UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.  No. 01-4414

ERIC WHEELER, a/k/a E,

Defendant-Appellee. 

Appeal from the United States District Court

for the Western District of North Carolina, at Asheville.

Lacy H. Thornburg, District Judge.

(CR-96-53)

Submitted: November 20, 2001

Decided: January 18, 2002

Before WILLIAMS and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Reversed and remanded by unpublished per curiam opinion. 

COUNSEL

Gretchen C.F. Shappert, OFFICE OF THE UNITED STATES

ATTORNEY, Charlotte, North Carolina, for Appellant. Sandra J.

Barrett, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

The Government appeals the district court’s order granting in part

Eric Wheeler’s motion filed under 28 U.S.C.A. § 2255 (West Supp.

2001) in light of the Supreme Court’s decision in Apprendi v. New

Jersey, 530 U.S. 466 (2000). Because the court’s order squarely conflicts with our recent decision in United States v. Sanders, 247 F.3d

139 (4th Cir. 2001), petition for cert. filed (Oct. 9, 2001) (No. 01-

6715), we reverse. 

Four days after the district court’s order, we issued our decision in

Sanders, holding that Apprendi does not apply retroactively on collateral review. The Government filed a motion for reconsideration citing

Sanders, which was denied by the district court. The court, relying on

its own decision in Darity v. United States, 124 F. Supp. 2d 355

(W.D.N.C. 2000), found that Sanders merely held that Apprendi does

not apply retroactively to an untimely filed § 2255 motion. The district court vacated Wheeler’s life sentence on his drug conviction and

imposed a term of thirty years. 

The Government raises two issues on appeal. First, it claims that

the district court erred as a matter of law in finding that Apprendi

applied retroactively to Wheeler on collateral review. Second, the

Government claims that Wheeler’s collateral attack on his sentence

was time-barred by the AEDPA one-year limitations period. We

review a district court’s grant of a § 2255 motion de novo. United

States v. Brown, 155 F.3d 431, 434 (4th Cir. 1998). 

We find that the district court applied an overly narrow interpretation of our decision in Sanders. Rather than relying exclusively on the

untimeliness issue, we stated that even assuming Sanders’ motion was

timely, he nonetheless faced "two insurmountable obstacles." Sanders, 247 F.3d at 144. First, Sanders procedurally defaulted his claim

by failing to argue at his original sentencing hearing or on direct

appeal that he was entitled to a jury determination as to the types or

quantities of drugs involved in the conspiracy. Moreover, he failed to

establish cause and actual prejudice for the default. Id. Second, we

2 UNITED STATES v. WHEELER
found that Sanders was unable to overcome the strictures of Teague

v. Lane, 489 U.S. 288 (1989). Id. at 146. 

Here, as in Sanders, Wheeler failed to challenge his conviction at

trial or on direct appeal on the ground that he was entitled to a jury

determination of drug quantity. Moreover, Wheeler does not attempt

to make any showing of cause and prejudice in his formal brief before

this Court. Finally, Wheeler cannot overcome the applicability of

Teague v. Lane. 

Accordingly, we need not consider the timeliness of Wheeler’s

§ 2255 motion. Even assuming it was timely, he cannot overcome the

two additional obstacles set forth in Sanders. We therefore reverse the

district court’s order and remand with instructions to reimpose the

original life sentence on the drug count. We deny Wheeler’s motion

for substitution of counsel. We dispense with oral argument because

the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

REVERSED AND REMANDED

UNITED STATES v. WHEELER 3