Chester McCoy v. United States

ac- in the treatment extremely lax been the insurance paying a check as pies—such is not This attitude this element. date the corded including period the for premium examples circuit; find we this unique of insurance certificate crime, aor the of Platenburg, nation.” the bank the occurring across a cashier that testimony of that reiterate Today that certificate— at 799. we operating was directly sup- is insurance evidence Proof of federal the is sentiment. which coverage for of insurance of the offenses inference element merely the an ported offense. the convicted; of date it is essential particular Ali on was which this case that Although such evidence jurisdiction. is no There federal establish inference. an supports such this directly proof for of quantum the threshold satisfied, it is con- easily may be element v. Washb Moreover, States in United here the Because stitutionally required. Cir.1985), (9th we urn, F.2d evi- insufficient presented government reasoning of adopted explicitly rational for a of law dence as matter v. Platen States in United Fifth Circuit element to find essential Cir.1981), of fact trier where burg, doubt, re- we must reasonable an earlier deci “approved [of that court the bank-related of ac convictions level Ali’s minimum verse setting the as sion] §§ 1014 Washburn, U.S.C. F.2d at of 18 in violation offenses proof.” ceptable present evidence and 1344.4 described 1340. We as follows: decision earlier

ed reasons, Ali’s convic- foregoing For showing the bank certificate an FDIC count and bank fraud both the tions on rob- before years five insured was REVERSED. count are false statement testimony of bank coupled with bery, year a fifteen seen had they officials the bank’s certificate original

old maintained was vault, certificate business, and of regular course in the were certificate of the copies of time bank at the posted robbery. Petitioner-Appellant, McCOY, of Chester short falls this case The evidence Id. proof’ acceptable of level that “minimum federal- that CNB establish needed to America, STATES UNITED applica- loan of the at the time ly-insured Respondent-Appellee. directly to nothing there tion because on insurance of such inference support the 00-16434. No. alleged offense. the date Appeals, States Fifth Circuit ago, years Twenty Circuit. Eleventh on notice government put the forcefully fact that FDIC-insured “[d]espite the Sept. requirement express an status part of statutes, an essential applicable item indictment, indispensable

valid offense, have prosecutors proof challenge his we reach Nor do counts. these Ali’sother not address Accordingly, we need to CNB. awarded restitution conviction they relate his arguments

I. BACKGROUND McCoy with con- An indictment to distribute intent possess with spiracy controlled sub- II narcotic “a Schedule is, stance, mixture and substance of cocaine a detectable amount containing base, commonly of cocaine form cocaine,” of in violation as crack known to this pled guilty McCoy § 846. U.S.C. contained plea agreement The charge. statutory mini- regarding provision imprisonment terms of maximum mum and based on were charge, which for the 841(b)(1)(A) ap- § 21of U.S.C. provisions involving base offenses to cocaine plicable Williams, Public Federal M. Kathleen as follows: grams, more than 50 Miami, Medeiros, Defender, M. Sharon agrees and understands defendant Lauderdale, Bryn, Fort FL, G. Brenda impose a minimum must court Petitioner-Appellant. FL, for and years of ten imprisonment term of Bowen, Schultz, Harriet Dawn R. Anne term statutory maximum may impose Miami, FL, for Atty., Galvin, Asst. U.S. by a term followed imprisonment, life Respondent-Appellee. supervised release. ten McCoy to sentenced court The district not fíle McCoy did imprisonment. years’ sentence, be- which of his appeal direct 20,1999. January final on came HULL, Circuit BARKETT Before a mo McCoy filed October LIMBAUGH*, Judge. On District Judges, to 28 U.S.C. pursuant vacate tion to filed, arguing HULL, Judge: has only one he Circuit § Ap illegal under was his sentence errors, Chester Asserting 466, 120 Jersey, 530 v. New prendi court's order district McCoy appeals (2000). Spe 147 L.Ed.2d vacate, filed motion his initial dismissing the indict McCoy contended cifically, re- § After to 28 pursuant U.S.C. specific allege a not ment, it did because so, hold that doing we view, affirm. we Fifth Amend drug quantity, violated in his initial claims McCoy’s Apprendi clause, depriving thus indictment ment not § motion are him ato to sentence jurisdiction court non-retroactivity Teague’s are barred mandatory minimum that be- hold Additionally, we standard. 841(b)(1)(A). U.S.C. his not raise McCoy did cause seeking a without October On procedurally he is appeal, on direct claims magis- government, from the response in his initial them raising from barred McCoy’s motion judge whom trate motion. * souri, designation. sitting by Dis- Limbaugh, U.S. Stephen N. Honorable District Mis- Eastern Judge for the trict

referred recommended that district U.S. (1982).2 deny

court McCoy’s petition on the ground that Eleventh “[t]he Circuit Court II. DISCUSSION

of Appeals has held that Apprendi has not been made retroactive to cases on collater- A. Nature Claim review,” al citing Joshua, In re matter, As a threshold McCoy (11th Cir.2000). McCoy objected to characterizes his claim that the indictment the magistrate recommendation, judge’s did allege drug quantity required by as arguing re applied that In Joshua only to Apprendi “jurisdictional.” He argues cases involving successive 2255 motions that his Apprendi claim can thus be raised and that retroactivity of Apprendi to § in his motion 2255 notwithstanding the § his initial 2255 governed motion is solely Teague and procedural-bar doctrines. We by Lane, Teague v. 489 109 U.S. S.Ct. have held jurisdictional that a defect may (1989). On Novem- not be procedurally defaulted and that ber the district court summarily therefore a defendant need not show cause adopted magistrate judge’s recommen- prejudice justify to his failure to raise dation McCoy’s § and denied 2255 motion. such a defect. See Harris v. United States, (11th 149 Cir.1998) F.3d 1309 appeal, government On con (stating that a defendant “need not show cedes that the district court was incorrect prejudice cause and to collaterally attack in In re applying to McCoy’s Joshua jurisdic enhanced sentence because § However, 2255 motion.1 govern tional claims cannot be procedurally de (1) ment contends McCoy’s Apprendi faulted”). have never We held that claim by is Teague's barred non-retroactiv Teague doctrine does not apply jurisdic to ity standard, McCoy cannot claims, tional but even assuming arguendo establish prejudice cause and for his fail present purposes that a claim of a ure to assert his appeal, claims on direct jurisdictional defect Teague avoids the doc pursuant to United Frady, States v. 456 trine as well procedural-bar as the doc- government, 1. The is correct its specification in concession. issue light pleadings in of the In re Joshua involved a successive parts and other Murray the record.” v. subject motion and was thus to the AEDPA's (11th Cir. requirement prohibiting filings successive un- 1998). application Teague v. Lane and they less involve "a new rule of constitutional of the prejudice cause and pro standard are law, made retroactive to cases collateral cedural issues which must be resolved before Court, by review previ- that was this Court can reach the McCoy’s merits ously unavailable.” U.S.C. underlying Apprendi claim. Because these ar 2244(b)(2)(A). McCoy bringing Because guments by have not been addressed the dis motion, his first 2255 Joshua re does not court, trict we read the encompass COA to apply. See, Smith, these e.g., issues. Jones v. (9th Cir.2000) ("Absent F.3d McCoy that the ap- contends certificate of ("COA”) explicit court, pealability case, by statement issued district in this which specifically cases grants included where a the In re district court Joshua a COA issue and the McCoy's respect substantive merits to the merits of a constitutional Apprendi argument, enough is not broad to claim but COA respect is silent with to allow government’s Court to consider the procedural claims that must be resolved if the arguments McCoy's § 2255 motion is merits, panel is to reach the we will assume by barred either by v. Lane or that the encompasses any COAalso procedur cause prejudice standard. al claims must be appeal.”). addressed on Although our review is limited to the issues specified COA, "we will construe the error; despite jurisdictional trine, firm errors McCoy’s claim of plain- are not or harmless-error jurisdictional. analysis. But our have decisions consis jurisdictional A defect is one applied plain- or re tently harmless-error act and “strip[s] power court of its view, depending timing objec on the Escareno judgment its void.” ma[kes] tion, Apprendi-based arguments Co., F.3d GmbH & Carl Nolte Sohne specific drug indictment failed include Cir.1996). (11th parties Because Indeed, quantity.4 applying this Court agreement con acquiescence or cannot has plain-error review affirmed convictions court, juris jurisdiction on a federal fer 841(a) §a and sentences for offense where proee dictional defect cannot be waived or specify drug quan the indictment failed instead, a durally judgment defaulted — tity though even the defendant received a defect must be a tainted statutory than greater sentence maxi Harris, 149 F.3d at 1308- reversed. See 841(b)(1)(C) provided mum without 09; Griffin, see also United States See, e.g., regard quantity. 82 L.Ed. Pease, States (1938). Cir.2001) (finding plain error in the defen right constitutional to be The thirty-year dant’s sentence based on personal right charged by grand jury allege specific failed indictment that to the go the and does not of defendant effect the drug quantity, finding but no on jurisdiction subject matter district court’s rights); defendant’s substantial United Fed. may it be waived. See because Swatzie, 1278, v. 1282-84 States F.3d 7(b).3 Thus, the R.Crim.P. constitutional (11th Cir.2000) (stating “we assume ar- charged by grand jury indict right be error, and it guendo that there was fit the mold of a simply ment does not plain,” the defendant’s life sen was where defect, right because is a was on an indictment tence based may be waived. plainly quantity, finding but allege drug failed to the defendant’s substantial no effect on con implicit conclusion finds This rights).5 dealing a host cases firmation in of Ap majority errors. If of circuits to consider the analogous issue, moreover, applied plain-error have analogous jurisdic errors prendi and were tional, claims that an Apprendi-based not of af- Court could course review Cir.2000) (11th 7(b) (stating that defendant aban provides Rule follows: argument was his that the indictment doned An which Waiver Indictment. offense of drug quan required the to include element imprisonment may punished by for a be raising his tity by at trial or in not issue exceeding year or at labor term one hard noting appeal, initial brief on but nonetheless prosecuted by if the information likely only needs to refer "that indictment defendant, having been of the after advised statute”). ence charge rights and of the nature of defendant, prosecu- open waives court application plain error review in the 5.Our tion indictment. our context is consistent with indictment 7(b). Fed.R.Crim.P. cases, centering on practice other See, Pease, alleged failure to submit element e.g., v. 240 F.3d United States 938, (11th Cir.2001); applied jury, we have harmless- States v. which also 943-44 United Gerrow, 831, Cir.2000); (11th analysis timing plain-error on based 232 F.3d Gallego, objection. v. Shepard, See States 235 F.3d United United States v. (11th Cir.2001) Swatzie, Cir.2000); (11th 247 F.3d 1198-2001 United States v. sentences); (11th Cir.2000); (affirming v. United States see also life 1282-84 Cir.2001) Wims, (11th Nealy, 232 F.3d 830 n. 245 F.3d United States specify quantity, it did not affect seriously integrity

