FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CRAIG ANTHONY CARRINGTON, 

No. 05-36143 Petitioner-Appellant,

D.C. Nos. v. 

CV-05-05286-RJB

UNITED STATES OF AMERICA, CR-89-00088-RJB

Respondent-Appellee. 

ROBERT CHARLES TILLITZ,  No. 05-36144

Petitioner-Appellant, D.C. Nos.

v. CV-05-05144-RJB  CR-94-05074-RJB UNITED STATES OF AMERICA,

Respondent-Appellee. ORDER AND

SUPERSEDING

OPINION 

Appeal from the United States District Court

for the Western District of Washington

Robert J. Bryan, District Judge, Presiding

Argued and Submitted

August 14, 2006—Seattle, Washington

Filed September 11, 2007

Before: Harry Pregerson, John T. Noonan, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan;

Concurrence by Judge Noonan;

Partial Concurrence and Partial Dissent by Judge Pregerson

12123
COUNSEL

Russell V. Leonard, Assistant Federal Public Defender,

Tacoma, Washington, for petitioner-appellant Robert Charles

Tillitz. 

Carol A. Elewski, Tumwater, Washington, for petitionerappellant Craig Anthony Carrington. 

Helen J. Brunner, Assistant United States Attorney, Seattle,

Washington, for the respondent-appellee.

12126 CARRINGTON v. UNITED STATES
ORDER

The opinion filed on December 13, 2006, is hereby withdrawn. A Superseding Opinion is filed simultaneously with

this order.

OPINION

CALLAHAN, Circuit Judge: 

In these sentencing cases Robert Tillitz and Craig Carrington (petitioners) assert a number of creative arguments in an

attempt to have their final sentences reconsidered in light of

the Supreme Court’s opinion in United States v. Booker, 543

U.S. 220 (2005). We conclude that petitioners have not presented exceptional circumstances sufficient to support a grant

of extraordinary relief such as the recall of our prior mandates.

I.

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. During

that hearing, Judge Bryan expressed his frustration with mandatory sentencing guidelines and sentenced Carrington to 324

months in prison, the low end of the applicable range under

the United States Sentencing Guidelines. Carrington’s conviction and sentence were upheld on direct and collateral

appeals. 

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

CARRINGTON v. UNITED STATES 12127
intent to distribute, and interstate and foreign travel in aid of

racketeering enterprises. On August 14, 1998, Tillitz appeared

pro se before Judge Bryan for sentencing. Tillitz argued, inter

alia, that the Sentencing Guidelines were unconstitutional. In

response, Judge Bryan indicated that while he might agree,

the issue had been laid to rest by the United States Supreme

Court. 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 reviews. 

On March 2, 2005, Tillitz filed a writ of audita querela “for

relief from an unconstitutional sentence” based on Booker. A

month later, 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. In September 2005, Judge Bryan consolidated the cases because of their

substantial similarities. Thereafter, both argued that their sentences were unconstitutional and also should be modified

under 18 U.S.C. § 3582(c)(2). 

On November 3, 2005, Judge Bryan denied relief on the

grounds raised by the parties. He noted, however, that in

United States v. Crawford, 422 F.3d 1145 (9th Cir. 2005), the

Ninth Circuit had recalled its mandate in a sentencing case

that involved “extraordinary circumstances.” Judge Bryan

observed that although neither petitioner had filed a motion to

recall the mandate, this distinction “may be more form rather

than substance” and the availability of such relief was “for the

Ninth Circuit to decide.” These appeals followed.1

1Although the district court purported to transfer petitioners’ motions to

the Ninth Circuit, its order did not indicate the statutory basis for such a

transfer. However, both petitioners then filed timely notices of appeal and

on December 2, 2005, the district court granted petitioners Certificates of

Appealability as provided for by 28 U.S.C. § 2253(c). 

12128 CARRINGTON v. UNITED STATES
II.

[1] The district court properly concluded that the grounds

for relief raised by petitioners in their initial motions are foreclosed by our case law. A writ of audita querela2

 is not an

available remedy where the claims raised would be cognizable in a § 2255 habeas petition. See United States v. ValdezPacheco, 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. 

[2] 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 second or successive habeas petitions under

28 U.S.C. § 2244(b)(3), we have held that Booker does not

apply to cases on collateral review. 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. 

[3] 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

2Audita querela, literally “the complaint having been heard,” is a common law writ used to attack a judgment that was correct when rendered,

but that later became incorrect because of circumstances that arose after

the judgment was issued. See Doe v. INS, 120 F.3d 200, 203 n.4 (9th Cir.

1997). 

CARRINGTON v. UNITED STATES 12129
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 petitioners’ construction

of § 3582(c)(2) would be to stretch that provision beyond

what its language can bear. Accordingly, the district court

correctly denied petitioners relief. 

III.

The district court speculated that this court might be able

to grant petitioners relief by recalling its mandates, and petitioners press that argument on appeal. We conclude, however,

that to the extent that such relief is not barred by our opinions

in Cruz, 423 F.3d at 1121, and United States v. King, 419

F.3d 1036 (9th Cir. 2005), petitioners have not presented the

exceptional circumstances and equities necessary for a grant

of extraordinary relief. 

