JEFFREY P. CURTIS and MARTIN A. SAX v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-2826 & 01-2827
J EFFREY P. C URTIS and M ARTIN A. S AX ,
Petitioners-Appellants,
v.
U NITED S TATES OF A MERICA ,
Respondent-Appellee.
____________
Appeals from the United States District Court
for the Central District of Illinois.
Nos. 01-4051 & 01-4053—Joe Billy McDade, Chief Judge.
____________
A RGUED M AY 16, 2002—D ECIDED J UNE 19, 2002
____________
Before E ASTERBROOK , R OVNER , and D IANE P. W OOD ,
Circuit Judges.
E ASTERBROOK , Circuit Judge. Convicted of conspiring to
distribute marijuana, Jeffrey Curtis and Martin Sax were
sentenced to 262 months’ imprisonment apiece. See United
States v. Curtis, 37 F.3d 301 (7th Cir. 1994); United States
v. Sax, 39 F.3d 1380 (7th Cir. 1994) (remanding for resen-
tencing; the 262-month term was imposed on remand). Af-
ter the Supreme Court issued Apprendi v. New Jersey, 530
U.S. 466 (2000), Curtis and Sax filed collateral attacks
under 28 U.S.C. §2255, contending that their sentences
are unconstitutional because the petit jury did not find
beyond a reasonable doubt that they conspired to distribute

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2 Nos. 01-2826 & 01-2827
the minimum quantity (100 kilograms) that would support
a sentence exceeding 240 months’ imprisonment. See 21
U.S.C. §841(b)(1)(B)(vii). When imposing sentence the dis-
trict judge found that the conspirators distributed more
than 1,000 kilograms of marijuana, an order of magnitude
larger than the statutory threshold, but Apprendi estab-
lishes that this decision was made by the wrong body (the
court) and under the wrong burden of persuasion (a prepon-
derance of the evidence).
Relying on the one-year statute of limitations added to
§2255 ¶6 in 1996, the district court dismissed the petitions
as untimely. The court recognized that a fresh year is avail-
able to take advantage of a “right . . . initially recognized
by the Supreme Court, if that right has been newly recog-
nized by the Supreme Court and made retroactively ap-
plicable to cases on collateral review” (§2255 ¶6(3)) but
concluded that this applies only if the Supreme Court it-
self has declared its new decision to be retroactive—and
that Court has not deemed Apprendi retroactive. Shortly
after the district court dismissed these petitions, we held
in Ashley v. United States, 266 F.3d 671 (7th Cir. 2001),
that for initial collateral attacks (such as these) a court of
appeals or district court may make the retroactivity deci-
sion. A motions panel then issued certificates of appeal-
ability and directed the parties to brief the question wheth-
er Apprendi should be applied retroactively. If yes, then
the petitions are timely; if no, then they are untimely.
To date, five courts of appeals have held that Apprendi
is not retroactive on collateral review. See In re Turner,
267 F.3d 225 (3d Cir. 2001); United States v. Sanders, 247
F.3d 139 (4th Cir. 2001); United States v. Moss, 252 F.3d
993 (8th Cir. 2001); Jones v. Smith, 231 F.3d 1227 (9th Cir.
2001); McCoy v. United States, 266 F.3d 1245 (11th Cir.
2001). No court of appeals has held otherwise. We agree
with these holdings and preserve the appellate unanimity.