indictment fails was judicial even when the defendant sentenced proceedings). See also provided by than that greater sentence Mojica-Baez, 229 F.3d 841(b)(1)(C) §in statutory maximum (1st Cir.2000) 292, 307 (finding sen 841(a) for a States offense. tencing a defendant to more than ten (1st Cir.2001) v. Terry, 240 F.3d years for an aggravated firearm offense error in (finding plain no the defendant’s 924(c) under 18 U.S.C. where the indict 324-month based on indictment type failed to allege ment of firearm which allege drug quantity), did not cert. error, plain was finding prejudice), used but no — denied, U.S. -, 121 S.Ct. — denied, U.S. -, rt. ce (2001); United States Pat (2001).6 2215, 150 L.Ed.2d 209 The Tenth (7th Cir.2001) terson, 241 F.3d recently en Circuit held banc that “the silent (noting that “the indictment was of an to allege failure indictment an essen sold, quantity drugs conspirators deprive tial element of crime does not why but we cannot see that matters to subject jurisdic court of district matter plain-error affirming analysis” sen tion; rather, such a failure is twenty years); tences exceeding harmless error review.” United States (7th Nance, States v. Prentiss, Cir. Cir.2000) (finding the defendant’s 262- 2001).7 month sentence based on an indictment conclusion Our consistent specify drug quantity did not circuits, plain which affected with the decisions of those other rights, finding but with Supreme precedent. defendant’s substantial but also sentence); (affirming analysis United States v. Can used life in ... such delario, 1300, (11th Cir.2001) alleged 240 F.3d 1311 be must in the indictment? sentence), (2) (affirming cert. Assuming 360-month de to an indictment's failure - nied, 2535, -, error, allege drug U.S. 121 S.Ct. quantity 150 is under what Pease, (2001); L.Ed.2d v. 705 United States subject circumstances that error is to harm- 938, (11th Cir.2001) (affirming 240 plain F.3d 943 error less review? sentence); Smith, 30-year United analysis States v. Should this Court’s in the in- 927, (11th Cir.2001) (affirming 240 F.3d governed 930 stant case be or influenced sentence); Swatzie, Tran, 30-year (2d v. 234 United States F.3d 798 Cir.2000) (11th (af Cir.2000), and, so, 228 reasoning F.3d 1282-83 if is Trait's sentence). firming life sound? 78. Id. at Tran, (2d v. 798 United States 234 F.3d Jackson, In United States v. 240 Cir.2000), F.3d Second Circuit held that the (10th Cir.2001), the Tenth Circuit government’s failure to include the element of allege that the failure held of an indictment to type of firearm used or in a 18 carried drug quantity the element of cannot be re- 924(c) U.S.C. violation was plain viewed error harmless but must subject error plain-error and not to re- thus However, be reversed and However, remanded. in ques- view. the Second Circuit Prentiss, the Tenth stated Circuit in its en tioned the of Tran voted to soundness when it opinion: Thomas, banc rehear en banc United States v. 204 (2d Cir.2000). F.3d 381 Thomas, States v. See United Contrary prior precedents, to our we hold Cir.2001) (en (2d 248 F.3d allege tire failure of an indictment to an banc). requested par- Second Circuit element crime essential of a does de- not following ties to brief the issues: prive subject juris- district court of matter diction; (1)Does rather, drug quantity under 21 U.S.C. subject such failure is when it increases a defendant's sen- harmless error review. To the extent that maximum, statutory prior tence consti- above a this Court's decisions ... hold other- wise, tute an of the under the we overrule element offense them. jury an grand element to secure In Neder v. United But not think Su- indictment. we do 144 L.Ed.2d distinction where the in- significant that “the omission of an preme held (cid:127) provided dictment the defendant instruction] an error with jury [in element against fair notice analysis.” charges of the him. that is to harmless-error An indictment’s Id. at 1827.8 (citations omitted); Prentiss, Id. see also of the including error element in not at (quoting approval 256 F.3d “analogous to instructional offense is Mojicar-Baez). As the Circuit Seventh has considered in Neder.” error the Court out, review, pointed plain error ‘once “[o]n Nance, States the court concludes that the evidence was (7th Cir.2000). Like the Seventh strong petit jury so was bound Circuits, “compelled First we are particular drug that a and quantity find[ ] decision Neder to sub- Court’s involved, was can confident we retro ject error this case the indictment (which spect jury acts grand un Mojicar-Baez, plain error review.” persuasion) der a lower burden of would ” in Mojicar-Baez the court F.3d at 311. As have reached the same conclusion.’ explained: Martinez, States (7th Cir.2001) (quoting United explicitly

It is ... that Neder was States true Patterson, an v. the failure submit Cir. concerned with 2001) petit despite jury affirming of an offense to life element sentence. that indictment did present trial the failure to defendant’s claim and not with Prentiss, (emphasis supplied). this Court determine whether the district 256 F.3d at 981 jury on court’s failure to instruct the material by jury was convicted of 73 8. Ellis E. Neder ity as an element of these counts harm remand, indictment. United counts of a 90-count less error. On this Court deter Id. Neder, (M.D.Fla. States 91-175-Cr-J-16 No. omission mined that the district court's 1991). multiple Among counts those fraud, were "materiality” its element of instruc fraud, charges wire and bank of mail tions on fraud offenses was these harmless fraud, §§ in violation of 18 U.S.C. affirmed Neder’s convictions for 1344, respectively. appealed, Neder ar and Neder, States v. these offenses. United 197 guing “materiality” was an of element 1999). (11th F.3d Cir. fraud, fraud, wire and the offenses of mail Although of this fact there is no mention fraud, bank that the district court had and opinions Supreme this Court’s or in the Court submitting "materiality” to the erred in not opinion, allegation in the was no indict- there Neder, jury. States See United "materiality” with ment of in connection Instead, Cir.1998). (11th the district fraud, fraud, bank wire and fraud mail findings regarding court its own had entered Indictment, 51-55, pp. counts. See Neder presence jury. materiality of the outside 57-66, 79-84; 73-75, see also States Id. at 1461. This Court determined that “ma Neder, (noting only that at 1461 F.3d teriality” an element of fraud was not these materiality contained as an indictment ”[t]he the district had not offenses and that court many of offenses contained in element of” the This based its erred. Id. at 1463. Court However, indictment). although this primarily fact that determination Supreme and Court Court discussed anywhere word was not contained "material” this implications the absence of element of language of statutory 18 U.S.C. instructions, analyzing its omis- jury from the 1341, 1343, §§ or 1344. error, court neither dis- sion for harmless significance the absence of review, however, legal cussed the Supreme Upon element indictment. Nonethe- from the "materiality” was an held that element less, States, implication .glean an this we from these Neder fraud counts. element from indictment the absence of an L.Ed.2d (1999). analyzed harmless error. Supreme Court would also be The remanded

allege specific drug quantity charging should ment that a defendant violated a dismissed). agree We consti- law of the gives United States the district arising tutional from the jurisdiction omission of court over the case and em powers § in a drug quantity 841 indictment in the it to rule on sufficiency of the See Alikhani v. United indictment. analogous jury- context is States, instruction error the Court re- Cir. 2000).11 Apprendi-based viewed in Neder and that An challenge both errors § § 846 or should be treated under the same indictment for failure standard specific allege drug quantity of review.9 is not of a jurisdictional but, most, dimension one disagree concurring opin- We with the specificity sufficient of the indictment.12 position error in an ion’s . is a indictment defect.10 concurring opinion The adopts an essen- Apprendi, Both before and after tially categorical indict- approach that treats all vein, statute; same authority this other cases from this on lower courts in our case, Ap- circuit which have discussed review of Congress provided has the district instruction, prendi errors in the jurisdiction rather courts with of the —"exclusive indictment, than the context are also instruc courts the States” —of "all offenses tive to our discussion in case. See United against the laws of the United States.” 18 Smith, (11th Cir.2001); States v. 240 F.3d 927 U.S.C. 3231. The United States filed an Candelario, United States v. 240 F.3d 1300 charging indictment violating Alikhani with (11th Cir.2001); Nealy, States,” "laws of the United 3231 on (11th Cir.2000). F.3d 825 These cases deter empowered its face the district court mined that error is a judgment constitutional upon enter the merits of the in- error, subject plain- or harmless-error re dictment. ... view, (11th Cir.2000). Likewise, and does not create a structural error. 200 F.3d at 734 cases, In these we found harmless error or no Judge aptly Easterbrook summarized: "Sub- rights effect on the defendants’ substantial ject jurisdiction every matter federal crimi- sentences, and affirmed the defendants’ even prosecution nal comes from 18 U.S.C. though they applicable statutory exceeded the § 3231.... beginning That’s the and the end 841(b)(1)(C). penalty maximum Smith, under ‘jurisdictional’ inquiry.” Hugi v. Unit- (affirming 240 F.3d at 930 & n. 5 (7th Cir.1999). 30- ed Candelario, sentence); year 240 F.3d at 1308 sentence); (affirming Nealy, 12.McCoy’s broadly life 232 F.3d at indictment charges sentence). (affirming McCoy 32-year conspiracy possess 829-30 & n. 4 with intent to distribute a detectable amount of cocaine concurring opinion jurisdic- limits its base in of 21 violation U.S.C. 846. Our argument tion to cases where the sentences precedent strongly suggests specifying 841(b)(1)(A) years §§ exceed 20 only way alleging number is not the 841(b)(1)(B) and where the error quantity in an indictment. See United States specific arises from an indictment absent a Nealy, (11th 232 F.3d 830 & n. 5 (as drug quantity opposed arising from a Cir.2000) (stating likely "that the indictment jury-instruction proof error or burden of is- only needs to reference the statute” but find Thus, sue). juncture our discussion at this ing that the defendant abandoned the indict aspect Apprendi focuses on the indictment of affirming 32-year ment issue and his sen error. tence) Fern, (citing United States 155 F.3d Fern, 1998)); Cir. States, explained 11. In Alikhani v. United we ("If at specifically an indictment refers that: based, charge to the statute on which the was "Subject-matter jurisdiction defines the statutory language the reference to the ade authority given type quately court’s to hear a charge.”) of the informs defendant of the Morton, case....” (citing Stefan, United States v. 822, 828, (11th Cir.1986)). U.S. 104 S.Ct. McCoy’s indict (1984). ment, Congress anything, specific bestows that if is not limited to a 215-17, the same L.Ed.2d problems way without indictment differences be- recognizing significant appeal the was a about the direct interstate of error and tween the nature required commerce for a element Hobbs prob- distinctly different indictment other Act involved a material violation. Stirone not lems. indictment errors are Because alleged difference between the facts in the same, disagree with this cate- all the we support indictment in of that element— opportunity and take this gorical approach transportation extortion of the sand analysis in explain why the the concur- Pennsylvania other from states into —and opinion ring fails here. the facts at trial —extortion in shown the First, type problem of indictment one transportation Pennsylvania of steel from some of the decisions that is involved in Michigan at Kentucky. into Id. 213- concurring opinion cited the is where type 80 S.Ct. 270.13 This indictment the is defective indictment because ripens jury verdict when comes example, at all. For see charged no crime in and at time of conviction. In Meacham, 626 F.2d 503 States (or situation, terms charging allega- (5th Cir.1980) (finding the indictment indictment) materially tions are “conspiracy attempt” a charging significant to such a broadened and altered fatally as there is such of- defective no entirely as to extent constitute new or fense). however, This, is not a case where as to theory different of the case and cause indictment results in the a defect concurring opinion what the deems in ef- no crime all. In- charging indictment at a amendment of in- fect constructive stead, §or indictment dictment. conspired possess charges a defendant contrast, errors —whether possessed or with intent distribute co- base, specification or a in- arising caine absent from the indictment even base, precise proce- amount of cocaine still in criminal struction —are errors charges complete federal offense. ripen until dure that do not occur or time of and affect at most the sentencing

