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United States Court of Appeals
Fifth Circuit
F I L E D
April 4, 2003
In the
Charles R. Fulbruge III
United States Court of Appeals
Clerk
for the Fifth Circuit
_______________
m 01-21166
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ENRIQUE GONZALES, SR.,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m H-95-299-02
_________________________
Before GARWOOD, SMITH, and BARKSDALE,
from sentence under 28 U.S.C. § 2255.
Circuit Judges.
I.
JERRY E. SMITH, Circuit Judge:
Gonzales was convicted of several drug
trafficking and firearms charges, including one
At issue is whether Castillo v. United
count of carrying a firearm in violation of 18
States, 530 U.S. 120 (2000), applies retroac-
U.S.C. § 924(c)(1). For the § 924(c)(1)
tively on collateral review. We conclude that
count, the indictment referred to a generic
Castillo announced a new procedural rule that
"firearm" but did not specify that Gonzales
is not retroactive under Teague v. Lane, 489
carried a machinegun. With jury instructions
U.S. 288 (1989). We therefore affirm the
that mirrored the indictment, the jury con-
denial of Enrique Gonzales's motion for relief
victed Gonzales of all counts.

The government then filed a motion seeking
II.
a thirty-year sentence on the § 924(c)(1)
Gonzales seeks collateral relief from his
count. At the time, § 924(c)(1) imposed a
sentence based on the rules of Apprendi and
five-year sentence for carrying an ordinary
Castillo. Because there are no disputed facts,
firearm, but a thirty-year sentence for carrying
we review the denial of the § 2255 motion de
a machinegun.1 The court granted the motion,
novo. United States v. Willis, 273 F.3d 592,
finding that Gonzales had carried a machine-
595 (5th Cir. 2001).
gun, and sentenced him to thirty-years' impri-
sonment on the § 924(c)(1) count.2 We af-
These rules are "new" as to Gonzales, be-
firmed. United States v. Gonzales, 121 F.3d
cause his conviction and sentence were final
928 (5th Cir. 1997), cert. denied, 522 U.S.
before the Supreme Court decided either Ap-
1131 (1998).
prendi or Castillo. Some new rules apply re-
troactively on collateral review, others not. If
Gonzales then filed a § 2255 motion to
a new rule is substantive, i.e., if it interprets
correct the sentence on the § 924(c)(1) count.
the meaning of a criminal statute, it always ap-
Following Castillo and Apprendi v. New Jer-
plies retroactively. Davis v. United States,
sey, 530 U.S. 466 (2000), he argues that his
417 U.S. 333 (1974). If it is procedural, how-
sentence violates his Fifth and Sixth Amend-
ever, it applies retroactively only if it fits one
ment rights, because the indictment did not al-
of the Teague exceptions: (1) "[I]t places cer-
lege, and the jury did not find beyond a rea-
tain kinds of primary, private individual con-
sonable doubt, that the firearm was a machine-
duct beyond the power of the criminal law-
gun. The district court denied the motion,
making authority to proscribe," or (2) "it re-
holding that Apprendi and Castillo announce
quires the observance of those procedures that
new procedural rules that are not retroactive
are implicit in the concept of ordered liberty."
under Teague. See Gonzales v. United States,
Teague, 489 U.S. at 311 (quotation marks and
159 F. Supp. 2d 555 (S.D. Tex. 2001). Be-
alterations omitted).
cause of their importance, the court granted a
certificate of appealability on both questions.
Gonzales argues that Apprendi and Castillo
announced substantive rules that necessarily
apply retroactively. In the alternative, he con-
1 "Whoever, during and in relation to any . . .
tends that these rules fit the second Teague
drug trafficking crime . . . uses or carries a firearm,
exception if they are procedural. After brief-
shall, in addition to the punishment provided for
ing was completed in t his case, we held in
such . . . drug trafficking crime, be sentenced to
United States v. Brown, 305 F.3d 304 (5th Cir.
imprisonment for five years, . . . and if the firearm
2002), that Apprendi announced a non-retro-
is a machinegun, . . . to imprisonment for thirty
active procedural rule; we now conclude that
years." 18 U.S.C. § 924(c)(1) (1994). Congress
Castillo did the same.
since has amended § 924(c)(1).
2
A.
