on accuracy is insufficient to justify applying a new rule retroactively unless the rule also alters our understanding of the bedrock ele ments essential to fair criminal proceedings. See Sawyer, 497 U.S. at 242; Banks, 542 U.S. at 419-420. In addition, the accu racy component of the Teague inquiry is more demanding than the accuracy inquiry under prior precedent. See Teague, 489 U.S. at 313 (plurality opinion). Under Teague, the Court asks whether the diminishment in accuracy from infringing the rule is "so serious[]" that it creates an "impermissibly large risk of injustice." Summerlin, 542 U.S. at 356 (internal quotation marks omitted). The Court did not conduct that inquiry in Ivan V. or Hankerson.

Moreover, Ivan V. and Hankerson involved more funda mental errors that pose a more serious risk of inaccuracy than Blakely error. Ivan V. involved the use of the preponderance standard for determining all the elements of an offense, rather than the use of that standard to determine the extent of punishment, as in cases of Blakely error. And Hankerson did not involve the substitution of the preponderance stan dard for the reasonable doubt standard. Rather, it involved the allocation to the defense of the burden of disproving an offense element, so that the State could prevail on that ele ment on a finding supported by even less than a preponder ance of the evidence. The Court's views on whether the er rors in Ivan V. and Hankerson posed a risk of inaccuracy therefore do not suggest that Blakely error "so seriously diminishe[s] accuracy as to produce an impermissibly large risk of injustice." Summerlin, 542 U.S. at 356 (internal quota tion marks omitted).

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

ALICE S. FISHER
Assistant Attorney General

MICHAEL R. DREEBEN
Deputy Solicitor General

MATTHEW D. ROBERTS
Assistant to the Solicitor
General

JOEL M. GERSHOWITZ
Attorney

OCTOBER 2006

1 Citations to the Revised Code of Washington are to the version in existence at the time of petitioner's sentencing in 1998.

2 Petitioner had been sentenced in 1994 and then resentenced in 1996 after a prior conviction was reversed. The Washington Court of Appeals had reversed that sentence on grounds that are not relevant here and remanded for resentencing. J.A. 45.

3 Schriro v. Summerlin, 542 U.S. 348 (2004), already makes clear that, if Blakely is a new rule, its jury trial requirement is not retroactive on collateral review. Summerlin held that Ring v. Arizona, 536 U.S. 584 (2002), which extended Apprendi's jury trial requirement to the aggravating circumstances that make a defendant eligible for the death penalty, is not retroactive because deprivation of the jury trial right does not seriously diminish the accuracy of a criminal proceeding. Summerlin's reasoning about the jury trial right in Ring applies with equal force to the jury trial right in Blakely. Therefore, as petitioner acknowledges in his questions presented, if Blakely is a new rule, only the retroactivity of its reasonable doubt requirement is at issue. See Pet. Br. i (second question).

4 Although the Court has sometimes identified another exception to the Teague bar for rules that place conduct or persons beyond the reach of the State's power to punish, the Court has more recently stated that such rules "are more accurately characterized as substantive rules not subject to the bar." Summerlin, 542 U.S. at 352 n.4. Petitioner does not contend that Blakely established a substantive rule, and for good reason. A rule is substantive only "if it alters the range of conduct or the class of persons that the law punishes." Id. at 353. Blakely did not prohibit States from punishing any particular conduct or persons. It only held that, if a State conditions punishment above a statutorily mandated guidelines range on the existence of aggravating facts, those facts must be proved to a jury beyond a reasonable doubt. Thus, Blakely merely "altered the range of permissible methods for determining * * * essential facts bearing on punishment," and it is a procedural rule. Ibid.

5 Every federal court of appeals and state court of last resort that has addressed the issue has reached that conclusion. See United States v. Hernandez, 436 F.3d 851, 855 (8th Cir.), cert. denied, 126 S. Ct. 2341 (2006); Michael v. Crosby, 430 F.3d 1310 (11th Cir. 2005), cert. denied, 126 S. Ct. 2025 (2006); Schardt v. Payne, 414 F.3d 1025, 1034-1036 (9th Cir. 2005), petition for cert. pending, No. 05-9237 (filed Nov. 10, 2005); Cirilo-Muñoz v. United States, 404 F.3d 527, 532-533 (1st Cir. 2005); United States v. Price, 400 F.3d 844, 846- 849 (10th Cir. 2005); People v. Johnson, No. 05SC408, 2006 WL 2589170 (Colo. Sept. 11, 2006) (holding Blakely not retroactive on state habeas using Teague analysis); State v. Evans, 114 P.3d 627, 632-633 (Wash. 2005) (same); State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005) (same).

