Craig Anthony Carrington v. United States of America, Robert Charles Tillitz v. United States

The two sentencing cases before us present unusual circumstances. In both, the district court expressed its dissatisfaction with the United States Sentencing Guidelines on the record during the sentencing hearing, at a time when the Guidelines’ constitutionality was accepted. In addition, post-Booker, the district court implored us to recall our mandate in these two cases so that it could sentence Carrington and Tillitz to a just and proper sentence. We believe that these cases present extraordinary circumstances and accordingly, we recall our mandate and remand for re-sentencing.

I. Factual Background

A. Craig Carrington’s Original Sentencing Hearing

On May 14, 1990, Craig Carrington pleaded guilty to conspiracy to distribute 500 grams or more of a mixture and substance containing cocaine under 21 U.S.C. §§ 841(a), 841(b)(1)(B). The district court, Judge Robert Bryan, held a two-day sentencing hearing on October 22-23, 1990. *922During that hearing, Judge Bryan commented:

You know, let me just say something, I guess, for the record or the benefit of people that are interested.

I hear the plea all the time from defense lawyers ... that the guidelines are not fair as applied to an individual case and there ought to be a different result. ... I’m stuck with bad law and criminal defendants are stuck with bad law and the rest of society is stuck with bad law....

I have been sentencing felons for 21 years, and in the last couple of years I’m faced with these guidelines, and it’s very frustrating because it has diminished my responsibility and my authority. But the reason for these guidelines is to do exactly that. That is, to diminish the judge’s discretion. I think that I must, if I am to do my job right, I’ve got to find the facts as I find them and apply the guidelines, being the law, to those facts....

Judge Bryan sentenced Carrington to 324 months in prison, the low end of the applicable Guidelines range. Carrington’s conviction and sentence were upheld on direct and collateral appeals.

B. Robert Tillitz’s Original Sentencing Hearing

On April 27, 1998, Robert Tillitz was convicted by a jury for conspiracy to import hashish, conspiracy to distribute hashish, importation of hashish, possession of hashish with intent to distribute, and interstate and foreign travel in aid of racketeering enterprises. On August 14, 1998, Tillitz appeared, in pro per, before Judge Bryan for sentencing. Tillitz argued, inter alia, that the Sentencing Guidelines were unconstitutional. In response, Judge Bryan commented:

It might interest you to know, Mr. Til-litz, that I ruled in this court a long time ago that it was my opinion that these guidelines were contrary to the United States Constitution. That issue has been laid to rest contrary to my view by the United States Supreme Court. So these guidelines, in spite of your view on the legality of them and my view on it, they are part of the law of the land that bind me and I must follow that.

When Tillitz asked Judge Bryan for the name of the case in which he had discussed the constitutionality of the Guidelines, Judge Bryan answered: “It’s past history now and it’s of no assistance to us.”

Judge Bryan then sentenced Tillitz to a 360-month term of imprisonment, the low end of the applicable Guidelines range. Tillitz’s conviction and sentence were upheld on direct and collateral appeals.

C. Hearing on Writ of Audita Querela

On March 2, 2005, Tillitz filed a writ of audita querela “for relief from an unconstitutional sentence” based on United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). On April 15, 2005, Carrington filed a motion for modification of his sentence under 18 U.S.C. § 3582(c)(2). Judge Bryan appointed counsel for both Tillitz and Carrington.

On September 13, 2005, Judge Bryan noted substantial similarities between the cases of Carrington and Tillitz and entered a minute order joining the two cases. Carrington and Tillitz argued that the district court should grant a writ of audita querela because their sentences are unconstitutional. Carrington also argued that his sentence should be modified under 18 U.S.C. § 3582(c)(2).

Judge Bryan denied relief on the grounds raised by the parties. Sua sponte, Judge Bryan asked this court to recall our mandate based on the existence *923of extraordinary circumstances, as we had done in United States v. Crawford, 422 F.3d 1145 (9th Cir.2005), and to give him an opportunity to re-sentence these two defendants. See Tillitz v. United States, No. C05-5144RJB, 2005 WL 2921957, at *12-13 (W.D.Wash. Nov.3, 2005). Judge Bryan then transferred these cases to this court for us to determine whether the petitioners were entitled to relief, including recall of the mandate. See id. at *13.