Second, type another indictment permissible but do not invalidate problem upon by decisions relied certain materially or criminal conviction opinion involves mate- concurring such case so change theory as to proof rial between the at trial differences Indeed, underlying amend the indictment. in the alleged crime indictment allegations in 846 or indictments impermissibly trial broad- proof that a charge defendant generally ens the crime to one possessed in- conspired to indictment, possess thereby requiring reversal base are not tent to cocaine even example, distribute underlying conviction. For precise amount of that broadened when a v. United Stirone required be on broadly encompasses any that the defendant board quantity, but base, of cocaine from one detectable amount gram States or on board a vessel the United 10,000 beyond. grams McCoy’s jurisdiction of vessel does not also reference indictment However, proof at trial States. showed 841(b)(1)(C) and does not or con- narrow was a citizen that the defendant McCoy’s fine crime to a lesser court and the trial 841(b)(1)(C) concurring crime under jury the was that defen- essential element opinion argues. the United States on dant a "citizen of any board Id. at 977-78. vessel.” Peel, v. Similarly, in United States 837 F.2d 1988), (11th language statutory Cir. selection, proven at trial alleged self-representation cocaine base is or at denial of at sentencing. supports only trial, Proof that trial, public denial of and defective precise drug quantity McCoy’s falls within reasonable doubt instructions as structural and, conspiracy charge broader if errors). In light of this clear in trend anything, allegations narrows the in the Supreme precedent, Court we decline to indictment to that amount. There is no extend Stirone say its terms to significant variance material enough to jurisdictional. error is reversal, per warrant se much less to cre- Finally, by for the reasons set forth jurisdictional ate a error.14 in First Circuit v. Mojica- States Third, event, and in in nothing Sti- Baez, (1st 292, Cir.2000), 229 F.3d 309-11 says Stirone-type rone in errors in and the Tenth in Circuit United States v. dictments are or that the Prentiss, 971, 984 n. 11 procedural-bar doctrine in 2255 cases Cir.2001), we do not believe that Stirone does apply Stirone-type At errors. imply and cases like it a different result most, particular what Stirone held is the Apprendi-error cases. subject error there was not to harmless- analysis, Thus, error resulting Court’s, reversal of the following Supreme 215-19, conviction in that Id. at circuits’, case. precedent, other and our we con- importantly, S.Ct. 270. More Stirone was clude that a claim Apprendi error is not (a) Chapman decided before California, Therefore, jurisdictional. we next address 386 U.S. 87 S.Ct. 17 L.Ed.2d McCoy’s whether claim of Supreme which the Court is barred Teague. first stated that certain constitutional er (b) harmless,

rors could be deemed B. Teague v. Lane Bar Neder, before which the Although government did not further indicated that “most constitutional Teague-bar raise a defense in the district Neder, can errors be harmless.” 527 U.S. court, this Court has discretion to consider Fulminante, at (quoting S.Ct. 1827 argument on appeal. Spaziano 1246). Singletary, 36 F.3d 1041-42 & n. 5 Supreme Court has admonished that “[i]f (11th Cir.1994). In Spaziano, this Court the defendant had counsel and was tried that, although held it retains discretion to impartial adjudicator, there is a Teague-bar decline to consider a defense strong presumption that any other consti below, when not raised addressing is errors that tution[al] have occurred sue is “consistent with our are well-established analysis.” to harmless-error Clark, precedent Id. that a district (quoting Rose v. court’s decision 478 U.S. 579, 106 (1986)). may be grounds S.Ct. affirmed on district Moreover, given 1041; court did list Neder of not address.” Id. at errors see Bohlen, not subject plain-error Caspari harmless- or re also (1994) (“[A] view is a short one. (mentioning See id. counsel, complete not, denial of biased trial may, federal court but need decline to judge, racial discrimination in grand jury apply Teague if the State argue does not Bursten, ing,” See United States v. and the evidence demonstrated that de- (5th Cir.1971) (concluding the vari- fendant language had not used that on his ance was harmless and not material where an return but had entered on the final line of the return, indictment stated that compute defendant indicated on tax "Please and bill if owed”). his tax return that "no tax was due and ow-

1255 ..., non-retroactivity the the stan argue [it] But if the State does Whether it. apply Teague apply consider dards set forth to bar a Teague must before court (citation claim.”) petitioner’s Apprendi claim is a matter of merits of ing the the 295, Texas, impression this All omitted); first circuit. circuits Fisher v. 169 F.3d (5th 1999) to reach the issue have held that the retro Teague (applying the Cir. application of Apprendi active is barred doctrine, finality and the interest of “[i]n Dukes v. Teague. See 255 that de economy,” though judicial even (8th Cir.2001) (life sentence); 912 F.3d raised for the first time on fense was Moss, 993, 997 610, United States Delo, F.3d appeal); Bannister v. 100 (8th Cir.2001) (360-month sentence); Cir.1996) (8th Teague (applying the 622 Sanders, 139, States v. though even the did not doctrine state Cir.2001) (188-month (4th sentence); 147 it). case, In this more argue it is even Smith, Jones v. Teague to consider because appropriate Cir.2000) (life sentence). respond government the not asked § petition in the district McCoy’s Teague priority the give question We court, opportunity therefore had no case particular for several reasons. Moreover, McCoy Teague raise below.15 First, if Apprendi apply does not retroac the in his ob Teague himself raised issue tively, this alone resolves the case. Given magistrate judge’s to the recom jections being in the vast raised court, the to the mendation district majority throughout of 2255 our motions first raised issue at the government the circuit, judicial economy that we counsels appeal. opportunity first whether rule determine Second, applies even retroactively. retroac doctrine bars has Supreme Court indicated that application proceeding §a tive Teague retroactivity decision is to be made pro criminal any new constitutional rule of as a “threshold matter” and should be had announced at cedure which not been “before considering addressed the merits became the time movant’s conviction See, e.g., Penry Lynaugh, claim.” [a] final, exceptions. Teag two narrow 302, 329, 2934, 106 S.Ct. ue, 310-13, at 1060. A 489 U.S. (1989); Bohlen, Caspari L.Ed.2d retroactively applied rule should be new 383, 389, S.Ct. (1) “places pri only if it certain kinds (1994); Single L.Ed.2d 236 Lambrix v. private mary individual conduct 518, 524, 117 1517, 137 tary, 520 U.S. power law-making of the criminal au (1997) Penry and (quoting proscribe,” thority “requires Caspari). ... of those procedures observance Third, liber Lambrix implicit concept are of ordered Court’s (internal decision, contrary concurring opin- to the ty.” Id. S.Ct. 1060 omitted). position, fully deciding marks our quotation supports ion’s McCoy summary the mov- filed his motion on October for its dismissal and cause Otherwise, judge pursuant On be notified. shall October ant to 4(b), magistrate Attorney file an the United States 28 U.S.C. Rule order pleading period judge denying motion with- or other within the recommended answer court....”). response government. seeking a time On November out from the fixed 4(b) (“If McCoy mag- plainly objection filed an See 28 U.S.C. Rule appears judge’s ... Novem- from the face of the motion istrate recommendation. On denied is not relief in the ber district court the movant entitled to court, McCoy's judge make an order motion. district shall 1256 Moss, a Teague retroactivity beyond issue first. Lam- reasonable doubt. 252 at that (holding “Apprendi

brix was a 2254 case where F.3d emphasized proce obviously gener- “[a] State’s a ‘new rule’ to the Court Sanders, importance nonretroactivity”); rules are of vital al rule of dural of its criminal at 147 orderly (holding Apprendi administration “consti- courts; permits procedural a federal court them tutes a when rule because it dictates evaded, readily procedure it undermines the what fact-finding to be must be em- at justice system.” ployed criminal 520 U.S. to ensure a fair trial” and that it “is Therefore, certainly Lambrix noted proce- 117 S.Ct. 1517. new rule of criminal dure”); Smith, procedural-bar that the issue should ordi Jones v. 231 F.3d at 1236 narily (holding “Apprendi certainly first to ] considered estab- “ensure! rule”). correcting the states’ interest their own lished new in all respected mistakes is federal habeas agree. Although may We it have been 2254 ease. Id. at cases” foreshadowed Jones 1517. Lambrix’s comment about S.Ct. 526 U.S. 143 L.Ed.2d considering procedural-bar issue first Apprendi established a new “comity” was made in the context of con procedure, rule of criminal one that was §in cerns 2254 cases in order to by precedent existing not dictated before prevent evading a defendant from state decision was released. Until procedural in federal court. rules Id. at announced, it was ah circuits had been 523-25, However, in S.Ct. 1517. upholding greater sentences that were stant case involves federal conviction and applicable than the otherwise maximum implicate §a motion which do not sentences drug quantity based on Moreover, any procedural state rules. indictment, submitted concerns, noting even after those the Su jury, proved beyond a reasonable preme actually itself in Lambrix Therefore, doubt. Teague, because proceeded Teague to decide the issue first. the new rule had not been announced at 525, 117 Id. at final, McCoy’s the time conviction became Thus, apphed we will decide first the threshold retroactively cannot be to his petition issue. unless it meets one of

