                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 99-3169
                               ________________

United States of America,               *
                                        *
            Appellee,                   *
                                        *      Appeal from the United States
      v.                                *      District Court for the
                                        *      District of Nebraska.
Darius M. Moss,                         *
                                        *
            Appellant.                  *

                               ________________

                               Submitted: December 15, 2000
                                   Filed: June 11, 2001
                               ________________

Before WOLLMAN, Chief Judge, RICHARD S. ARNOLD and HANSEN, Circuit
Judges.
                         ________________

HANSEN, Circuit Judge.

      Darius Moss appeals from the district court's1 denial of his initial motion
pursuant to 28 U.S.C. § 2255 to set aside his sentence. Moss argues his 360-month
sentence for drug law violations was imposed in violation of the rule announced in
Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), because drug quantity was not

      1
        The Honorable William G. Cambridge, United States District Judge for the
District of Nebraska.
charged in his indictment or submitted to the jury during trial. Because we conclude
Moss is foreclosed from collaterally attacking his sentence based on Apprendi, we
affirm the judgment of the district court.

                                           I.

       Moss was convicted in September 1996 of one count of conspiracy to possess
with intent to distribute crack cocaine and one count of possession with intent to
distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. At Moss's
sentencing hearing in July 1997, the district court found by a preponderance of the
evidence that Moss was responsible for 1,644.3 grams of crack cocaine, which
supported a combined base offense level of 38. The district court added two levels for
obstruction of justice, see USSG § 3C1.1 (1995), and two levels for recklessly creating
a substantial risk of death or serious bodily injury to another in the course of fleeing
from a law enforcement officer, see id. § 3C1.2. Moss's combined adjusted offense
level of 42 and a criminal history category III resulted in a sentencing range of 360
months to life. The district court sentenced Moss at the bottom end of the range,
imposing concurrent terms of 360 months on the conspiracy count and 240 months on
the distribution count.

       Moss's conviction and sentence was affirmed on direct appeal, see United States
v. Moss, 138 F.3d 742 (8th Cir. 1998), and Moss then filed the present § 2255 motion,
which the district court denied. This court subsequently granted Moss a certificate of
appealability on the issue of whether Jones v. United States, 526 U.S. 227 (1999),
applies to 21 U.S.C. § 841. The Supreme Court held in Jones that serious bodily injury
under the federal car-jacking statute, see 18 U.S.C. § 2119(2), is an element of the
offense, not a sentencing factor, which must be charged in an indictment and submitted
to the jury. Jones, 526 U.S. at 251-52.




                                           2
       Moss's opening brief focuses on the validity of the district court's two-level
enhancement for reckless endangerment during flight. He argues that after Jones the
government was required to charge reckless endangerment in the indictment and prove
to the jury beyond a reasonable doubt that he created a substantial risk of death or
injury. Shortly after the opening brief was filed, the Supreme Court issued its decision
in Apprendi, in which it held that any fact (other than a prior conviction) which
increases the penalty for a crime beyond the maximum statutory penalty authorized by
a legislature must be submitted to a jury and proved beyond a reasonable doubt. 120
S. Ct. at 2362-63. Our circuit subsequently held in the context of § 841's quantity-
dependent sentencing scheme that Apprendi prohibits the government from seeking to
impose a sentence in excess of § 841(b)(1)(C)'s 20-year maximum sentence unless drug
quantity is both alleged in the indictment and found beyond a reasonable doubt by a
jury. See United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir. 2000).

       Following Apprendi and Aguayo-Delgado, Moss now raises the issue of whether
his sentence is improper because the district court's drug quantity finding increased his
sentence beyond § 841(b)(1)(C)'s 20-year maximum sentence. Although the certificate
of appealability was issued prior to Apprendi, that decision is a natural outgrowth of,
and closely related to, the Jones issue on which the certificate was granted. We
therefore believe we have the authority to decide the Apprendi question raised, and
neither party suggests otherwise.

                                           II.

