PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-6281

SEAN LAMAR SANDERS, a/k/a Sean

Lamont Sanders,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

W. Earl Britt, Senior District Judge.

(CR-97-149, CA-99-860-5-BR)

Argued: February 26, 2001

Decided: April 13, 2001

Before WILKINSON, Chief Judge, TRAXLER, Circuit Judge,

and T. S. ELLIS, III, United States District Judge for the

Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Chief Judge Wilkinson wrote the

opinion, in which Judge Traxler and Judge Ellis joined. 

COUNSEL

ARGUED: Matthew C. Hicks, Student Counsel, Appellate Litigation

Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Anne Margaret Hayes, Assistant United

States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:
Steven H. Goldblatt, Director, Adam N. Steinman, Supervising Attorney, Troy B. Klyber, Student Counsel, Appellate Litigation Program,

GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C.,

for Appellant. Janice McKenzie Cole, United States Attorney, Fenita

M. Shepard, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. 

OPINION

WILKINSON, Chief Judge: 

Sean L. Sanders filed this petition for collateral relief under 28

U.S.C. § 2255 (1994 & Supp. IV 1998). Sanders claimed that his conviction and sentence for conspiracy to distribute cocaine and cocaine

base in violation of 21 U.S.C. §§ 841 and 846 should be overturned

on account of violations of his Fifth and Sixth Amendment rights. The

district court dismissed Sanders’ motion as untimely under § 2255

because it was filed more than one year after Sanders’ conviction

became final. Because Sanders’ resentencing under Fed. R. Crim. Pro.

35(b) did not renew the clock on § 2255’s statute of limitations,

because Sanders procedurally defaulted any remaining claims, and

because the new rule of criminal procedure announced in Apprendi v.

New Jersey, 530 U.S. 466 (2000), does not apply retroactively on collateral review, we affirm the district court’s dismissal of Sanders’

habeas petition. 

I.

On September 23, 1997, Sean L. Sanders was named in a onecount criminal information. The information alleged that Sanders conspired to distribute cocaine and cocaine base in violation of 21 U.S.C.

§§ 841 and 846. Sanders subsequently waived indictment and pleaded

guilty to the criminal information. On January 13, 1998, Sanders was

sentenced to 328 months imprisonment and a five-year term of supervised release. The district court also ordered Sanders to pay a

$15,792.00 fine and specially assessed him $100. The court entered

its judgment on January 15, 1998. Sanders did not appeal. 

2 UNITED STATES v. SANDERS
On December 15, 1998, in light of Sanders’ substantial assistance

in other prosecutions, the government moved for a reduction in Sanders’ sentence pursuant to Fed. R. Crim. Pro. 35(b). On April 16, 1999,

the district court granted the government’s motion. The court reduced

Sanders’ term of imprisonment to 188 months and reduced his fine to

$9,686.00. 

On December 27, 1999, nearly twenty-four months after he had

originally been sentenced, Sanders filed a petition for collateral relief

under 28 U.S.C. § 2255. Sanders claimed that in light of Jones v.

United States, 526 U.S. 227 (1999), his original sentence violated his

Fifth Amendment right to due process because the district court did

not apply the "beyond a reasonable doubt" standard in determining

the type and quantity of the drugs in question. In addition, Sanders

claimed that his attorney was ineffective for failing to present this

Fifth Amendment argument to the court. 

On January 6, 2000, the district court dismissed Sanders’ petition

for relief. The court noted that the judgment of his conviction became

final in January 1998, but that Sanders did not file his petition for collateral relief until December 1999. The court ruled that Sanders’ petition was therefore untimely under § 2255’s one-year statute of

limitations. Sanders now appeals. 

II.

Prior to 1996, there was no time limitation on a federal prisoner’s

ability to collaterally attack his conviction in a § 2255 motion. See

United States v. Torres, 211 F.3d 836, 838 (4th Cir. 2000). This

changed in 1996 with Congress’ enactment of the Antiterrorism and

Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214

("AEDPA"). AEDPA amended 28 U.S.C. § 2255 to provide a oneyear limitations period for the filing of § 2255 motions. Section

2255’s statute of limitations provides, in relevant part: 

A 1-year period of limitation shall apply to a motion under

this section. The limitation period shall run from the latest

of — 

UNITED STATES v. SANDERS 3
(1) the date on which the judgment of conviction

becomes final; . . . [or] 

(3) the date on which the right asserted was initially recognized by the Supreme Court, if

that right has been newly recognized by the

Supreme Court and made retroactively applicable to cases on collateral review. 

