                           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, Wash-
ington, D.C., for Appellant. Anne Margaret Hayes, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:
2                     UNITED STATES v. SANDERS
Steven H. Goldblatt, Director, Adam N. Steinman, Supervising Attor-
ney, 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 Caro-
lina, 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 con-
viction 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 col-
lateral review, we affirm the district court’s dismissal of Sanders’
habeas petition.

                                  I.

   On September 23, 1997, Sean L. Sanders was named in a one-
count criminal information. The information alleged that Sanders con-
spired 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 super-
vised 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.
                       UNITED STATES v. SANDERS                         3
   On December 15, 1998, in light of Sanders’ substantial assistance
in other prosecutions, the government moved for a reduction in Sand-
ers’ 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 col-
lateral relief until December 1999. The court ruled that Sanders’ peti-
tion 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 one-
year 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 —
4                          UNITED STATES v. SANDERS
              (1) the date on which the judgment of conviction
                  becomes final; . . . [or]

              (3) the date on which the right asserted was ini-
                  tially recognized by the Supreme Court, if
                  that right has been newly recognized by the
                  Supreme Court and made retroactively appli-
                  cable to cases on collateral review.

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

   Sanders contends that his motion was timely under both subsec-
tions (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.
    1
   The remaining two parts of § 2255’s statute of limitations are not rele-
vant to this appeal. Those provisions state:
        (2)   the date on which the impediment to making a motion cre-
              ated 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.
                       UNITED STATES v. SANDERS                         5
   We disagree. Congress did not explicitly state in the AEDPA when
a "judgment of conviction becomes final" for purposes of § 2255 sub-
section (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 final-
ity 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 con-
     stitutes 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
6                       UNITED STATES v. SANDERS
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 judg-
ment of conviction "constitutes a final judgment for all other pur-
poses" 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 pol-
icy 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 inter-
pretation 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 interpreta-
tion will eliminate the burden on defendants of having to litigate their
ineffective assistance of counsel claims under § 2255, while simulta-
    2
    Sanders 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 con-
tends 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 judg-
ment of conviction that includes such a sentence constitutes a final judg-
ment 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 modifica-
tions do not affect the finality of convictions for § 2255 purposes.
                        UNITED STATES v. SANDERS                          7
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 construc-
tion 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 inadvis-
ably 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 con-
cerns, 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 sub-
section (3) of § 2255. See In re Vial, 115 F.3d 1192, 1197 n.9 (4th
  3
   Sanders 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.
8                      UNITED STATES v. SANDERS
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 dis-
trict court misinformed him of the nature of the charged crime. Bous-
ley’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 posses-
sion. 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
                      UNITED STATES v. SANDERS                        9
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 sim-
ply that a claim was unacceptable to that particular court at that par-
ticular 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 sentenc-
ing 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 con-
trary precedent, the petitioner claimed that raising his Apprendi
10                      UNITED STATES v. SANDERS
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 con-
tend 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 crimi-
nal 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 con-
struct his claim. Smith, 241 F.3d at 548. As a result, Sanders has pro-
cedurally defaulted his Apprendi claim.

                                     B.

   Sanders’ argument that his claims are not barred under § 2255 sub-
section (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 retroac-
tively applicable on collateral attack.4 In fact, the Ninth Circuit has
  4
   We 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. Subsec-
tion (3) refers to "the date on which the right asserted was initially recog-
                       UNITED STATES v. SANDERS                         11
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 enhance-
ment 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 collat-
eral review." Since the language of subsection (3) differs from the lan-
guage 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 ini-
tial § 2255 motion. In view of our disposition of the petition on other
grounds, we need not address this question.
12                      UNITED STATES v. SANDERS
   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 dic-
tated 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. Pennsylva-
nia, 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’ con-
viction 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 punish-
ment 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 evi-
dence. 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
  5
   Our 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
                       UNITED STATES v. SANDERS                        13
   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 excep-
tion 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 peti-
tioner’s Apprendi claim because "the state’s authority to punish Peti-
tioner 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 quali-
fies 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 sec-
ond 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 pro-
cedural 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.
14                     UNITED STATES v. SANDERS
"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 quali-
fies under the second exception. See United States v. Mandanici, 205
F.3d 519, 529 (2d Cir. 2000) (discussing eleven new rules or pro-
posed 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 man-
dating 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 Cir-
cuit 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
                        UNITED STATES v. SANDERS                          15
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 cer-
tainty" 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 col-
lateral 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 retroac-
tivity 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 reason-
able 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 ele-
ment 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.
   6
     Sanders 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.
16                     UNITED STATES v. SANDERS
   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 bed-
rock 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 con-
trast, Apprendi merely applies to the subsection of criminal defen-
dants 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 coun-
try’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 dis-
cretion 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 discre-
tion in the sources and types of evidence used to assist him in deter-
mining 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 unconstitu-
tional to allow vast numbers of criminal defendants to receive sen-
                      UNITED STATES v. SANDERS                       17
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 major-
ity 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 struc-
tural 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 pro-
cess 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 numer-
ous subsidiary questions, which are closer to the constitutional mar-
gins. 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 sentenc-
ing court from considering a defendant’s previous uncounseled mis-
demeanor 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 inform-
ing the court that the appeal would be frivolous violates the indigent
18                    UNITED STATES v. SANDERS
defendant’s right to appellate counsel, see Smith v. Robbins, 528 U.S.
259 (2000). The Supreme Court has never intimated that these off-
shoot 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 sys-
tem. The Supreme Court has resisted having collateral review substi-
tute 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 admoni-
tions of the Supreme Court and Congress on this score. For the fore-
going reasons, the judgment of the district court is

                                                          AFFIRMED.