[4] We have the inherent power to recall our mandate in

order to protect the integrity of our processes, but should only

do so in exceptional circumstances. Zipfel v. Halliburton, Co.,

861 F.2d 565, 567 (9th Cir. 1988). In Calderon v. Thompson,

523 U.S. 538, 549-50 (1998), the Supreme Court affirmed our

inherent power to recall our mandate. The Court, however,

held that recalling the mandate in that case was “a grave

abuse of discretion.” Id. at 541. The Court noted:

In light of “the profound interests in repose” attaching to the mandate of a court of appeals, however,

the power can be exercised only in extraordinary circumstances. 16 C. Wright, A. Miller, & E. Cooper,

Federal Practice and Procedure § 3938, p. 712 (2d

ed. 1996). The sparing use of the power demonstrates it is one of last resort, to be held in reserve

against grave, unforeseen contingencies. 

12130 CARRINGTON v. UNITED STATES
Id. at 550.3

 The question then becomes whether petitioners

have presented “grave, unforeseen contingencies” that will

support the extraordinary relief of a recall of mandate. 

[5] The essence of petitioners’ claim is that they are entitled

to relief in light of the Supreme Court’s decision in Booker.

We, however, have held that Booker is not retroactive and is

not by itself sufficient to justify a recall of the mandate in

cases finalized before Booker was decided. King, 419 F.3d

1036. 

[6] An argument, however, has been made that this case

presents the type of extraordinary circumstances that led us to

recall our mandate in United States v. Crawford, 422 F.3d

1145 (9th Cir. 2005). There we found “extraordinary circumstances” to recall the mandate because (1) “the sentencing

judge had expressed explicit reservations on the record about

the sentence required under the previously mandatory Sentencing Guidelines,” and (2) “the Supreme Court’s decision in

Blakely v. Washington, [542 U.S. 296 (2004)] . . . foreshad3

In his dissent, Justice Souter agreed with the majority’s description of

the restricted availability of recalling a mandate. He commented: 

To be sure, there lurks in the background the faint specters of

overuse and misuse of the recall power. All would agree that the

power to recall a mandate must be reserved for “exceptional circumstances,” 120 F.3d, at 1048; 16 C. Wright, A. Miller, & E.

Cooper, Federal Practice and Procedure § 3938, pp. 716-717, n.

14 (1996) (citing cases from the various Courts of Appeals recognizing that the power must be used sparingly), in the interests of

stable adjudication and judicial administrative efficiency, on

which growing caseloads place a growing premium. All would

agree, too, that the sua sponte recall of mandates could not be

condoned as a mechanism to frustrate the limitations on second

and successive habeas petitions, see, e.g., 28 U.S.C. § 2244(b). If

there were reason to suppose that the sua sponte recall would be

overused or abused in either respect, we might well see its use as

unreasonable in a given case simply to deter resort to it in too

many cases. 

Calderon, 523 U.S. at 569-70 (footnote omitted). 

CARRINGTON v. UNITED STATES 12131
owing its holding in . . . Booker . . . was rendered before the

mandate issued.” Crawford, 422 F.3d 1145-46.4

Neither of the two factors that supported relief in Crawford

are present here. First, although Judge Bryan readily

expressed his disapproval of mandatory sentences, his statements do not suggest that there are any exceptional circumstances that distinguish either petitioner from other persons

sentenced under the Guidelines prior to Booker. Indeed, in his

November 2005 order Judge Bryan observed neutrally that the

“sentences may have been appropriate at the time they were

imposed, or they may not have been.” 

Second, Crawford presented a unique question of timing

that favored equitable relief. The panel had just decided

Crawford’s direct appeal, when it recalled its own mandate.

In fact, the motion to recall the mandate was made less than

a month after the panel issued its memorandum disposition5

and within weeks of the issuance of the court’s mandate.

Thus, although the mandate had issued, Crawford’s direct

challenge to his conviction and sentence had not become

“final” because the time for filing a petition for a writ of certiorari had not expired.6

See SUP. CT. R. 13 (allowing 90 days

4Crawford further stated: 

[i]n stressing that our decision here rests on both the sentencing

judge’s expressed misgivings about the sentence required by the

mandatory Guidelines as well as the relative timing of the

Supreme Court’s Blakely decision and the termination of our

appellate jurisdiction, we do not suggest that these same elements

must always be present in order for a mandate to be recalled. 

Id. at 1146 n.2. We are not called upon to consider the limits of this statement because appellants have only argued the district court’s alleged misgivings and that timing is irrelevant. They do not assert any element not

present in Crawford. 

5United States v. Crawford, 102 Fed. Appx. 91 (9th Cir. 2004). 

6Federal Rule of Appellate Procedure 40 provides that unless time is

shortened or extended, a petition for rehearing should be filed within four12132 CARRINGTON v. UNITED STATES
from a circuit court’s decision for the filing of a petition for

certiorari). 

[7] The particular timing in Crawford indicates that it was,

at most, a minimal extension of our policy allowing for limited remands on direct appeals to consider Booker claims. See

United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir.