28 U.S.C. § 2255 (1994 & Supp. IV 1998).1

Sanders contends that his motion was timely under both subsections (1) and (3). 

III.

Sanders first contends his habeas petition was timely under § 2255

subsection (1). Sanders concedes that if this court construes the date

upon which his "judgment of conviction becomes final" to be January

15, 1998, then his motion is untimely. January 15, 1998, was the date

on which the district court entered its judgment from which Sanders

chose not to appeal. Sanders contends, however, that the one-year

limitations period did not begin to run until the completion of his

resentencing under Fed. R. Crim. Pro. 35(b). This occurred on April

16, 1999. Since Sanders filed his § 2255 motion on December 27,

1999, roughly eight months after he was resentenced, he claims that

his motion therefore is timely. 

1The remaining two parts of § 2255’s statute of limitations are not relevant to this appeal. Those provisions state: 

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution

or laws of the United States is removed, if the movant was

prevented from making a motion by such governmental

action; . . . [or] 

(4) the date on which the facts supporting the claim or claims

presented could have been discovered through the exercise

of due diligence. 

4 UNITED STATES v. SANDERS
We disagree. Congress did not explicitly state in the AEDPA when

a "judgment of conviction becomes final" for purposes of § 2255 subsection (1). See Torres, 211 F.3d at 838. In Torres, however, this

court held that "for purposes of § 2255, the conviction of a federal

prisoner whose conviction is affirmed by this Court and who does not

file a petition for certiorari becomes final on the date that this Court’s

mandate issues in his direct appeal." Torres, 211 F.3d at 837. Under

the reasoning of Torres, Sanders’ conviction became final on the date

upon which he declined to pursue further direct appellate review. The

district court entered Sanders’ judgment of conviction on January 15,

1998. Since Sanders did not file a direct appeal, his conviction

became final for purposes of § 2255 subsection (1) on that date. 

Contrary to Sanders’ assertions, Congress did not intend for Fed.

R. Crim. Pro. 35(b) motions to prevent convictions from becoming

final for § 2255 purposes. The plain language of 18 U.S.C. § 3582(b)

establishes that a modification of a sentence does not affect the finality of a criminal judgment. Section 3582(b) states:

(b) Effect of finality of judgment. — Notwithstanding the

fact that a sentence to imprisonment can subsequently be —

a. modified pursuant to the provisions of subsection (c); 

b. corrected pursuant to the provisions of rule 35 of the

Federal Rules of Criminal Procedure and section 3742;

or 

c. appealed and modified, if outside the guideline range,

pursuant to the provisions of section 3742; 

a judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes. 

18 U.S.C. § 3582(b) (emphasis added). 

As § 3582(b)(1) contemplates, Sanders’ sentence was modified

pursuant to § 3582(c)(1)(B). That section permits courts to "modify

an imposed term of imprisonment to the extent otherwise expressly

UNITED STATES v. SANDERS 5
permitted by statute or by Rule 35 of the Federal Rules of Criminal

Procedure." 18 U.S.C. § 3582(c)(1)(B). The plain text of § 3582(b)

clearly states that this later modification does not affect the date on

which Sanders’ judgment of conviction became final "for all other

purposes." The conviction which the district court entered on January

15, 1998, included "a sentence to imprisonment." Therefore that judgment of conviction "constitutes a final judgment for all other purposes" under 18 U.S.C. § 3582(b), including the beginning of § 2255

subsection (1)’s limitations period.2

Both Sanders and the government emphasize at length various policy arguments to explain why this court should or should not construe

subsection (1)’s limitations period to begin running only after a Rule

35(b) sentence modification is granted. Sanders argues that his interpretation of subsection (1) will streamline court proceedings by

allowing defendants to present a single § 2255 motion, rather than one

for claims stemming from their original sentences and another for

claims stemming from their Rule 35(b) resentencings. Sanders also

argues that his construction of subsection (1) will encourage more

cooperation between defendants and the government by removing

defendants from the uncomfortable position of having to litigate

against the government in their § 2255 motions, while simultaneously

assisting the government in order to obtain its support for a Rule

35(b) sentence reduction. Finally, Sanders claims that his interpretation will eliminate the burden on defendants of having to litigate their

ineffective assistance of counsel claims under § 2255, while simulta2Sanders argues that § 3582 does not define when a judgment becomes

final for purposes of § 2255. In support, he points out that § 3582 states

that a judgment is final notwithstanding the fact that a defendant could

still challenge his sentence on appeal. See § 3582(b)(3). Sanders contends that this in turn would be inconsistent with our holding in Torres

that § 2255’s statute of limitations begins to run only after direct appeal

has concluded. Torres, however, did not address the effect of § 3582 on

§ 2255’s statute of limitations. And in this case, § 3582 is clear: "a judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes." 18 U.S.C. § 3582(b) (emphasis added). The

question of how § 3582 works vis-a-vis an appeal must await another

day. It is beyond dispute that under § 3582, Rule 35 sentence modifications do not affect the finality of convictions for § 2255 purposes. 

