## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 18 2002 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. LONNIE RAY WISEMAN,

Defendant-Appellant. No. 01-2122

Appeal from the United States District Court for the District of New Mexico (D.C. Nos. CIV-00-1383-JC/LCS, CR-96-72-JC)
Glynette R. Carson McNabb, Assistant United States Attorney, (Norman C. Bay, United States Attorney; David N. Williams, Assistant United States Attorney, with her on the brief), Albuquerque, New Mexico, fo r Plaintiff-Appellee. Jacquelyn Robins, Albuquerque, New Mexico, Court Ap pointed Attorney for Defendant-Appellant.

Before MURPHY, McWILLIAMS, and HARTZ, Circuit Judges.

MURPHY , Circuit Judge.-2-

I. INTRODUCTION Appellant Lonnie Ray Wiseman was convicted, inter alia , of two counts of using a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c)(1). The jury was not instructed to find the type of firearm used. Wiseman was nevertheless sentenced to a ten-year te rm of imprisonment for the first § 924(c)(1) conviction based on the trial cou rt’s finding that the firearm was a semiautomatic assault weapon. Wiseman was also s entenced to a twenty-year term of imprisonment for the remaining § 924(c)(1) conviction because it was a second or subsequent conviction. On October 2, 200 0, Wiseman filed a motion pursuant to 28 U.S.C. § 2255 in which he asserted, inter alia , that his § 924(c)(1) convictions were contrary to Castillo v. United States , 530 U.S. 120 (2000) and Apprendi v. New Jersey , 530 U.S. 466 (2000). The district court denied Wiseman’s § 2255 motion but granted him a certificate of appealability on the Castillo and Apprendiissues. Exercising jurisdiction pursuant to 28 U. S.C. §§ 1291 and 28 U.S.C. § 2253(c)(1)(A), we affirm in part , reverse in part , and
remand for resentencing.
II. FACTUAL BACKGROUND In an eight-count indictment returned on February 8 , 1996, Wiseman was charged with six counts of robbery affecting inters tate commerce in violation of the Hobbs Act, 18 U.S.C.1951(a), and two counts of using a firearm during and in-3-

relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1). After a jury trial, Wiseman was convicted on all eight counts an d sentenced to a 595-month term of federal imprisonment. Wiseman brought a di rect appeal and this court affirmed the judgment. See United States v. Wiseman , 172 F.3d 1196, 1220 (10th Cir. 1999). Wiseman then filed a timely Motion to Vacate, Set A side or Correct Sentence pursuant to 28 U.S.C. § 2255. In his § 22 55 motion, Wiseman asserted, inter alia , that his § 924(c)(1) convictions violated his Fif th and Sixth Amendment rights because there was no finding by th e jury that the firearm was a semiautomatic assault rifle. Wiseman also alleged that his Fifth and Sixth Amendment rights were violated when he was sentence d to 240 months’ imprisonment for using a firearm during or in relat ion to a crime of violence without a finding by the jury that he had a prior § 924(c)(1) conviction. Wiseman relied upon the Supreme Court’s decisions in Castillo v. United States , 530 U.S. 120 (2000) and Apprendi v. New Jersey , 530 U.S. 466 (2000), both of which were decided after Wiseman’s convictions became final. Wiseman thus argued that Castillo and Apprendi apply retroactively to initial § 2255 motions. Wiseman’s § 2255 motion was referred to a United St ates Magistrate Judge who recommended that the motion be denied. After c onsidering Wiseman’s objections, the district court adopted the magistrate’s recommendation and denied-4-

Wiseman’s motion. Wiseman then filed a notice of appeal. The district court granted Wiseman a certificate of appealability on t he issue of whether Castillo and Apprendishould be applied retroactively to his § 2255 moti on. Thus, the merits of Wiseman’s appeal are properly before this court. See 28 U.S.C. § 2253(c)(1)(b) (providing that a movant may not appe al the denial of a § 2255 motion unless he first obtains a certificate of app ealability).
III. DISCUSSION A. Standard of Review This court reviews “the district court’s legal ruli ngs on a § 2255 motion de novo and its findings of fact for clear error.” United States v. Pearce , 146 F.3d 771, 774 (10th Cir. 1998). The district court dete rmined that the Supreme Court announced new constitutional rules of criminal proc edure in both Castillo and Apprendi . The court then concluded that the rules did not apply retroactively to Wiseman’s § 2255 motion because neither rule satisf ied the exceptions enunciated in Teague v. Lane , 489 U.S. 288, 311-16 (1989). Pursuant to Teague , unless a new constitutional rule of criminal procedure falls within one of two narrow exceptions, it does not apply retroactively on coll ateral review to cases that became final before the rule was announced. See id . at 310. In this appeal, Wiseman raises two arguments to sup port his position that Apprendiand/or Castillo apply retroactively on collateral review. Wiseman ’s-5-

argument that Apprendi falls within the second exception articulated in Teague because it involves a watershed rule of criminal pr ocedure, however, is foreclosed by circuit precedent. See United States v. Mora , No. 01-8020, 2002 WL 1317126, at *4, (10th Cir. June 18, 2002) (“Apprendiis not a watershed decision and hence is not retroactively applicable to initial habeas p etitions.”). Thus Teague bars Wiseman from raising his Apprendiclaims in his § 2255 motion and that portion of the district court’s order dismissing those clai ms is affirmed