2005), and United States v. Cantrell, 433 F.3d 1269, 1278

(9th Cir. 2006). Moreover, as the time for filing a petition for

certiorari had not run, Crawford did not conflict with our

holding in Cruz that Booker “does not apply retroactively to

convictions that became final prior to its publication.” Cruz,

423 F.3d 1119.

[8] In contrast, here, petitioners do not seek the recall of the

mandate of a case that is still subject to the filing of a petition

for a writ of certiorari to the Supreme Court. Instead, in order

for the recalls of mandate to provide the district court with

authority to modify petitioners’ sentences, we would have to

recall the mandates that issued in petitioners’ direct appeals

from their convictions and sentences.7 However, we affirmed

Carrington’s conviction and sentence on direct appeal in

1996, and Tillitz’s conviction and sentence were affirmed

before 2001. 

[9] The recognition that petitioners seek the recall of the

teen days of the entry of judgment. Federal Rule of Appellate Procedure

41 states that the mandate should issue seven calendar days after the time

for filing a petition for rehearing expires. Although Rule 41 allows a party

to seek a stay of the mandate pending the filing of a petition for a writ of

certiorari, there is no indication that a party is required to seek a stay pending certiorari. 

7The recall of our mandates in any of petitioners’ appeals from the denials of their post-conviction motions would only give the district court

jurisdiction to reconsider its denials of those motions. Petitioners in their

present appeal do not challenge the denials of those motions, rather they

argue that their initial sentences are invalid. 

CARRINGTON v. UNITED STATES 12133
mandates in their direct appeals — which have been final for

years — reveals that they are in essence arguing for the retroactive application of Booker. As a three-judge panel we are

constrained from adopting their argument by our holding in

Cruz that “Booker is not retroactive, and does not apply to

cases on collateral review where the conviction was final as

of the date of Booker’s publication.” 423 F.3d at 1121. See

also King, 419 F.3d at 1036. Moreover, our rejection of petitioners’ request for the recall of our mandates is consistent

with the positions adopted by our sister circuits. See United

States v. Saikaly, 424 F.3d 514 (6th Cir. 2005) (denying

motion to recall mandate based on Booker and noting similar

decisions by other circuits); United States v. Fraser, 407 F.3d

9, 10-11 (1st Cir. 2005) (denying a petition for rehearing and

noting that if a “mandate could be recalled merely based on

Booker, that result would provide an avenue to escape the

restrictions Congress has imposed on habeas review”). 

[10] We understand the argument that declining to recall

our mandates amounts to denying relief under Booker to

defendants whose direct appeals were final at the time that

decision was rendered. We agree, however, with the Sixth

Circuit’s response that “[a]lthough the defendant may argue

that there is an element of unfairness in this result, it is the

same element found in any Supreme Court decision which

announces a new rule applicable to criminal defendants with

pending prosecutions or appeals, but which is not made retroactive to defendants whose cases are final.” Saikaly, 424 F.3d

at 518. We read our Ninth Circuit case law as being in accord

with the Sixth Circuit’s perspective that the “incremental

change in the law as evidenced by Apprendi, Blakely, and

Booker simply is not the type of unforeseen contingency

which warrants recall of the mandate to permit yet another

round of appellate review.” Id. 

Finally, we do not hold that relief would not be available

in a particular case upon a showing of truly extraordinary circumstances and equities, but only that this is not such a case.

12134 CARRINGTON v. UNITED STATES
Petitioners have not proffered any evidence that they were

uniquely impacted by the Guidelines or that there are any

equities that distinguish them from other defendants sentenced before Booker. Rather, they point only to the trial

judge’s expressions of his displeasure with mandatory guidelines. The trial judge’s perspective may have been somewhat

vindicated by Booker, but it would be unfair to countless

defendants and to numerous judges to base the retroactive

application of a Supreme Court opinion on the degree to

which a trial judge grumbled while enforcing the extant law.

IV.

We affirm the district court’s determinations that issuance

of a writ of audita querela is not an available remedy in light

of our opinion in Valdez-Pacheco, 237 F.3d at 1080, and that

petitioners are not entitled to relief under 18 U.S.C.

§ 3582(c)(2) because the applicable sentencing range has not

been lowered by the Sentencing Commission. We reject, however, the district court’s suggestion that we might recall our

mandates, thus allowing petitioners to seek resentencing in

light of Booker. We have previously held that Booker is not

retroactive, Cruz, 423 F.3d 1119, and petitioners have failed

to make the type of individualized showing of extraordinary

circumstances that might arguably distinguish them from

other defendants sentenced under mandatory guidelines. The

district court’s denials of relief are AFFIRMED.

NOONAN, Circuit Judge, concurring in the judgment of the

court: 

Resolution of this appeal turns on how the constitution is

conceived to be. For some, the constitution is an unchanging

document, speaking now as it did in 1789 except for such

amendments as have been duly added to it. The paper and ink

CARRINGTON v. UNITED STATES 12135
of the old document have not altered; neither has its meaning.

Stability is the bedrock of our government of laws. 

What happens when the Supreme Court, as it not infrequently does, gives a new interpretation of the constitution,

overruling an earlier interpretation? From the perspective just

outlined, the new interpretation must be seen as a correction.