Teague’s exceptions. two narrow

1. New Rule of Constitutional Law Exceptions Teague’s Non-Retro- Teague, “a announces a new Under case activity Standards ground impos- rule when it breaks new obligation a new on the category excepted es States or the The first of rules Federal ... if the Teague’s places [or] Government result from bar is that which by precedent not dictated at existing primary, private “certain kinds of individu- the time the defendant’s conviction became al beyond power conduct of the crimi- Teague, final.” at law-making authority.” Teague, 109 S.Ct. nal (citations omitted). The other cir- S.Ct. 1060. The circuits exception cuits to address the issue have determined that have addressed this agree a new inapplicable did constitute rule of that it is to the new rule of procedure by criminal requiring any procedure Appren- criminal announced in di, fact that penalty increases the crime since did not decriminalize prescribed statutory prohibit maximum class of conduct or a certain proved must be category punishment submitted to the for a class of de- Smith, narrowness of this second ex F.3d at scored the v. 231 Jones fendants. ception by using prototype as a the rule of exception first (holding “[t]he that 1237 335, Wainwright, v. 372 U.S. 83 inapplicable Gideon Teague plainly identified 792, 799 9 L.Ed.2d authority punish to S.Ct. here, the state’s where ‘unlikely many that stating that “[i]t murder is attempted for Petitioner (hold components process of basic due have Sanders, such 247 F.3d at 148 question”); ” 243, Sawyer, 497 at yet emerge.’ U.S. exception clearly does first that ing “[t]he Teague, 489 (quoting 2822 U.S. did not S.Ct. Apprendi because apply here not 1060); 313, Tyler see also v. scope at 109 S.Ct. conspiracies beyond the place — 2478, Cain, —, S.Ct. proscribe”); authority of the state’s (2001) (emphasizing Moss, (discussing the sec n. at 997 252 F.3d ” nature of a rule “truly ‘watershed’ only exception exception “[r]ele as the ond exception); within this v. would fall also Daniels which inquiry”); see vant to our (10th (stating at 1042-43 Spaziano, 36 F.3d 254 F.3d fundamentally be so Cir.2001) the new rule “must in the context of a suc (deciding announcement is a important its Apprendi does § 2255 motion cessive ”). ‘groundbreaking occurrence’ exception).16 first Teague’s not fall within circuits to address the issue excepted The other category of rules The second sufficiently fun- Apprendi is not “requires agree bar is that which Teague’s from second Teague’s to fall within damental procedures of those the observance Smith, exception. ordered liber- See Jones concept in the implicit are rule, (holding that “the at 1238 at 109 S.Ct. Teague, 489 U.S. ty.” applied to the omission of cer- at least as rules of criminal “watershed” 1060. Such (1) necessary elements from the state failure tain in which are those procedure information, implicit is neither imper- court rule “creates an adopt the new liberty nor absolute concept will of ordered the innocent missibly large risk Sanders, trial”); a fair prerequisite at convicted,” procedure “the (holding that “a rule which F.3d at 148 fundamental fair- imphcatefs] ... issue fact-finding duties from merely shifts trial.” Id. at S.Ct. ness jury clearly does impartial judge to Teague’s qualify 1060. In order “ scope second not fall within rule ‘must not exception, the new second Moss, 252 F.3d at 998 trial], exception”); also accuracy but only improve [of Apprendi’s that “we do not believe (stating bedrock understanding of the alter our as of- recharacterizing certain facts fair- rule elements essential procedural ” previously that were elements fense proceeding.’ United States ness of a Cir.1997) sentencing factors resides Swindall, thought to be core of funda- Smith, near that central anywhere 497 U.S. Sawyer (quoting necessary absolutely rules that are 111 L.Ed.2d 193 mental trial”). fair (1990)). to insure a Supreme Court has under- The procedure changes merely the method concurring opinion’s posi- di reject 16. We drug quantity and his sen- determining new Apprendi decision creates a that the tion tence; McCoy’s make conduct it does not Apprendi, the Su- rule of law. substantive criminal, raising spectre actual thereby specifically preme "[t]he noted that implies. concurring opinion Jersey’s innocence as New enhance- basis for substantive have, Thus, issue; we conclude circuits adequacy New as other ment ... is not at criminal a new rule of announced Jersey's procedure is.” 530 U.S. (2000). Appren- procedure. application of S.Ct. 2348 - developments with these other circuits have made counsel’s task agree We easier, but whether at the time of the rule announced that the new Su- default the claim was ‘available’ at all.” not fall preme Court does Murray, Smith v. exception Teague’s, non- within either (1986); see also Therefore, retroactivity standard. like Jones, 1308, Waldrop v. 11 1315 circuits, that these other we hold Cir.1996) ‘novel,’ (stating that “a rule is proce- new constitutional rule of criminal default, procedural and therefore cause for announced in not Apprendi dure does petitioner if the legal did have the apply retroactively on collateral review. claim before the tools to construct the rule McCoy, Consequently, whose conviction issued”). Apprendi himself raised the Supreme final became before the issue some before his was ar time case Apprendi, announced cannot now collat- gued Jersey appellate to the New court in erally challenge his on the conviction ba- February of Apprendi, see State v. Apprendi sis of a claimed error. N.J.Super. 304 A.2d 1265 698 building so the blocks for it arguing were C. Procedural Bar obviously early in existence as as then. We also affirm the dismissal of And as the other circuits to address this McCoy’s petition 2255 on the additional noted, Ap- issue have the foundation for ground procedurally alternative that he is prendi years was laid before the challenging barred from his sentence on Sanders, Apprendi. Court announced See Apprendi grounds because he failed to germ 247 F.3d at 146 that (stating “[t]he argument appeal. raise the A on direct sprouted Sanders’ claim had at proce claim not appeal raised direct the time of [in 1997] his conviction durally petitioner defaulted unless the can why there is no reason he could not have prejudice establish cause and for his fail then”); Moss, raised 252 F.3d at 1001 ure to assert his direct appeal. claims on (stating argument that “the that 167-68, Frady, 456 at 102 U.S. S.Ct. quantity is an offense element under Specifically, McCoy must show both 841(b), factor, sentencing not a was cer “(1) excusing procedural ‘cause’ his double tainly available to at Moss’s counsel (2) default, and ‘actual prejudice’ resulting 1998]”); time appeal of Moss’s direct [in from -the complains.” errors of which he Smith, 241 F.3d 168,102 Id. at S.Ct. 1584. (7th Cir.2001) (stating “the foundation 1992”); for Apprendi long was laid before McCoy contends that “cause” exists be- States, v. Garrott cause the for Apprendi basis his claim was (7th Cir.2001) (noting “[o]ther not known until after his conviction be- began making Apprendi-like defendants final, drug quantity came since was consid- arguments Sentencing soon after sentencing ered a mere factor until Ap- being”), Guidelines came into cert. de It prendi. is true that “a claim that ‘is so - nied, -, U.S. S.Ct. novel that legal reasonably its basis is not (2001). available to counsel’ constitute cause procedural for a Bousley default.” every The fact that circuit which had 614, 622, S.Ct. rejected prop- addressed the issue had (quoting osition became the rule Ross, Reed v. 468 U.S. simply de- demonstrates reasonable (1984)). However, lawyers 82 L.Ed.2d “the fendants and could well have con- question subsequent legal is not whether cluded it would be futile to raise issue. dissenting opinion jurisdictional his claims for the That is the basis Smith, by Teague’s non-retroactivity 1073 are barred in United States (7th Cir.2001) (Woods, J., dissenting), Additionally, McCoy’s Appren- standard. claims, concurring opinion in this case di raised for the first time in his which the motion, position with that initial are barred problem embraces. procedural not have default doctrine. Supreme Court could For both rea- is that the sons, perceived futility dismissing does the district court’s order been clearer procedural McCoy’s to excuse a 2255 motion is therefore AF- not constitute cause FIRMED. Bousley, 523 U.S. default. (“As clearly Engle stated

S.Ct. 1604 we BARKETT, Judge, concurring Circuit Isaac, only: result (1982), futility consti L.Ed.2d 783 cannot simply if that a claim tute cause it means agree McCoy I that is not entitled to particular court unacceptable to that relief, put habeas but not for the reasons time.”) (internal quota particular at that by majority. forth I believe that omitted); Murray, tion marks Smith to claim that a McCoy is correct 477 U.S. Apprendi Jersey, that violates v. New (1996) (noting “the estab 466, 120 S.Ct. 147 L.Ed.2d 435 ‘perceived futility that alone lished rule error, jurisdictional is and there- ”). and constitute cause’ Unless cannot fore the error be raised on collateral its until the Court overrules de being subject procedural review without cause, la futility cannot be cisions nonretroactivity analysis default or forcing decisions de ments about those Lane, 288, 109 Teague briefs counsel to file “kitchen sink” fense (1989). However, I bars, procedural avoid see order any believe that sentence below the twen- Smith, 250 F.3d at 1077 States v. by maximum ty-year statutory established J., (Woods, dissenting), are beside the 841(b)(1)(C) § does not violate U.S.C. point. McCoy was sentenced to a Apprendi, there was twenty years. term below Since short, agree we with these circuits sentence, he is Apprendi no his McCoy Apprendi that the claim now seeks I not entitled to relief. Because believe reasonably to raise was available his occurs, error, when it Apprendi McCoy’s time of conviction. counsel at the jurisdictional, proce- I would not reach the Therefore, McCoy we hold because issues raised dural default for his failure to raise cannot show cause my majority, disagreement but appeal, procedur- he is the issue on direct analysis leads me to discuss majority’s Having ally raising from now. barred them here. McCoy cannot show cause determined failure, need not discuss wheth-

for his we Is 1. A That Violates Sentence prejudice” resulting “actual er he suffered Error Jurisdictional complains. of which he from the errors jurisdic- a valid petitioner A who raises CONCLUSION III. petition challenge in a habeas tional above, collateral relief without we entitled to obtain the reasons discussed For Thus, showing.1 the first are not additional McCoy’sApprendi claims hold that errors collateral relief based on petitioner asserts a claim for 1. When a habeas (2) grand jury; petition indictment returned analyzing habeas question power claim is whether a to act within The court has the asserting juris- is a parameters specific sentence that violates of the crime if an indict- information; error. I believe dictional charged in the indictment or charges a violation (3) information ment or pa- imposed A sentence outside 841(a)2 supporting allege facts § in the in- charged rameters of the crime required by minimum quantity only the per or information is se revers- dictment 841(b)(1)(C), jurisdiction ex- § the court’s (4) ible; A defendant has the constitutional imposition of a sentence only to the tends under the Fifth and Sixth Amend- right pursuant maximum twenty-year within the an information or indictment that ments to 841(b)(1)(C). because a court This is all of the essential elements gives notice of for the violation of imposes a sentence of the crime and the factual bases 841(a) the greater in accordance with (5) therefor; A defendant has constitu- 841(b)(1)(A) penalties guilt to a determination of right tional 841(b)(1)(B) then sentenced the de- has to each es- a reasonable doubt as proper- that was not fendant for an offense charged; crime sential element of the indictment; specifically, ly alleged in the otherwise, waiver, Any by plea or drug quantity was the essential element of by or informa- right to notice indictment an allege failure to essential lacking. The tion, right or of the to a determination error, a and element creates doubt, guilt beyond of a reasonable must imposition of a by remedied must be voluntary intelligent. be and twenty of the maximum sentence within 841(b)(1)(C). Apprendi, In stated that a § years established penalty

