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

### SEP 8 2004 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

PEIRRI B. LEONARD, Petitioner,

v. No. 04-6198 UNITED STATES OF AMERICA, Respondent.

ORDER

Before TACHA, Chief Circuit Judge , BRISCOE , and MURPHY , Circuit Judges.

PER CURIAM

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Peirri Leonard seeks authorization under the Antite rrorism and Effective Death Penalty Act (AEDPA) to file a second or succe ssive 28 U.S.C. § 2255 motion. Relying on the Supreme Court decision in Blakely v. Washington , ___ U.S. ___, 124 S.Ct. 2531 (2004), Mr. Leonard conten ds that his sentence was improperly enhanced under the Federal Sentencing Gu idelines. For the reasons outlined below, the motion for authorization is den ied.2

Mr. Leonard pleaded guilty to twenty counts of maki ng, uttering, and possessing counterfeit securities in violation of 1 8 U.S.C. §§ 513(a) and 2. The district court departed upward one criminal historycategory upon finding that the category assessed did not adequately reflect the se riousness of his past criminal conduct. He was sentenced to 57 months on each cou nt, to run concurrently. On appeal, this court affirmed. See United States v. Leonard , No. 01-6398 (10th Cir. Nov. 13, 2002) (unpublished), cert. denied , 537 U.S. 1240 (2003). In 2003, he filed his first § 2255 motion under the AEDPA, setting forth claims challenging the district court’s determinati on of the amount of loss, and claims based on ineffective assistance of counsel. The § 2255 motion was denied. The district court, however, did grant a certificat e of appealability as to his ineffective assistance claims. On appeal, this cou rt affirmed the district court, and denied Leonard’s request for a certificate of appealability as to his other claims. See United States v. Leonard , No. 03-6234 (10th Cir. Dec. 19, 2003) (unpublished). In February 2004, he filed his firs t motion for authorization to file a second or successive § 2255, claiming that the di strict court double-counted adjustments to his base offense level, and erred inadding points to his offense level for being a leader or organizer. The motion was denied for failing to satisfy either of the AEDPA criteria in § 2255. See Leonard v. United States , No. 04- 6013 (10th Cir. Feb. 27, 2004) (unpublished order).3

In the present motion for authorization, Mr. Leonar d contends the district court improperly enhanced his sentence based on his leadership role and the amount of loss occasioned by the offenses. He argu es that the facts supporting his enhancements under the Federal Sentencing Guide lines were not charged in the indictment or proven to a jury beyond a reasonable doubt. He claims he is entitled to file another § 2255 motion based on the AEDPA’s exception in § 2255(2) because, as he asserts, the decision in Blakely sets forth a new rule of constitutional law made retroactive to cases on col lateral review. In Blakely , a direct criminal appeal, the Supreme Court held that the State of Washington’s sentencing procedures violated the defendant’s constitutional right under the Sixth Amendment because facts essential to his sentence were not proven to a jury beyond a reasonable doubt or admitted by him. See id. 124 S.Ct. at 2537. In so holding, the Court extended the rule announced in Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63 (2000 ), that any facts, other than the fact of a prior conviction, supporting sentencing enhancements are required to be determined by a jury beyond a reasonable doubt. See id. 124 S.Ct. at 2536. The Court, however, did not invalidate th e Federal Sentencing Guidelines or hold that Blakely applies to the Federal Sentencing Guidelines. See id. at 2538 n.9 (“[t]he Federal Guidelines are not befo re us, and we express no opinion on them”).4

Under the AEDPA, a second or successive § 2255 moti on is not permitted to be filed in the district court until “the applic ant [moves] in the appropriate court of appeals for an order authorizing the distr ict court to consider the application.” 28 U.S.C. §§ 2244(b)(3)(A) and 2255. The court of appeals may authorize the filing of a second or successive § 22 55 motion only if a three-judge panel certifies that the motion relies on: (1) newly discovered evidence that, if proven and v iewed in light of the evidence as a whole, would be sufficient to est ablish by clear and convincing evidence that no reasonable factfinder w ould have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroact ive to cases on collateral review by the Supreme Court, that was pr eviously unavailable. 28 U.S.C. § 2255. See also 28 U.S.C. § 2244(b)(3). Upon consideration of Mr. Leonard’s motion for auth orization, we conclude he has not made a prima facie showing that satisfies the requirements of § 2255(2). See § 2244(b)(3)(D). “[A] new rule is not ‘made retro active to cases on collateral review’ unless the Supreme Court hold s it to be retroactive.” See Tyler v. Cain , 533 U.S. 656, 663, 121 S.Ct. 2478 , 2482 (2001); see also Browning v. United States , 241 F.3d 1262, 1264 (10th Cir. 2001) (en banc) (“ a rule is ‘made retroactive’ by the Supreme Court onl y if the Supreme Court actually applies the rule retroactive, or makes som e explicit statement regarding retroactivity”). The Supreme Court has not express ly held that the rule announced5

in Blakelyis applicable to the Federal Sentencing Guidelines , nor has it held that the rule is retroactive to cases on collateral revi ew for purposes of granting a second or successive § 2255 motion. See Simpson v. United States , 376 F.3d 679, 681 (7th Cir. 2004) (in dismissing motion for autho rization, appellate court held that “[t]he Supreme Court has not made the Blakely rule applicable to cases on collateral review as is required for authorization under § 2244(b)(2)(A) and § 2255 ¶ 8 (2)”) ; In Re Dean , 375 F.3d 1287, 1290 (11thCir. 2004) (in denying motion for authorization, appellate court held that“[r]egardless of whether Blakely established a ‘new rule of constitutional law’ within the meaning of §§ 2244(b)(2)(A) and 2255, the Supreme Court has not expressly declared Blakely to be retroactive to cases on collateral review”). Accordingly, Mr. Leonard’s motion for authorization is DENIED

. Pursuant to 28 U.S.C. § 2244(b)(3)(E), the denial o f a motion for authorization “shall not be appealable and shall no t be the subject of a petition for rehearing or for a writ of certiorari.” T he matter is DISMISSED

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