. Wiseman also asserts that Castillo does not involve a new constitutional rule of criminal procedure. He contends that Teague is thus inapplicable and does not bar the retroactive application of Castillo to his initial § 2255 motion. Before addressing this argument, we must first determine w hether Wiseman is procedurally barred from raising his Castillo claim.
B. Procedural Bar At the time Wiseman committed the firearms offenses , 18 U.S.C. § 924(c)(1) provided in pertinent part, Whoever, during and in relation to any crime of vio lence . . . for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punish ment provided for such crime of violence . . . , be sentenced to impr isonment for five years, and if the firearm is a . . . semiautomatic assault weapon, to imprisonment for ten years . . . . In the case of his second or subsequent conviction under this subsection, such p erson shall be sentenced to imprisonment for twenty years . . . .-6-

18 U.S.C. § 924(c)(1) (1994). Although the indictm ent alleged that the firearm used by Wiseman was a semiautomatic assault weapon, the applicable jury instruction did not require a finding by the jury o n the type of firearm. Instead, the trial court determined that Wiseman had used a semiautomatic assault weapon. Wiseman was therefore sentenced to a ten-year term of imprisonment for the first § 924(c)(1) conviction and an additional twenty-year term for the second § 924(c)(1) conviction. Wiseman now asserts that his convictions should be vacated because the type of firearm used must be su bmitted to the jury and proved beyond a reasonable doubt. See Castillo , 530 U.S. at 131. Wiseman concedes that he did not object to the jury instruction on t his basis and did not raise the issue on direct appeal. Generally, a movant is barred from raising an alleg ed error affecting his conviction or sentence for the first time on collat eral review unless he can show both cause for the default and actual prejudice. See United States v. Frady , 456 U.S. 152, 167-68 (1982) (failure to make a contempo raneous objection); United States v. Khan , 835 F.2d 749, 753-54 (10th Cir. 1987) (failure to raise issue on direct appeal); United States v. Allen , 16 F.3d 377, 378 (10th Cir. 1994) (applying cause and prejudice standard to a collateral attackon a sentence). A movant can show cause for the procedural default if he can dem onstrate that his claim was “so novel that its legal basis [was] not reasonably ava ilable to counsel.” Reed v.-7-

Ross , 468 U.S. 1, 16 (1984). Cause can also be establi shed by showing that counsel rendered constitutionally ineffective assis tance. See Coleman v. Thompson , 501 U.S. 722, 753-54 (1991); United States v. Kissick, 69 F.3d 1048, 1054-55 (10th Cir. 1995). Additionally, the § 2255 movant who challenges his conviction can overcome the procedural bar if he ca n demonstrate that the constitutional error “has probably resulted in the conviction of one who is actually innocent.” Bousley v. United States , 523 U.S. 614, 623-24 (1998) (quotation omitted). Notwithstanding the obvious availability of the pro cedural bar defense in this case, the government did not raise it before t he district court, did not argue it in its appellate brief, and at oral argument expres sed the belief that it was not necessary to advance it in this case. Ordinarily, issues not raised by a party on appeal are deemed waived. This court, however, mayraise and enforce the procedural bar sua sponte

. See Allen , 16 F.3d at 379 n.2. Whether we do so depends on a weighing of various factors, including the interests in finality and “the interests of judicial efficiency, conservation of scarce judicial resources, and orderly and prompt administration of justice.” Hines v. United States , 971 F.2d 506, 509 (10th Cir. 1992); see also Allen , 16 F.3d at 378, 379 & n.2. Raising and enforcing the procedural bar sua sponte advances the interest in finality and encourages efficiency by requiring a defendant to p resent issues on direct appeal-8-

rather than in a collateral attack. See Hardiman v. Reynolds , 971 F.2d 500, 504 (10th Cir. 1992). In this case, however, those int erests are outweighed by two other factors. Consideration of the procedural bar would not be anefficient use of judicial resources in this case. Before this courtmay enforce the procedural bar sua sponte , the movant must be given notice and a reasonable opportunity to respond to the defense. See id. at 505. To provide Wiseman the opportunity, this court would be required to order supplemental brief ing or, possibly, remand the issue to the district court. The merits of Wiseman ’s claims, however, have been fully briefed and the record is fully developed on the merits. At this late stage in this case, it is clearly inefficient to digress fro m the merits of Wiseman’s claims and delve into the procedural bar issue sua sponte

