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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 8, 2003 Decided October 21, 2003

No. 02-3033

UNITED STATES OF AMERICA,

APPELLEE

v.

CRAIG PETTIGREW,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 96cr00336–01)

Robert S. Becker argued the cause for appellant.

Mary B. McCord, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Roscoe C.

Howard, Jr., U.S. Attorney, and John R. Fisher, Thomas J.

Tourish, Jr., and Mary Ann Snow, Assistant U.S. Attorneys.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Before: EDWARDS, RANDOLPH, and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Appellant Craig Pettigrew contends that his 1997 drug convictions and sentence are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466

(2000), because a judge rather than a jury determined the

quantity of drugs involved in his crimes. Pettigrew, however,

failed to raise this claim at trial or on direct appeal. As a

consequence, we may not consider Pettigrew’s challenge on

collateral review unless he shows ‘‘cause and prejudice’’ sufficient to overcome his procedural default. We conclude that

the appellant has failed to satisfy his burden of demonstrating

that he suffered prejudice from the alleged Apprendi error,

and we therefore affirm the district court’s denial of his

motion for collateral relief.

I

On September 26, 1996, a grand jury returned a four-count

indictment against Pettigrew that grew out of an undercover

investigation of his drug trafficking activities. Counts 1 and 2

charged him with distributing cocaine base (crack cocaine) on

March 7, 1996: Count 1 charged a violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(A)(iii) for distributing 50 grams or more

of the drug; Count 2 charged a violation of 21 U.S.C. § 860(a)

for distributing 50 grams or more of cocaine base within 1000

feet of a school. Counts 3 and 4 of the indictment charged

Pettigrew with violations of the same two statutes for distributing cocaine base in a second transaction on March 22, 1996.

Pettigrew’s case went to trial on January 22, 1997. An

undercover police officer and a government informant testified regarding the defendant’s participation in the two drug

transactions. Their testimony was supported by audiotape

and, in the case of the second transaction, videotape recordings. The officer testified that Pettigrew had agreed to

provide two ounces of crack cocaine for $2000 on each occasion. A government chemist, in turn, testified that the crack

cocaine Pettigrew actually provided in the first transaction

weighed 50.62 grams, and that the amount he provided in the
3

second weighed 50.57 grams. Pettigrew testified in his own

defense, conceding that he had engaged in the drug deals, but

insisting that he had been entrapped into so doing.

Consistent with then-prevailing precedent in this circuit,

the trial court did not instruct the jury that, to convict, it

must find the 50–gram drug quantity recited in the indictment for each count; instead, the court told the jury, without

objection from the defendant, that ‘‘[t]he Government need

not prove that the defendant distributed any particular numerical amount of cocaine base or crack but it must prove

beyond a reasonable doubt that the defendant distributed a

detectable or measurable amount of cocaine base or crack.’’

1/27/97 Tr. at 100. On January 28, 1997, the jury convicted

Pettigrew on Counts 1, 3, and 4, but acquitted him on Count

2. The trial court later vacated Count 3 as a lesser included

offense of Count 4. It subsequently entered a judgment of

conviction on Count 1 for the distribution of 50 grams or more

of cocaine base on March 7, in violation of § 841(a)(1) and

(b)(1)(A)(iii), and on Count 4 for the distribution of cocaine

base within 1000 feet of a school on March 22, in violation of

§ 860(a).

The district court conducted a sentencing hearing on July

3, 1997. The Presentence Investigation Report (PSR), prepared by the U.S. Probation Office, recited the quantities of

crack cocaine as reported by the government chemist. The

report stated that, as a consequence of his convictions for

violating both § 841(b)(1)(A) and § 860(a), Pettigrew was

subject to a statutory mandatory minimum sentence of imprisonment for 10 years followed by supervised release for an

additional 10 years. PSR ¶ ¶ 43, 45; see infra Part II. The

Probation Office calculated Pettigrew’s sentencing range under the United States Sentencing Guidelines as 151 to 188

months’ imprisonment.1

1 The Probation Office calculated Pettigrew’s guidelines offense

level as 34: a base offense level of 2 under § 2D1.2 (the guideline

applicable to 21 U.S.C. § 860(a)) for committing an offense near a

protected location, plus an offense level of 32 under § 2D1.1(c)(4)

