Id. Because there was ample legal basis for Poteete to have raised an Apprendi-like claim in his
direct appeal,” his failure to do so would bar us from considering that claim now, even if Apprendi

applied to his sentence.

‘onclusion

For the reasons set forth above, Poteete’s section 2255 motion is denied and this case is
dismissed.

ENTER:

UNITED STATES DISTRICT JUDGE

patep: 2728-02

7In fact, Poteete’s co-defendants McCain, Moore, Ellis and Wilson raised such claims in their
appeals. See Smith, 223 F.3d at 562-66.



conspiracy, a schedule II drug, is twenty years imprisonment. 21 U.S.C. §§ 812, 841(b)(1)(C), 846.
Poteete was sentenced to 210 months, or seventeen and one-half years, in prison. Because Poteete’s
sentence is not in excess of the default statutory maximum, Apprendi does not apply. Talbott v.
Indiana, 226 F.3d 866, 869-70 (7" Cir. 2000) (“Apprendi does not affect the holding of Edwards v.
United States, 523 U.S. 511, 118 S. Ct. 1475, 140 L. Ed.2d 703 (1998), that the judge alone
determines drug types and quantities when imposing sentences short of the statutory maximum.”)

Even if Apprendi were applicable to his sentence, Poteete’s claim would still fail because he
did not raise this argument in his direct appeal. As a result, we could reach the merits of his claim
only if he could demonstrate cause for and prejudice from failing to raise it earlier. United States

v. Smith, 241 F.3d 546, 548 (7th Cir.), cert. denied, 122 8. Ct. 267 (2001). Though Apprendi was

not decided until after his appeal was briefed and argued, that did not preclude Poteete from raising
the argument. In the words of our court of appeals, “the lack of precedent for a position differs from
‘cause’ for failing to make a legal argument.” Id, Had there been no reasonable legal basis for
Poteete to make an Apprendi-type argument on appeal, his failure to do so would be excused. Id.
But, as the Seventh Circuit noted,
{o]ther defendants had been making Apprendi-like arguments ever since the
Sentencing Guidelines came into being, and in McMillan y. Pennsylvania, 477 U.S.
79, 106 S, Ct. 2411, 91 L. Ed.2d 67 (1986), the Court addressed on the merits an
argument along similar lines. [Poteete] could have invoked the themes in McMillan,

and for that matter In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368
(1970), just as the Justices themselves did in Apprendi.


Minute Ordee Form (06/97)
’

United States District Court, Northern District of Illinois
ZY

raneot msespatie |] Paul E,Plunkett Skin Sade te
CASE NNMBBR aa) 01C 6151 DATE 2/28/2002

CASE AN USA vs. POTEETE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

qd) Qo Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

@) Qa Answer brief to motion due___. Reply to answer brief due.

(4) QO Ruling/Hearingon______ssetfor_— at

(5) Oo Status hearing{held/continued to] [set for/re-set for]on___—s set for__— at

(6) o Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor_at_
(7) QO Trial[set for/re-set for]on____at

(8) o [Bench/Jury trial] [Hearing] held/continued to____at

(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) (General Rule 21 O) FRCP41(a)(1) (1 FRCP41(a)(2).

(10) MM [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: Potecte’s Section 2255
motion is denied and this case is dismissed.

a1) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required, number of notices

Notices mailed by judge’s staff. FEB 28 2002.

Notified counsel by telephone. date docketed

date mailed notice

ov | Docketing to mail notices.

o | Mail AO 450 form. LuAGS |

Copy to judge/magistrate judge.

courtroom 3 BI o i)
TBK deputy's

initials

Ut Batéltime teoeived in
central Clerk's Office rnin dopuy ints



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA, Dey. TED

)
) *EB 9

Plaintiff, ) 2002
)

v. ) No. 01 C 6151
) Paul E. Plunkett, Senior Judge
CHARLES POTEETE, ) .

)

Defendant. )

MEMORANDUM OPINION AND ORDER
In 1998, Charles Poteete was convicted of conspiring to distribute narcotics and was
sentenced to 210 months in prison and five years of supervised release. Two years later, the Seventh
Circuit affirmed his conviction and sentence. He has now filed a motion pursuant to 28 U.S.C. §
2255 (“section 2255”) to vacate, correct or set aside his sentence. For the reasons set forth below,

the motion is denied and this case is dismissed.

Discussion
Poteete is entitled to relief under section 2255 if his “sentence was imposed in violation of
the Constitution or laws of the United States, . . . the court was without jurisdiction to impose [it],
... the sentence was in excess of the maximum authorized by law, or [it] is otherwise subject to
collateral attack.” 28 U.S.C. § 2255. Section 2255 is not a substitute for an appeal. Belford v.
United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled in part on other grounds, Castellanos v.

United States, 26 F.3d 717, 719 (7th Cir. 1994). Consequently, Poteete cannot raise on this motion



any nonconstitutional issues that he did not raise on appeal. Id. Morever, with one exception not
relevant here,’ Poteete may not raise any constitutional issues he did not raise on appeal unless he
can show: 1) cause for failing to appeal them and “actual prejudice” from his failure to do so; or 2)
“that the district court’s refusal to consider the claims would lead to a fundamental miscarriage of
justice.” Id.; McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996).

Poteete’s first claim is that the Court misapplied the Sentencing Guidelines to him. (See
Section 2255 Mot. at 4-5.) Poteete did not raise this argument on appeal. See generally, United
States v. Smith, 223 F.3d 554 (7" Cir. 2000). It is not clear that a procedurally defaulted sentencing
claim can ever be raised in a section 2255 motion. See Scott v. United States, 997 F.3d 340, 341-42
(7" Cir. 1993). To the extent it can, however, it is only in “extraordinary circumstances,” for
example, when the error results in a “complete miscarriage of justice” and the defendant can show
cause for failing to raise it on appeal. Id. There are no extraordinary circumstances in this case.
Poteete has offered no explanation for failing to raise his Guidelines claim on appeal and has not
demonstrated that the Court made any error, let alone one that constitutes a “complete miscarriage
of justice.” Accordingly, Poteete’s Guidelines claim must be dismissed.

Poteete’s second claim is that his sentence is unconstitutional under the Supreme Court’s
holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). (See Def.’s Reply Section 2255 Mot. at
1-2.) The Apprendi Court held that “any fact [other than prior conviction] that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” Id, at 490. The default statutory maximum for operating a cocaine

‘neffective assistance of counsel claims that are dependent on evidence outside the trial
record may be raised for the first time in a section 2255 motion. United States v. Alcantar, 83 F.3d
185, 191 (7" Cir. 1996).

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