The jury also had found Gonzales guilty of
In Castillo, 530 U.S. at 131, the Court held
possession of a machinegun in violation of 18
that "Congress intended the firearm type-re-
U.S.C. § 922(o)(1). The indictment and jury in-
structions for this count specified that Gonzales's
lated words it used in § 924(c)(1) to refer to
firearm was a machinegun. There was no evidence
an element of a separate, aggravated crime."
of another firearm involved in Gonzales's crimes.
2

Gonzales argues that this rule is substantive
Court held that "any fact (other than prior con-
and therefore applies retroactively to his sen-
viction) that increases the maximum penalty
tence.3 To the contrary, the rule of Castillo is
for a crime must be charged in an indictment,
procedural, because its functional effect is to
submitted to a jury, and proven beyond a rea-
shift fact-finding responsibility from judge to
sonable doubt" (quoting Jones v. United
jury, not to alter the meaning of the fact to be
States, 526 U.S. 227, 243 n.6 (1999)). We
found.
explained in Brown, 305 F.3d at 309, that this
rule "did not change what the government
The Supreme Court explained the "distinc-
must prove, only that the jury, rather than the
tion between substance and procedure . . . in
judge must decide the [relevant factual] ques-
the habeas context" in Bousley v. United
tion." We also emphasized that the Apprendi
States, 523 U.S. 614, 620 (1998): "[O]ne of
Court characterized its decision as procedural.
the `principal functions of habeas corpus is to
Id. at 308.4
assure that no man has been incarcerated un-
der a procedure which creates an impermis-
We acknowledge that Castillo, unlike Ap-
sibly large risk that the innocent will be con-
prendi, does not sound very much like a ruling
victed'" (quoting Teague, 489 U.S. at 312)
on constitutional criminal procedure. The
(alteration omitted).
term "procedure" or its cognates do not ap-
pear in Castillo. Likewise, the Court neither
A procedural rule, in other words, ensures
cites nor mentions the Fifth or Sixth Amend-
"an accurate conviction" of conduct that the
ment.
law criminalizes. Id. (quoting Teague, 489
U.S. at 313). A substantive rule, on the other
Indeed, Castillo reads very much like an
hand, involves a "decision[ ] of [a court] hold-
ordinary statutory-interpretation decision. For
ing that a substantive federal criminal statute
example, the Court framed the question as
does not reach certain conduct." Id. That is,
"whether Congress intended the statutory ref-
a substantive rule interprets a federal criminal
erences to particular firearm types in § 924-
statute to determine what conduct the law in
(c)(1) to define a separate crime or simply to
fact criminalizes.
authorize an enhanced penalty." Castillo, 530
U.S. at 123. The Court's answer was that
We recently applied this distinction in
"even apart from the doctrine of constitutional
Brown. In Apprendi, 530 U.S. at 476, the
doubt, our consideration of § 924(c)(1)'s lang-
uage, structure, context, history, and such oth-
er factors as typically help courts determine a
statute's objectives, leads us to conclude that
3 If the rule of Castillo is substantive, hence
retroactive, Gonzales would be entitled to relief
from sentence, because his sentence plainly violates
the rule. Under Castillo, he was eligible for the
4 See, e.g., Apprendi, 530 U.S. at 475 ("The
thirty-year sentence only if his firearm was a ma-
substantive basis for New Jersey's enhancement is
chinegun, but this essential fact was not alleged in
thus not at issue; the adequacy of New Jersey's
the indictment or contained in the jury instruction.
procedure is."); id. at 484 (stating that "the rea-
See Castillo, 530 U.S. at 123 (explaining that the
sonable doubt requirement has a vital role in our
fact must be alleged in the indictment and proved to
criminal procedure for cogent reasons") (quotation
the jury beyond a reasonable doubt).
marks omitted).
3

the relevant words create a separate substan-
By calling the "firearm type-related words" of
tive crime." Id. at 124 (emphasis added).
§ 924(c)(1) an "element," the Court allocated
Tools such as text, structure, and history are,
responsibility for finding this fact to the jury.
of course, the hallmarks of statutory interpre-
It did not alter the substantive meaning of the
tation.
"firearm type-related words."
