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.

Peirri Leonard seeks authorization under the Antiterrorism and Effective

Death Penalty Act (AEDPA) to file a second or successive 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 contends that his sentence was

improperly enhanced under the Federal Sentencing Guidelines. For the reasons

outlined below, the motion for authorization is denied.
2

Mr. Leonard pleaded guilty to twenty counts of making, uttering, and

possessing counterfeit securities in violation of 18 U.S.C. §§ 513(a) and 2. The

district court departed upward one criminal history category upon finding that the

category assessed did not adequately reflect the seriousness of his past criminal

conduct. He was sentenced to 57 months on each count, 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Nov. 13, 2002) (unpublished), cert.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 determination 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 certificate of appealability as to his

ineffective assistance claims. On appeal, this court 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(unpublished).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 first motion for authorization to file

a second or successive § 2255, claiming that the district court double-counted

adjustments to his base offense level, and erred in adding 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6013 (10th Cir. Feb. 27, 2004) (unpublished order).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. Leonard contends the district

court improperly enhanced his sentence based on his leadership role and the

amount of loss occasioned by the offenses. He argues that the facts supporting

his enhancements under the Federal Sentencing Guidelines 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 collateral 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 the 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 before us, and we express no

opinion on them”).
4

Under the AEDPA, a second or successive § 2255 motion is not permitted

to be filed in the district court until “the applicant [moves] in the appropriate

court of appeals for an order authorizing the district 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 § 2255 motion only if a three-judge

panel certifies that the motion relies on:

(1) newly discovered evidence that, if proven and viewed in light of

the evidence as a whole, would be sufficient to establish by clear and

convincing evidence that no reasonable factfinder would have found

the movant guilty of the offense; or 

(2) a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously

unavailable.

28 U.S.C. § 2255. See also 28 U.S.C. § 2244(b)(3).

Upon consideration of Mr. Leonard’s motion for authorization, 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 retroactive to cases

on collateral review’ unless the Supreme Court holds 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 only if the Supreme Court

actually applies the rule retroactive, or makes some explicit statement regarding

retroactivity”). The Supreme Court has not expressly held that the rule announced
5

in Blakely is applicable to the Federal Sentencing Guidelines, nor has it held that

the rule is retroactive to cases on collateral review 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 authorization, 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 of a motion for

authorization “shall not be appealable and shall not be the subject of a petition for

rehearing or for a writ of certiorari.” T he matter is DISMISSED.