6 UNITED STATES v. SANDERS
neously being represented by that very counsel in their Rule 35(b)

resentencings. 

For its part, the Government contends that Sanders’ construction

would result in many stale § 2255 claims. It points out that although

Rule 35(b) motions ordinarily must be filed within one year after the

sentence is imposed, motions may be made at a later date, sometimes

even years afterwards. See Fed. R. Crim. Pro. 35(b). The government

also argues that the efficiency gains from Sanders’ proposed construction of § 2255 subsection (1) would be de miminis because Rule 35(b)

sentence modifications rarely, if ever, lead to § 2255 challenges. The

government also argues that Sanders’ proposed rule would inadvisably encourage defendants with valid ineffective assistance of counsel

claims to persist in being represented by their deficient counsel in

their Rule 35(b) proceedings. 

It is not our place, however, to weigh the relative merits of these

policy arguments. Congress already has considered these very concerns, and it has resolved them with 18 U.S.C. § 3582(b). We are

obligated to follow Congress’ judgment on this matter and apply the

plain text of the statute. Since Sanders’ Rule 35(b) resentencing does

not affect the date on which the judgment of his conviction became

final, Sanders’ motion was not timely under § 2255 subsection (1).3

IV.

Sanders next argues that his claims are not time-barred under subsection (3) of § 2255. See In re Vial, 115 F.3d 1192, 1197 n.9 (4th

3Sanders also contends that under the "Healy doctrine" this court

should construe § 2255’s limitations period in his favor. See United

States v. Healy, 376 U.S. 75 (1964). We disagree. Under Healy, a timely

motion for reconsideration in a criminal case resets the deadline for filing

the notice of appeal. However, a motion to reconsider and a Rule 35(b)

motion are not the same. Unlike a Rule 35(b) motion, the issues asserted

in a motion for reconsideration are often the same as those raised on

appeal. Allowing a district court to reconsider an alleged legal error can

eliminate the need for an appeal. These efficiencies explain the Supreme

Court’s holding in Healy. However, they do not apply to Rule 35(b)

motions, which do not ordinarily assert legal error. 

UNITED STATES v. SANDERS 7
Cir. 1997) (en banc). Even assuming, solely for purposes of this

appeal, that Sanders is correct, his habeas petition still faces two

insurmountable obstacles. 

A.

Sanders did not argue at his original sentencing that a jury must

determine beyond a reasonable doubt the types or quantities of drugs

involved in his conspiracy. Nor did he raise this claim on direct

appeal. As the Supreme Court has admonished, "[h]abeas review is an

extraordinary remedy and will not be allowed to do service for an

appeal." Bousley v. United States, 523 U.S. 614, 621 (1998) (internal

citations omitted). "Where a defendant has procedurally defaulted a

claim by failing to raise it on direct review, the claim may be raised

in habeas only if the defendant can first demonstrate either ‘cause’

and actual ‘prejudice,’ or that he is ‘actually innocent.’" Id. at 622

(internal citations omitted). 

Sanders first attempts to demonstrate "cause." He argues that the

legal basis for his claim was not reasonably available to his counsel

at the time his plea was entered. He notes further that the Supreme

Court has held "that a claim that ‘is so novel that its legal basis is not

reasonably available to counsel’ may constitute cause for a procedural

default." Bousley, 523 U.S. at 622 (citing Reed v. Ross, 468 U.S. 1,

16 (1984)). 

In Bousley, however, the Supreme Court elaborated on just what

constitutes a novel claim. In that case, Bousley claimed on collateral

review that his guilty plea for "using" a firearm in violation of 18

U.S.C. § 924(c)(1) was not knowing and intelligent because the district court misinformed him of the nature of the charged crime. Bousley’s claim was based on the fact that, five years after his conviction,

the Supreme Court held in Bailey v. United States, 516 U.S. 137, 144

(1995), that § 924(c)(1)’s "use" prong requires the Government to

show "active employment of the firearm," rather than mere possession. Bousley, 523 U.S. at 616. 