       We find no merit to Moss's initial argument that the district court's imposition of
the reckless endangerment during flight enhancement is constitutionally unsound after
Jones or Apprendi. Moss contends the district court's finding that he recklessly created
a substantial risk of death and serious bodily injury increased his sentence beyond §
841(b)(1)(C)'s 20-year maximum sentence. His argument, however, confuses the
Guidelines enhancement with § 841(b)(1)(C)'s statutory enhancement when "death or

                                            3
serious bodily injury results from the use" of a controlled substance, which exposes a
defendant to a maximum statutory penalty of life imprisonment. The district court's
finding related solely to whether Moss's relevant conduct, his flight from law
enforcement officers, was a sufficient basis to enhance his Guideline sentence and
played no part in exposing Moss to the higher statutory sentencing range. A district
court may always find relevant conduct under the Guidelines by a preponderance of the
evidence because the Guidelines themselves prohibit a sentence in excess of the
statutory maximum sentence authorized for the offense of conviction. See USSG §§
5G1.1, 5G1.2 (2000); see also United States v. Jones, No. 00-3941, 2001 WL 421218,
at *4 (7th Cir. Apr. 24, 2001) (rejecting argument that relevant conduct must be proven
to jury beyond a reasonable doubt).

       Moss is correct, however, in his assertion that the district court's drug quantity
finding increased his sentence beyond the 20-year maximum, thereby resulting in a
violation of the rule announced in Apprendi. The government concedes the
constitutional violation but argues Moss is not entitled to relief because (1) Apprendi
is a new rule of constitutional law inapplicable to cases on collateral review, see
Teague v. Lane, 489 U.S. 288 (1989); and (2) Moss procedurally defaulted the claim
by failing to raise it in his direct appeal.2

                                           A.

      In Teague, the Supreme Court held that new constitutional rules of criminal
procedure cannot be applied retroactively to cases on collateral review unless they fall
within an exception to the general rule. 489 U.S. at 311. The Court recognized two


      2
        The government also argues that the Apprendi violation is not cognizable under
plain error review, but because we conclude other grounds prevent Moss from
attacking his sentence in this collateral proceeding, we decline to reach this argument.


                                           4
such exceptions. Relevant to our inquiry is the exception permitting watershed rules,
ones which "implicate the fundamental fairness of the trial," to be raised collaterally.3
Id. at 312 (internal quotations omitted). In Rodgers v. United States, 229 F.3d 704 (8th
Cir. 2000) (per curiam), we held that § 2255 forecloses Apprendi claims in a second
or successive § 2255 motion because the Supreme Court has not "made" Apprendi
retroactive to cases on collateral review. Id. at 706 (discussing the language of §
2255). We subsequently noted in United States v. Nicholson, 231 F.3d 445, 454 n.1
(8th Cir. 2000), that whether an Apprendi challenge raised in an initial § 2255 motion
is Teague-barred is an open question in this Circuit. Consistent with the Ninth and
Fourth Circuits, and the overwhelming majority of district courts,4 we hold today that