(the drug quantity table) for distributing 50 to 150 grams of cocaine
4

The district court adopted the presentence report’s factual

findings and guidelines calculations. Judgment at 4. But the

court announced that it would depart downward from the

guidelines range, based on what it perceived to be an unjustified disparity in the guidelines sentences for offenses involving crack as compared to powder cocaine. 5/2/97 Tr. at 11–

21.2

 The court then sentenced Pettigrew to the statutory

mandatory minimum of 120 months’ imprisonment and 10

years’ supervised release. Pettigrew filed a direct appeal,

and, on September 24, 1999, we affirmed the judgment of the

district court. United States v. Pettigrew, 203 F.3d 53 (D.C.

Cir. 1999). The defendant did not petition the Supreme

Court for a writ of certiorari.

On November 8, 2000, Pettigrew filed a motion pursuant to

28 U.S.C. § 2255, asking the district court to vacate, set

aside, or correct his sentence.3

 He asserted that his convictions and sentence were unlawful in light of Apprendi v. New

Jersey, which the Supreme Court had issued in June of that

year. 530 U.S. 466 (2000). The district court denied Pettigrew’s motion, holding that no violation of Apprendi had

occurred in the case, but issued a certificate of appealability

pursuant to 28 U.S.C. § 2253.

base. See U.S. SENTENCING GUIDELINES MANUAL § 2D1.2 (1995)

(U.S.S.G.); id. § 2D1.1(c)(4); see also id. § 3D1.2(d) (explaining

that counts should be grouped and their respective quantities

aggregated when the offense level is determined largely according

to drug quantity). The offense level of 34, combined with Pettigrew’s criminal history category of I, generated a sentencing range

of 151 to 188 months. See PSR ¶ ¶ 13, 25, 44; U.S.S.G. ch.5, pt. A.

2 This court has held, and had held at the time of Pettigrew’s

sentencing, that ‘‘the crack/powder disparity’’ is not ‘‘a valid basis

for downward departure.’’ In re Sealed Case, 292 F.3d 913, 915

(D.C. Cir. 2002) (citing United States v. Anderson, 82 F.3d 436,

440–42 (D.C. Cir. 1996)). The government, however, did not appeal

from the district court’s decision. See Appellees’ Br. at 2 n.1.

3 Pettigrew timely filed his § 2255 motion within one year of the

date upon which the judgment of conviction became final. See Clay

v. United States, 537 U.S. 522, 123 S. Ct. 1072, 1076 (2003); United

States v. Hicks, 283 F.3d 380, 387 (D.C. Cir. 2002).
5

II

We begin with a description of Pettigrew’s claim of error,

and of the standard of review that we must apply to that

claim.

Section 841(b)(1) of Title 21 of the United States Code

provides three escalating penalty ranges for the distribution

of cocaine base: § 841(b)(1)(C) authorizes a maximum sentence of 20 years’ imprisonment (with no mandatory minimum), followed by at least 3 years of supervised release, for

distributing any detectable amount of the drug;

§ 841(b)(1)(B) provides a mandatory minimum sentence of 5

years’ and a maximum sentence of 40 years’ imprisonment,

followed by at least 4 years of supervised release, for distributing 5 grams or more; and § 841(b)(1)(A) — the section

under which Pettigrew was convicted for the March 7 transaction — provides a mandatory minimum sentence of 10

years’ and a maximum sentence of life imprisonment, followed

by at least 5 years of supervised release, for distributing 50

grams or more. See United States v. Webb, 255 F.3d 890, 894

(D.C. Cir. 2001). A violation of § 860(a), under which Pettigrew was convicted for the March 22 transaction, subjects a

defendant to double the maximum prison term and minimum

supervised release term authorized by the applicable subsection of § 841(b) — here, § 841(b)(1)(A) — resulting in a

supervised release term for Pettigrew of at least 10 years.4

In Apprendi, the Supreme Court held that, ‘‘[o]ther than

the fact of prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable

doubt.’’ 530 U.S. at 490. After Apprendi, this circuit held

that a conviction under § 841(b)(1)(A) ‘‘is not proper unless

the relevant drug threshold has been stated in the indictment,

submitted to the jury, and proven beyond a reasonable

doubt.’’ Webb, 255 F.3d at 900 (citing United States v.