II. Analysis

A. Grounds Raised by Petitioners

The district court properly concluded that the grounds for relief raised by Carrington and Tillitz in their initial motions are foreclosed by our case law. A writ of audita querela1 is not an available remedy where the claims raised would be cognizable in a § 2255 habeas petition. See United States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir.2001). Rather, common law writs such as audita querela and coram nobis survive “only to the extent that they fill ‘gaps’ in the current systems of postconviction relief.” Id. at 1079.

These petitioners argue that there is a gap in post-conviction relief. They contend that the numerical limits on filing habeas petitions preclude them from raising a claim based on Booker through a § 2255 habeas petition. See 28 U.S.C. §§ 2255, 2244(b)(3). We have previously held, however, that the statutory limits on second or successive habeas petitions do not create a “gap” in the post-conviction landscape that can be filled with the common law writs. See Valdez-Pacheco, 237 F.3d at 1080. Moreover, even if petitioners had been granted permission to file a second or successive habeas petition under 28 U.S.C. § 2244(b)(3), we have held that Booker does not apply to cases on collateral appeal. See United States v. Cruz, 423 F.3d 1119, 1121 (9th Cir.2005) (per curiam). Therefore, petitioners are not entitled to relief on collateral review, however it is labeled.

Similarly, the district court properly found that it could not modify petitioners’ sentences under 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) allows the district court to modify a sentence where the applicable sentencing range has been lowered by the Sentencing Commission subsequent to the imposition of the sentence. Booker did not lower sentencing ranges, nor was Booker an action “by the Sentencing Commission”; therefore § 3582(c)(2), by its own terms, does not apply here. See United States v. Moreno, 421 F.3d 1217, 1220-21 (11th Cir.2005). To accept the Petitioners’ construction of § 3582(c)(2) would be to stretch that provision beyond what its language can bear.

Accordingly, the district court is correct that the only relief available to these petitioners would be for this court to recall our mandate. We now turn to that question.

B. Recall of the Mandate

A mandate should be recalled only “in extraordinary circumstances.” Calderon v. Thompson, 523 U.S. 538, 550, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). Our authority to recall the mandate should be exercised only “for good cause or to prevent injustice.” Zipfel v. Halliburton Co., 861 F.2d 565, 567 (9th Cir.1988) (internal citations and quotation marks omitted).

*924We have held that the Supreme Court’s decision in Booker was not, by itself, sufficient to justify recall of the mandate in cases finalized before Booker was filed. See United States v. King, 419 F.3d 1035, 1036 (9th Cir.2005). But Booker was an extraordinarily important decision that may, when combined with other extraordinary circumstances, justify recall of the mandate. In United States v. Crawford, 422 F.3d 1145 (9th Cir.2005), we recalled the mandate in a pre-Booker sentence to allow the district court to re-sentence under Booker. We based our decision on the existence of two extraordinary circumstances: (a) that the sentencing judge had expressed reservations at the time of sentencing about the sentence required under the mandatory Guidelines; and (b) that the Supreme Court’s decision in Blakely, which “foreshadowed” its holding in Booker, was rendered before our mandate issued in Crawford. See id. at 1145-46.

Here, the first basis for our decision in Crawford is present. In both Carrington and Tillitz’s original sentencing hearing, Judge Bryan expressed his frustration with the lack of discretion afforded to district court judges by the Guidelines. The second basis is not present, purely by the “accident of timing” as Judge Bryan noted. In Crawford, however, we emphasized that this combination of circumstances was not the only one that would justify recalling our mandate. See id. at 1146 n. 2. Instead, we noted that “future panels will necessarily evaluate the existence of ‘extraordinary circumstances’ warranting the recall of a mandate based on the facts of their individual cases.” Id.