6 In ultimately holding that Walton was inconsistent with Apprendi, Ring provided some clarification of the meaning of "statutory maximum." But Ring still did not resolve the meaning of that term in the context of a sentencing guidelines system like Washington's, and Blakely was therefore not dictated by Ring. In any event, Ring had not been decided when petitioner's convic tions and sentence became final, so he cannot rely on Ring in arguing that Blakely is not a new rule. See p. 10, supra.

7 See, e.g., State v. Dilts, 82 P.3d 593, 599 (Or. 2003), vacated, 542 U.S. 934 (2004); State v. Gore, 21 P.3d 262, 276-277 (Wash. 2001), overrruled by State v. Hughes, 110 P.3d 192 (Wash. 2005); State v. Shattuck, No. C6-03-361, 2004 WL 772220, at *6 (Minn. Ct. App. Apr. 13, 2004), rev'd, 704 N.W.2d 131 (Minn. 2005); State v. Brown, 70 P.3d 454, 461-462 (Ariz. Ct. App. 2003); People v. Allen, 78 P.3d 751, 755 (Colo. Ct. App. 2001); McCloud v. State, 803 So. 2d 821, 827 (Fla. Dist. Ct. App. 2001); State v. Huntley, No. 02CA15, 2002 WL 31769238 (Ohio Ct. App. Dec. 9, 2002).

8 Two of the cases cited by petitioner did not involve Teague's new rule principle but instead involved statutory limits on habeas relief imposed by 28 U.S.C. 2254(d). See Williams v. Taylor, 529 U.S. 362 (2000); Miller-El v. Dretke, 545 U.S. 231 (2005). The final case on which petitioner relies, Yates v. Aiken, 484 U.S. 211 (1988), was decided before Teague.

9 Even if Blakely had not announced a new rule, applying Blakely to grant relief to petitioner would announce one. The sentence for each of petitioner's offenses fell within the standard sentencing range for that offense. The sentence for each offense therefore did not exceed the "statutory maximum" for that offense as defined in Blakely. Petitioner contends that his overall sentence nonetheless violates Blakely because the trial court ordered the individual sentences to run consecutively based on its finding by a preponder ance of the evidence that concurrent sentences would be "clearly too lenient." J.A. 29. Thus, to grant petitioner relief, a court would have to decide that the Blakely rule applies to findings that support the imposition of consecutive sentences on multiple offenses. Neither Blakely nor any other decision of this Court resolves that issue.

10 See, e.g., United States v. Soto-Beniquez, 356 F.3d 1, 46 (1st Cir. 2003), cert. denied, 541 U.S. 1074 (2004); United States v. Lawson, 16 Fed. Appx. 205, 208 (4th Cir. 2001), cert. denied, 534 U.S. 1168 (2002); United States v. Baptiste, 309 F.3d 274, 278 (5th Cir. 2002), cert. denied, 538 U.S. 947 (2003); United States v. Copeland, 321 F.3d 582, 605-606 (6th Cir. 2003); United States v. Anderson, 236 F.3d 427, 430 (8th Cir.), cert. denied, 534 U.S. 956 (2001); United States v. Smith, 282 F.3d 758, 771-772 (9th Cir. 2002); United States v. Anderson, 289 F.3d 1321, 1328 (11th Cir. 2002), cert. denied, 537 U.S. 1195 (2003).

11 See, e.g., United States v. Parrilla-Sanes, 6 Fed. Appx. 38, 40 (1st Cir.), cert. denied, 534 U.S. 937 (2001); United States v. Henry, 325 F.3d 93, 102-103 (2d Cir. ), cert. denied, 540 U.S. 907 (2003); United States v. Campbell, 295 F.3d 398, 404-405 (3d Cir. 2002), cert. denied, 537 U.S. 1239 (2003); United States v. Carrington, 301 F.3d 204, 212-213 (4th Cir. 2002); United States v. Longoria, 298 F.3d 367, 374 (5th Cir.), cert. denied, 537 U.S. 1038 (2002); United States v. Lopez, 309 F.3d 966, 970-971 (6th Cir. 2002), cert. denied, 537 U.S. 1178 (2003); United States v. Mansoori, 304 F.3d 635, 658 (7th Cir. 2002), cert. denied, 538 U.S. 967 (2003); United States v. Wheat, 278 F.3d 722, 741 (8th Cir. 2001), cert. denied, 537 U.S. 850 (2002); United States v. Pimentel-Tafolla, 60 Fed. Appx. 656, 670 (9th Cir.), cert. denied, 538 U.S. 1036 (2003); United States v. Perry, 25 Fed. Appx. 713, 719 (10th Cir. 2001); United States v. Candelario, 240 F.3d 1300, 1311-1312 (11th Cir. ), cert. denied, 533 U.S. 922 (2001); United States v. Webb, 255 F.3d 890, 901-902 (D.C. Cir. 2001).