      3
       The other exception permits a rule to be raised collaterally if it prevents
lawmaking authority from criminalizing certain kinds of conduct, Teague, 489 U.S. at
311, an exception not relevant in this case.
      4
        See United States v. Sanders, 247 F.3d 139, 151 (4th Cir. 2001); Jones v.
Smith, 231 F.3d 1227, 1237-38 (9th Cir. 2000); United States v. Jones, Nos. 3-98-CR-
0303-P, 3-01-CV-0050-P, 2001 WL 493171, at *2 (N.D. Tex. May 8, 2001); Freeman
v. United States, Nos. Cr. 496CR0068-A, Civ. A. 499CV0574-D, 2001 WL 492401,
at *5 (N.D. Tex. May 3, 2001); United States v. Trinh, Nos. Cr. A. 98-00550-04, Civ.
A. 00-6085, 2001WL 366635, at *5 (E.D. Pa. Apr. 12, 2001); Brooks v. United States,
Nos. Civ. A. DKC 2000-430, Crim. DKC 98-0519, 2001 WL 360811, at *4 (D. Md.
Apr. 10, 2001); United States v. Lang, Nos. 3:96-CR-326-P, 3:01-CV-0068-P, 2001
WL 335841, at *3 (N.D. Tex. Apr. 5, 2001); United States v. Rodriguez, No. Crim. A.
94-0192-10, 2001 WL 311266, at *6 (E.D. Pa. Mar. 28, 2001); United States v.
Zapata-Rodriguez, No. 3:93-CR-285-R, 2001 WL 194758, at *2 (N.D. Tex. Feb. 22,
2001); United States v. McCloud, Nos. XX-XXXXXXX, 00-3342, 2001 WL 173776, at *2
(D. Kan. Feb. 16, 2001); United States v. Moss, 137 F. Supp. 2d 1249, 1253 (D. Kan.
2001); United States v. Latney, 131 F. Supp. 2d 31, 34 (D.D.C. 2001); Leopard v.
United States, No. Civ.-97-149-S, 2001 WL 369992, at *3 (E.D. Okla. Jan. 29, 2001);
United States v. Goode, Nos. 96-CR-80997-DT, 00-CV-74400-DT, 2001 WL 332632,
at *4 (E.D. Mich. Jan. 23, 2001); Levan v. United States, 128 F. Supp. 2d 270, 278
(E.D. Pa. 2001); Panoke v. United States, Nos. Civ. 00-00548, Crim. 94-02179, 2001
WL 46941, at *3 (D. Haw. Jan. 5, 2001); United States v. Brown, Nos. 3:93-CR-262-
P, 3:97-CV-913-P, 2000 WL 1880280, at *4 (N.D. Tex. Dec. 28, 2000); United States
                                           5
Apprendi is not of watershed magnitude and that Teague bars petitioners from raising
Apprendi claims on collateral review.

       The Supreme Court's Teague inquiry is implicated because Apprendi is obviously
a "new rule" subject to the general rule of nonretroactivity. A "new rule" is one that
"breaks new ground or imposes a new obligation on the States or the Federal
Government. . . . To put it differently, a case announces a new rule if the result was
not dictated by precedent existing at the time the defendant's conviction became final."
Teague, 489 U.S. at 301. We believe that under either definition, Apprendi announces
a new rule.

      Prior to Apprendi, every federal circuit to have considered the question had held
that drug quantity was a sentencing factor rather than an element of the crime defined
in 21 U.S.C. § 841. See United States v. Thomas, 204 F.3d 381, 383 (2d Cir. 2000),
cert. granted, judgment vacated, and remanded, 121 S. Ct. 749 (2001). This precedent
was reaffirmed after Jones was decided. Our own case of United States v. Grimaldo,
214 F.3d 967 (8th Cir. 2000), decided just three weeks before Apprendi, is a case on
point. Apprendi unmistakably altered the legal landscape and is easily categorized as
a new rule.