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Nos. 01-2826 & 01-2827 3
Curtis and Sax offer two principal arguments why, in
their view, Apprendi should be applied retroactively on
collateral attack under the principles of Teague v. Lane,
489 U.S. 288 (1989). (There was no majority opinion in
Teague, but the Court has treated Justice O’Connor’s plu-
rality opinion as the holding. See, e.g., Tyler v. Cain, 533
U.S. 656 (2001).) One is that Apprendi made a substan-
tive change in the law and hence automatically applies
even to closed cases. See Bousley v. United States, 523 U.S.
614, 619-21 (1998); Davis v. United States, 417 U.S. 333
(1974). The other is that Apprendi is a “watershed” rule
that “requires the observance of ‘those procedures that . . .
are “implicit in the concept of ordered liberty” ’ ” (Teague,
489 U.S. at 307, quoting from Mackey v. United States, 401
U.S. 667, 693 (1971) (Harlan, J., concurring), quoting from
Palko v. Connecticut, 302 U.S. 319, 325 (1937)). See also
Sawyer v. Smith, 497 U.S. 227, 242 (1990).
Bousley and Davis hold that a person convicted of an
act that the law does not make criminal may obtain collat-
eral relief. Bousley adds that Teague’s retroactivity stan-
dard applies only to changes in procedural rules. Curtis and
Sax contend that Apprendi is substantive rather than pro-
cedural. Yet Apprendi is about nothing but procedure—who
decides a given question (judge versus jury) and under
what standard (preponderance versus reasonable doubt).
Apprendi does not alter which facts have what legal sig-
nificance, let alone suggest that conspiring to distribute
marijuana is no longer a federal crime unless the jury
finds that some particular quantity has been sold. Cf.
United States v. Oakland Cannabis Buyers’ Cooperative, 532
U.S. 483 (2001). Although some courts of appeals held in
the wake of Apprendi that a district court lacks jurisdic-
tion unless the indictment charges the quantity of drugs
that authorizes an enhanced penalty—and this view was
the mainstay of the dissenting opinions in Moss and McCoy
calling for Apprendi’s retroactive application—the Supreme

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4 Nos. 01-2826 & 01-2827
Court rejected that position in United States v. Cotton, 122
S. Ct. 1781 (2002). Just as we had held in United States v.
Bjorkman, 270 F.3d 482, 489-92 (7th Cir. 2001), the Su-
preme Court concluded that the conviction remains valid
although the indictment omits, and the jury does not find,
facts that raise the maximum penalty. Cotton also con-
cluded that the sentence can be valid, despite this error,
even when the issue is raised on direct appeal. Because
Apprendi is concerned with the identity of the decision-
maker, and the quantum of evidence required for a sen-
tence, rather than with what primary conduct is unlawful,
it identifies a new rule of criminal procedure that falls
within the set of legal changes to which the Teague stan-
dard applies.
Thus we must ask whether the rights identified in
Apprendi are so fundamental that any system of ordered
liberty is obliged to include them. The Supreme Court con-
sidered a related argument in Cotton, where the defendant
insisted that failing to name the drug quantity in the
indictment and obtain a resolution (beyond a reasonable
doubt) by the jury is so vital that it should be deemed a
“structural error” that always leads to reversal on direct
appeal. The Court’s answer was that even if the error is
“structural” and even if the point is raised on direct appeal,
the error may not necessarily justify reversal under the
plain-error standard that applies to litigants who did not
present their argument to the district court. Whether it
does (assuming that (1) there is error, (2) that is “plain,”
and (3) affects substantial rights) will depend on the evi-
dence in the particular case. That is to say, Cotton held that
a decision about drug quantity made by a judge (on the
preponderance standard) rather than a jury (on the rea-
sonable-doubt standard) is not the sort of error that neces-
sarily undermines the fairness, integrity, or public reputa-
tion of judicial proceedings. To the contrary, the Court
continued,

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Nos. 01-2826 & 01-2827 5
the fairness and integrity of the criminal justice
system depends on meting out to those inflicting
the greatest harm on society the most severe pun-
ishments. The real threat then to the “fairness,
integrity, and public reputation of judicial proceed-
ings” would be if [criminal defendants], despite the
overwhelming and uncontroverted evidence that
they were involved in a vast drug conspiracy, were
to receive a sentence prescribed for those commit-
ting less substantial drug offenses because of an
error that was never objected to at trial.
122 S. Ct. at 1787. This observation is no less applicable
to collateral attacks. So no bedrock rule of procedure has
been broken. Findings by federal district judges are ade-
quate to make reliable decisions about punishment. See
Edwards v. United States, 523 U.S. 511 (1998). Apprendi
therefore does not disturb sentences that became final
before June 26, 2000, the date of its release.
A FFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—6-19-02

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