In United States v. Shunk, the Fifth Circuit Court of Appeals considered whether the rule in Gaudin should be applied retroactively to cases on collateral review. Shunk, 113 F.3d 31, 37 (5th Cir. 1997). Like Petitioner, the Shunks maintained that Teague was inapplicable because Gaudin created a rule of substantive criminal law, not of criminal procedure.

Apprendi is therefore not a "watershed" rule and does not fall within Teague's second exception. The Fifth Circuit arrived at a similar conclusion in United States v. Shunk, 113 F.3d 31 (5th Cir. 1997). In Shunk, the Fifth Circuit applied the rule set out in United States v. Gaudin, 515 U.S. 506 (1995), to the Teague analysis.

The Court need not consider whether Apprendi would be applicable to Movant's case because Apprendi is not applicable on collateral review. The Fifth Circuit Court of Appeals considered a strikingly similar situation in its decision in United States v. Shunk, 113 F.3d 31 (5th Cir. 1997). The question in Shunk was whether the United States Supreme Court's decision in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) was barred from application on collateral review by the Teague doctrine.

Finally, our precedents support the view that Castillo announced a procedural rule. In United States v. Shunk, 113 F.3d 31 (5th Cir. 1997), we concluded that United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), announced a procedural rule. In Gaudin, id. at 511, 115 S.Ct. 2310, the Court had held that the materiality element of 18 U.S.C. § 1001 had to be found by the jury, not the court.

The Fifth Circuit has not yet considered whether an Apprendi claim is barred by Teague. However, the court confronted a similar situation in United States v. Shunk, 113 F.3d 31 (5th Cir. 1997). At issue in Shunk was whether the Supreme Court's decision in United States v. Gaudin, 515U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), created a rule of substantive criminal law rather than a rule of criminal procedure.

An error not susceptible to harmless error review is nevertheless susceptible to plain error review if the defendant did not object at trial.” United States v. Phipps, 319 F.3d 177, 189 n. 14 (5th Cir.2003) (citing United States v. Shunk, 113 F.3d 31, 36 (5th Cir.1997)). Indeed, just because a structural error “requires reversal when preserved does not mean that it likewise requires reversal when not preserved.” Shunk, 113 F.3d at 36 (citing United States v. Jobe, 101 F.3d 1046, 1061–62 (5th Cir.1996)). Even assuming there was error, since we conclude that Flores–Martinez cannot show the error was “clear or obvious,” we need not address whether a structural error alleviates a defendant's burden under plain error to show prejudice.

Whether Teague's non-retroactivity rule precludes Burdine from benefitting from the presumption of prejudice he asserts is a question of law, we therefore engage in this three-part analysis de novo. See United States v. Shunk, 113 F.3d 31, 34 (5th Cir. 1997).

Permitting a judge-found fact to affect the sentence imposed after a valid conviction, even if it is found under a more lenient standard, cannot be said to have resulted in a fundamentally unfair criminal proceeding. As the Fifth Circuit has noted, "one can easily envision a system of `ordered liberty' in which certain elements of a crime can or must be proved to a judge, not to the jury," United States v. Shunk, 113 F.3d 31, 37 (5th Cir. 1997), and it is not as though defendants have been foreclosed prior to Apprendi from challenging facts that were previously thought to be sentencing considerations. For instance, in Moss's case, a sentencing hearing was held at which Moss had the opportunity to both challenge the government's drug-quantity evidence and present his own evidence relevant to the quantity determination.

Whether an Apprendi challenge raised in a § 2255 motion is barred pursuant to the second exception in Teague is an open question in the Fifth Circuit. However, the Fifth Circuit Court of Appeals considered a strikingly similar situation in its decision in United States v. Shunk, 113 F.3d 31 (5th Cir. 1997). The question in Shunk was whether the United States Supreme Court's decision in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) was barred from application on collateral review by the Teague doctrine.

515 U.S. 506 (1995). In the Amended Findings, this Court noted that the decision of whether Apprendi is Teague-barred is similar to the question the Fifth Circuit Court of Appeals considered in United States v. Shunk, 113 F.3d 31 (5th Cir. 1997). The question in Shunk was whether the United States Supreme Court's decision in Gaudin was barred from application on collateral review by the Teague doctrine.