Fields, 251 F.3d 1041, 1043 (D.C. Cir. 2001)). Based on these

4 Section 860(a) also imposes a minimum prison term of 1 year,

‘‘[e]xcept to the extent a greater minimum sentence is otherwise

provided by section 841(b) of this title.’’ 21 U.S.C. § 860(a).
6

developments, which postdate his direct appeal, Pettigrew

argues that his conviction for violating § 841(b)(1)(A) was

unlawful, because the fact that his offense involved 50 grams

or more of cocaine base was decided by a judge rather than a

jury. Pettigrew further argues that his sentence was also

unlawful, because it was only the improper conviction under

§ 841(b)(1)(A) that compelled the district court to impose the

10–year mandatory minimum periods of incarceration and

supervised release5

 — a sentence the court indicated it would

not have imposed had it been permitted to depart below the

statutory minimum term. Pettigrew thus asks us to vacate

his § 841(b)(1)(A) conviction, and to remand the case for

entry of a conviction and attendant resentencing under

§ 841(b)(1)(C) — the only provision of § 841(b)(1) that does

not contain a threshold drug quantity.6

The government responds that there was no Apprendi

error at all in Pettigrew’s case. It avers that even if the drug

quantity found by a judge increases a defendant’s mandatory

minimum sentence, Apprendi does not apply as long as the

sentence imposed does not exceed the maximum sentence

provided by § 841(b)(1)(C). See Appellee’s Br. at 22–24

(citing Harris v. United States, 536 U.S. 545 (2002)).7

 But

5 As noted above, the 10-year supervised release term was the

product of Pettigrew’s convictions under both § 841(b)(1)(A) and

§ 860(a).

6 Although Pettigrew’s proposed disposition does not expressly

refer to his conviction on Count 4 for violating § 860(a), presumably

he believes that the concurrent sentence he received on that count

must be corrected as well — since it was based on the district

court’s determination that the March 22 transaction also involved 50

grams or more of crack cocaine. See 21 U.S.C. § 860(a) (subjecting

violators to ‘‘twice the maximum punishment’’ and ‘‘at least twice

any term of supervised release’’ authorized by the relevant portion

of 21 U.S.C § 841(b)).

7 Pettigrew replies that Harris is inapposite because that case

involved a statute under which a fact (brandishing a firearm)

increased only the minimum and not the maximum sentence, while

in his case the determination that Pettigrew’s crime involved 50

grams of crack increased both. Although he concedes that facts
7

the government also maintains that, for two reasons, we

should not reach the merits of Pettigrew’s Apprendi claim at

all. First, it argues that Apprendi does not apply to cases,

like Pettigrew’s, that became final before Apprendi was announced, because Apprendi does not meet the requirements

for retroactive application set forth in Teague v. Lane, 489

U.S. 288 (1989).8

 Second, the government argues that, even

if Apprendi were retroactively applied, Pettigrew’s failure to

challenge the omission of a quantity instruction at trial or on

direct review constitutes a procedural default that he cannot

overcome.

We need not decide the retroactivity question because the

government’s second point is sufficient to resolve this case.9

‘‘Where a defendant has procedurally defaulted a claim by

that trigger incremental changes in mandatory minimums may be

found by the judge, he contends that facts that change both

minimum and maximum terms function as offense elements and

must be submitted to the jury. Appellant’s Br. at 10–12.

8 Under Teague, ‘‘new constitutional rules of criminal procedure

will not be applicable to those cases which have become final before

the new rules are announced,’’ unless the new rule ‘‘places certain

kinds of primary, private individual conduct beyond the power of

the criminal law-making authority to proscribe,’’ or constitutes a

‘‘watershed rule[ ] of criminal procedure’’ implicating the fundamental fairness and accuracy of the criminal proceeding. Id. at 310–11

(citations, internal quotation marks, and alterations omitted).

