In the

United States Court of Appeals

For the Seventh Circuit

No. 99-4253

United States of America,

Plaintiff-Appellee,

v.

Anthony A. Smith,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 91-CR-30018-04-WDS--William D. Stiehl, Judge.

Submitted December 11, 2000--Decided February 8, 2001

 Before Coffey, Easterbrook, and Evans, Circuit

Judges.

 Easterbrook, Circuit Judge. For a fourth time we

consider arguments presented by Anthony Smith.

The first time the case was here, on direct

appeal from his conviction, we rejected most of

his contentions but remanded for inquiry into the

possibility of juror prejudice. United States v.

Smith, 26 F.3d 739 (7th Cir. 1994). The district

court rejected Smith’s position on remand, and we

affirmed in an unpublished order. 1997 U.S. App.

Lexis 2332 (7th Cir. Feb. 7, 1997).

 In April 1996 Smith began the current round of

proceedings by filing a motion for resentencing

under 18 U.S.C. sec.3582(c), contending that a

retroactive change in the Sentencing Guidelines

required a reduction in his sentence. The

district court agreed and reduced Smith’s

punishment from life to 405 months’ imprisonment.

But Smith was not happy with this change, even

though it is the one specified by the amended

guideline. He asked the district judge to cut his

sentence still further, to 240 months, because

the jury had not determined the amount of crack

cocaine in which he had dealt. Twenty years (240

months) is the maximum for a person convicted of

dealing in any small quantity of that substance.

21 U.S.C. sec.841(b)(1)(C). The district court

rejected that argument, as did we in an
unpublished order. 2000 U.S. App. Lexis 14038 (7th

Cir. June 5, 2000). But after issuing Apprendi v.

New Jersey, 120 S. Ct. 2348 (2000), the Supreme

Court remanded Smith’s case to us for further

consideration. 121 S. Ct. 336 (2000).

 Apprendi establishes that the district court

erred in 1992 when it failed to tell the jury to

determine whether Smith is accountable for more

than 50 grams of crack cocaine, which authorizes

a maximum term of life imprisonment,

sec.841(b)(1)(A), or only some lesser amount. See

United States v. Nance, No. 00-1836 (7th Cir.

Dec. 29, 2000). If Smith possessed at least 5

grams of crack with intent to distribute, then

the statutory maximum is 40 years,

sec.841(b)(1)(B), and for any lesser weight the

maximum is 20 years. Smith’s 405-month sentence

is under 40 years, so 5 grams would have

sufficed. Given the extensive criminal conduct

narrated in our 1994 opinion concerning Smith and

his many confederates, who operated an extensive,

multi-year drug ring, such a finding would have

been ordained. The judge found Smith accountable

for more than 15 kilograms of crack cocaine, and

the lowest plausible estimate was around 9

kilograms. 26 F.3d at 756-57. It is inconceivable

that the jury would have convicted Smith of

participating in the overall conspiracy, as it

did, yet believed that he and his co-conspirators

jointly dealt in less than 5 grams of crack.

(Smith is answerable for all criminal acts of his

co-conspirators within the scope of the

conspiracy.) Thus, just as in Nance, the error in

1992 was not "plain error."

 Smith did not raise this issue in 1992, when it

would have been possible to submit the question

to a jury, so "plain error" would be the standard

if this were a direct appeal. But it is not. It

is effectively a collateral attack, where the

standard is even higher. Smith did not raise this

contention in the district court at the time of

trial, or in this court on direct appeal. His

conviction and sentence thus became final.

Smith’s post-judgment request for resentencing

rested on a change in the Sentencing Guidelines.

Only at his resentencing under the amended

guideline did Smith first raise the contention

that the jury should have been told to determine

whether the conspiracy dealt in 50, 5, or less

than 5, grams of crack cocaine. That was a new

issue, one not authorized by sec.3582(c), for it

is unrelated to any change in the Sentencing

Guidelines. It is instead the sort of contention

usually raised by motion under 28 U.S.C.

sec.2255, and because the argument falls within

the scope of sec.2255 para.1 we treat it as a

collateral attack under that statute. See United

States v. Evans, 224 F.3d 670 (7th Cir. 2000);
Romandine v. United States, 206 F.3d 731 (7th

Cir. 2000).

 To obtain collateral relief Smith must show

"cause and prejudice," because he did not contend

at his trial in 1992 that the jury must determine

the quantities of drugs involved in the

conspiracy. See United States v. Frady, 456 U.S.

152 (1982); Engel v. Isaac, 456 U.S. 107 (1982).

Smith may believe that his neglect is excused

because United States v. Jones, 526 U.S. 227, 243

n.6 (1999), represents the Supreme Court’s first

express statement that the Constitution requires

issues of this kind to be resolved by juries. A

negative implication to the same effect may be

derived from Edwards v. United States, 523 U.S.

511 (1998), which holds that the judge determines

drug quantities for purposes of the Sentencing

Guidelines; the Court reserved the question

whether the thresholds under sec.841(b) must be

presented to juries. Even Edwards, however, was

released long after Smith’s 1992 trial.

 Nonetheless, the lack of precedent for a

position differs from "cause" for failing to make

a legal argument. Indeed, even when the law is

against a contention, a litigant must make the

argument to preserve it for later consideration.

See Bousley v. United States, 523 U.S. 614, 622-

24 (1998); Engel, 456 U.S. at 130 n.35 (that a

legal argument would have been unpersuasive to a

given court does not constitute "cause" for

failing to present that argument). "Cause" means

some impediment, and Smith does not contend that

any outside force impeded his legal defense in

1992. (Nor does he contend that counsel was

ineffective for failure to anticipate Apprendi;

no such argument would be tenable.) The lack of

any reasonable legal basis for a claim may

constitute "cause," see Reed v. Ross, 468 U.S. 1,

16 (1984), but 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 could have invoked the

themes in McMillan, and for that matter In re

Winship, 397 U.S. 358 (1970), just as the

Justices themselves did in Apprendi. See Garrott

v. United States, No. 99-2921 (7th Cir. Jan. 30,

2001). Thus Smith has not established cause; and

for the same reason that he could not show plain

error (if that were the right standard) he cannot

show prejudice either.

 In discussing cause and prejudice we have

assumed that Apprendi applies in the first place.

This is by no means clear. Under Teague v. Lane,

489 U.S. 288 (1989), few constitutional arguments
apply retroactively on collateral attack even if

properly preserved. The Supreme Court has not

held that Apprendi is retroactively applicable on

collateral attack. See Talbott v. Indiana, 226

F.3d 866 (7th Cir. 2000). Given our conclusion

that Smith has established neither cause nor

prejudice, however, it is unnecessary to explore

the subject of retroactivity.

Affirmed