cases); United States
v. McNany, 2001 WL 649684 (N.D. Tex.) (collecting cases).
After review of the cases on both sides, we agree with the majority
that Apprendi, as a new rule of constitutional procedure, is not
retroactive to cases on collateral review under the test set forth in
Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
Thus, the Apprendi claims are time-barred.*fn4
B. The Merits of the Apprendi Claims.
Finally, even if we were to address the Defendant's Apprendi claims
directly, they have no merit. To begin with, even absent the limitations
bar, our conclusion that Apprendi does not apply retroactively on
collateral review would preclude consideration of the Apprendi claims on
the merits. Next, Apprendi does not apply to a sentence calculated by the
court under the federal sentencing guidelines when the sentence does not
exceed a statutory maximum sentence based on the amount of cocaine the
defendant stipulates was involved in his offense. See United States v.
Williams, 235 F.3d 858 (3d Cir. 2000), petition for cert. filed, 69 USLW
3763 (U.S. May 21, 2001) (No. 00-1771)
In the instant case, the Defendant stipulated that his cocaine
quantity was no less than 15 kilograms and no more than 20 kilograms.
Under 21 U.S.C. § 841(b)(1)(B), this stipulation subjected him to a
statutory maximum sentence of forty years. His sentence of 248 months
(twenty years and eight months), later reduced to 198 months, is within
this statutory maximum and thus did not violate Apprendi, id. at 861-62;
United States v. Harper, 246 F.3d 520 (6th Cir. 2001), even if the
sentence was enhanced by a finding that the Defendant was a leader or
organizer of the conspiracy. Harper, 246 F.3d at 531 n. 7.
We also note that other courts of appeals have relied on similar
drug-quantity stipulations to reject Apprendi claims on direct review
using a plain-error standard. See United States v. Duarte, 246 F.3d 56,
62 (1st Cir. 2001); United States v. Gallego, 247 F.3d 1191, 1198 (11th
Cir. 2001). We see no reason for a different result when the Apprendi
claims are raised postconviction. Cf. Henderson v. Kibbe, 431 U.S. 145,
154, 97 S.Ct. 1730, 1737-38, 52 L.Ed.2d 203, 212 (1977) (collateral
review of a state court's erroneous jury instruction is more stringent
than plain-error review in a direct appeal)
We will issue an appropriate order.
AND NOW, this 17th day of July, 2001, it is ordered that:
1. The motion (doc. 101) under 28 U.S.C. § 2255 is denied.
2. A certificate of appealability is denied.
3. The Clerk of Court shall close this file.