In the Courts

In United States v. Gentry, No. 04-11221 (5th Cir. Dec. 8, 2005), the Fifth Circuit, in a case of first impression, rejected the defendant's bid to apply United States v. Booker, 125 S. Ct. 738 (2005), retroactively on collateral review to an initial 28 U.S.C. ' 2255 motion. While Booker was pending, the defendant, convicted on drug charges, filed and lost a ' 2255 motion to vacate, correct or set aside her sentence. She later appealed, arguing that the Fifth Circuit should apply Booker retroactively to her case.

The Fifth Circuit found that Booker established a new constitutional rule of criminal procedure and noted that Teague v. Lane, 489 U.S. 288 (1989), controlled the retroactive application of such rules. Applying Teague, the court explained that new constitutional rules of criminal procedure are not generally applied retroactively unless the rule fits into one of two exceptions. The first exception, new rules that place certain conduct or persons “beyond the State's power to punish” is not implicated by Booker. The second exception is for “watershed rules” that implicate the fundamental fairness of the proceeding. The court went on to find that altering the degree of flexibility judges have in applying the Sentencing Guidelines and shifting fact-finding duties from the judge to the jury do not constitute a watershed change and that, therefore, Booker should not be given retroactive effect.