Although the Court recognized that its holding in Bailey changed

the relevant legal landscape, it held that Bousley’s claim was not

novel. The Court reached this conclusion because other defendants

8 UNITED STATES v. SANDERS
had previously challenged their § 924(c)(1) convictions on grounds

that "use" required more than the mere possession of a firearm. See

Bousley, 523 U.S. at 622-23. 

The Court further rejected Bousley’s argument that his failure to

raise the claim on direct review "should be excused because, before

Bailey, any attempt to attack his guilty plea would have been futile."

Bousley, 523 U.S. at 623 (internal quotation marks omitted). Instead,

the Court stated that "futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time." Id. (citing Engle v. Isaac, 456 U.S. 107, 130 n.35

(1982)). 

Under the Bousley analysis, Sanders simply cannot show cause to

explain his failure to raise his Apprendi argument on direct appeal.

The Seventh Circuit has recently addressed this precise issue, holding

that a petitioner procedurally defaulted his Apprendi claim when he

failed to raise it at his trial in 1992. See United States v. Smith, 241

F.3d 546 (7th Cir. 2001). Smith determined that the petitioner’s

claims were not novel because "the foundation for Apprendi was laid

long before 1992. Other defendants had been making Apprendi-like

arguments ever since the Sentencing Guidelines came into being, and

in McMillan v. Pennsylvania, 477 U.S. 79 (1986), the Court

addressed on the merits an argument along similar lines." Smith, 241

F.3d at 548 (internal citations omitted). See also United States v.

Nance, 236 F.3d 820, 823 (7th Cir. 2000) ("Indeed, as far back as

1997 defendants were arguing to this court that the type of drug that

they were charged with distributing in violation of 21 U.S.C. § 841

was an element of the offense that had to be proven to the jury beyond

a reasonable doubt.") (citing United States v. Edwards, 105 F.3d 1179

(7th Cir. 1997)). 

Smith further rejected the petitioner’s futility argument, which is

identical to Sanders’ here. The Smith petitioner argued that he showed

cause because, prior to Apprendi, the federal circuit courts had held

that drug quantity under 21 U.S.C. § 841(b) was a statutory sentencing factor rather than a substantive element of the offense. See, e.g.,

United States v. Powell, 886 F.2d 81, 85 (4th Cir. 1989); United

States v. Edwards, 105 F.3d 1179 (7th Cir. 1997). In light of this contrary precedent, the petitioner claimed that raising his Apprendi

UNITED STATES v. SANDERS 9
claims on direct appeal would have been futile. Applying Bousley,

Smith rejected this argument. Instead, the court recognized that

"‘[c]ause’ means some impediment, and [the petitioner] does not contend that any outside force impeded his legal defense." Smith, 241

F.3d at 548. 

We agree with the Seventh Circuit’s analysis. Adopting petitioner’s

view of novelty as a cause for procedural default would invite criminal defendants to bypass the preferred procedural avenue of trial and

direct appeal in favor of collateral review. Collateral review would

come in turn to serve as an all-purposive receptacle for claims which

in hindsight appear more promising than they did at the time of trial.

Bousley did not intend every change in criminal procedure to become

the occasion for reopening a judgment. The germ of Sanders’

Apprendi claim had sprouted at the time of his conviction and there

is no reason why he could not have raised it then. Although the court

may not have been likely to accept Sanders’ argument, Sanders

plainly had at his disposal the essential legal tools with which to construct his claim. Smith, 241 F.3d at 548. As a result, Sanders has procedurally defaulted his Apprendi claim. 

B.

Sanders’ argument that his claims are not barred under § 2255 subsection (3) faces an additional impediment — namely, that he seeks

to assert a new rule on collateral review in contravention of Teague

v. Lane, 489 U.S. 288 (1989). New rules of constitutional criminal

procedure "are generally not applied retroactively on collateral

review." United States v. Mandanici, 205 F.3d 519, 527 (2d Cir.

2000) (internal citations omitted). Furthermore, neither the Supreme

Court nor any of our sister circuits have held that Apprendi is retroactively applicable on collateral attack.4

 In fact, the Ninth Circuit has

4We shall assume, without deciding, that a circuit court can declare a

new rule retroactive on collateral review in an initial § 2255 petition.