v. Gibbs, 125 F. Supp. 2d 700, 705 (E.D. Pa. 2000); Klein v. United States, 125 F.
Supp. 2d 460, 467 (D. Wyo. 2000); Ware v. United States, 124 F. Supp. 2d 590, 600
(M.D. Tenn. 2000); United States v. Johnson, 126 F. Supp. 2d 1222, 1226-27 (D. Neb.
2000); United States v. Joseph, No. 96-275, 2000 WL 1789989, at *2 (E.D. La. Dec.
5, 2000); West v. United States, 123 F. Supp. 2d 845, 847 (D. Md. 2000), aff'd, No.
01-6045, 2001 WL 208508 (4th Cir. Mar. 2, 2001); United States v. Pittman, 120 F.
Supp. 2d 1263, 1270 (D. Or. 2000). But see United States v. Hernandez, 137 F. Supp.
2d 919, 932 (N.D. Ohio 2001); Parise v. United States, Nos. 3:95CR00135,
3:00CV01046, 2001 WL 286766, at *4 (D. Conn. Mar. 22, 2001); Jackson v. United
States, 129 F. Supp. 2d 1053, 1068 (E.D. Mich. 2000); United States v. Murphy, 109
F. Supp. 2d 1059, 1064 (D. Minn. 2000).
                                           6
       The second step in our analysis is to ascertain whether the new constitutional
principle announced in Apprendi is a watershed rule of criminal procedure, defined as
a rule which implicates both the accuracy and fundamental fairness of criminal
proceedings. Teague, 489 U.S. at 312. The Supreme Court has described this
exception as encompassing only a "small core of rules requiring observance of those
procedures that . . . are implicit in the concept of ordered liberty." O'Dell v.
Netherland, 521 U.S. 151, 157 (1997) (quoting Graham v. Collins, 506 U.S. 461, 478
(1993)).5 According to the Court, the "sweeping rule" announced in Gideon v.
Wainwright, 372 U.S. 335 (1963), that counsel shall be provided in all criminal trials
for serious offenses, is the prototypical example of a watershed ruling. See O'Dell, 521
U.S. at 167; Gray v. Netherland, 518 U.S. 152, 170 (1996). Gideon, according to the
Court, announced a rule that contains the "primacy and centrality" necessary to place
it within Teague's watershed exception. Saffle v. Parks, 494 U.S. 484, 495 (1990).
Apprendi does not fall within the same vein as Gideon's pronouncement that one who
is unable to afford a lawyer "cannot be assured a fair trial unless counsel is provided
for him." 372 U.S. at 344 (emphasis added). In other words, we do not believe
Apprendi's rule recharacterizing certain facts as offense elements that were previously
thought to be sentencing factors resides anywhere near that central core of fundamental
rules that are absolutely necessary to insure a fair trial.

       One might conclude at first blush that Apprendi improves the accuracy of the
fact-finding process, the first element of a watershed rule, because it increases the
prosecution's burden to establish the factual issues which in turn drive the length of a
defendant's sentence. To the extent the decision prevents the government from seeking

      5
        Since Teague was announced, the Supreme Court has found no new rule that
falls within the watershed exception. Brian Hoffstadt, How Congress Might Redesign
a Leaner, Cleaner Writ of Habeas Corpus, 49 Duke L.J. 947, 976-77 (2000). This fact
appears consistent with the Supreme Court's cautionary statement that it is unlikely
many rules falling within the second exception have yet to emerge. See, e.g., Graham
v. Collins, 506 U.S. 461, 478 (1993).
                                           7
a punishment in excess of one authorized by the jury's verdict, we would agree the
accuracy of a criminal proceeding is improved. As Justice O'Connor explained in
Teague, however, the accuracy element within the watershed exception derives from
one of the principal functions of habeas corpus, which is to "assure that no man has
been incarcerated under a procedure which creates an impermissibly large risk that the
innocent will be convicted." Teague, 489 U.S. at 312. The exception therefore applies
only to "those new procedures without which the likelihood of an accurate conviction
is seriously diminished." Id. at 313 (emphasis added). In this light, it seems arguable
whether Apprendi increases the reliability of the guilt-innocence determination at all
because the rule does not protect the innocent from conviction, it instead limits the
sentencing exposure of those who have been validly convicted.6 To illustrate, we have
yet to reverse a conviction for Apprendi error, nor can we fathom a situation where a
conviction would be overturned because of an Apprendi error. See, e.g., United States
v. Ray, No. 00-2392, 2001 WL 477092, at *5 (8th Cir. May 8, 2001) (rejecting
argument that a new trial is the appropriate remedy for an Apprendi error). We have
instead granted relief from the sentence imposed following conviction. It also seems
arguable whether the integrity of pre-Apprendi criminal convictions were "seriously"
compromised by permitting sentences to be set based upon factors found by a judge
under the preponderance standard rather than by a jury under the reasonable doubt
standard.

      We find it unnecessary to delve further into whether Apprendi increases the
accuracy of the trial because a new rule must do more than just improve accuracy,
worthy as that goal may be. To fall within the exception, the rule must impart a
fundamental procedural right that, like Gideon, is a necessary component of a fair trial.