A mistaken reading of the constitution has been replaced. The

true meaning, now recovered, must have been the meaning

the document always had. From this perspective, the petitioners in this case were sentenced under a system now recognized as constitutionally flawed. As the true meaning of the

constitution has now been discovered, the petitioners should

be able to be sentenced under the constitutionally correct system. As the constitution doesn’t change, the new system was

the only constitutional system at the time of their sentencing.

It is unjust to hold them incarcerated under unconstitutional

law. 

This analysis has some intuitive appeal. A counter example

may suggest that there is something wrong with it. Suppose

the penalty for securities fraud is ten years. A man is sentenced to that term. Subsequently, the statute is changed; the

penalty becomes five years. Is it unjust to keep beyond five

years the man already sentenced to ten? No. When he committed the crime that was the lawful sentence. The new statute

does not retroactively reduce his punishment. 

Why does this example seem clear and the constitutional

case cloudy? It is because of the belief that the constitution,

unlike a statute, does not change. Therefore, a new reading of

the constitution is necessarily restorative and retroactive. The

new reading is what the constitution always said. But perhaps

this response rests on a basic mistake. It is my contention that

it does. 

The mistake is to think of the constitution speaking. The

original document is as silent as the paper on which it is writ12136 CARRINGTON v. UNITED STATES
ten. It is not what speaks. It is the interpreters of the constitution who speak. It is they who give it life and power. In our

system of law, the authoritative interpreters are the justices of

the Supreme Court. It is their voices that say what the constitution says. 

Interpreters of this kind do not have the passivity of paper

or the stability of stone. They change as generations change,

as the times change, as mores mutate, as new circumstances,

needs, and problems arise. Other times, other oracles. Interpreters of this kind are never going to give forever the same

meaning to every constitutional text. And they don’t. 

As put by Chief Justice Roberts, albeit with the particular

sharpness of a dissent, “a dog’s breakfast of divided, conflicting, and ever-changing analyses” may be held by the majority

to be “clearly-established law.” Abdul-Kabir v. Quarterman,

127 S. Ct. 1654, 167 L. Ed. 2d 585 (2007). Chief Justice Roberts went on to observe: 

After all, today the author of a dissent issued in 1988

writes two majority opinions concluding that the

views expressed in that dissent actually represented

“clearly established” federal law at that time. So

there is hope yet for the views expressed in this dissent, not simply down the road, but tunc pro nunc.

Encouraged by the majority’s determination that the

future can change the past, I respectfully dissent. 

Of course the constitution changes its meaning with changing majorities. Not as frequently as statutes are changed by

legislators, the old foundational document has its speech

altered by new authorized interpreters. The Supreme Court is

the engine and champion of constitutional change. 

In terms of this analysis, the petitioners here were sentenced under a system that was in accordance with the constitution when they were sentenced. It is no more unjust to them

CARRINGTON v. UNITED STATES 12137
to keep them confined under the old system than it would be

to keep in prison the man sentenced to ten years when the

penalty later becomes five. The crime committed at a given

date is penalized under the law in force at that date. No injustice is done. 

The Supreme Court has recognized two exceptions to the

general rule that the constitution speaks as of the time the

Supreme Court gives it a meaning: (1) cases where the new

decision of the Supreme Court means that earlier conduct of

the prisoners would not have been criminal if the new reading

had been in place; and (2) cases where the new reading substantially improves accuracy in the determination of guilt.

Teague v. Lane, 489 U.S. 228 (1989). The exceptions establish that the Supreme Court has the power to make its reading

of the constitution retroactive. The exceptions do not establish

that as a matter of justice the Supreme Court must act retroactively — only that there are cases where it is wise and equitable to do so. The instant cases may deserve such equitable and

wise treatment. It is not given to us to make it available. 

Judge Pregerson eloquently expresses reasons why such

retroactivity would be good here, and he offers an escape

from a rigid rule of nonretroactivity. Judge Bryan, the district

judge who sentenced the petitioners, made clear statements of

his belief in the unconstitutionality of the system with which

he was compelled to comply. Far from grumbling, Judge

Bryan’s statement showed legal perspicacity and prescience

and reflected sound judgment and an active conscience. Judge

Pregerson, recognizing these values in what Judge Bryan did,

finds in them the extraordinary circumstances that would permit this court to withdraw its mandates. 

The strength of Judge Pregerson’s position must be

acknowledged. It is humane, and humaneness is a necessary

quality in humans who are judges. The panel has the power

to do what he asks. The panel does not have the authority. 

12138 CARRINGTON v. UNITED STATES
Only the Supreme Court has both the power and the authority to create a rule of retroactivity when a new rule of constitutional law, if applied retroactively, would lessen the penalty

given. 

For the reasons stated, I concur in the judgment of the

court. 

PREGERSON, Circuit Judge, concurring in part and dissenting in part: 

Once in 1990 and again in 1998, U.S. District Judge Robert

J. Bryan of the Western District of Washington imposed

multiple-decades-long sentences on defendants at a time when

the United States Sentencing Guidelines’s constitutionality

was accepted. At the time he imposed those sentences, he

stated in open court that both Guidelines sentences were, in

his view, unjust and unconstitutional. In 2005, the Supreme

Court in Booker v. United States, 543 U.S. 220, vindicated

Judge Bryan’s view that the mandatory Guidelines were

unconstitutional. Now Judge Bryan, still troubled years later

by the Guidelines sentences imposed in these two cases,

implores us to allow him to redress the injustices inflicted on

both men by recalling our mandates in their appeals so that

Judge Bryan may re-sentence them to a just and constitutional

sentence. I believe that these two cases present extraordinary

circumstances as required by Calderon v. Thompson, 523 U.S.