Section 2255 clearly states that in order to bring a second or successive

petition, the new rule must be "made retroactive to cases on collateral

review by the Supreme Court." 18 U.S.C. § 2255. However, since this is

Sanders’ initial habeas petition, § 2255 subsection (3) controls. Subsection (3) refers to "the date on which the right asserted was initially recog10 UNITED STATES v. SANDERS
recently concluded just the opposite. See Jones v. Smith, 231 F.3d

1227 (9th Cir. 2000). Several district courts have also held that

Apprendi does not apply to initial habeas corpus petitions. See Levan

v. United States, 128 F. Supp. 2d 270, 275-76 (E.D. Pa. 2001) (listing

cases); but see United States v. Murphy, 109 F. Supp. 2d 1059 (D.

Minn. 2000) (holding that Apprendi applies retroactively); Darity v.

United States, 124 F. Supp. 2d 355 (W.D.N.C. 2000) (same). We

agree with the Ninth Circuit and the majority of district courts that

Apprendi does not apply retroactively to cases on collateral review.

In Teague v. Lane, the Supreme Court established a three-step

inquiry to determine when new rules of criminal procedure apply

retroactively on collateral review. See 489 U.S. at 288. First, the court

must determine the date on which the defendant’s conviction became

final. See O’Dell v. Netherland, 521 U.S. 151, 156-57 (1997) (citing

Lambrix v. Singletary, 520 U.S. 518, 527 (1997)). Second, the court

must decide whether the Supreme Court’s ruling indeed constitutes a

"new rule" of constitutional criminal procedure. Third, if the rule is

new, then it does not apply retroactively unless it falls within one of

the two narrow exceptions to the Teague bar. 

Sanders initially argues that Apprendi is not subject to Teague’s

three-step test because it sets forth a new rule of substantive, rather

than procedural, criminal law. To the contrary, Apprendi constitutes

a procedural rule because it dictates what fact-finding procedure must

be employed to ensure a fair trial. Teague, 489 U.S. at 312; Apprendi,

120 S.Ct. at 2354 ("The substantive basis for New Jersey’s enhancement is thus not at issue; the adequacy of New Jersey’s procedure

is."). 

nized by the Supreme Court, if that right has been newly recognized by

the Supreme Court and made retroactively applicable to cases on collateral review." Since the language of subsection (3) differs from the language governing second or successive motions, it is possible that lower

courts can declare new rules retroactive on initial petitions. However, the

language of subsection (3) can also be read to require the Supreme Court

to make the decision on retroactivity before a petitioner may file an initial § 2255 motion. In view of our disposition of the petition on other

grounds, we need not address this question. 

UNITED STATES v. SANDERS 11
Since Apprendi announced a procedural rule, we now turn to the

three-step Teague analysis. First, as noted above, Sanders’ conviction

became final on January 15, 1998. Second, Apprendi is certainly a

new rule of criminal procedure. A new rule is one that was not dictated by precedent at the time the defendant’s conviction became

final. See O’Dell, 521 U.S. at 156. As of January 15, 1998, the

Supreme Court had yet to decide either Jones v. United States, 526

U.S. 227 (1999), or Apprendi v. New Jersey, 530 U.S. 466 (2000), the

two cases upon which Sanders bases his § 2255 motion. Rather, the

leading Supreme Court case in this area was McMillan v. Pennsylvania, 477 U.S. 79 (1986). In McMillan, the Court ruled that a state

could treat the possession of a firearm as a sentencing factor rather

than as an element of a particular offense. See McMillan, 477 U.S. at

91. As a result, the Court held that the state did not need to prove the

existence of this sentencing factor beyond a reasonable doubt, and the

defendant was not entitled to a jury trial on that particular question.

Id. at 91-93. 

Since only McMillan had been decided by the time Sanders’ conviction became final, it is clear that a reasonable jurist in January

1998 would not have felt compelled to adopt the rule later set out in

Apprendi; i.e. - that any factor which increased the maximum punishment for an offense must be found by a jury beyond a reasonable

doubt. This claim is illustrated by the fact that, prior to Apprendi,

every federal circuit court considered drug quantity to be a sentencing

factor for a judge to determine based on a preponderance of the evidence. See, e.g., United States v. Powell, 886 F.2d 81, 85 (4th Cir.

1989); United States v. Campuzano, 905 F.2d 677, 679 (2d Cir.