Castillo therefore appears, at first blush, to
The terms "element" and "sentencing fac-
announce a substantive rule, as the only circuit
tor" are therefore conclusions, not reasons for
to address the question has concluded. In
a conclusion.5 The rule of Apprendi, to re-
United States v. Wiseman, 297 F.3d 975, 981-
peat, is that "any fact (other than prior con-
82 (10th Cir. 2002), the court held that "[t]he
viction) that increases the maximum penalty
Castillo court did not announce a new consti-
for a crime must be charged in an indictment,
tutional rule of criminal procedure; it con-
submitted to a jury, and proven beyond a rea-
strued a criminal statute to require a jury de-
sonable doubt." Apprendi, 530 U.S. at 476
termination on the type of firearm used by the
(quoting Jones, 526 U.S. at 243 n.6). Appren-
defendant." The Wiseman court reasoned that
di thus requires courts to determine the stat-
the rule must be substantive, because "[t]he
ute's basic offense and its maximum penalty,
Court's holding in Castillo was based solely
and then to determine what other facts in the
on its interpretation of § 924(c)(1)." Id. at
statute affect the possible penalty.
981 (emphasis added).
We reason, nonetheless, that Castillo an-
5
nounced a procedural rule. We recognize that
"Apprendi repeatedly disparaged the distinc-
tion between a fact characterized as a sentencing
this conclusion may seem counterintuitive.
factor and a fact characterized as an element of a
After all, the Court interpreted § 924(c)(1) and
separate offense when the fact increases the stat-
held that its "firearm type-related words . . .
utory maximum penalty." Matthews, 312 F.3d at
[are] an element of a separate, aggravated
662 & n. 13 (collecting quotations). The Supreme
crime." Castillo, 530 U.S. at 131 (emphasis
Court has reiterated this principle in subsequent
added). Calling a statutory term an "element"
Apprendi cases.
was once a telltale sign of a substantive in-
terpretation of a criminal statute.
"As to elevation of the maximum punishment .
. . Apprendi repeatedly instructs in that context
After Apprendi, however, we no longer can
that the characterization of a fact or circumstance
assume that an interpretation of a statute's
as an `element' or a `sentencing factor' is not de-
"elements" is substantive. The distinction be-
terminative of the question `who decides,' judge or
tween what was once called an "element" and
jury." Ring v. Arizona, 536 U.S. 584, ___, 122 S.
what was once called a "sentencing factor" "is
Ct. 2428, 2441 (2002). "[T]he fundamental
meaning of the jury-trial guarantee of the Sixth
largely irrelevant after Apprendi." United
Amendment is that all facts essential to imposition
States v. Matthews, 312 F.3d 652, 662 (5th
of the level of punishment that the defendant re-
Cir. 2002), cert. denied, 2003 U.S. LEXIS
ceivesSSwhether the statute calls them elements of
2433 (U.S. Mar. 24, 2003) (No. 02-9053).
the offense, sentencing factors, or Mary
These terms now reflect the allocation of fact-
JaneSSmust be found by the jury beyond a rea-
finding responsibility between judge and jury.
sonable doubt." Id. at ___, 122 S. Ct. at 2444
(Scalia, J., concurring).
4

If these facts do not increase the maximum,
"an element of a separate, aggravated crime."
they may be found by a judge; if they do, they
Id. at 131. As the Court's reasoning demon-
must be alleged in the indictment and found by
strates, though, the conclusional term "ele-
a jury. At this point, the court, as a shorthand
ment" merely means that "the indictment must
for its reasoning, may attach the term "sen-
identify the firearm type and a jury must find
tencing factor" to the former and "element" to
that element proved beyond a reasonable
the latter. Cf. Castillo, 530 U.S. at 123-24.
doubt." Id. at 123.
What matters, though, is the effect of a fact on
the statutory maximum.