Here, there is an additional circumstance not present in Crawford that compels our attention — Judge Bryan’s impassioned plea to this court.

In his November 3, 2005 order, Judge Bryan said:

A Sentencing Guidelines scheme was adopted by Congress and implemented by the United States Sentencing Commission on November 1, 1987. Many judges, including the undersigned, believed that the Sentencing Guidelines were contrary to the requirements of the U.S. Constitution. Nevertheless, the Supreme Court, in its wisdom, found that the guidelines passed constitutional muster.

Many defendants, including Mr. Tillitz and Mr. Carrington, were sentenced under the mandatory guidelines scheme, and many, including Mr. Tillitz and Mr. Carrington, are still incarcerated under mandatory guideline sentences....

During the period of the guidelines’ mandatory life — 1987 to 2005-judges, like the undersigned, did their best to apply the law, assuming the constitutionality of the guidelines, and often sentencing defendants to sentences that were inappropriate under any law or theory of sentencing except the guidelines. District judges, in other words, tried to follow the law, even if it appeared to lead to injustice.

Now, under Booker, it is clear that the guidelines sentencing scheme was unconstitutional all along. It follows that defendants, still incarcerated under an unconstitutional sentencing scheme, would seek resentencing, even knowing that, on resentencing, longer sentences might be imposed. Yet, because of ret-roactivity rules, defendants serving unconstitutional sentences are offered no relief, no remedy, and no justice.

Trial judges, more than anything, want to do the right thing. We understand our obligation to follow the law, but deeply — and even desperately — hope that the law will lead to justice. If we are part of an injustice, we want to set it *925right, even if it involves a great deal of extra work. To quote Gerry Spence: [S]ometimes a judge doesn’t know how to get justice.... [T]he judge has to just sit up there and watch justice fail right in front of him, right in his own courtroom, and he doesn’t know what to do about it, and it makes him feel sad.... Sometimes he even gets angry about it.

Gerry H. Spence, Of Murder and Madness: A True Story, 490 (1983).

This judge, sad and a little angry, would welcome an opportunity to resentence these defendants to a constitutional and legal sentence.

Tillitz, 2005 WL 2921957, at *12-13 (internal citations omitted).

We believe these two circumstances, particularly in tandem, are quite extraordinary. First, that Judge Bryan would make a statement about the constitutionality of the Guidelines at the sentencing hearing, at a time that the Guidelines were firmly entrenched, is unusual. In Carring-ton’s sentencing hearing particularly, Judge Bryan presaged the fault the Supreme Court found in the Guidelines in Booker: that the Guidelines unconstitutionally “diminish[ed] the judge’s discretion” to sentence defendants to an appropriate sentence, and required him to “find the facts ... and apply the [Guidelines, being the law, to those facts.”

Second, Judge Bryan implores this court to recall our mandate. Booker restored the role of the district court as the person uniquely suited to consider all the circumstances surrounding a criminal defendant and to fashion a sentence most just and appropriate for that individual. For the same reason, we put great stock in the fact that Judge Bryan tells us that Carrington and Tillitz are particularly worthy of re-sentencing. These two cases have weighed on Judge Bryan’s conscience eight years and sixteen years, respectively, after the original sentences were imposed. They compelled him to the point that he would sua sponte request that this court recall its mandates and that he would voluntarily assume the additional responsibility involved in re-sentencing these defendants. We believe that the number of cases in which a district court will feel so strongly about the need to re-sentence is small, making these cases truly extraordinary.

Our interest in the finality of judgment is not so strong that we would not allow a district court judge the opportunity to remedy what the judge considers to be an “injustice” and to re-sentence a defendant to a sentence that is just and proper. See Gondeck v. Pan Am. World Airways, Inc., 382 U.S. 25, 26-27, 86 S.Ct. 153, 15 L.Ed.2d 21 (1965). In the two cases before us, we conclude that extraordinary circumstances exist to warrant recall of the mandates.

MANDATES RECALLED, SENTENCES VACATED, AND CASES REMANDED.