fact that increases the for a crime Require Drug That A. Does beyond otherwise-applicable statutory Quantity Be Treated As An Essen- squarely maximum “fits within the usual The tial Element Crimes Set Of definition of an ‘element’ of the offense.” §§ And Forth 21 U.S.C. 84.6? n. Apprendi, 580 U.S. at 494 that “other than the 2348. The Court held prior to disputes No one conviction, prior fact of a fact that principles clearly were and certain basic penalty for a crime A defen- increases the unambiguously established: prescribed statutory maximum must right under the dant has the constitutional charged by jury, proved beyond an submitted to a and Fifth Amendment to be be 841(b)(1)(A) (b)(1)(B) § contemporaneous objection and U.S.C. crim- to which no 841(a) § made, same but inalize the conduct es- petitioner need show neither cause specific drug quantities that tablish threshold prejudice. v. United nor Harris must be involved in the crime. These sec- (11th Cir.1998). provide correspondingly for severe tions more 841(b)(1)(C) penalties § than that set forth in 841(a) provides § that it is "un- 2. 21 U.S.C. 841(a). Specifically, § a of for violation any person knowingly or intention- lawful for 841(b)(1)(A) penalty § a of ten establishes "manufacture, distribute, ally” dispense, or or, years imprisonment to life if death or manufacture, possess distrib- with intent bodily injury from use of the serious results ute, a controlled substance.” dispense, crime, drug penalty a of involved in the twen- any specific forth This section does not set 841(b)(1)(B) ty years estab- to life. Section drug quantity that must be involved in forty years imprison- penalty lishes a ment, or, of five to 841(b)(1)(C) § a crime. 21 U.S.C. sets forth bodily injury death if or serious penalty twenty years imprison- maximum of drug result from use of the involved in 841(a). § a ment for violation crime, penalty twenty years to life. a by a sentencing judge be found Id. at reasonable doubt.” preponderance of the evidence. posed after question fundamental possibility although The third is that these statements is whether drug necessary is an quantity element treated quantity must be mean that proved jury beyond to a charged and forth in of the offenses set as an element doubt, it reasonable constitutes new kind to im- §§ and 846 order 21 U.S.C. element, constitutionally novel crea- provided by penalties enhanced pose the purposes an ture that is element for some (b)(1)(B) 841(b)(1)(A) the in- and unprecedented but not for others. On this involved drugs creased amount theory, majority appears which the to en- ways I three to answer offense. see dorse, be alleged the “element” must drug quan- The first is that question. indictment, not, if but it is failure element of the offenses tity is an essential does not have the same effect as failure 841(b)(1)(A) (B), and punishable pre- a “real” element. Whereas allege that, therefore, princi- all the basic allege failure to an cedent teaches precedent by longstanding ples established element essential to the crime is a offense ele- apply to traditional requiring fatal defect reversal of the ex- rights involving the defendants’ ments' — resentencing cess sentence for within the Amendments, as under the Fifth and Sixth proper charged, bounds of the offense power the boundaries of the court’s well as allege “quasi-element” failure to this new apply drug quan- to the element of to act— if it appellate be excused court 841(b)(1)(A) (B). Application tity in harmless, procedurally de- thinks 841 leads principles of these to U.S.C. on collateral faulted and barred that when indictment to the conclusion review. 841(a) § fails to charging a violation of any sentence in ex- allege drug quantity, every circuit Our own circuit and other per twenty years is reversible se cess of spoken question on the has deter to have twenty-year the resentencing for within only plausible interpreta mined the prescribed by maximum statutory Apprendi, especially as read to tion of 841(b)(1)(C). § with Jones v. United 526 gether 119 U.S. S.Ct. option drug quantity

The second is is an offense drug quantity is that an essential element of the crimes is not punishable by- of the crimes element 841(b)(1)(A) (B), §in but forth and set (B) 841(b)(1)(A) al and that must be factor.” If “sentencing remains a mere prerequisite in the indictment as a so, leged drug quantity need not be this is under imposition of the sentences proved to a the in the indictment or charged doubt, I provisions.3 believe this conclusion a but those jury beyond reasonable offense, i.e., ficking charged the indictment reached this conclusion in Unit- Our circuit proved jury a reasonable Rogers, and to the ed 228 F.3d States Fields, doubt.”); Cir.2000), every ad- United States as has other circuit to ("[I]t (D.C.Cir.2001) clear is now question. See United States v. Prom- dress the that, ise, (4th Cir.2001) ("Ac- §§ drug 21 U.S.C. cases under sentenced before a defendant can be cordingly, Apprendi dictates that in order to and higher statutory any progressively imposition exceed- of a sentence authorize 841(b)(1)(A)or jury ... in subsections ing máximums the maximum allowable without (B), drug type drug quantity, must state the finding specific the Government of a threshold indictment, submit the quantity and specific quantity must be treat- threshold jury, prove drug required aggravated evidence to ed an element of an traf- as range punishment and hold- of to which language degree, from both the derives prosecution by is law entitled for a ing Apprendi. given necessary set of facts. Each fact for Apprendi, Court held is an element.” Id. at entitlement and Fourteenth Amend the Sixth (Thomas, J., 120 S.Ct. 2348 concur- “indisputably entitle a criminal de ments ring). Drug quantity in 21 U.S.C. 841 is ‘a [he] fendant to determination is, precisely a fact—that a fact that such every element of the crime with guilty prosecution to in- legally entitles charged, beyond a reasonable which he is ” punishment under ranges creased Apprendi, doubt.’ U.S. 841(b)(1)(A) (B) that exceed (quoting S.Ct. 2348 United States Gau statutory drug maximum for crimes of in- din, 841(a) §in quantity determinate set forth (1995)). The Court character (b)(1)(C).4 Thus, Ap- as result of penalty ized “fact that increases the quantity clear that prendi, drug must equivalent functional crime” as “the be treated as an element of the offenses greater of an of a offense than the element described these subsections. verdict,” jury’s guilty one covered indeed, above, Accordingly, noted as one that if “fits 841(b)(1)(A) (B) imposed, squarely the usual definition of an is to be within Apprendi, necessary charged elements of the crimes ‘element’ of offense.” therein, including at 494 n. 19. As Justice Thomas wrote the threshold opinion, joined by prerequisite application amount to the concurring his Justice statute,5 Scalia, kind, need look to the these subsections of the must be “[o]ne drug quantity beyond charged relevant a reasonable enhancement must be in the indict- added); doubt.”) (emphasis jury beyond proved ment and a reason- Nance, (7th Cir.2000) prosecutor able doubt because cannot "[a] ("Under Apprendi, could run before defendant make an end around greater twenty years prerequisite by charging any receive a sentence than of an indictment offense, years, proceeding prose- but no more than 40 the indictment federal and then different, related, conspired cute a for a albeit have that he had defendant should Likewise, prosecutor federal offense. can- grams distribute 5 or more the cocaine base run, not make this end and then mixture and that issue should have been sub- urge the court to sentence the defendant for jury proven beyond mitted to the and a rea- an offense for which the defendant was nei- by government.”) (empha- sonable doubt convicted.”). charged added); ther nor Doggett, sis United States v. 230 F.3d (5th Cir.2000) ("[W]e hold that if government penalties supra seeks enhanced 4. See note 3. drugs based the amount of under 21 on 841(b)(1)(A) (B), quantity U.S.C. or Although need Government does not to involved, in and must be stated the indictment submit- allege precise drugs amount of jury finding proof beyond ted to a for a allege drug quantity the Government must added); doubt.”) (emphasis specificity apprise reasonable with sufficient the defen- Aguayo-Delgado, States v. 933 dant under which subsections of 841 the (8th Cir.2000) ("[I]f Jones, government proceeding. wishes to Government is 526 230-37, (failure penalties applicable by seek in excess of those U.S. at S.Ct. alone, virtue of die offense to refer to either of federal car- the elements of indictment charge government jacking then the statute's two subsections criminaliz- must the facts ing involving aggravating giving activity rise to the certain increased sentence in indictment, facts, prove coupled and must those facts to the with indictment's failure to al- doubt.”) jury beyond (emphasis lege any specific by a reasonable facts set forth those Tran, subsections, added); charge a failure United States v. amounted to cf. (2d Cir.2000) crimes). (aggravating aggravated firearm either of the proven “quasi-elements” and to a ates new class in the indictment “charged subject to this rule. doubt....” beyond a reasonable jury F.3d Rogers, United States Drug Quantity B. Failure To Plead In Cotton, 1327; see also A The Indictment Is Fatal Juris- (4th Cir.2001). But I can find no Any dictional To Sentence Defect failing apply logic in or law for reason twenty Excess Years that de- consequences that flow from A Impose i. The Court’s Jurisdiction To termination, majority by would do as the Sentence Limited To the Is Offense jurisdictional. that the error is not finding Charged In The Indictment that, appeal, majority suggests The brought by When an is not indictment in the indictment not contain all grand does charged essential of the crime review if it elements susceptible to harmless error therefor, necessary and the factual bases preserved, plain error review has been subsequent is error in the criminal there not; it maintains similarly, if it has proceedings. challenged, When convic- procedurally can be default- that the error charges tion or based on not ini- sentence collateral ed or barred on review. tially brought by grand jury must be problem with this view is that fails The because, per se unlike most ordi- reversed in responsibility, the court’s to account for errors, nary trial “an indictment found case, precisely every criminal to ascertain grand jury indispensable pow- [i]s jurisdiction of its own as delin- the bounds for try [the defendant] er of the court to in in- eated the offenses he charged.” the crime with which If drug quantity or information. dictment Bain, 1, 12-13, Parte Ex U.S. an element of the offenses constitutes (1887). Likewise, 30 L.Ed. 849 841(b)(1)(A) (B), then failure to permit “court cannot a defendant to be must, un- plead quantity the indictment charges tried on that are not made juris- precedent, constitute existing der all him.” against indictment Stirone Unit- requires any dictional error 270, 4 ed twenty years in excess of to be reversed (1960). power, lack The within the limit of resentencing thereof, specific try defendants on the 841(b)(1)(C). majority, its effort indictment is the es- charges made result, jurisdiction.6 criminal cre- sence of the court’s sidestep impermissibly allege an element majority have dictment's failure to such 6. The notes that several circuits applied. should not be applied plain Apprencli-based error review specify drug claims that an indictment fails to the failure of an While Nance reviewed Terry, quantity, citing United States charge drug quantity 841 indictment (1st Cir.2001); F.3d 74-75 United States error, plain simply not address the did Patterson, (7th Cir.2001); 241 F.3d jurisdictional question whether the error was Prentiss, 256 F.3d 971 United States assumed, merely in nature. The Nance Cir.2001) (en banc), Mojica- discussion, since the defendant without Baez, (1st Cir.2000), 310-12 challenged on had not his sentence Nance, court, and United States v. appeal grounds the trial review on in (7th Cir.2000). Nance, Although, like the ma- plain 236 F.3d at was for error. See here, case, Patterson, jority these cases utilized harmless Circuit another Seventh review, explains plain merely error none of them cited Nance and did not discuss the Teny drug quantity jurisdictional question. was likewise si- why, if is an essential element charged, ordinary that review was for simply the crime the conse- lent and assumed of precedent plain error. quences established for the in- fore, any imposed sentence remedy required by the The 841(b)(1)(A) (B) imposed beyond the twenty a in Court for sentence excess of is a remand for jurisdiction trial court’s alleges only the indictment years, where proper confines of resentencing within the 841(a), violation of is “void as imposition of a sen- jurisdiction: “[T]he its the imposed beyond excess” sentence permits of what the law tence excess Id. jurisdiction. court’s legal the or authorized does not render of majority The takes no account void, only but of the sentence section jurisdictional error that occurs when a portion such of the sentence leaves In- authority. court acts in excess of its attack .... open [T]he in excess deed, guilty pleas can not excuse such even legal so far sound rule is that sentence errors, simply for the court provisions of law ... and as it is within the ” plea authority accept does not have the only void as to excess.... greater charged an offense than that Pridgeon, States (1894).7 L.Ed. There- indictment. Prentiss, Nor, (1999). pointed recently 256 F.3d at as the Second Circuit Tran, us, ("To right out in United States v. a defendant's to have a (2d Cir.2000), Mojica-Baez case di did the petit charged each element of the find Indeed, Mojica- rectly address this issue. beyond a doubt is no less offense reasonable expressly noted that an indictment's fail Baez important right than a defendant's to have charge an essential element of an of ure to presented each element of the same offense recognized by any the court at fense must be grand jury. right If denial of the former during proceedings, either sua time analysis, we be- to harmless (which, parties sponte motion if or on right lieve denial of the latter must be as jurisdic anything, suggests that the error is below, well.”). detailed believe As I do not ("We nature). F.3d at 308-09 tional in applicable that Neder is to the issue of wheth- general propositions.... accept as true two omission of from er the an essential element objection proposition is that an first deficiency precluding an indictment is a fatal an essential ele an indictment fails to state pre- imposition beyond be noticed ment of an offense 'shall charged. for the crime that has been scribed any during pendency court at time proceedings.1 R.Crim. Proc. Fed. Pridgeon, the defendant was sentenced to 12(b)(2).... proposition is that a The second five-year imprisonment peniten- at a term statutory standing indict citation alone tiary subjected inmates to "hard labor.” government’s fail ment does not excuse the Pridgeon, U.S. at 14 S.Ct. 746. The of an ure to set forth each of elements sought corpus defendant a writ of habeas omitted). offense.”) (internal Yet the citations grounds that the statute under which he question not at address the court did all was and convicted authorized alleged indictment error in the whether "imprisonment,” requirement and that the jurisdictional, sim case before it was instead power, hard was in excess of the court’s labor ply holding error in the indictment rendered his entire conviction void. Id. As Presumably because of this was harmless. matter, initial the Court held that the defen- reasoning, deficiency the Second Circuit subjection dant's to "hard labor” was stated, Mojica-Baez can be "to the extent that power Court because hard of the type read to conclude that this of error is not merely of the labor was one of rules jurisdictional, reject we conclusion penitentiary duly to which defendant Tran, 234 F.3d at 809. here.” held, Nevertheless, the Court committed. Although squarely hold that the Prentiss did even if the hard labor were in excess charge of an failure to an essential element appropriate remedy authority, Court’s does offense in the indictment not constitute it, of excess sentence error, would be invalidation jurisdictional majority, like the in reasoning rather than reversal of the entire conviction. large v. part based its on Neder 62, States, 14 S.Ct. 746. 527 U.S. Id. at United power indictment fails to What is the extent of the court’s to objection that the The or, in put way, act the traditional the ex- by not waived charge an offense is jurisdiction? tent of its Neder is not The violation of defen- guilty plea. [the applicable to this threshold issue. prosecution for right to be free of dant’s] bar his conviction a nonoffense would First, recognizes, as Neder an error in a if had been es- guilt” even his “factual petit jury “simply in instruction is an error validly. entry guilty The of a tablished process the trial itself.” Id. at 1833. Such jurisdic- not act as a waiver of plea does can be assessed within the context errors defects such as indictment’s tional may consequently of the trial and charge failure to offense. contrast, In grand deemed harmless. Meacham, F.2d jury jurisdiction States v. indictment confers initial United (5th Cir.1980).8 See, upon scope. the court and defines its States, e.g., Gaither 413 F.2d that a sentence in majority argues (D.C.Cir.1969). Thus, an by error indict- twenty years of under an excess scope which the indictment is ex- 841(a) alleging only a violation of ment panded analyzed cannot be in the context it not a affirmed because struc- can be trial, precede any for such errors simply type but a trial error tural error process of trial consideration errors and error” in jury-instruction to the “analogous challenge jurisdic- either the initial court’s Neder tion or its reach. (1999). Al- Apprendi, no court had though, prior Stirone, every As illustrated not er- of an ele- held that the omission essential in jury susceptible ror instructions is was reviewable ment from an indictment review. the non- harmless error Unlike error, in majority, apply- for harmless in jurisdictional jury instruction error cases, principle Apprendi wit, would ing this Neder —to failure submit issue categorize materiality jury that.9 To the error just do to the when was question implicit jury initial in the instructions as a way ignores given when an essential element whole—the instructions Sti- must be asked varied from the indictment to such an alleged not been the indictment: rone has Prichard, error, explaining In Bonner 661 F.2d found no indictment banc), (11th 1981) (en 841(b)(1)(B) Cir Cir. the Eleventh the indictment cited binding precedent adopted as all Fifth cuit does not even indictment and that "Swatzie prior Circuit decisions handed down argue he did not know before trial September close of business on type drugs quantity could affect his Pease, we found that sentence....” Moss, 9. See also United States v. allege quantity constituted failure J., Cir.2001) (Arnold, (8th dissenting) substantially plain affect the error but did not aware, ("As I am no has ever held far as case rights not contend defendant's because he did of a crime the omission of an element drugs a lesser that he distributed amount error.”). from an indictment can be harmless necessary support his sentence. than that majority states that its conclusion that 10. The wrongly I believe Pease Although decid- right charged by grand of defendant to be ed, aspect of also note that the I go jury indictment does not to the court’s appear to have the indictment does implicit jurisdiction "finds matter defendant, did the been raised nor circuit, in our confirmation” in other cases question whether a sen- Court address Pease, United States v. citing twenty years constituted tence in excess Cir.2001), (11th and of the indictment. constructive amendment Swatzie, Cir. l.B.ii. Part infra Swatzie, However, 2000) support. count; perhaps signifi- single most right to be tried that the substantial extent all, noncapi- presented capital the indict cant of a offense or a charges on abro by grand jury was of the same ment returned tal offense—all the basis Moreover, sentence gated. grand jury The defendant’s “[t]he facts. the court had because therefore vacated every indict in case where not bound to also United jurisdiction. its Thus, exceeded a conviction can be obtained.” (2d Tran, Cir. States v. grand jury’s if a determination of even 2000) (“If court acts its the district probable hindsight cause is confirmed accepting guilty jurisdiction by trying, offense, on the indicted by a conviction from, a de convicting, sentencing or plea way suggests that confirmation no in the for an offense not fendant imper- did not the discrimination indictment, must notice such this Court missibly framing infect the of the indict- it, to correct accordingly and act and, consequently, ment the nature or defendant has of whether the regardless very proceedings existence of the issue.”).11 raised the come. 254, 263, Hillery, Vasquez A Right A Has A To Have ii. Defendant (quoting 88 L.Ed.2d 598 S.Ct. The Crime For Jury Grand Consider Ciambrone, He or She Will Punished Which (2d Cir.1979) J., (Friendly, dissent- Right Only This And Can Waive If ing)). Voluntary The Is Waiver Thus, overwhelming even when there is allege that the failure to The conclusion support evidence of amounts to con- suscep- in the indictment is not an element 841(b)(1)(A) viction and sentence under review flows from a tible to harmless error (B), grand jury right has the or pivotal played by role recognition of the charge refuse to the defendant with those a criminal process grand amounts. decision is made Whatever Amendment, Fifth case. Under reason, jury for whatever it grand jury complete grand gives Constitution petit jury, cannot be reversed a later parameters of a provide discretion to worse, by sentencing the decision of the vesting it with the proceeding, criminal judge. pre- power indict based on the evidence choice not to charge,

