In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 04-2520, 04-2632 & 04-2844

MARLON McREYNOLDS, JAMIE L. THOMAS,

and DAVID BENNETT,

Petitioners-Appellants,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________

Appeals from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

Nos. 1:03-cv-1360-LJM-VSS et al.—

Larry J. McKinney, Chief Judge.

____________

SUBMITTED JANUARY 13, 2005—DECIDED FEBRUARY 2, 2005

____________

Before EASTERBROOK, WOOD, and SYKES, Circuit Judges.

EASTERBROOK, Circuit Judge. Marlon McReynolds, Jamie

Thomas, and David Bennett were among the many persons

convicted of participating in a large-scale cocaine-distribution enterprise. See United States v. Dumes, 313 F.3d 372

(7th Cir. 2002). After the judgments became final, they

sought collateral relief under 28 U.S.C. §2255. They

contended, among other things, that their sentences are

invalid because the juries did not determine, beyond a

reasonable doubt, the precise amounts of cocaine base

(crack) and cocaine hydrochloride that led to their sentencing ranges. The district judge rejected these and related
2 Nos. 04-2520, 04-2632 & 04-2844

arguments, concluding that the sixth amendment’s jurytrial right, as understood in Apprendi v. New Jersey, 530

U.S. 466 (2000), did not require the jury to determine any

issue other than the thresholds that set the statutory

maximum penalty—and, as the jury found that these three

conspired to distribute more than 50 grams of crack, a

quantity that exposed each to life imprisonment, see 21

U.S.C. §841(b)(1)(A)(iii), the court held that the sentences

are lawful.

Like the trial itself, the district court’s decision followed

this circuit’s authority. See United States v. Nance, 236 F.3d

820, 824-25 (7th Cir. 2000); United States v. Smith, 223

F.3d 554, 563-66 (7th Cir. 2000). But in United States v.

Booker, No. 04-104 (U.S. Jan. 12, 2005), the Supreme Court

held that defendants have a right to a jury trial on any

disputed factual subject that increases the maximum

punishment, and that the federal Sentencing Guidelines

come within this rule to the extent that their operation is

mandatory. This means that the conditions for a certificate

of appealability under 28 U.S.C. §2253(c)(2) have been

satisfied, as each appellant “has made a substantial

showing of the denial of a constitutional right.” The court

therefore issues certificates of appealability on the question

whether the proceedings violated the sixth amendment’s

right to jury trial. Because this is a collateral attack,

however, we must consider the antecedent question

whether the rights recognized by Booker apply retroactively

on collateral review, and our certificates of appealability

include this issue as well. See Slack v. McDaniel, 529 U.S.

473, 483-85 (2000).

Although the Supreme Court did not address the retroactivity question in Booker, its decision in Schriro v.

Summerlin, 124 S. Ct. 2519 (2004), is all but conclusive

on the point. Summerlin held that Ring v. Arizona, 536 U.S.

584 (2002)—which, like Booker, applied Apprendi’s principles to a particular subject—is not retroactive on collateral

review.
Nos. 04-2520, 04-2632 & 04-2844 3

Ring held, in reliance on Apprendi, that a defendant is

entitled to a jury trial on all aggravating factors that

may lead to the imposition of capital punishment. In

Summerlin the Court concluded that Ring cannot be treated

as a new substantive rule—which is to say, a rule that

“alters the range of conduct or the class of persons that the

law punishes.” 124 S. Ct. at 2523. It observed that “Ring

altered the range of permissible methods for determining

whether a defendant’s conduct is punishable [in a particular

way], requiring that a jury rather than a judge find the

essential facts bearing on punishment. Rules that allocate

decisionmaking authority in this fashion are prototypical

procedural rules”. Ibid. That is no less true of Booker—or

for that matter Apprendi itself. We held in Curtis v. United

States, 294 F.3d 841, 843 (7th Cir. 2002), that Apprendi

does not apply retroactively on collateral review, because it

“is concerned with the identity of the decisionmaker, and

the quantum of evidence required for a sentence, rather

than with what primary conduct is unlawful”. That, too, is

equally true of Booker. No conduct that was forbidden

before Booker is permitted today; no maximum available

sentence has been reduced.

The remedial portion of Booker drives the point home.

The Court held that the federal Sentencing Guidelines

remain in force as written, although 18 U.S.C. §3553(b)(1),

which makes their application mandatory, no longer

governs. District judges must continue to follow their

approach as guidelines, with appellate review to determine whether that task has been carried out reasonably. No

primary conduct has been made lawful, and none

of the many factors that affect sentences under the Sentencing Guidelines has been declared invalid. Consequently

Booker, like Apprendi and Ring, must be treated as a

procedural decision for purposes of retroactivity analysis.

A procedural decision may be applied retroactively if

it establishes one of those rare “watershed rules of criminal
4 Nos. 04-2520, 04-2632 & 04-2844

procedure implicating the fundamental fairness and

accuracy of the criminal proceeding.” Summerlin, 124 S. Ct.

at 252; Teague v. Lane, 489 U.S. 288, 311 (1989) (plurality

opinion). The Court held in DeStefano v. Woods, 392 U.S.

631 (1968), and reiterated in Summerlin, that the choice

between judges and juries as factfinders does not make such

a fundamental difference; to the contrary, the Court stated

in Summerlin, it is not clear which is more accurate. 124 S.

Ct. at 2525. What is more, Booker does not in the end move

any decision from judge to jury, or change the burden of

persuasion. The remedial portion of Booker held that

decisions about sentencing factors will continue to be made

by judges, on the preponderance of the evidence, an approach that comports with the sixth amendment so long as

the guideline system has some flexibility in application. As

a practical matter, then, petitioners’ sentences would be

determined in the same way if they were sentenced today;

the only change would be the degree of flexibility judges

would enjoy in applying the guideline system. That is not a

“watershed” change that fundamentally improves the

accuracy of the criminal process. See also Curtis, 294

F.3d at 843-44.

We conclude, then, that Booker does not apply retroactively to criminal cases that became final before its release

on January 12, 2005. That date, rather than June 24, 2004,

on which Blakely v. Washington, 124 S. Ct. 2531 (2004),

came down, is the appropriate dividing line; Blakely

reserved decision about the status of the federal Sentencing

Guidelines, see id. at 2538 n.9, so Booker itself represents

the establishment of a new rule about the federal system.

Petitioners’ convictions and sentences became final well

before Booker was issued, and its approach therefore does

not govern these collateral proceedings.

Because this decision affects a substantial volume of postBooker litigation, it was circulated before release to all

active judges. See Circuit Rule 40(e). No judge favored a
Nos. 04-2520, 04-2632 & 04-2844 5

hearing en banc.

We have considered petitioners’ remaining arguments and

conclude that they do not present substantial constitutional

issues supporting certificates of appealability.

AFFIRMED

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-2-05