      6
       "[I]t [the Apprendi rule] does not protect the blameless from punishment, but
instead protects the unquestionably blameworthy from unauthorized amounts of
punishment." Nancy J. King & Susan R. Klein, Developments Apres Apprendi, 12
Fed. Sentencing Rep. 331, 333 (2000).
                                           8
See Sawyer v. Smith, 497 U.S. 227, 242 (1990). "It is . . . not enough under Teague
to say that a new rule is aimed at improving the accuracy of trial. More is required.
A rule that qualifies 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." Id. (internal quotations omitted). One need only peruse the cases, and
the "new rules" therein, in which the Supreme Court has rejected the watershed
exception's applicability to appreciate how absolutely fundamental the right must be to
satisfy the exception. See, e.g., United States v. Mandanici, 205 F.3d 519, 529 (2d
Cir.) (describing eleven cases since Teague where the Supreme Court has addressed
new rules or proposed new rules and refused to apply those rules retroactively under
the watershed exception), cert. denied, 121 S. Ct. 190 (2000). Apprendi appears no
more "important" to a fair trial than rules previously addressed by the Court, including
the rule announced in Batson v. Kentucky, 176 U.S. 79 (1986), which the Court refused
to apply retroactively in Teague.

       Permitting a judge-found fact to affect the sentence imposed after a valid
conviction, even if it is found under a more lenient standard, cannot be said to have
resulted in a fundamentally unfair criminal proceeding. As the Fifth Circuit has noted,
"one can easily envision a system of 'ordered liberty' in which certain elements of a
crime can or must be proved to a judge, not to the jury," United States v. Shunk, 113
F.3d 31, 37 (5th Cir. 1997), and it is not as though defendants have been foreclosed
prior to Apprendi from challenging facts that were previously thought to be sentencing
considerations. For instance, in Moss's case, a sentencing hearing was held at which
Moss had the opportunity to both challenge the government's drug-quantity evidence
and present his own evidence relevant to the quantity determination.7

      7
        Apprendi also requires that drug quantity be charged in an indictment if the
government intends to seek an enhanced sentence. Aguayo-Delgado, 220 F.3d at 933.
We do not believe, however, that failure to charge drug quantity in the indictment
results in a fundamentally unfair proceeding. Under pre-Apprendi procedures,
defendants were always provided notice of drug quantity prior to the sentencing
                                           9
       What strikes us as particularly indicative that Apprendi is not on a par with
Gideon is that the new rule announced floats and flows with the tide of legislative
pronouncements. Similar to the scenario Justice O'Connor presents in her Apprendi
dissent, see 120 S. Ct. at 2390, Congress could tomorrow eliminate § 841's quantity-
dependent sentencing scheme by imposing a maximum penalty of life imprisonment for
any violation of the statute, thereby permitting the Sentencing Guidelines' drug quantity
assessments made by a judge using a preponderance standard to inform the judge's
actual sentencing decision. That would be constitutionally permissible as the law
stands after Apprendi, regardless of whether any quantity was alleged in the indictment.
(One has a tendency to forget that the Sentencing Guidelines have passed muster with
the Congress.) Yet a defendant convicted and sentenced under today's version of § 841
would be entitled to attack retroactively his conviction, while one convicted and
sentenced under tomorrow's version of § 841, even though both defendants were
subjected to identical criminal proceedings and received identical sentences, would
have no constitutional basis to challenge his sentence. Cf. Sanders, 247 F.3d at 150
(noting that Apprendi's holding that a judge's finding can increase a defendant's
sentence within a statutory range "undercuts the argument that it states a bedrock
principle as envisioned by Teague"). The fact that a legislative body's determination
of the statutory maximum associated with a particular crime determines whether a
sentence may be based upon a judge-found fact is incompatible with a right that is
absolutely necessary to a fair trial.