9 See United States v. Dale, 140 F.3d 1054, 1056 (D.C. Cir. 1998)

(declining to reach the question of retroactive application because

the appellant could not meet his burden under the ‘‘prejudice’’

prong of the ‘‘cause and prejudice’’ test for procedural default);

United States v. Smith, 241 F.3d 546, 549 (7th Cir. 2001) (same

where the appellant established neither cause nor prejudice). Although a court ‘‘must apply Teague before considering the merits of

the claim’’ when the government challenges the retroactive application of a decision, Caspari v. Bohlen, 510 U.S. 383, 389 (1994), a

disposition based on the appellant’s procedural default does not

require us to decide the merits of the underlying Apprendi claim.

See United States v. Lafayette, 337 F.3d 1043, 1048 n.7 (D.C. Cir.

2003).
8

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.’ ’’ Bousley v. United States, 523 U.S. 614, 622 (1998)

(citations omitted); see United States v. Frady, 456 U.S. 152,

167–68 (1982) (applying the same standard to a challenge

brought under 28 U.S.C. § 2255). As Pettigrew has not

professed actual innocence,10 ‘‘he must show both (1) ‘cause’

excusing his double procedural default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.’’ Frady, 456 U.S. at 167–68.

To establish ‘‘actual prejudice,’’ Pettigrew ‘‘must shoulder

the burden of showing, not merely that the errors at his trial

created a possibility of prejudice, but that they worked to his

actual and substantial disadvantage, infecting his entire trial

with error of constitutional dimensions.’’ Frady, 456 U.S. at

170. Although the required showing has not been precisely

delineated,11 it is clear that Pettigrew must at least demonstrate that ‘‘there is a reasonable probability that, but for [the

errors], the result of the proceeding would have been different.’’ United States v. Dale, 140 F.3d 1054, 1056 n.3 (D.C.

Cir. 1998) (quoting Strickland v. Washington, 466 U.S. 668,

694 (1984)).12 Indeed, the ‘‘showing of prejudice’’ required to

overcome procedural default on collateral review ‘‘is signifi10 See Bousley, 523 U.S. at 623 (‘‘It is important to note TTT that

‘actual innocence’ means factual innocence, not mere legal insufficiency.’’).

11 See RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS

PRACTICE AND PROCEDURE § 26.3c, at 1219–25 (4th ed. 1998).

12 In Dale, we added that ‘‘[c]ircuit precedent suggests that

habeas prejudice may require a greater showing, namely, ‘by a

preponderance of the evidence, that the outcome of his trial would

have been different but for the errors in question.’ ’’ 140 F.3d at

1056 n.3 (quoting United States v. Saro, 24 F.3d 283, 287 (D.C. Cir.

1994)) (emphasis in Dale); cf. Frady, 456 U.S. at 174 (rejecting as

insufficient to support a collateral attack a claim of prejudice

resulting from erroneous jury instructions, where there was ‘‘no

substantial likelihood the erroneous TTT instructions prejudiced [the

defendant’s] chances with the jury’’).
9

cantly greater than that necessary’’ to establish plain error on

direct review. Murray v. Carrier, 477 U.S. 478, 493–94

(1986); see also Frady, 456 U.S. at 166; Dale, 140 F.3d at

1057; United States v. Saro, 24 F.3d 283, 287 (D.C. Cir. 1994).

To establish the latter, the defendant ‘‘bears the burden of

persuasion’’ in showing ‘‘that the error TTT affected the

outcome of the district court proceedings.’’ United States v.

Olano, 507 U.S. 725, 734 (1993).13 We must require at least

as much from Pettigrew.

In the following Part, we assume for purposes of analysis

that there was Apprendi error in Pettigrew’s case, and ask

whether that error resulted in actual prejudice under the

standard just described. Because we conclude that Pettigrew

has not demonstrated that he suffered such prejudice, we find

it unnecessary to determine whether he has demonstrated the

kind of ‘‘cause’’ also required to excuse his procedural default.

See Frady, 456 U.S. at 168; Dale, 140 F.3d at 1056 n.4.