In other words, Apprendi analysis does not
alter the meaning of the fact to be found, but
This Apprendi analysis can resemble sub-
instead allocates fact-finding responsibilities
stantive statutory interpretation, because the
between judge and jury. Consider Gonzales's
court must use traditional tools to identify the
eligibility for a thirty-year sentence under
basic offense and its penalty, as well as any
§ 924(c)(1) before and after Castillo. In both
facts that affect the penalty. The Court in
instances, someone had to find that he carried
Castillo engaged, albeit implicitly, in precisely
a machinegun, not a simple firearm. The only
this kind of Apprendi analysis.6
difference, after Castillo, is that, for the thirty-
year sentence to be imposed, the jury, not the
The Castillo Court, 530 U.S. at 124, used
court, must find this fact.
the text and structure of § 924(c)(1) to identify
"the basic federal offense of using or carrying
The opening sentence reveals this truth:
a gun during and in relation to a crime of vio-
"In this case we once again decide whether
lence [or drug trafficking crime]," which car-
words in a federal criminal statute create of-
ried a five-year sentence. The Court then re-
fense elements (determined by a jury) or sen-
lied on this and other tools to decide that the
tencing factors (determined by a judge)." Cas-
kind of firearm used or carried is a fact that
tillo, 530 U.S. at 121. And, as we explained in
increases the statutory maximum. Id. at 125-
Brown, 305 F.3d at 309, the responsibility for
31. The Court concluded by calling this fact
fact-finding is a quintessential procedural rule,
not "a substantive change in the law."
6 We recognize that Castillo preceded Apprendi
It is useful, in this regard, to contrast Cas-
by three weeks. We sometimes emphasize Ap-
tillo with Bailey v. United States, 516 U.S.
prendi, however, because it addresses the same is-
137 (1995). There, the Court interpreted the
sue, i.e., the constitutional allocation of fact-finding
meaning of "use" in § 924(c)(1) to mean "ac-
responsibility, more generally and thoroughly than
tive employment of the firearm by the
does Castillo. Moreover, the Court grappled with
defendant." Id. at 143. The Court contrasted
this issue repeatedly before deciding Castillo and
this definition with "mere possession of a
Apprendi. See, e.g., Jones v. United States, 526
firearm by a person who commits a drug
U.S. 227 (1999); Almendarez-Torres v. United
offense." Id. Unlike Castillo, Bailey therefore
States, 523 U.S. 224 (1998). Thus, we safely may
altered the substantive meaning of a key term
assume the Court had all its caselaw in mind when
in § 924(c)(1), as the federal courts quickly
it issued Castillo and Apprendi. See United States
v. Torres, 282 F.3d 1241, 1246 (10th Cir. 2002)
learned from the avalanche of § 2255 motions.
(observing that Castillo belongs to "the Apprendi
Thus, Bailey necessarily applied retroactively
family of cases").
5

on collateral review. Bousley, 523 U.S. at
substantive. Most basically, the "decision in
620.
Bailey articulates the substantive elements" of
the conduct criminalized by § 924(c)(1). Mc-
Finally, our precedents support the view
Phail, 112 F.3d at 199. That is to say, Bailey
that Castillo announced a procedural rule. In
"explains what conduct is, and always has
United States v. Shunk, 113 F.3d 31 (5th Cir.
been, criminalized by [§ 924(c)(1)]." Id. This
1997), we concluded that United States v.
kind of holding "is a substantive, non-
Gaudin, 515 U.S. 506 (1995), announced a
constitutional decision concerning the reach of
procedural rule. In Gaudin, id. at 511, the
a federal statute." Id.
Court had held that the materiality element of
18 U.S.C. § 1001 had to be found by the jury,
These explanations all accurately portray
not the court. We noted that "Gaudin
the rule of Bailey but not of Castillo. In Cas-
explicitly states that the rule it created was
tillo the Court did not articulate the elements
procedural." Shunk, 113 F.3d at 35. More
of § 924(c)(1), or explain what conduct it
importantly, however, we also explained that
criminalizes, or affect its reach. Unlike Bailey,
"Gaudin did not change what the Government
therefore, Castillo announced a procedural
must prove; materiality was always an element
rule.8
of a § 1001 offense. Instead, Gaudin changed
the party to whom the Government must
In sum, Castillo shifted the fact-finding re-
prove materialitySSfrom judge to jury." Id.
sponsibility from judge to jury but did not alter
(citation omitted).
the meaning of the fact to be found. Castillo
does not determine what conduct the law
Likewise, Castillo did not change the nec-
criminalizes, but rather tends to ensure an ac-
essary factual showing for a thirty-year
curate conviction of and sentence for conduct
sentence under § 924(c)(1). The government
that the law criminalizes. Both before and af-
always had to prove that the firearm used was
ter Castillo, § 924(c)(1) imposed a thirty-year
a machinegun; Castillo merely changed "the
sentence for using or carrying a machinegun
party to whom the government must prove"
during a drug trafficking crime, but Castillo
that the firearm used was a machinegun.7
now tends to ensure that these sentences will
be imposed in a more accurate fashion.