      Our holding that the rule is not of watershed magnitude is consistent with and
supported by our court's previous recognition that an Apprendi violation is not a


hearing. Drug quantity must always be included in the presentence investigation report,
and the report must be furnished to a defendant at least 35 days in advance of the
hearing. See Fed. R. Crim. P. 32(b)(4)(B) & (b)(6)(A). Moreover, defendants must
be informed of the charges against them during their arraignment, see Fed. R. Crim. P.
10, and they can easily determine the potential penalties they face by reference to the
relevant statute.
                                           10
structural error requiring per se reversal. See United States v. Anderson, 236 F.3d 427,
429 (8th Cir. 2001).8 A structural error "deprive[s] defendants of basic protections
without which a criminal trial cannot reliably serve its function as a vehicle for
determination of guilt or innocence . . . and no criminal punishment may be regarded
as fundamentally fair." Neder v. United States, 527 U.S. 1, 8-9 (1999) (internal
quotations omitted). The Supreme Court has had no occasion to contrast a watershed
rule with structural error, but we agree with the statement in Sanders that "finding
something to be a structural error would seem to be a necessary predicate for a new
rule to apply retroactively under Teague." 247 F.3d at 150-51; cf. Shunk, 113 F.3d at
37 (rejecting the proposition that all structural errors fall within the watershed
exception). The watershed exception is a habeas principle and carries with it the
Supreme Court's precept that final convictions should be preserved. Structural error,
in contrast, is essentially a doctrine relevant to direct review (it permits a defendant to
raise an argument on appeal that was not raised during the trial) where the same finality
concerns do not exist. It is thus logical that a watershed rule must be more
"fundamental" than a structural error. It is for these reasons we conclude that Apprendi
does not fall within Teague's exception for watershed rules.

      8
        The dissent suggests that "no case has ever held that the omission of an element
of a crime from an indictment can be harmless error." Post at 18. Our own circuit,
however, has explicitly held that the failure to charge drug quantity in the indictment
is subject to plain error review and has refused to recognize such an error when it was
not raised initially before the district court. See United States v. Poulack, 236 F.3d
932, 937-38 (8th Cir. 2001). Several other circuits have taken the same position. See,
e.g., United States v. Duarte, 246 F.3d 56, 59-60 (1st Cir. 2001) (reviewing failure to
include drug quantity in the indictment under plain error review); United States v.
Strickland, 245 F.3d 368, 376 (4th Cir. 2001) (noting that failure to include drug
quantity in indictment is subject to plain error review). The judicial treatment of these
indictment errors has been quite contrary to that of a structural error where automatic
reversal is required, regardless of whether any prejudice resulted, to preserve the
sanctity of the constitutional protection that was not afforded the defendant.



                                            11
                                            B.

       Even assuming an Apprendi challenge is not Teague barred, we nonetheless
conclude that Moss cannot challenge his sentence on Apprendi grounds because he
failed to raise the argument in his direct appeal.9 Because habeas relief is an
extraordinary remedy which "will not be allowed to do service for an appeal,"
significant barriers exist in the path of a petitioner who seeks to raise an argument
collaterally which he failed to raise on direct review. See Bousley v. United States,
523 U.S. 614, 621 (1998) (internal citations omitted). More specifically, a claim
unraised on direct appeal is procedurally defaulted unless a petitioner can demonstrate
(1) cause for the default and actual prejudice or (2) actual innocence. Id. at 622.

        Moss contends that cause exists to excuse his default because an Apprendi claim
falls within the category of those "novel" claims which justifiably may be raised for the
first time in a collateral proceeding.10 The Supreme Court recognized in Bousley that
"a claim that 'is so novel that its legal basis is not reasonably available to counsel' may
constitute cause for a procedural default." Id. at 622 (emphasis added) (quoting Reed
v. Ross, 468 U.S. 1, 16 (1984)). We recognize the Apprendi decision caused an about-
face in our understanding of what constitutes an element of an offense, but the
argument that drug quantity is an offense element under § 841(b), not a sentencing
factor, was certainly available to Moss's counsel at the time of Moss's direct appeal.
Our conclusion is consistent with other circuits which have spoken on the issue. See
Sanders, 247 F.3d at 145-46; United States v. Smith, 241 F.3d 546, 548 (7th Cir.
2001); Garrott v. United States, 238 F.3d 903, 905-06 (7th Cir. 2001).