1990). As the Ninth Circuit recognized in Jones, "Apprendi certainly

established a new rule; that much is clear from the Supreme Court’s

declaration in Jones v. United States, 526 U.S. 227, 248 (1999), that

the issue was, as of 1999, ‘not yet settled.’" Jones, 231 F.3d at 1236.5

5Our holding that Apprendi establishes a "new rule" for purposes of the

Teague v. Lane retroactivity analysis, does not also mean that Sanders

has shown cause to justify his failure to raise this claim on direct appeal.

See section IV.A, supra. The two standards simply do not overlap. See

Waldrop v. Jones, 77 F.3d 1308, 1315 (11th Cir. 1996). For purposes of

the Teague analysis, a rule is new so long as the precedent existing at the

time of the defendant’s conviction did not dictate the rule. This is a less

12 UNITED STATES v. SANDERS
New rules of constitutional criminal procedure are generally not

applied retroactively on collateral review. This rule is subject only to

the two narrow exceptions discussed in Teague. Teague’s first exception addresses new rules which forbid "criminal punishment of certain

primary conduct" and new rules which prohibit "a certain category of

punishment for a class of defendants because of their status or

offense." See O’Dell, 521 U.S. at 157. The first exception clearly does

not apply here because Apprendi did not place drug conspiracies

beyond the scope of the state’s authority to proscribe. Cf. Jones, 231

F.3d at 1237 (finding Teague’s first exception inapplicable to petitioner’s Apprendi claim because "the state’s authority to punish Petitioner for attempted murder is beyond question"). 

Accordingly, Apprendi does not apply retroactively unless it falls

within Teague’s second exception. For a rule to qualify, the new rule

must be such that, without it, "the likelihood of an accurate conviction

is seriously diminished." Teague, 489 U.S. at 313. Improving the

accuracy of trial, however, is not sufficient. Rather, a "rule that qualifies under this exception must not only improve accuracy, but also

alter our understanding of the bedrock procedural elements essential

to the fairness of a proceeding." Sawyer v. Smith, 497 U.S. 227, 242

(1990) (internal quotations omitted). The Supreme Court has pointed

to Gideon v. Wainwright, 372 U.S. 335 (1963), as the type of rule that

would satisfy Teague’s second exception. See Saffle v. Parks, 494

U.S. 484, 495 (1990). 

The Supreme Court has stated that it is unlikely that many such

rules remain undiscovered. "Whatever the precise scope of this second exception, it is clearly meant to apply only to a small core of

rules requiring observance of those procedures that are implicit in the

concept of ordered liberty." O’Dell, 521 U.S. at 157. The Court has

repeatedly emphasized the rarity of new bedrock rules of procedure.

rigorous requirement than that for showing cause in order to justify procedural default. As Bousley, 523 U.S. at 623, and Engle v. Isaac, 456

U.S. at 130 n.35, indicate, in order to show cause, the defendant must

raise any constitutional claims on direct review even if doing so may

seem futile in light of existing precedent. See also Smith, 241 F.3d at

546. 

UNITED STATES v. SANDERS 13
"Because we operate from the premise that such procedures would be

so central to an accurate determination of innocence or guilt, we

believe it unlikely that many such components of basic due process

have yet to emerge." Graham v. Collins, 506 U.S. 461, 478 (1993).

Indeed, since Teague, the Court has yet to find a single rule that qualifies under the second exception. See United States v. Mandanici, 205

F.3d 519, 529 (2d Cir. 2000) (discussing eleven new rules or proposed new rules, which the Supreme Court has declined to apply

retroactively). The new rule announced in Apprendi is dual-faceted.

The Supreme Court held both that a jury, rather than a judge, must

determine the facts supporting a statutory sentencing enhancement,

and that this finding must be made beyond a reasonable doubt, rather

than by a preponderance of the evidence. These rules, however, are

not the types of watershed rules implicating fundamental fairness that

require retroactive application on collateral attack. 

As Sanders recognizes, a rule which merely shifts the fact-finding

duties from an impartial judge to a jury clearly does not fall within

the scope of the second Teague exception. See Neder v. United States,

527 U.S. 1 (1999). Neder came on the heels of United States v.

Gaudin, 515 U.S. 506 (1995), which held that the issue of materiality

in false statement prosecutions under 18 U.S.C. § 1001 must be

decided by a jury rather than a judge. Neder nonetheless held that a

district court’s failure to submit a finding of materiality to the jury

was harmless error. Neder, 527 U.S. at 15. 