538, 550 (1998) (holding that “the power [to recall the mandate] can be exercised only in extraordinary circumstances”);

and accordingly, I would recall our mandates and remand for

re-sentencing.1

1

I join Parts I and II of Judge Callahan’s opinion. 

CARRINGTON v. UNITED STATES 12139
I. ADDITIONAL FACTUAL BACKGROUND

In 1990, District Judge Bryan sentenced Craig Carrington

pursuant to the then-mandatory Sentencing Guidelines. After

calculating the appropriate Guidelines range, Judge Bryan

determined that, under the Guidelines, a downward departure

was not warranted. Before he imposed sentence, Judge Bryan,

moved by his conscience, told Carrington: 

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. . . . And I feel frustrated by these long

sentences. It’s contrary to the idea that one can pay

a penalty for a crime and put it behind them within

a reasonable time. . . . 

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, constrained by the Guidelines, then imposed a

sentence of 324 months imprisonment — the low end of the

applicable Guidelines range. 

The injustice of these harsh Guidelines sentences continued

to frustrate and trouble Judge Bryan. In 1998, when Judge

12140 CARRINGTON v. UNITED STATES
Bryan sentenced Robert Tillitz, the judge before imposing

sentence stated:

It might interest you to know, Mr. Tillitz, 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. 

Judge Bryan then sentenced Tillitz to 360 months imprisonment — the low end of the applicable Guidelines range. 

After the Supreme Court decided Booker v. United States,

543 U.S. 220 (2005), Judge Bryan again demonstrated that

Carrington’s and Tillitz’s cases continued to trouble him.

When Carrington and Tillitz each brought petitions to modify

their sentences, Judge Bryan turned down their requests.

Rather than leave it at that, Judge Bryan took the extraordinary — indeed, unprecedented — measure of considering sua

sponte whether recall of the mandate would be appropriate. 

Judge Bryan observed that our court has authority to recall

the mandate under United States v. Crawford, 422 F.3d 1145

(9th Cir. 2005) (recalling the mandate where the district court

had expressed reservations about fairness of the defendant’s

sentence at the defendant’s sentencing hearing), and that

Judge Bryan’s express reservations about Carrington’s and

Tillitz’s sentences sufficed to distinguish those cases from

United States v. King, 419 F.3d 1035 (9th Cir. 2005) (order)

(declining to recall the mandate because of Booker error

alone). As Judge Bryan also commented, it was only by an

“accident of timing” that Blakely v. Washington, 542 U.S. 296

(2004) (holding that a state mandatory sentencing guidelines

regime violated the Sixth Amendment) had not been decided

CARRINGTON v. UNITED STATES 12141
before our court issued the mandate in Carrington’s and Tillitz’s appeals. 

II. EXTRAORDINARY CIRCUMSTANCES

We have inherent authority to recall the mandate to “prevent injustice.” Zipfel v. Halliburton Co., 861 F.2d 565, 567

(9th Cir. 1988) (quoting Aerojet-Gen. Corp. v. Am. Arbitration Ass’n, 478 F.2d 248, 254 (9th Cir. 1974)); see also Verrilli v. City of Concord, 557 F.2d 664, 665 (9th Cir. 1977)

(per curiam). I agree with Judge Callahan that we may only

recall the mandate “in extraordinary circumstances.” Calderon v. Thompson, 523 U.S. 538, 550 (1998). For the reasons

stated below, this case presents extraordinary circumstances

that require us to exercise our discretionary authority to recall

the mandate to prevent injustice.

A. District Court’s Comments at Sentencing

In Crawford, we outlined a situation where a sentence violating Booker may warrant recall of the mandate even though

Booker is not retroactive. There, we found two grounds for

recalling our mandate. We stated in Crawford:

This case involves “extraordinary circumstances”

sufficient to justify our recall of the mandate

because: (1) the sentencing judge expressed explicit

reservations on the record about the sentence

required under the previously mandatory Sentencing

Guidelines; and (2) the Supreme Court’s decision in

[Blakely], foreshadowing its holding in [Booker],

was rendered before the mandate issued. 

Crawford, 422 F.3d at 1145-46 (internal citations omitted).2

2

In Crawford we emphasized that these are not the only circumstances

that support recall of the mandate. Specifically, we cautioned: 

12142 CARRINGTON v. UNITED STATES
Crawford recognized that while the existence of Booker error

is not, by itself, sufficient to recall the mandate, see King, 419

F.3d at 1036, Booker was nevertheless an extraordinarily

important decision that, when combined with other factors,

may warrant recall of the mandate. 

Applying Crawford, it is clear that the two cases before us

are “exceptional case[s] requiring recall of the mandate[s] in

order to prevent an injustice.” See Verrilli, 557 F.2d at 665.