. See Manlove v. Tansy , 981 F.2d 473, 476 n.4 (10th Cir. 1992) (declining to en force the procedural bar sua sponte “because of the late stage of the proceedings”). Resolution of the procedural bar issue would necessarily delay the di sposition of Wiseman’s § 2255 motion and in this case would not serve “the intere sts of judicial efficiency, conservation of scarce judicial resources, and orde rly and prompt administration of justice.” Hines , 971 F.2d at 509. The government’s apparent deliberate waiver of the procedural bar defense also persuades us that this is not an appropriate c ase in which to enforce the bar-9-

sua sponte . This court has recognized that “in an adversaria l system such as ours, it will generally be better to consider only those defenses that are properly raised by the parties.” Hardiman , 971 F.2d at 505. We have cautioned that the maintenance of an adversarial system of justice wei ghs against invoking the procedural bar defense sua sponte in many cases. See Hines , 971 F.2d at 509. This consideration is more pertinent when the government never raises the defense than when the government raises it belatedl y. The government’s complete failure to assert the procedural bar defen se weighs heavily against its sua sponte enforcement. See Magouirk v. Phillips , 144 F.3d 348, 359 (5th Cir. 1998) (“Where omission is the result of a purposefu l or deliberate decision to forgo the [procedural bar] defense, the [] court sh ould, in the typical case, presume that waiver to be valid.”); Smith v. Horn , 120 F.3d 400, 409 (3d Cir. 1997) (“[W]here the state has never raised the [pro cedural default] issue at all, in any court, raising the issue sua sponte puts us in the untenable position of ferreting out possible defenses upon which the stat e has never sought to rely.”). For these reasons, it would be inappropriate to rai se and enforce the procedural bar sua sponte in this case and we proceed to the merits of Wisema n’s Castillo claims.
C. Retroactive Application of Castillo
In Castillo , the Supreme Court held that the references to particular-10-

firearms in 18 U.S.C. § 924(c)(1) defined separate, aggravated crimes and were not merely sentencing factors. See 530 U.S. at 131. Thus, to obtain convictions for the aggravated offenses delineated in § 924(c)( 1), the type of firearm used by a defendant must be charged in the indictment, pres ented to the jury, and proved by the government beyond a reasonable doubt. It is undisputed that the trial court rather than t he jury found that Wiseman used a semiautomatic assault weapon when he committ ed the Hobbs Act robberies. Wiseman argues that his convictions andsentences for the two § 924(c)(1) violations therefore do not comport with Castillo and that his Fifth and Sixth Amendment rights were violated because the type of weapon was not submitted to the jury and proved by the government beyond a reasonable doubt.
See United States v. Gaudin , 515 U.S. 506, 510 (1995) (“We have held that [the Fifth and Sixth Amendments] require criminal convic tions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.”). The government does not address the merits of Wiseman’s assertions but argu es that Castillo does not apply retroactively on collateral review and thus Wiseman cannot rely on Castillo to support the claims raised in his § 2255 motion.
In Teague v. Lane the Supreme Court announced a general rule that “n ew constitutional rules of criminal procedure will notbe applicable to those cases1 We recognize that statutes are subject to reinterpr etation by courts and

that, in some circumstances, the retroactive applic ation of the reinterpreted statute implicates due process concerns. See Rogers v. Tennessee , 532 U.S. 451, 461 (2001). Those due process concerns are not implicated in the context of this case.

-11- which have become final before the new rules are an nounced.” 489 U.S. at 310. Unless such a rule falls within one of two exceptio ns articulated in Teague , it cannot be applied on collateral review. See Johnson v. McKune , 288 F.3d 1187, 1197 (10th Cir. 2002). The Court has made it clear, however, that the non- retroactivity rule announced in Teague “applies only to procedural rules” and is “inappli cable to the situation in which [the] Court decides the mean ing of a criminal statute enacted by Congress.” Bousley , 523 U.S. at 620. There is a reasoned basis for this limitation on Teague nonretroactivity. Because a federal statute can h ave but one meaning, the judicial announcement of that mean ing does not constitute a new rule or a change in the law. 1 See United States v. Shelton , 848 F.2d 1485, 1489 (10th Cir. 1988) (en banc) (“[A] statute canno t mean one thing prior to the Supreme Court’s interpretation and something entire ly different afterwards.” (quotation omitted)). By considering on collateral review a statute that was interpreted after the defendant’s conviction became final, a court is simply applying the substantive law as it existed at the t ime the crime was committed. Retroactive application of the newly announced inte rpretation merely ensures that2 The government also argues that Castillo does not apply to Wiseman’s §