sented to and the absolute as the The content of well indict, pre- all, notwithstanding evidence charge entirely up decision sented: grand jury subject popular to its — veto, grand jury’s as it were. The deci- jury lies the grand In the hands of the all, charge not to indict at or not to charge greater offense or sion

power offense; alleged by prosecutorial numerous counts or a the facts lesser plain- majority's position also leads to the the defendant fair notice of what 11. The requiring greater highly grounds upon result of anomalous claim is and the which it tiff's specificity complaint Gibson, than from a from a civil Conley rests.” Rule criminal indictment or information. (1957). holding By 8(a) Civil of the Federal Rules of Procedure 841(b)(1)(A) (B) complaint "a requires a civil include upheld even where the indictment could be grounds plain of the short and statement majority allege drug quantity, the failed to depends,” upon jurisdiction which the court's functionally exempt would the criminal in- plain and "a short and statement claim from even these min- dictment or information showing pleader to relief.” that the is entitled requirements. imal 8(a). "give pleading must Fed.R.Civ.P. 1267 officials, reviewing F.2d at 607. In instructions to a by any to review is not jury charges which differed from the in body. other indictment, in the the Court Stirone held: 1061, v. United Gaither a in While there was variance the sense (internal (D.C.Cir.1969) citations 1066 pleading of a variation between Russell, omitted); at see also U.S. proof, destroyed that variation here the (harm- 1038, 8 L.Ed.2d 240 82 S.Ct. right defendant’s substantial to be tried analysis would allow defendant less error charges presented in an indict- on the basis of facts not to “be convicted by grand jury. Depri- ment returned perhaps presented not even by, found right vation of such a basic is far too him.”). to, jury which indicted grand the treated as more nothing serious be Moreover, jury alone just grand as the and then than variance dismissed as indictment, any power the to return an has harmless error. the indictment must be amendments to at 270. In U.S. 80 S.Ct. grand jury the as well. See by made Peel, (11th F.2d States 270; Stirone, 215-16, at 80 S.Ct. 361 U.S. Cir.1988), that a this court reiterated “con- If, Bain, in at S.Ct. in- grand jury structive amendment of a charging subsequent proceedings, “the per dictment is reversible error se.” Id. altered, either of the indictment are terms in (emphasis original).13 effect, prosecutor court literally by or in necessary allege it jury passed upon has last Because grand after the Bursten, them,” in the requisite drug quantity indictment United States (5th Cir.1971), the alteration is defendant under 841(b)(1)(A) (B), clearly it a “constructive” or “effective” error to deemed twenty Id. Such substantial “broad- sentence the defendant in excess amendment. Stirone, provisions in the ab- years see 361 U.S. those ening],” allegation. By of such an such a per constitutes se reversible er- sence sentence, court, place of the grand it the defendant’s con- ror because violates jury, supplies allegation right solely missing to be tried within stitutional indictment, and, place petit jury, of the parameters charges by returned id.; Bursten, “légal- a “fact.” This “fact” is jury.12 See 453 “finds” as grand Chapman differently, did ‘'categorical” approach as harmless. Put I do not take errors, majority give appellate survey indictment as the claims. courts license to Minor and insubstantial errors in the indict- landscape of constitutional errors and recate- scope that do not broaden its are obvi- ment gorize they Supreme wish. Until the them as ously not construed as such amendments. harmless, that Stirone errors are Court holds However, above, explained sentencing statement that some constitutional errors its charged constructively more than the offense may be has no effect whatsoever on harmless indictment, amends and no one but in Sti- holding precedential of its force grand jury power has the do this. Peel, long rone. Our own court decided Chapman, recognized law after majority appears suggest 13. The grand constructive amendments of a deems authority of has somehow been dimin- Stirone se. per indictment reversible Supreme decision in ished Court's Salinas, also States v. California, Chapman Cir.1979) ("[A] constructive amend- (1967). Chapman held is considered to be ment of indictment some constitutional errors could be per been a harmless; se if there has reversible it did not state that consti- deemed the elements of the modification at trial already deemed tutional errors harmful charged.”). regarded crime Court could henceforth be 841(b)(1)(C). §in to be inflict- for that crime is set out punishment the ly essential to jurisdiction ed,” increasing penalty Clearly the the court has the thereby (B). 841(b)(1)(A) Thus, by a power § such a convicted defen- the sentence constructively court is pursuant sentence the allegations dant under these just indictment as sub- amending However, the provision. any sentence prohibited in a manner stantial prescribed statutory the maxi- “beyond Stirone, Stirone, thus, inas the error and 841(b)(1)(C) necessarily mum” of must Because the court’s per is se reversible.14 alleged on a “fact” not in the be based jurisdiction the estab- sentence exceeds indictment, namely drug quantity, that has indictment, the erroneous lished the penalty beyond pre- the the “increased] susceptible to harmless or is not sentence statutory scribed and that is maximum” appeal, or review on direct plain error punishment to be “legally essential review. procedural default on collateral at 490 Apprendi, inflicted.” See drug quantity n. 120 S.Ct. 2348. When charged a violation If the indictment has indictment, 841(a), alleged not such a alleging only some is of 21 U.S.C. drug quantity, the sentence is invalid.15 indeterminate Stirone, distinguish problem Apprendi precisely the ma- with error is In an effort jority yet another new constitu- allege has invented has failed to an element the indictment holding that a constructive amend- tional rule of the offense. only change ment occurs when the constitutes narrowing The that occurred Miller theory entirely or different “an new indictment, the removal of a count from the majority The cites ho case law in case....” and the defendant was convicted of re- support proposition; there is none. of this counts, (as maining two of which the Court alternatively argues majority The that if there out) amendment, gave pointed the indictment him full and a it is one that is narrows, constructive broadens, Miller, allega- complete than notice. 471 U.S. at rather by specifying specific indictment tions in the S.Ct. 1811. When an indictment has been drug quantity. narrowed, then, While a constructive amend- the defendant nonetheless allegations truly in an ment narrows every necessary had notice of element to con- a fatal varia- indictment will not constitute convicted, he was stitute the crime of which tion, Miller, see United States government prove every and the still had to S.Ct. Appren- one of those elements. In the case of obviously what has occurred here. In not error, the indictment been di has construc- Miller, indictment contained three counts tively broadened to include an element that fraud, government of mail and after case, originally: posses- was not listed in this count, the third the’defen- moved to dismiss drugs sion in an amount in excess of the jury and convicted of dant was tried before a statutory quantity. requisite noted, Thus, two. as the Court the first proof was convicted "based on trial defendant out, Obviously, majority points as the significantly supports narrower right defendant has the to waive indictment included, limited, though and more fraudu- would, case, by grand jury. a court such lent scheme.” Id. at 105 S.Ct. 1811. course, undertake the usual constitutional was not a fatal The Court held that there inquiry as to whether the waiver was volun- the indictment and the con- variation between tary intelligent and and whether the substitut- viction, writing long as the crime "[a]s ing complied with other constitu- information that sustain the and the elements offense protections. tional See United States fully clearly are set out in the conviction Moore, (5th Cir.1994) (waiv- indictment, right'to grand by grand jury right er of re- indictment normally fact that the indict- violated quires that the “court must be satisfied that alleges ment crimes or other means of more knowingly, understandingly, the waiver was committing Id. at the same crime.” made.”). voluntarily majority seems added). holding (emphasis This 7(b) argue Fed.R.Crim.P. that the fact that why makes clear error in context “narrowing”: allows a defendant to waive his Fifth Amend- 841 is not a case of reasons, it is clear to tioner who established a valid foregoing For the jurisdictional. error is me that relief, i.e., claim would be entitled to to be such, procedural it is neither to As resentenced accordance Teague nonretroactivity analy- nor default 841(b)(1)(C).16 review, peti- collateral and habeas sis on right prosecuted by charged, sufficiently apprises to be indictment menl defen- meet, prepared dant of what be proceed a criminal informa- he must to and instead on and, allege secondly, any proceed- proves to in case other tion somehow that failure ings against are not a taken him for a similar essential element in an indictment is offense whether the type record shows with ac- jurisdictional but rather a trial error curacy may plead to what extent he plain for- subject or error error that is to harmless acquittal mer or conviction. logic It is difficult to discern review. Russell, 763-764, 7(b) 369 U.S. at 82 S.Ct. 1038 simply recognizes view. Rule that a cases) (internal (collecting quotations omit- jury's grand waive the involve- defendant can ted). emphasized, As our own Circuit has initiating charges against him. ment in grand jury A indictment must set forth each right prosecution ability to waive the to essential element of the offense in order for nothing to do with whether indictment has to [T]he conviction stand.... Sixth charging phase jurisdiction- at the are errors requires Amendment Constitution anything, prosecution al. the fact that the If every "be criminal defendant informed alternatively proceed by information must of the nature and cause of the accusation.” jurisdictional confirms that there is a vital Inclusion of the essential elements of an step charging that cannot be waived: some provides offense in an indictment ac- jurisdiction document is essential to confer on cused with the bare minimum of informa- Waiving scope. the court and to define its necessary requirement.... tion to meet this right grand jury does not to indictment guarantees right Fifth [T]he Amendment right, a defendant waives either his own mean grand jury to each indictment defen- obligation, or the court's to assure "infamous,” prosecuted dant to be jurisdiction over the relevant crime matter serious, grand jury perform crime. A can punishment. and determining probable its function of cause example admittedly to To use an extreme returning only and a true bill if all elements waiving point, a indict- make the defendant of the offense are contained in the indict- grand permitted ment cannot be ment. manslaughter under an in- be sentenced for Outlet, United States v. theft, charges only even should formation 1981); Reynolds Cir. Unit B see Stein v. every to. The bottom line is that in he want case, Inc., Securities, (11th