Like District Judge William Nielsen of the Eastern District of

Washington in Crawford, Judge Bryan expressed his frustration with the lack of discretion afforded to district court

judges by the Guidelines when he sentenced Carrington and

Tillitz. If anything, Judge Bryan’s expressed concerns at Carrington’s and Tillitz’s sentencing hearings were even stronger

than Judge Nielsen’s concerns in Crawford. In Crawford,

Judge Nielsen complained that the sentencing ranges were

“extraordinarily high,” but — at least according to the facts

provided in Crawford — Judge Nielsen did not claim that the

mandatory Guidelines were themselves unjust and unconstitutional. See 422 F.3d at 1146 n.1. Here, however, Judge Bryan

challenged both the severity of the sentencing ranges and the

constitutionality of the mandatory Guidelines when he sentenced Carrington and Tillitz. 

That Judge Bryan made these statements at a time when the

Guidelines were firmly entrenched only makes his remarks

[I]n stressing that our decision here rests on both the sentencing

judge’s expressed misgivings about the sentence required by the

mandatory Guidelines as well as the relative timing of the

Supreme Court’s Blakely decision and the termination of our

appellate jurisdiction, we do not suggest that these same elements

must always be present in order for a mandate to be recalled.

Rather 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. at 1146 n.2. 

CARRINGTON v. UNITED STATES 12143
more extraordinary. The year before Judge Bryan sentenced

Carrington, the Supreme Court upheld the Sentencing Commission’s authority to promulgate mandatory sentencing

guidelines. See Mistretta v. United States, 488 U.S. 361, 412

(1989). Nevertheless, Judge Bryan’s words at Carrington’s

sentencing presaged the fault the Supreme Court found with

the Guidelines in Booker: that the Guidelines unconstitutionally “diminish[ed] the judge’s discretion” to sentence the

defendant to an appropriate sentence, and required the judge

to “find the facts . . . and apply the [G]uidelines, being the

law, to those facts.” 

By the time Judge Bryan sentenced Tillitz, the Supreme

Court had repeatedly reinforced the validity of mandatory

sentencing guidelines, see, e.g., Stinson v. United States, 508

U.S. 36, 42 (1993), and Apprendi v. New Jersey, 530 U.S.

466, 490 (2000) (holding that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted

to a jury and proved beyond a reasonable doubt”), was not yet

on the horizon. Yet Judge Bryan continued to criticize the

Guidelines’s constitutionality and their constraint on his ability to give Tillitz a just sentence. 

Judge Callahan believes that Judge Bryan’s statements at

the time of both Carrington’s and Tillitz’s sentencing are not

enough to recall the mandate. In so deciding, the majority

erroneously assumes that Crawford held that a district judge’s

express reservations at sentencing are not enough to justify

recall of the mandate. To be sure, Crawford did point out the

existence of two extraordinary circumstances justifying relief.

Crawford did not hold, however, that either factor was alone

insufficient to justify recall of the mandate. Rather, in Crawford we merely noted that there were two special circumstances present in that case, and that those factors together

sufficiently distinguished Crawford from King. See id. at

1145-46 & n.2. Crawford certainly does not compel Judge

Callahan’s conclusion that neither of the two factors identified

12144 CARRINGTON v. UNITED STATES
in Crawford can alone be sufficient to recall the mandate.

Moreover, Judge Callahan’s position creates considerable tension with Crawford’s admonition that “future panels will necessarily evaluate the existence of ‘extraordinary

circumstances’ warranting the recall of the mandate based on

the facts of their individual cases.” See id. at 1146 n.2

(emphasis added). Thus, I would not hold that we may not

recall the mandate solely because only one of the Crawford

factors is present. 

B. District Court’s Sua Sponte Request that

We Recall the Mandate

In any event, there is also an additional circumstance not

present in Crawford that compels our attention — Judge

Bryan’s impassioned plea to this court. Even though the parties did not raise the issue and Judge Bryan lacked authority

to recall the mandate, he nevertheless implored us to recall

our mandates. Judge Bryan told us:

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 constituCARRINGTON v. UNITED STATES 12145
tionality 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

retroactivity 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 right, 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. 

12146 CARRINGTON v. UNITED STATES
Tillitz v. United States, 2005 WL 2921957, at *12-*13 (W.D.

Wash. Nov. 3, 2005) (order) (internal citations omitted). 

When considered in tandem with the district court’s statements at Carrington’s and Tillitz’s sentencing hearings, Judge

Bryan’s impassioned statement demonstrates that the circumstances of this case are exceptional. Booker restored the role

of the district court judge 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. These two cases have weighed on Judge

Bryan’s conscience for sixteen years (Carrington) and eight

years (Tillitz). His conscience compelled him to sua sponte

request that this court recall its mandates and allow him to

assume the additional responsibility involved in re-sentencing

these two defendants. 

Judge Callahan dismisses the importance of this factor

because, as she sees it, Judge Bryan merely “grumbled while

enforcing the extant law.” Ante, at 12135. This, however,

rejects Judge Bryan’s comments too hastily. Because Judge

Bryan was best positioned to determine whether the mandatory Guidelines’s constraints were extraordinarily harsh in a

given case, we should put great stock in the fact that Judge

Bryan tells us that Carrington and Tillitz were particularly

worthy of resentencing. 