Certainly, if having a judge rather than a jury consider an element

of the offense amounts only to harmless error, then a new rule mandating a jury to decide an issue rather than a judge cannot fall within

the scope of the second Teague exception. The federal circuit courts

have recognized this very point, holding that the new rule announced

in Gaudin does not apply retroactively on collateral review. See, e.g.,

Bilzerian v. United States, 127 F. 3d 237, 241 (2d Cir. 1997); United

States v. Shunk, 113 F.3d 31, 37 (5th Cir. 1997). As the Second Circuit explained in Bilzerian, the Gaudin rule "merely shift[ed] the

determination of materiality from the judge to the jury" and there is

"little reason to believe that juries will have substantially different

interpretations of materiality than judges." Bilzerian, 127 F.3d at 241.

The same reasoning applies to Sanders’ case: there is little reason to

14 UNITED STATES v. SANDERS
believe that juries will have substantially different interpretations of

drug type and quantity than judges. 

Sanders argues, however, that it is not so much the identity of the

fact-finder as it is the reasonable doubt standard that profoundly

implicates both the fairness and the accuracy of criminal proceedings.6

Sanders likens Apprendi to Cage v. Louisiana, 498 U.S. 39, 40-41

(1990), in which the Supreme Court announced a new rule that a jury

instruction equating the reasonable doubt standard with "moral certainty" unconstitutionally diluted the reasonable doubt standard.

Sanders correctly points out that this court has held that Cage falls

within the second Teague exception and applies retroactively on collateral review. See Adams v. Aiken, 41 F.3d 175, 178 (4th Cir. 1994).

Sanders contends that Adams is indistinguishable from this case. He

also notes that this term the Supreme Court is reviewing the retroactivity of Cage’s new rule. See Tyler v. Cain, No. 00-5961, 69

U.S.L.W. 3393 (U.S. Dec. 12, 2000). 

Even assuming the Court applies Cage’s rule retroactively in Tyler,

the question raised in this case is fundamentally different. Tyler turns

on the standard of proof under which the entire case against the

defendant is submitted to the jury. Here, in contrast, Sanders cannot

claim that his entire conviction is tainted. Rather, his claim concerns

the district court’s omission of only one "element" of the offense, i.e.

- drug quantity. Cf. Neder, 527 U.S. at 11. As the Supreme Court

explained in Johnson v. United States, 520 U.S. 461, 468-69 (1997),

and Neder, 527 U.S. at 9-15, an instruction that gives a proper reasonable doubt instruction but omits an element of the offense does not

necessarily render a criminal trial fundamentally unfair, even though

it prevents the jury from rendering a "complete verdict" on every element of the offense. Rather, in those cases the Supreme Court held

that the district court’s failure to submit an element to the jury was

subject to harmless-error (Neder) and plain-error (Johnson) analysis.

6Sanders also finds great significance in the fact that Justice O’Connor,

in her dissent in Apprendi, referred to the new rule as a "watershed

change in constitutional law." Apprendi, 120 S. Ct. at 2380 (O’Connor,

J., dissenting). However, the dissent was addressing the practical effects

of the majority’s holding. The dissent did not purport to address

Teague’s second exception. In fact, it does not so much as mention the

Teague decision. 

UNITED STATES v. SANDERS 15
We may readily assume that the rule that certain sentencing factors

must be proven beyond a reasonable doubt will promote marginally

more accurate results. Cf. In re Winship, 397 U.S. 358, 363 (1970);

Sullivan v. Louisiana, 508 U.S. 275, 281 (1993). In order for a new

rule to qualify for the second Teague exception, however, it must not

only promote accuracy, but also "alter our understanding of the bedrock elements essential to the fairness of a proceeding." Sawyer, 497

U.S. at 242. A simple comparison between the Apprendi rule and the

paradigmatic watershed principle announced in Gideon v. Wainwright

indicates that the former lacks the primacy and centrality of the latter.

Gideon, which established an affirmative right to counsel in all felony

cases, was remarkable in part because of its sweeping breadth. In contrast, Apprendi merely applies to the subsection of criminal defendants whose maximum punishment may be increased by a sentencing

factor. If a defendant’s sentence is within the statutory limits, i.e. -

below the maximum sentence, then Apprendi would not apply. See

Apprendi, 120 S. Ct. at 2358. 

More importantly, we do not read Apprendi to hold that the country’s criminal justice system malfunctioned so fundamentally prior to

the year 2000, as to merit the retroactive application of the Court’s

new procedural rule. Apprendi itself recognized that judges in this

country, in accordance with the Constitution, had long exercised discretion in imposing sentences within the particular range determined

by the legislature. "[B]oth before and since the American colonies

became a nation, courts in this country and in England practiced a

policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits

fixed by law." Id. at 2357-58 (citing Williams v. New York, 337 U.S.