Cir.1982) 667 F.2d 33 independent obligation the court has an (adopting binding precedent all decisions charging to ensure document— of Unit B of the former Fifth Circuit handed whether indictment or information —outlines 30, 1981). September down after See also of the crime. See DeBenedictis elements Ramos, (11th Cir.1982). Wainwright, 674 F.2d 841 (11th Cir.1982) (an only indictment valid is allege juris- Failure to an element constitutes long fully, "as as those words of themselves any rely- dictional error that renders sentence directly, any expressly, without uncer- ing unalleged invalid. See id. element tainty ambiguity, set forth all the elements suggest mean to that the I do not necessary to constitute the offense intended to jurisdictional. problem Apprendi with error is (internal punished”) quotation omit- be ted). marks that, example, For it seems clear to me after language may statute be "[T]he allege Apprendi, an indictment fails accompanied ... with used but it must be right drug quantity violates a defendant's such statement of the facts and circum- notice under the Fifth and Sixth Amend- stances as will inform the accused pro- requirement It is a basic of due offence, ments. specific coming general under the provide that the a defendant cess indictment description, charged.” with which he is adequate with notice of the crime with which Hamling v. 117- charged: he or she has been (1974). L.Ed.2d are, compro- charging indictment] The criteria a valid Defects in the document [for first, guar- whether the indictment contains the mise the defendant’s Sixth Amendment any guilty plea requiring that be made elements of the offense intended to be antee required support McCoy Cannot Show which is all that In This Case pursuant Habeas Because twenty years To Entitlement Relief 841(b)(1)(C).17 Therefore, McCoy Does Not Vio- can Year Sentence His Ten Apprendi no error and he is ac- establish Apprendi. late cordingly not entitled to relief. Apprendi correct that McCoy if Even dimension, I this determination Although believe jurisdictional is of case, majority’s conclusion resolves the addressed on the merits may therefore be jurisdictional errors are not without additional on collateral review whether petition itself estab- leads discuss showing, McCoy’s procedurally defaulted or years claims that his sentence of lishes limits, disagree Because I barred. the court’s within issues, I thus, majority’s analysis occurred in of these error has no proceed to address them as well. Con- simply, I now believe his case. Stated I trary majority’s position, to believe any sentence under twenty-year statu- 841(b)(1)(C) Apprendi that, juris- § even if errors are not pursuant to tory maximum dictional, Apprendi petitioner if the in- a with jurisdietionally defective 841(a) may procedural of claim overcome the default alleged a violation dictment has Teague nonretroactivity and doctrines on a substance sched- involving controlled gram flunitrazepam, I II or 1 collateral review. ule or adequate charges against meaningful of the crimi- to notice of the him with full and notice reasonably lodged against upon a de- he can and knowl- charges him. How which nal plea. charges edgeably a defense or a prepares to answer base fendant brought against or not he him and whether Although initially imposing I believed that plea guilty a is dictated will choose to enter mandatory pursuant to a minimum charging by document. the contours of the 841(b)(1)(A) (B) where no amount of example a defendant Consider the drugs alleged in the indictment would quantity, drug of indeterminate with a crime Apprendi, violate I have reconsidered guilty plea, pleads guilty, in his does who and fact, any view. held that other than allegations government's of a not contest the conviction, penalty prior a that increases the bring quantity which him within beyond prescribed statutory 841(b)(1)(A). for a crime Laboring range increased jury must be submitted to a and maximum belief that justifiable but erroneous Ap proved beyond a reasonable doubt. See required charge was not to Government 490, indictment, 2348. But prendi, 530 U.S. at 120 S.Ct. prove quantity it in the expressly Apprendi Court limited its hold doubt to the in the a reasonable Pennsyl ing so as not to overrule McMillan v. right place, his first the defendant forewent vania, 2411, 477 U.S. 106 S.Ct. quantity jury. Such a take the issue to the (1986), upheld voluntary L.Ed.2d 67 in which the Court obviously waiver cannot be deemed required sentencing a a state statute that intelligent, erro- and because the defendant's impose mandatory forego judge minimum sen a funda- neous belief caused him found, by right might judge preponderance which he tence if mental constitutional evidence, possessed ex- that the defendant to exercise. The otherwise have chosen Brady during acting guilty pleas, a firearm the commission of the of see standard States, 742, 747-48, Apprendi, 90 S.Ct. fense of conviction. See 530 U.S. at 397 U.S. (1970) ("That guilty Reading 487 n. 120 S.Ct. 2348. McMillan together, accepted Supreme until plea grave and act to be is a solemn otherwise, appears long says that a sen care and discernment has been with constitutionally recognized”), any waiver tence is not defective unless such mandates statutory voluntary intelligent. exceeds the maximum be deemed sentence must not Thus, jury's a waiver authorized the indictment and the based on such right verdict. violates a defendant’s Sixth Amendment ultimate statute). criminal Teagtie Apply Ap- Does Not Because New rales of criminal however, prendi procedure, applied Constitutes A New Substantive should not be retroactively Rule Law.18 on collateral Criminal review unless they exceptions fit within the delineated in New substantive rales of law are to be Teague. clearly For the reasons so ex- retroactively applied on collateral review. pressed by Judge Parker United States States, Bousley v. United Clark, Cir.2001) (Par- 260 F.3d 382 620-21, 1604, 140 L.Ed.2d 118 S.Ct. ker, J., I dissenting),20 believe the decision (1998);19 see also Davis creates a new rule substantive 94 S.Ct. U.S. 346— Teag- of law and is therefore not that a (holding defen- ue. proceeding dant assert in a outset, intervening noting claim based on an substantive At the it is worth that the interpretation majority’s response of a change argu- federal footnote to this begin majority requires majority 18.I with because the Lambrix avoid the However, disagree majori- does. I constitutional issues raised this case under ty’s depart decision from the Teague at least until it has addressed whether position Singletary, in Lambrix v. Court’s procedurally the claim is defaulted. 137 L.Ed.2d prejudice analysis requires The cause and questions procedural de- error, court to assume that there was an ordinarily decided before ad- fault should asks whether there was cause to excuse the dressing Teague applies whether to bar retro- failure to raise the claim earlier or whether argues majority active relief. The that this petitioner actually prejudiced by the was the skip procedural analysis Court should the bar error, See, e.g., if it occurred. petitioner’s in this case and decide claim on 167, 152, 1584, Frady, 456 U.S. 102 S.Ct. Teague grounds large a because there are (1982). Only answering after pending raising Ap- cases number habeas questions those two in the affirmative would prendi claims in our Circuit that be sub- the court make a determination on the merits ject Teague, gives and a decision this Court petitioner’s of the claim that there was an opportunity to announce that these claims are otherwise, Supreme error. If it were the However, Teague Supreme barred. the Court would not have stated in Lambrix that ordinarily in is clear Lambrix that courts procedural-bar ordinarily "the issue should procedural decide the bar issue should first be considered first.” 520 U.S. at case, Teague inquiry, a before the and before depar- S.Ct. 1517. I therefore believe that no Lambrix, a determination on the merits. position ture from Court’s in Lambrix is 524-25, Certainly, U.S. at S.Ct. 1517. warranted in this case. recognize the Court does that in some cases economy might giving "[¡judicial counsel Bousley, Bailey held 19. In the Court that Teague question priority, example, if it States, easily against petitioner, were resolvable created a rule of procedural-bar whereas the issue involved applied that therefore retroac- substantive law complicated questions of State law." Id. at tively to cases on collateral review. However, judicial 117 S.Ct. 1517. Supreme economy Court had mind was dissenting Judge a Parker was not from judiciary’s issuing not the interest rules finding Apprendi proce- that announced a new help pending that will clear its docket of substantive, rule, dural, opposed cases; rather, as but goal speaking is to avoid on from a decision to remand to the district complicated state law constitutional question. court for consideration of that See questions. plain The Lambrix Court makes - States, "[cjonstitutional F.Supp.2d also Rosario v. United generally are issues -, (S.D.N.Y. avoided, Aug. WL 1006641 cursory and as even a review of reveals, 2001) (following Judge Parker’s dissent and Supreme] Court’s new-rule cases [the holding Apprendi represents a Teague inquiry requires substantive ... a detailed change retroactively applica- analysis of federal at in the law that is constitutional law.” Id. Therefore, review). 117 S.Ct. 1517. I believe that ble on collateral F.Supp. e.g., Caming v. United entirely. note the mark misses ment (S.D.N.Y.1995) passage (noting a from majority quotes wrote that in which the Court Apprendi Supreme requiring decision Court’s Jersey’s for New substantive basis “[t]he an additional government prove element issue; the ade- law....”). is ... not at enhancement change in the “effectuated a Jersey’s procedure is.” 530 of New quacy Apprendi mean that does This does not proper In its 120 S.Ct. 2348. U.S. at components; no procedural not also have context, unrelated to the Clark, that. one has denied See sentence reads: prior hand. The matter (“I (Parker, J., dissenting) recognize at 383 constitutionality basing “[Ajlthough the Apprendi’s new rule has both sub- racial was bias an enhanced sentence procedural components.”). stantive and courts, Jersey in the New argued majority as the require, does Id. The Court not raised issue was here.” out, previously points that certain facts then, that the constitu- simply saying, by the must now be submitted judge found of the tionality of the “substantive basis” proved beyond reason- penalty enhancement —racial bias—was doubt; of their consequence able that is case, present In the before the court. being elements offense.23 of the enhancement substantive basis procedural But whether is also the controlled sub- greater quantity petition- point. long is beside the As as too, stance, constitutionality and here effect on Apprendi’s er’s claim relies on That has no is not at issue. of that basis law, in the context of substantive does bearing on whether whatsoever law. The change analyzed is not substantive the claim creates determining Davis, 346-47, whether issue in Teague. real 417 U.S. at here is the applies effect proce- rejection Jersey’s Court’s New If, Apprendi, § after dure on 841 cases.21 Error Is Not Juris- Even A If penalty for a fact that increases dictional, A Is Not Proce- Petitioner prescribed statutory beyond the crime durally Making Ap- From An Barred is an element maximum prendi Claim. sentencing fac- rather than a mere offense juris- if not Apprendi claims were Even 490, 494,