In addition, Judge Bryan’s statements provide great assurance that the constitutional error in both Carrington’s and Tillitz’s sentences was not harmless. In Calderon, the Supreme

Court rejected our claim of extraordinary circumstances

because the mistake at issue — the failure of two judges out

of thirty-five to make a timely request for a vote on whether

to rehear a case en banc and thus “contribute their views to

a determination that had been given full consideration on the

merits by a panel of the court” — was relatively unlikely to

have affected the appellant’s rights. See Calderon, 523 U.S.

at 551. Unlike Calderon, here we know that a different senCARRINGTON v. UNITED STATES 12147
tence would likely result had the district judge been permitted

to impose a constitutional sentence. 

Judge Bryan, exercising caution, unsurprisingly acknowledged that he cannot promise that Carrington’s and Tillitz’s

sentences would be different upon re-sentencing. See Tillitz,

2005 WL 2921957, at *12 (“These sentences may have been

appropriate at the time they were imposed, or they may not

have been.”). Nevertheless, his statements at sentencing, the

fact that he gave each defendant the lowest sentence possible

within the applicable Guidelines range, and his subsequent

suggestion to us that we recall the mandates provides a level

of confidence that harmful error occurred here that will not be

true in many other cases, if any. 

C. Lapse of Time

Judge Callahan makes much of the fact that the second

basis for recalling the mandate identified in Crawford — that

Blakely had been decided when the mandate in Crawford’s

appeal issued — is not present. As Judge Bryan aptly noted,

however, that second basis is not present purely by the “accident of . . . timing.” See Tillitz, 2005 WL 2921957, at *11. In

Crawford, moreover, we emphasized that this combination of

circumstances was not the only one that would justify recalling our mandate. See Crawford, 422 F.3d at 1146 n.2 (“[W]e

do not suggest that these same elements must always be present in order for a mandate to be recalled.”). Rather, we are to

look at whether extraordinary circumstances exist based “on

the facts of [defendants’] individual cases.” See id. 

Rather than follow the express statements in Crawford,

Judge Callahan chooses to adopt an unduly crabbed reading

of the case. Judge Callahan would rely on what it terms a

“unique question of timing” in Crawford and would only permit recall of the mandate where a sentence is not yet final.

She gives no reason, however, why the mandate can never be

recalled after the time for filing a petition for certiorari has

12148 CARRINGTON v. UNITED STATES
expired. Indeed, to do so would essentially return us to the

long-abandoned rule that our power to recall the mandate

expires at the end of the court’s term. See Aerojet-Gen., 478

F.2d at 254 n.6; see also 16 Charles Alan Wright, Arthur R.

Miller & Edward H. Cooper, Federal Practice & Procedure

§ 3938 (2d ed. 1996). Moreover, Judge Callahan’s effective

imposition of a ninety-day time limit fails to recognize that

time is but a factor affecting the decision whether to recall the

mandate, and not a rigid constraint. See Patterson v. Crabb,

904 F.2d 1179 (7th Cir. 1990) (noting that the power to recall

the mandate is not limited by time); Aerojet-Gen., 478 F.2d

at 254 n.6 (explaining that “the lapse of time [is] significant

only with respect to the court’s duty to ‘prevent injustice.’ ”

(quoting Greater Boston Television Corp. v. FCC, 463 F.2d

268, 277 (D.C. Cir. 1972))). I read Crawford’s second factor

as nothing more than a recognition that the lapse of time is

always a factor in determining whether to recall the mandate.

Judge Callahan, relying on United States v. Cruz, 423 F.3d

1119 (9th Cir. 2005) (per curiam), also suggests that recall of

the mandate is inappropriate because Booker is not retroactive. I agree that Cruz holds that Booker is not retroactive to

cases on collateral review, but that is all that Cruz holds. Contrary to Judge Callahan’s assertion, Cruz does not limit Crawford’s holding. To say that Booker is not generally retroactive

under Teague v. Lane, 489 U.S. 288 (1989), is not to say that

equity may never demand that we provide relief to a defendant whose sentence would be unconstitutional under Booker

when special circumstances suggest that failure to do so

would result in a grave injustice. That is why Booker error

alone was not enough to warrant recall of the mandate in

King, but Booker error in addition to other extraordinary circumstances permitted recall in Crawford. The decisions of

our sister circuits are not to the contrary. See United States v.

Saikaly, 424 F.3d 514, 517-18 (6th Cir. 2005) (refusing to

recall the mandate for Booker error alone); United States v.

Fraser, 407 F.3d 9, 11 (1st Cir. 2005) (same); United States

v. Ford, 383 F.3d 567, 568 (7th Cir. 2004) (same). 

CARRINGTON v. UNITED STATES 12149
Unlike Judge Callahan, I believe that the circumstances

involved in Carrington’s and Tillitz’s cases — the judge’s

strong reservations at the time of sentencing and the judge’s

sua sponte plea for relief from our court — are both unusual

and extraordinary. In addition, I do not agree that the absence

of the second factor identified in Crawford precludes relief.

III. FINALITY

At its heart, the majority opinion rests on a concern that a

contrary decision would undermine the finality of judgments.

