FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 03-35873

Plaintiff-Appellee, D.C. Nos.

v. CV-02-00153-a-JMF  CR-98-00133-A- SUSANA CRUZ,

JKS Defendant-Appellant.

OPINION 

Appeal from the United States District Court

for the District of Alaska

James K. Singleton, Chief Judge, Presiding

Argued and Submitted

July 13, 2005—Anchorage, Alaska

Filed September 16, 2005

Before: Alfred T. Goodwin, Melvin Brunetti, and

William A. Fletcher, Circuit Judges.

Per Curiam Opinion

13353
COUNSEL

Meredith A. Ahearn, Hagans, Ahearn & Webb, Anchorage,

Alaska, for the defendant-appellant. 

Richard L. Pomery, Assistant United States Attorney,

Anchorage, Alaska, for the plaintiff-appellee.

13354 UNITED STATES v. CRUZ
OPINION

PER CURIAM: 

This appeal requires us to decide whether United States v.

Booker, 125 S. Ct. 738 (2005), applies retroactively to cases

on collateral review. We hold that Booker does not apply

retroactively to convictions that became final prior to its publication. 

I. BACKGROUND

Susana Cruz was convicted in June 1999 in the District of

Alaska of one count of conspiracy to commit offenses relating

to cocaine distribution and possession; three counts of possession with intent to distribute cocaine; three counts of maintaining a place for cocaine distribution and possession; two

counts of making premises available for the storage and distribution of cocaine; and one count of interstate travel to promote cocaine trafficking. On January 21, 2000, Cruz was

sentenced to 168 months in prison. This court affirmed Cruz’

conviction and sentence on May 7, 2001. See United States v.

Marin, 8 F. App’x 815 (9th Cir. 2001) (unpublished disposition). 

Cruz brought a petition pursuant to 28 U.S.C. § 2255 on

July 3, 2002, collaterally attacking her sentence. The district

court denied her petition and she appealed. While her appeal

was pending before this court, the Supreme Court decided

Booker, and on January 14, 2005, we issued an order permitting Cruz and the United States to file supplemental briefing

on the application of Booker to this case. Because the appellant has made a “substantial showing of the denial of a constitutional right,” we now expand the certificate of appealability

(“COA”) to allow us to consider the Booker issue. 28 U.S.C.

§ 2253(c)(2); see also Silva v. Woodford, 279 F.3d 825, 832-

33 (9th Cir. 2002). 

UNITED STATES v. CRUZ 13355
II. DISCUSSION

[1] The district court relied upon facts not found by the jury

to increase the maximum sentence applicable to Cruz under

the then-mandatory Federal Sentencing Guidelines. Cruz’

168-month sentence was based in part upon the district

court’s finding that she was responsible for possession or conspiracy to transport a total of 60 kilograms of cocaine, a fact

not found by the jury. Booker made available a “Sixth

Amendment objection — that the defendant’s sentence was

enhanced by judge-found facts under a mandatory Guidelines

system.” United States v. Ameline, 409 F.3d 1073, 1084 (9th

Cir. 2005). 

[2] Under the framework originated in Teague v. Lane, 489

U.S. 288, 310 (1989), a new rule of constitutional law generally does not apply to convictions that have become final,

unless it falls under certain exceptions. Cruz’ conviction

became final on May 7, 2001, well before Booker was published. In order to have retroactive effect, new rules either

must be substantive or, if procedural, they must be “watershed

rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Schriro v.

Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 2523 (2004)

(internal quotations omitted). We now join every other circuit

that has considered the question in holding that the rule

announced by Booker does not meet any of the Teague exceptions, and thus does not operate retroactively. See United

States v. Bellamy, 411 F.3d 1182 (10th Cir. 2005); Lloyd v.

United States, 407 F.3d 608 (3rd Cir. 2005); Guzman v.

United States, 404 F.3d 139 (2nd Cir. 2005); Humphress v.

United States, 398 F.3d 855 (6th Cir. 2005); Varela v. United

States, 400 F.3d 864 (11th Cir. 2005); McReynolds v. United

States, 397 F.3d 479 (7th Cir. 2005). 

Given the dissenting opinions in Booker and the previous

cases, it is apparent that the rule was not in fact “apparent to

all reasonable jurists,” and thus, under the Supreme Court’s

13356 UNITED STATES v. CRUZ
definition, it was in fact a “new rule.” See, e.g., Beard v.

Banks, 542 U.S. 406, 124 S.Ct. 2504, 2511 (2004). Nor is

Booker’s holding a new substantive rule, as opposed to a new

procedural rule. In holding that Ring v. Arizona, 536 U.S. 584

(2002), does not operate retroactively, the Court clarified that

“[r]ules that allocate decisionmaking authority in this fashion

are prototypical procedural rules.” Schriro, 124 S. Ct. at 2523.

We recently applied Schriro to decide that Blakely v. Washington, 542 U.S. 296 (2004), did not announce a new substantive rule. Schardt v. Payne, 414 F.3d 1025, 1036 (9th Cir.

2005). That rationale applies just as clearly to the Court’s

application of the Blakely rule to the federal Guidelines.

Because Booker announced a new procedural rule, it may

operate retroactively only if it is a watershed rule of criminal

procedure. Schriro, 124 S. Ct. at 2523. As we held with

respect to Blakely, the Booker rule fits squarely within the

Court’s holding that a “change in the law requiring that juries,

rather than judges, make the factual findings on which a sentence is based [does] not announce a watershed rule of criminal procedure.” Schardt, 414 F.3d at 1036 (citing Schriro, 124

S. Ct. at 2524-26). 

III. CONCLUSION 

[3] 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. To the extent that Cruz’ appeal

challenges her sentence under Booker, the district court’s

denial of her petition is AFFIRMED. The appellant’s remaining, unrelated claims are addressed in a separate unpublished

disposition. 

UNITED STATES v. CRUZ 13357