tor, 120 530 at Apprendi, see U.S. to proce- dictional and therefore is now an quantity then S.Ct. default, petitioner I that a dural believe punish- leading of an to a element offense proeedural- a claim not be with such would twenty years pursuant of ment excess petitioner (B).22 ly presenting from it. A 841(b)(1)(A) barred the addition And challenging non-jurisdictional obviously of an element to offense See, object contemporaneously he did not criminal law. which change substantive procedural, reject- Apprendi is I 23.Even insofar as 21. The fact that the Court To reiterate: Jersey's procedure does not mean that would bar retroac ed New do not believe that a substantive Apprendi does not have application Apprendi to cases on collat tive of effect cases. 841 O'Connor, joined review. eral Justice Justices, other called "a three water why already Apprendi re- I have discussed law,” change S.Ct. shed constitutional drug quantity be treated as an quires that J., (O'Connor, dissenting), falls at 2380 which leading to a sentence in element of the offense Teag exception to precisely within second pursuant twenty years excess Teague, at 109 S.Ct. 1060. ue. 489 U.S. (B). 841(b)(1)(A) supra l.A. Part reasonably not I appeal raise on direct or is available.24 believe he did not and which (1) majority misinterpreted has excusing “cause” his the Su- show both must preme concern allowing relief on direct review and Court’s failure to seek party’s perception from the that it would be prejudice” resulting futile “actual Frady, present particular claim to error. United States constitute asserted 152, 167, reading Bousley 71 cause. A careful 102 S.Ct. 456 U.S. (1982). question There is no the cases on which it relies clear makes Supreme prejudice always pronounce will be shown that the Court did not that actual nearly broadly majority suggests. as the petitioner if the was sentenced excess maximum twenty-year Bousley, In the Court wrote: “As we 841(b)(1)(C). majority argues But the Isaac, clearly Engle stated in 456 U.S. I cannot show cause. believe McCoy 35], n. [130 S.Ct. L.Ed.2d plainly he can. (1982), ‘futility cannot constitute cause if McCoy simply could it means that a claim was “unac- majority agrees Appren- ceptable particular if basis of his to that court at that legal show cause ’” particular “reasonably were not avail- time.” 523 U.S. at argument' di then, place, him conviction became the first “futili- able” to before his Bousley, ty” at must be understood in the context of a final. See U.S. (“a not, particular particular claim that ‘is so novel that court at a S.Ct. 1604 time— here, reasonably rejection, by every available to as the nationwide legal its basis is court, proce- cause for a of the claim at issue. This is be- counsel’ constitute default”) Ross, cause, in (quoting Engle, Reed v. the Court was concerned dural 82 L.Ed.2d 1 with counsel’s “decision to withhold a (1984)). claim” majority But the finds that “the known constitutional from the state n. years Engle, foundation for was laid court. Ap- point announced S.Ct. 1558. The Court made its clear-

before McCoy ly that the reason did in the text: prendi,” and simply that it

not raise it earlier is would futility objection presenting [T]he so, have been futile to do because had cannot to the state courts alone consti- rejected by every circuit that had been object at tute cause for a failure to trial. perceived And futili- addressed the issue. perceives If a defendant a constitutional adds, majority ty, the does not constitute in may claim and believes it find favor procedural a cause to excuse default. courts, may bypass he not the federal simply courts because he state doctrine, Resting futility on this the ma- unsympathetic to the they thinks will be jority’s reasoning improbable to the leads claim. rejection that the of a claim conclusion 1558; also

every country circuit in the can never be Id. at 102 S.Ct. see Smith 527, 535, Murray, 106 S.Ct. relevant to whether the claim is considered claim, argument legally every rejected that an 'available.' If court has that First, suggested proposed fairly suggests legal a was the rule there would be dearth of Second, it, accept- say by precedent? court precedent support of the least. had in Third, proposed rule? if the answer to be the case that an utter lack of ed the But it cannot widely accepted question yes, how had legal precedent is the first two is irrelevant guilty plea argument reasonably the rule become at the time of the whether an is available. time)?” written, (or pertinent States v. Judge "there are several other As Wood has Cir.2001) Smith, points Bousley flagged for [the Court] J., (Wood, dissenting). a court conclude consideration before (“[I]t Ross, (1986) Reed v. 468 U.S. is the (quoting 82 L.Ed.2d ‘may de- that a state court very prospect Johnson, 537, 551, 102 reflection, States cide, that the contention is upon (1982)). 2579, 73 L.Ed.2d 202 To rule the established undergirds valid’ failing for to make a penalize petitioner a cannot consti- futility alone ‘perceived ” explicitly appeal claim on that had been Engle)). These are (quoting tute cause.’ in by every country circuit rejected implicated a fed- concerns not same it patently plain unfair. I think would be case, concept far it takes eral that, context, argument was not Engle. It is what was intended “reasonably and there is accord- available” excuse, thing preclude, one failure to raise cause to excuse the ingly argument that an speculation wholesale the claim earlier. courts would be in the state presented not futile; say that cause quite another is lawyer recognized when CONCLUSION

should not be argument federal to make declines sum, McCoy correctly I believe every single appellate court court because juris- are contends that errors against position.25 ruled his already has dictional, and that he therefore entitled is entirely consistent with Su- This view is on the merits of his to a determination in the con- preme precedent —even pro- prior determination of claim without courts, if the decision not to text of state Teague nonretroactivity. cedural default not made for tactical present a claim was However, I he has not estab- find that stated, when it reasons. As the Court claim, since he lished a valid announces a decision statutory below the received and wide- longstanding “overturns a result twenty years, maximum of and as has practice to which this Court spread Finally, if he not to relief. even entitled a near-unanimous spoken, but which not jurisdictional, Apprendi error were authority court has ex- body of lower I that an stated above believe reasons ... there will almost pressly approved” procedurally Apprendi claim would not be no reasonable basis certainly have been defaulted or barred. attorney previously could upon which an adopt court to urged have state ultimately has

position this Court failure of a adopted. Consequently, the pressed attorney to have defendant’s claim before a state court such a satisfy sufficiently excusable requirement. cause 924(c). holding itself, Apprendi, Bousley futility was Unlike position case. The issue in presented Bailey contrary in this taken sort was not rather, attacks on Bousley whether collateral every country; circuit in the result of guilty pleas be available as a should granted specifically certiorari because Bailey Court’s decision appellate had divided over the stan- courts interpreting the "use” applied dards to be that a which held L.Ed.2d 924(c). futility provision would employment” "active fire- must find "particular therefore have involved a defendant of the before it convict arm particular time.” [a] court “using” a under 18 U.S.C. offense of firearm

Case Details

Case Name: Chester McCoy v. United States

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Sep 25, 2001

Citation: 266 F.3d 1245

Docket Number: 00-16434

Court Abbreviation: 11th Cir.