I agree that finality is an important value. It is not, however,

the only relevant consideration. When the injustice is sufficiently great, we should not allow our concerns with repose

to obviate our obligation to do justice. 

Granting relief would place only a limited burden on the

interests underlying finality. In Calderon, the Court placed a

very high value on repose because recall of the mandate

threatened “to frustrate the interests of a State . . . in enforcing

a final judgment in its favor.” See 523 U.S. at 552. Unlike

Calderon, however, we deal here with federal convictions.

And although there is a weighty interest in finality because it

“is essential to both the retributive and the deterrent functions

of criminal law,” see id. at 555, that interest is not absolute.

The interest in repose is lessened all the more because we deal

not with finality of a conviction, but rather the finality of a

sentence. There is no suggestion that Carrington or Tillitz be

set free or that the government be forced to retry these cases.

The district court asks only for an opportunity to re-sentence

in accordance with the Constitution. 

Of course, another interest underlying finality is judicial

efficiency: “the interests of stable adjudication and judicial

administrative efficiency, on which growing caseloads place

a growing premium.” Calderon, 523 U.S. at 569 (Souter, J.,

dissenting). Implicit in the majority’s opinion is a concern that

a contrary decision would open the floodgates of litigation.

12150 CARRINGTON v. UNITED STATES
On closer examination, however, this concern proves baseless. 

Cases where a district court expresses reservations about

the validity of a Guidelines sentence are rare. See United

States v. Labrada-Bustamante, 428 F.3d 1252, 1262 (9th Cir.

2005) (describing such cases as “rare”). As Tillitz observes in

his response to the government’s petition for rehearing, only

two decisions — both by district courts — have cited Judge

Bryan’s decision in Tillitz, and neither relied on the language

seeking recall of the mandate. See United States v. Scott,

Criminal Action No. 5:02CR47, 2006 WL 3488932 (N.D.W.

Va. Aug. 10, 2006); United States v. Gettings, No. CR. S-00-

535 WBS, 2006 WL 1795112 (E.D. Cal. June 28, 2006). A

WESTLAW search reveals that only five cases citing our first

decision in this case, 470 F.3d 920 (9th Cir. 2006) (Carrington I), involved attempts to recall the mandate or seek resentencing on Carrington I’s authority. None of these cases

appear to involve facts similar to those in Crawford or this

case, and the courts in all four cases rebuffed the request for

re-sentencing. See United States v. Blankenship, No. 06-

36039, 2007 WL 1742483 (9th Cir. June 14, 2007) (unpublished memorandum); United States v. Woodruff, No. 93-

0438, 2007 WL 2123735 (N.D. Cal. July 23, 2007); United

States v. Velarde, No. 89-CR-50009-MJR, 2007 WL 853983

(S.D. Ill. Mar. 16, 2007); Dillon v. Smith, No. 1:07-CV-00118

AWI SMS HC, 2007 WL 781455 (E.D. Cal. Mar. 13, 2007);

United States v. Walker, No. 96-cr-40094-JPG, 2007 WL

458201 (S.D. Ill. Feb. 7, 2007). Moreover, I am aware of no

appellate decision — published or unpublished, in any circuit

— that involves recall of the mandate for Booker error in circumstances even remotely similar to those in Crawford and

this case.3

3Tillitz’s response to the government’s petition for rehearing provides

a mostly comprehensive list of cases addressing recall of the mandate for

Booker or Blakely error. None of the cited cases have facts similar to

either Crawford or this case. 

CARRINGTON v. UNITED STATES 12151
Crawford has been on the books for nearly two years, and

yet this case is the only one nationwide that appears to raise

similar facts. Permitting the district court to re-sentence

would place only a limited burden on the government given

the unusual circumstances involved. Finality is important, but

I fear the majority is too willing to let repose triumph over

justice. 

IV. CONCLUSION

I would recall the mandates in Carrington’s and Tillitz’s

appeals. Judge Bryan stated at their sentencing hearings that

he believed their sentences were unconstitutional and unjust.

Years later, Judge Bryan singled out these two men as individuals to whom the constraints of the old mandatory Guidelines caused particular harm. While I recognize that the

passage of time has somewhat cemented the government’s

interest in finality, that interest is still not so strong that I

would deny a district court judge the opportunity to remedy

what the judge considers to be an “injustice” and to resentence a defendant to a sentence that is just, proper, and

constitutional. See Gondeck v. Pan Am. World Airways, Inc.,

382 U.S. 25, 26-27 (1965).4 Accordingly, I dissent.

4

Judge Callahan is also concerned that re-sentencing Carrington and

Tillitz would be “unfair” to defendants for whom relief would not be

available. On this point, I agree with Professor Douglas A. Berman, who,

providing commentary on this very case, responded to this concern by

suggesting that it represents, as Justice Brennan once put it, a “fear [of]

too much justice.” See Sentencing Law & Policy, http://

sentencing.typepad.com/sentencing_law_and_policy/2006/12/what_

wrong_with.html (Dec. 14, 2006); see also McCleskey v. Kemp, 481 U.S.

279, 339 (1987) (Brennan, J., dissenting). 

12152 CARRINGTON v. UNITED STATES