Even United States v. McPhail, 112 F.3d
197 (5th Cir. 1997), in which we concluded
(before Bousley) that Bailey announced a sub-
stantive rule, indicates, by way of contrast,
8 See also United States v. Lopez, 248 F.3d
that Castillo announced a procedural rule.
427, 432 (5th Cir.) (relying on these three passages
The McPhail court explained, in three
from McPhail to conclude that Richardson v.
different ways, why the rule of Bailey was
United States, 526 U.S. 813 (1999), announced a
substantive rule regarding the scope of 21 U.S.C.
§ 848(a)), cert. denied, 534 U.S. 898 (2001).
Irrespective of whether Lopez's reading of
7 By holding that Gaudin announced a pro-
Richardson is correct, Lopez does not purport to
cedural rule, Shunk also supports what might seem
apply a test different from that of Bousley, Mc-
a peculiar proposition: The rule of a case may be
Phail, and Shunk, and, in any event, McPhail and
procedural even if that rule applies only to a single
Shunk, like Bousley, preceded Lopez and hence
statute.
remain binding on this panel.
6

The Court's unavoidable use of traditional
Castillo requires that the kind of firearm used
statutory-interpretation tools may efface this
in a § 924(c)(1) offense be alleged in the in-
critical distinctionSSso much so that the Tenth
dictment and proven to the jury beyond a rea-
Circuit mistakenly held in Wiseman that the
sonable doubt. Gonzales more or less admits
rule of Castillo is substantive9SSbut the Su-
this point, because he relies on Apprendi and
preme Court's analysis undermines neither the
Castillo for the same arguments.
distinction nor the reasoning of Brown, Shunk,
and McPhail. Thus, Castillo is a procedural
In Brown, 305 F.3d at 309-10, we held that
rule subject to the Teague framework.
Apprendi is not a watershed rule of criminal
procedure. We reasoned that Apprendi
B.
improves the accuracy of the sentence, not the
Gonzales argues, in the alternative, that the
determination of guilt or innocence of the of-
rule of Castillo fits within the second Teague
fense, and does not alter our understanding of
exception, which makes retroactive new pro-
the bedrock elements essential to a
cedural rules that "require[ ] the observance of
fundamentally fair proceeding. Id. at 309.
those procedures that are implicit in the
This reasoning also applies to Castillo, which
concept of ordered liberty." Teague, 489 U.S.
neither affects the accuracy of the
at 311 (quotation marks and alteration
determination of guilt or innocence of a
omitted). The Court described such rules as
§ 924(c)(1) offense nor reworks our basic
"watershed rules of criminal procedure," id.,
understanding of "ordered liberty."10 In short,
that are "central to an accurate determination
if the general rule of Apprendi does not fit the
of innocence or guilt," id. at 313. Because we
second Teague exception, nor does a
are confident that the rule of Castillo is not a
particular manifestation of that rule in Castillo.
watershed rule of criminal procedure, we
decline to apply it retroactively.
The order denying the § 2255 motion is
AFFIRMED.
Castillo is nothing more than a particular
manifestation of Apprendi. See Torres, 282
F.3d at 1246 (observing that Castillo belongs
to "the Apprendi family of cases"). Apprendi
requires any fact that increases the statutory
maximum to be alleged in the indictment and
proven to the jury beyond a reasonable doubt.
9 The Tenth Circuit contradicted itself in the key
sentence of Wiseman: "The Castillo Court did not
announce a new constitutional rule of criminal
procedure; it construed a criminal statute to require
a jury determination on the type of firearm used by
the defendant." Wiseman, 297 F.3d at 981-82.
10 See Shunk, 113 F.3d at 37 ([O]ne can easily
The clause before the semicolon states that Castillo
envision a system of `ordered liberty' in which cer-
did not announce a procedural rule, but the clause
tain elements of a crime can or must be proved to
after the semicolon describes a procedural rule.
a judge, not to a jury.").
7