241, 246 (1949)). While the Apprendi principle may spark a closely

divided debate among contemporary jurists, it would be unusual for

the Supreme Court to identify a bedrock principle of procedure that

somehow eluded the nation since its founding. Again, Apprendi holds

that so long as the sentence is within the statutory range, a judge can

increase a defendant’s sentence on the basis of certain facts which

need not be proven to a jury beyond a reasonable doubt. This very

holding of Apprendi undercuts the argument that it states a bedrock

principle as envisioned by Teague. Otherwise it would be unconstitutional to allow vast numbers of criminal defendants to receive sen16 UNITED STATES v. SANDERS
tences based on facts found under a preponderance of the evidence

standard. 

Further supporting the view that Apprendi does not rise to the level

of a watershed change in criminal procedure is the fact that the majority of the federal circuit courts have subjected Apprendi claims to

harmless and plain error review. See, e.g., United States v. Terry, 240

F.3d 65, 74-75 (1st Cir. 2001); United States v. White, 240 F.3d 127

(2d Cir. 2001); United States v. Lewis, 235 F.3d 215, 218 (4th Cir.

2000); United States v. Meshack, 225 F.3d 556, 575 (5th Cir. 2000);

United States v. Nance, 236 F.3d 820, 823-24 (7th Cir. 2000); United

States v. Candelario, 240 F.3d 1300 (11th Cir. 2001). As these courts

have recognized, it is possible for a criminal defendant to have a fair

and accurate trial without the new procedural protection offered by

Apprendi. None of these cases have suggested that failure to submit

the question of drug quantities to a jury is structural error. We do not

suggest, of course, that all structural errors satisfy Teague’s second

exception. We merely emphasize that finding something to be a structural error would seem to be a necessary predicate for a new rule to

apply retroactively under Teague. 

It is important, finally, to keep the ebbs and flows of criminal process in some perspective. The Constitution embodies many important

protections for those accused of crime. The rights to counsel, to trial

by jury, and to be proven guilty beyond a reasonable doubt are all

fundamental rights. These watershed principles in turn spawn numerous subsidiary questions, which are closer to the constitutional margins. These subsidiary questions may qualify as arguable applications

of a bedrock principle, but they are not core guarantees themselves.

Taking again the example of Gideon, the Court has had to consider,

among other things, whether a district court’s order that a defendant

not speak with his counsel during a court recess violated his Sixth

Amendment right to the assistance of counsel, see Perry v. Leeke, 488

U.S. 272 (1989); whether the Sixth Amendment prohibits a sentencing court from considering a defendant’s previous uncounseled misdemeanor conviction in sentencing him for a subsequent offense, see

Nichols v. United States, 511 U.S. 738 (1994); and whether a state

procedure that permits appointed counsel to withdraw without informing the court that the appeal would be frivolous violates the indigent

UNITED STATES v. SANDERS 17
defendant’s right to appellate counsel, see Smith v. Robbins, 528 U.S.

259 (2000). The Supreme Court has never intimated that these offshoot cases would somehow automatically apply retroactively simply

because they bear some level of descendancy to the ancestral rule

established in the Gideon case. To hold otherwise would nullify

Teague’s admonition that retroactive application of new constitutional

rules on collateral review is reserved only for truly exceptional cases.

See Teague, 489 U.S. at 313. In short, the new rule announced in

Apprendi does not rise to the level of a watershed rule of criminal

procedure which "alter[s] our understanding of the bedrock elements

essential to the fairness of a proceeding." Sawyer, 497 U.S. at 242.

Because the rule does not apply retroactively on collateral review,

Sanders cannot challenge his conviction on the basis of any such

error. 

V.

All of petitioner’s arguments have served a single purpose — to

undermine the finality of direct appeal within the criminal justice system. The Supreme Court has resisted having collateral review substitute for the appellate function. Bousley’s holding on procedural

default, and Teague’s pronouncement on the retroactive application of

new rules are only the latest of a long line of cases emphasizing the

centrality of direct review of criminal convictions. With the AEDPA,

Congress has likewise spoken to the question, and established firm

time limitations to govern the filing of § 2255 petitions. As a federal

court, and an inferior one at that, we are bound to heed the admonitions of the Supreme Court and Congress on this score. For the foregoing reasons, the judgment of the district court is

AFFIRMED.

18 UNITED STATES v. SANDERS