Before proceeding to the prejudice inquiry, we pause to

consider Pettigrew’s threshold objection to the entire enterprise of asking whether his procedural default may be overcome by a showing of cause and prejudice. In Pettigrew’s

view, because the jury did not find that he distributed 50

grams of crack cocaine before convicting him, the district

court ‘‘lacked jurisdiction’’ to sentence him under

§ 841(b)(1)(A). Appellant’s Br. at 32. Pettigrew asserts that

such a ‘‘jurisdictional defect’’ cannot be ‘‘waived’’ by a procedural default, and that he therefore cannot be required to

13 This formulation derives from the third prong of the plain error

standard, which requires that the error ‘‘affec[t] substantial rights.’’

Olano, 507 U.S. at 734 (quoting FED. R. CRIM. P. 52(b)). The fourth

prong of that standard requires that the error also ‘‘seriously affect

the fairness, integrity or public reputation of judicial proceedings.’’

Id. at 736; see Johnson v. United States, 520 U.S. 461, 466–67

(1997). Although the Supreme Court has not been explicit on the

point, its admonition that ‘‘to obtain collateral relief a prisoner must

clear a significantly higher hurdle than would exist on direct appeal

under the plain error standard,’’ Frady, 456 U.S. at 166, indicates

that a prisoner must, at a minimum, satisfy all of the requirements

of the plain error standard in order to succeed in a collateral attack.
10

show cause and prejudice — or even plain error — before the

court may address the merits of his claim.

This argument is readily dispatched in light of United

States v. Cotton, in which the Supreme Court held: the

omission of drug quantity from an indictment, in claimed

violation of Apprendi, does not deprive a trial court of

jurisdiction; such a claim can be forfeited by a defendant’s

failure to raise it in the trial court; and such a forfeited claim

may only be corrected on direct review if it meets the plain

error standard. 535 U.S. 625, 629 (2002). As the Court

explained, ‘‘a district court ‘has jurisdiction of all crimes

cognizable under the authority of the United States,’ ’’ and

the ‘‘ ‘objection that the indictment does not charge a crime

against the United States goes only to the merits of the

case.’ ’’ Id. at 630 (quoting Lamar v. United States, 240 U.S.

60, 65 (1916)). If defects in an indictment do not deprive a

court of power to adjudicate a case, we see no reason why

defects in jury instructions — the error that Pettigrew alleges here — would yield a different result.14 Indeed, in Cotton,

the Court noted that it had previously applied the plain error

standard on direct review when a defendant had failed to

object to jury instructions in which the materiality element of

a ‘‘false statements’’ charge was omitted: ‘‘The important role

of the petit jury did not,’’ the Court observed, ‘‘prevent us TTT

from applying the longstanding rule ‘that a constitutional

right may be forfeited in criminal as well as civil cases by the

failure to make timely assertion of the right.’ ’’ Id. at 634

(referring to Johnson v. United States, 520 U.S. 461 (1997),

and quoting Yakus v. United States, 321 U.S. 414, 444 (1944)).

In short, the omission of drug quantity from jury instructions is not a jurisdictional error. Rather, when a defendant

14 In Cotton itself, drug quantity was omitted from the jury

instructions as well as from the indictment, although the Court did

not discuss the relevance of the former omission. See Cotton, 535

U.S. at 628. In Pettigrew’s case, although the issue of drug

quantity was omitted from the jury instructions, each count of the

indictment alleged the distribution of 50 grams or more of cocaine

base.
11

fails to make a timely objection to such an omission, a court

must apply the standard of review appropriate to the stage of

the proceedings at which it is eventually raised: plain error

on direct review, or cause and prejudice on collateral attack.15

In this case, because the appropriate standard is cause and

prejudice, we now proceed to consider how Pettigrew’s claim

fares under the ‘‘prejudice’’ prong of that standard.

III

The evidence of drug quantity at Pettigrew’s trial was

twofold. First, the undercover officer testified that Pettigrew

had promised on each occasion to provide ‘‘two ounces’’ of

crack cocaine, 1/23/97 Tr. at 21, 50, an amount that corresponds to 56.70 grams. Second, the government chemist

testified that he analyzed and weighed the crack that Pettigrew actually provided, and found that Pettigrew sold the

undercover officer 50.62 grams in the first transaction and

50.57 grams in the second. Although defense counsel had a

full opportunity to cross-examine the witnesses, and did in

fact cross-examine the chemist about his weighing technique,

counsel did not question the quantities that the chemist

reported.

