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United States v. Price

United States Court of Appeals for the Tenth Circuit

March 8, 2005, Filed

No. 04-7058



EBEL, Circuit Judge.

Defendant-Appellant Joshua Price, Jr., seeks rehearing, with suggestion for en banc consideration, from this panel's decision denying him a certificate of appealability (COA), see 28 U.S.C. § 2253(c), to appeal the district court's decision denying him 28 U.S.C. § 2255 relief from his federal  [*845]  drug trafficking convictions. See United States v. Price, 265 F.3d 1097, 1100-01 (10th Cir. 2001) (listing Price's twenty-one federal convictions). In his rehearing petition, Price asks us to reconsider his claims that Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), requires us to vacate his sentences because the jury never found the type and quantity of drugs for which the district court sentenced him, and never found that Price killed a government witness, a factual finding the district court made in applying U.S.S.G. § 2A1.1 to enhance Price's sentence. 1 See United States v. Price, 118 Fed. Appx. 465, 471. In Blakely [**2]  , the Supreme Court invalidated Washington's sentencing scheme, ] holding that scheme violated the Sixth Amendment because it required a sentencing court to impose a sentence "not solely based on 'facts reflected in the jury verdict or admitted by the defendant.'" United States v. Booker, 543 U.S. 220, 160 L. Ed. 2d 621, 125 S. Ct. 738, 749 (2005) (quoting Blakely, 124 S. Ct. at 2537).

In our prior decision in this case, we denied Price a COA on his Blakely claims because the Supreme Court had not extended Blakely's holding to the federal sentencing guidelines and because, even if the Court did apply Blakely to the federal guidelines, Blakely would not apply retroactively to initial § 2255 motions for collateral [**3]  relief. See Price, 118 Fed. Appx. at 471. After our panel decision, however, the Supreme Court did extend Blakely to the federal sentencing guidelines. See Booker, 125 S. Ct. at 749-50, 755-56. In light of Booker, Price asks us to reconsider our prior holding that Blakely does not apply retroactively to initial § 2255 motions. (Reh'g petition at 1-2.) Reviewing this question de novo, see United States v. Mora, 293 F.3d 1213, 1216, 1217-19 (10th Cir. 2002), we reaffirm that Blakely does not apply retroactively to Price's initial § 2255 motion. Therefore, we deny his petition for rehearing, with its suggestion for rehearing en banc.

I. Does Blakely set forth a substantive or a procedural rule?

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400 F.3d 844 *; 2005 U.S. App. LEXIS 3817 **

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. JOSHUA PRICE, JR., Defendant-Appellant.

Prior History: United States v. Price, 118 Fed. Appx. 465, 2004 U.S. App. LEXIS 26135 (2004)

Disposition:  [**1]  Petition for rehearing and suggestion for rehearing en banc denied.


sentencing, announce, apply retroactively, convictions, statutory maximum, rules of procedure, new rule, watershed, rule of criminal procedure, impose sentence, implicate, motions, en banc, guidelines, quotation

Criminal Law & Procedure, Sentencing, Sentencing Guidelines, General Overview, Imposition of Sentence, Statutory Maximums, Governments, Courts, Judicial Precedent, Rule Application & Interpretation, Capital Punishment, Aggravating Circumstances, Factors, Retroactivity of Decisions, Nonretroactive Treatment, Postconviction Proceedings, Motions to Set Aside Sentence, Habeas Corpus, Procedure, Civil Procedure, US Supreme Court Review, Appeals, Procedural Matters, Time Limitations, Ranges, Findings