Salvador A. Hernandez v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3048
Salvador A. Hernandez,
Petitioner,
v.
United States of America,
Respondent.
On Motion for an Order Authorizing the District Court
To Entertain a Second or Successive
Motion for Collateral Review.
Submitted August 18, 2000--Decided September 1, 2000/*
Before Ripple, Diane P. Wood, and Evans, Circuit
Judges.
Diane P. Wood, Circuit Judge. As he is required
to do under 28 U.S.C. sec. 2244(b)(3), Salvador
Hernandez has applied for an order from this
court authorizing the district court to consider
a second or successive motion for collateral
review under 28 U.S.C. sec. 2255. In his proposed
motion, he wishes to argue that the Supreme
Court’s recent decision in Apprendi v. New
Jersey, 120 S. Ct. 2348 (2000), announces a new
rule of constitutional law that should apply to
his case, implicitly invoking 28 U.S.C. sec. 2255
para. 8(2). See also Castillo v. United States,
120 S. Ct. 2090 (2000). There are two problems
with this position: first, the Supreme Court has
not yet had an occasion to consider whether
Apprendi should be applied retroactively to cases
on collateral attack (another requirement of sec.
2255 para. 8(2)), and second, there is no
Apprendi problem in any event in Hernandez’s
particular case. We explain both of these points
briefly, and deny Hernandez’s application.
The offense and conviction that lie behind
Hernandez’s present application were for
conspiracy to kidnap, 18 U.S.C. sec. 1201(c), and
kidnapping, 18 U.S.C. sec. 1201. Under the U.S.
Sentencing Guidelines, the base offense level for
kidnapping is 24, and that level can be increased

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depending on a number of specific offense
characteristics. See U.S.S.G. sec. 2A4.1.
Depending on the criminal history category that
applies to the individual defendant, a level 24
carries with it a sentencing range from 51 to 63
months (criminal history category I) to 100 to
125 months (criminal history category VI).
Obviously, those ranges increase as the offense
level goes up under sec. 2A4.1(b). During the
sentencing proceedings, the district court made
upward adjustments to Hernandez’s offense level
under sec. 2A4.1(b)(1) (ransom demand or demand
upon government, for six levels), sec.
2A4.1(b)(3) (use of a dangerous weapon, for two
levels), and sec. 2A4.1(b)(4)(B) (victim not
released before seven days had elapsed, for one
level). With these adjustments and his criminal
history, his final sentence was for 200 months.
This court affirmed both his convictions and his
sentence on direct appeal. See United States v.
Hernandez, 106 F.3d 737 (7th Cir. 1997).
Hernandez is now trying to file a second or
successive motion under 28 U.S.C. sec. 2255. We
must first decide whether presentation of a claim
under a new Supreme Court decision at a time
before the Court has announced whether it is
retroactively applicable to cases on collateral
attack amounts to an "adjudication" of that claim
or not. If the answer is yes, then our
disposition of Hernandez’s application will have
an effect on any future applications he may file;
if it is no, and if his claim cannot be disposed
of otherwise, then he would be entitled to
another bite at the apple.
Any claim that was presented in an earlier
motion or application must be dismissed, under
28 U.S.C. sec. 2244(b)(1) (for sec. 2254 cases)
and 28 U.S.C. sec. 2255 para. 8. What happens,
however, if the earlier claim rests on a new rule
of constitutional law for which the Supreme Court
has not yet announced a decision about
retroactivity? It is clear from the language of
sec. 2255 para. 8(2) that the earlier application
would have had to be denied, for the simple
reason that it did not satisfy the statutory
requirement of relying on "a new rule of
constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was
previously unavailable." (Emphasis added.) See
Bennett v. United States, 119 F.3d 470 (7th Cir.
1997). But the real question is whether such a
denial should be regarded as analogous to a non-
merits dismissal like a failure to exhaust state
remedies. In Gray-Bey v. United States, 209 F.3d
986 (7th Cir. 2000), we indicated that a new rule
that is retroactive for purposes of collateral
attack is not "available" for a sec. 2255 motion
until the Supreme Court has clearly ruled that

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this is the case. Id. at 988 ("[b]ut for purposes
of sec. 2255 para. 8(2) a rule is ’unavailable’
until the Supreme Court renders its decision, for
it is the high court’s decision that must be held
retroactive (as Bailey [v. United States, 516
U.S. 137 (1995)] was held retroactive by Bousley
[v. United States, 523 U.S. 614 (1998)]"). Under
that logic, it follows that potentially
meritorious claims that rely on new rules of
constitutional law are not ripe for presentation
until the Supreme Court has ruled on the
retroactivity question. Just as we do with
applications relying on unexhausted claims, we
would dismiss such an application without
prejudice to re-filing at such time as the Court
renders a decision in favor of retroactivity.
Dismissal without prejudice is not required,
however, if there are alternate grounds for
resolving the claim once and for all at the time
it is presented. That is the case with Hernandez,
since we are able to ascertain from the face of
his application that Apprendi cannot possibly be
of any help to him. Hernandez reasons that the
additional facts that supported the upward
adjustments under the Sentencing Guidelines, such
as his demand for a ransom, were facts that
should have been charged in the indictment,
submitted to the jury, and proven beyond a
reasonable doubt, under the rule announced in
Apprendi. In so arguing, however, he overlooks
the distinction between the prescribed statutory
maximum and the various levels of punishment
authorized by the Sentencing Guidelines. See
United States v. Cepero, 2000 WL 1161010 at *13
n.5 (3d Cir. Aug. 17, 2000). The kidnapping
statute clearly authorizes a sentence for "any
term of years or for life" for both the
substantive offense created in 18 U.S.C. sec.
1201(a) and the conspiracy offense of 18 U.S.C.
sec. 1201(c). Thus, the prescribed statutory
maximum, which is what concerned the Apprendi
Court, is life imprisonment (and in some narrow
circumstances not relevant to Hernandez, death).
The Sentencing Commission, as it is charged to
do, issued guidelines prescribing various
sentencing levels within those statutory limits.
The fact that different levels under the
statutory maximum depend on proof of various
aggravating facts is not enough to make those
facts "elements of the offense" rather than
"sentencing factors." Indeed, we rejected a
similar argument in United States v. Smith, Nos.
98-1501 et al., 2000 WL 1160801 (7th Cir. Aug.
17, 2000). In Smith, some of the defendants
argued that 21 U.S.C. sec. 848(b), which makes a
life sentence mandatory for certain leaders of a
continuing criminal enterprise, created a new
offense or merely affected the sentencing range

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for all those convicted of violating that
statute. We held that because the range for all
violations of sec. 848 included life in prison,
sec. 848(b) did not increase the prescribed
statutory maximum and the facts required to
invoke it were thus sentencing factors, not
elements of the offense. Id. at *7. The same is
true here, with even greater force, since the
only issue concerns different levels well within
a single prescribed statutory maximum.
Because the rule of Apprendi can therefore be
of no use to Hernandez, there is nothing in his
application that would justify granting
permission to file a second or successive motion,
and it is hereby Denied.
/* This opinion was originally released in
typescript.

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