With quantity uncontested at trial, there is no reason to

expect that the trial’s outcome would have been different had

the issue been specifically put to the jury. As we said in

United States v. Dale, a case in which the defendant attacked

his conviction on the ground that the judge rather than the

jury had determined the ‘‘materiality’’ element of the offense

15 See Dale, 140 F.3d at 1057 (holding that the ‘‘cause and

prejudice’’ standard applies on collateral review when an element of

an offense has been decided by a court rather than a jury, and

rejecting the contention that the failure to submit an element to the

jury is necessarily prejudicial merely ‘‘because it requires speculation about what a hypothetical jury could have decided, had it been

allowed to do so’’) (citation omitted); cf. Neder v. United States, 527

U.S. 1, 8–9 (1999) (holding that the omission of an element is not a

‘‘structural’’ error subject to automatic reversal, but rather —

where objected to — is subject to harmless error analysis).
12

of making false statements: ‘‘In the absence of any basis for

finding that [the defendant’s] misrepresentations were not

material, we cannot say that the judge’s failure to submit

materiality to the jury worked to [the defendant’s] actual and

substantial disadvantage.’’ Dale, 140 F.3d at 1056 (internal

quotation marks omitted).

Pettigrew raises two objections to this conclusion. First,

he contends that, because the weight of the crack cocaine in

each transaction was just slightly above the 50–gram threshold, the evidence of quantity was not ‘‘overwhelming,’’ and the

jury might therefore have reached a different conclusion than

did the judge. But whether or not the evidence of quantity

may be characterized as ‘‘overwhelming,’’ there is no question

that it was uncontested.16 And in the absence of any evidence

to the contrary, the jury would have had no basis for concluding that Pettigrew distributed less than 50 grams in each of

his criminal transactions. This was not a case, for example,

in which the government recovered a quantity of drugs less

than the 50–gram statutory threshold, and thus had to rely on

‘‘vague testimonial’’ rather than physical evidence to prove

that the threshold was met. Fields, 251 F.3d at 1045. Instead, Pettigrew’s claim relies on nothing more than speculation that the jury might have decided differently than the

judge did. Such naked speculation is simply insufficient to

establish prejudice.17

16 Cf. Neder, 527 U.S. at 19 (stating that the omission of an

element from a jury instruction would not be deemed harmless on

direct review if ‘‘the defendant contested the omitted element and

raised evidence sufficient to support a contrary finding’’); Brecht v.

Abrahamson, 507 U.S. 619, 637–39 (1993) (holding, on habeas

review, that a constitutional trial error ‘‘did not ‘substantial[ly] TTT

influence’ the jury’s verdict,’’ and hence was harmless, where ‘‘the

State’s evidence of guilt was, if not overwhelming, certainly

weighty’’) (quoting Kotteakos v. United States, 328 U.S. 750, 766

(1946)).

17 See Frady, 456 U.S. at 172 (holding in a murder case that ‘‘the

strong uncontradicted evidence of malice in the record, coupled with

[the defendant’s] utter failure to come forward with a colorable

claim that he acted without malice, disposes of his contention that
13

Second, Pettigrew objects that, although he did fail to

contest drug quantity at trial, he had no incentive to dispute

it at all since courts did not think that drug quantity was a

question for the jury before Apprendi. We have rejected

similar arguments in the past because regardless of the

incentive that defendants had to challenge drug quantity at

pre-Apprendi trials, they still had ‘‘every incentive to contest

it at sentencing.’’ Webb, 255 F.3d at 901–02; see United

States v. Johnson, 331 F.3d 962, 969 (D.C. Cir. 2003). In this

case, for example, the difference between more and less than

50 grams per transaction was the difference between a guidelines sentence constrained by a mandatory minimum of 10

years’ incarceration and 10 years’ supervised release, and a

guidelines sentence constrained only by a mandatory minimum of 5 years’ incarceration and 8 years’ supervised release.