2255 motion because the Supreme Court has not made the holding retroactive to cases on collateral review. The cases and statutes relied upon by the government to support this argument, however, are wholly inapp licable because they govern only second or successive habeas petitions. See Browning v. United States , 241 F.3d 1262, 1264 (10th Cir. 2001) (en banc) (“ Teague ’s retroactivity analysis thus determines whether the new rule is applicable to an initialmotion for collateral habeas relief.” (emphasis in original)). -12- the defendant’s trial conformed to the law in effec t at the time of the proceedings. Thus, the finality concerns that support the Teague nonretroactivity rule are not present. See Teague , 489 U.S. at 309 (“Application of constitutional r ules not in existence at the time a conviction became final ser iously undermines the principle of finality which is essential to the operation of our criminal justice system.”). The Court’s holding in Castillo was based solely on its interpretation of § 924(c)(1), a federal statute that was indisputably in effect at the time Wiseman committed the firearms offenses. The Castillo Court did not announce a new constitutional rule of criminal procedure; it const rued a criminal statute to require a jury determination on the type of firearm used bythe defendant. See Castillo , 530 U.S. at 131 (“Congress intended the firearm typ e-related words it used in § 924(c)(1) to refer to an element of a separate, agg ravated crime.”). Thus, Teague does not bar Castillo ’s retroactive application on collateral review. 2 The government does not present any argument that W iseman’s trial was conducted in conformity with Castillo. The government, however, does contest Wiseman’s contention that both § 924(c)(1) convicti ons and sentences should be-13-

vacated. We agree with the government that Wiseman ’s convictions should not be vacated. The version of § 924(c)(1) applicable at the time o f Wiseman’s trial set out three substantive crimes: (1) the use of a firearm during the commission of a crime of violence; (2) the use of a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon during the commission of a crime of violence; and (3) the use of a machine gun, destructive device, o r firearm equipped with a firearm silencer or muffler during the commission o f a crime of violence. See 18 U.S.C. § 924(c)(1) (1994). We have reviewed the in dictment and it is clearly sufficient to charge Wiseman with the first offense delineated in § 924(c)(1)—using a firearm during the commission of a crime of violence. Further, the jury was instructed to find Wiseman gu ilty of the § 924(c)(1) charges if they were convinced that the government had prov ed that Wiseman committed a crime of violence and used a firearm during the com mission of such crime. The indictment described the firearm as a “Model Tec-9 semiautomatic assault rifle.” The jury, however, was not required to find that th e firearm Wiseman used was the one named in the indictment or that it was a se miautomatic assault weapon. Although the jury instruction cannot support Wiseman’s convictions for the aggravated crime of using a semiautomatic assault w eapon during the commission of a crime of violence, the instruction and the ind ictment are clearly sufficient to-14-

support two convictions for the separate crime of u sing a nondescript firearm during the commission of a crime of violence. In his direct appeal, Wiseman argued that he did no t use or carry the firearm. This court, however, rejected his argumen t. See Wiseman , 172 F.3d at 1217. Accordingly, in this appeal Wiseman does notand cannot dispute the jury’s finding that he used or carried a firearm during th e commission of a crime of violence. Because the jury found, beyond a reasona ble doubt, that Wiseman was guilty of a crime charged in the indictment, his tw o § 924(c)(1) convictions should not be vacated. At the time Wiseman committ ed the two firearms offenses, § 924(c)(1) prescribed a five-year senten ce for a first conviction of the crime of using a firearm during the commission of acrime of violence. See 18 U.S.C. § 924(c)(1) (1994). Because the sentence Wi seman received for his first § 924(c)(1) conviction exceeds five years, that sente nce must be vacated and Wiseman must be resentenced to the term of imprison ment imposed for the crime of using a nondescript firearm during the commissio n of a crime of violence. Wiseman, however, is entitled to no relief under Castillo from the twenty-year consecutive sentence he received for the second § 9 24(c)(1) conviction. To support that sentence, the jury was only required t o find that Wiseman used a nondescript firearm during the commission of a crim e of violence; the sentence was not contingent upon a jury finding that the fir earm was a semiautomatic-15-

assault weapon. See id . (“In the case of his second or subsequent convict ion under this subsection, such person shall be sentenc ed to imprisonment for twenty years . . . .”). There is no indication in Castillo that the “second or subsequent conviction” requirement is an element of the offens e, as opposed to a sentencing factor.
IV. CONCLUSION The order of the district court denying Wiseman’s § 2255 motion is reversed in part . The matter is remanded to the district court with instructions to vacate the sentence Wiseman received for his fir st § 924(c)(1) conviction and resentence him in conformity with this opinion.