See 21 U.S.C. §§ 841(b)(1)(B)(iii), 860(a). And, as Pettigrew

correctly notes, the district judge made it quite clear that, but

for § 841(b)(1)(A)’s mandatory minimum, he would have departed even further from the guidelines and imposed an even

shorter sentence than he did. Appellant’s Br. at 6, 18, 23;

see 5/2/97 Tr. at 12–21.18 Hence, had Pettigrew thought

he suffered TTT actual prejudice’’ from an instructional error that

relieved the government of the burden of proving that element);

Dale, 140 F.3d at 1054 (finding no prejudice where the defendant

‘‘suggested no facts or theory to rebut the district judge’s legal

conclusion that the charged nondisclosures were material’’); cf.

Neder, 527 U.S. at 19 (finding that the omission of an element from

jury instructions was harmless ‘‘where [the] defendant did not, and

apparently could not, bring forth facts contesting the omitted

element’’); United States v. Johnson, 331 F.3d 962, 969 (D.C. Cir.

2003) (finding an Apprendi error not plain where the defendant

‘‘offered the jurors no scenario under which they could have convicted him of unlawful possession with intent to distribute cocaine base,

yet found that the quantity involved was less than 50 grams’’).

18 As noted above, the only ground for departure adopted by the

district court was an improper one. See supra note 2. This

suggests a second reason why the defendant suffered no prejudice

from the alleged Apprendi error, at least with respect to his term of

incarceration. Even if we were to do what Pettigrew asks of us —
14

there was any basis for challenging the chemist’s determination of drug quantity, he would have had every incentive to

object to the incorporation of that determination in the presentence report upon which the sentencing judge relied.

Instead, he advised the Probation Office that the report

contained ‘‘no factual/material inaccuracies.’’ PSR at 11.

Indeed, even on this appeal, where the incentive for demonstrating prejudice could not be greater, Pettigrew has suggested no grounds upon which he could contest the chemist’s

testimony or otherwise challenge the evidence of drug quantity. Cf. Webb, 255 F.3d at 902 (concluding that an Apprendi

error was not plain where the defendant offered no ‘‘scenario

under which he could plausibly have disputed the drug quantities specified by the chemist’’).

In sum, because Pettigrew has failed to demonstrate that

the omission of drug quantity from his jury instructions

affected the outcome of his district court proceedings, he has

failed to establish prejudice sufficient to overcome his procedural default. As a consequence, this court cannot overturn

his convictions for violating 21 U.S.C. § 841(b)(1)(A) and

§ 860(a). And because those convictions stand, the sentence

that Pettigrew received — which he concedes was appropriate for the violation of those statutes — stands as well. See

vacate his conviction under § 841(b)(1)(A) and remand for entry of a

conviction and resentencing under § 841(b)(1)(C) — he would still

receive at least the same prison term he received before. Although

a minimum 10–year term would no longer be dictated by the

statute, the Sentencing Guidelines would still dictate an even longer

term in light of the court’s finding that Pettigrew’s offenses involved a total of 101.19 grams of cocaine base. See U.S.S.G.

§§ 2D1.1(c)(4), 2D1.2 (prescribing a sentence of 151 to 188 months

where the relevant offense conduct involves a total of 50 to 150

grams of cocaine base). And because no lawful ground for a

departure from the guidelines has been suggested, the court would

be required to impose a term within the guidelines range. See

Lafayette, 337 F.3d. at 1051 n.14; see also Webb, 255 F.3d at 898

(holding that a court does not violate Apprendi if it makes a

quantity determination and sentences a defendant, convicted of

violating § 841(b)(1)(C), to a guidelines sentence below

§ 841(b)(1)(C)’s statutory maximum of 20 years).
15

Johnson, 331 F.3d at 970 (holding that where a conviction

survives an Apprendi challenge under plain error review, a

sentence appropriate for that conviction also survives); Webb,

255 F.3d at 900, 902 (same).19

IV

For the foregoing reasons, we affirm the district court’s

judgment denying Pettigrew’s motion under 28 U.S.C.

§ 2255.

Affirmed.

19 For this reason, we have no need to address Pettigrew’s

contention that, although his 10–year supervised release term is

appropriate for a conviction under §§ 860(a) and 841(b)(1)(A), it is

not appropriate for a conviction under §§ 860(a) and 841(b)(1)(C).

See Johnson, 331 F.3d at 967 n.4; Webb, 255 F.3d at 902 n.16.