      9
       Moss's counsel conceded during oral argument that no Apprendi-type argument
was raised on direct appeal.
      10
           Moss has not raised a gateway claim of actual innocence.
                                            12
       As far back as 1987, our circuit addressed the exact argument Moss now raises
as a basis for relief, see United States v. Wood, 834 F.2d 1382 (8th Cir. 1987), and
continued to address similar arguments throughout the early 1990s, see, e.g., United
States v. Mabry, 3 F.3d 244, 250 (8th Cir. 1993), cert. denied, 511 U.S. 1020 (1994).
In Wood, the defendant argued that his sentence under § 841(b)(1)(A) was invalid
because drug quantity was not alleged in the indictment nor tried to the jury. See 834
F.2d at 1388. As our court said at that time, the argument presupposed that the
enhanced penalty provisions available under § 841(b) were separate criminal offenses.
Relying on McMillan v. Pennsylvania, 477 U.S. 79 (1986), we rejected Wood's
argument after determining that Congress intended drug quantity to be a sentencing
consideration, not an element of the offense. See Wood, 834 F.2d at 1390.

       A barrage of similar arguments raged throughout the circuits in the late 1980s
and early 1990s. See, e.g., United States v. Mergerson, 4 F.3d 337, 344 (5th Cir.
1993); United States v. Underwood, 982 F.2d 426, 429 (10th Cir. 1992); United States
v. Lam Kwong-Wah, 966 F.2d 682, 685 (D.C. Cir. 1992); United States v. Perez, 960
F.2d 1569, 1574 (11th Cir. 1992); United States v. Trujillo, 959 F.2d 1377, 1381 (7th
Cir. 1992); United States v. Lowden, 955 F.2d 128, 130 (1st Cir. 1992); United States
v. Restrepo, 946 F.2d 654, 655 (9th Cir. 1991); United States v. Rigsby, 943 F.2d 631,
639-43 (6th Cir. 1991); United States v. Campuzano, 905 F.2d 677, 678-79 (2d Cir.
1990); United States v. Powell, 886 F.2d 81, 85 (4th Cir. 1989); United States v.
Gibbs, 813 F.2d 596, 599 (3d Cir. 1987). The circuits, however, unanimously rejected
the notion that drug quantity is an element of the offense. See United States v. Angle,
230 F.3d 113, 122 (4th Cir. 2000) (gathering cases). Although the argument was not
rekindled by defense counsel until after Jones, the fact that it was raised extensively in
the past, and explicitly addressed by this court previously, precludes a conclusion that
the argument was "novel" and therefore unavailable because it was intellectually
unascertainable.




                                           13
       Procedural default also cannot be overcome because the issue was settled in the
lower courts. The Supreme Court has rejected the argument that default can be
excused when existing lower court precedent would have rendered a claim
unsuccessful. Bousley, 523 U.S. at 623 ("[F]utility cannot constitute cause if it means
simply that a claim was unacceptable to that particular court at that particular time."
(internal quotations omitted)).

       In a somewhat analogous point, the dissent suggests, based on dictum in Reed
v. Ross, 468 U.S. 1, 16 (1984), that cause may be shown where a new constitutional
rule overturns "a longstanding and widespread practice to which [the Supreme Court]
has not spoken, but which a near-unanimous body of lower court authority has
expressly approved."11 The vitality of Reed has been questioned following the
Supreme Court's decisions in Teague and Bousley. See, e.g., Simpson v. Matesanz,
175 F.3d 200, 212 (1st Cir. 1999); Boyer v. United States, 55 F.3d 296, 299 (7th Cir.
1995). Assuming arguendo that Reed remains valid, Apprendi does not fall within the
exception relied upon by the dissent.

      Reed suggests that a legal argument may be "unavailable" to counsel where
contrary lower federal court authority has endured the test of time and there appears to
be no discord among the courts on the issue. The origins of the exception are found in
United States v. Johnson, 457 U.S. 537, 551 (1982), see Reed, 468 U.S. at 17 (citing
Johnson), and two cases cited in Johnson as support for the proposition, see Gosa v.
Mayden, 413 U.S. 665 (1973), and Stovall v. Denno, 388 U.S. 293 (1967). In both
Gosa and Stovall, the Supreme Court refused to retroactively apply new rules affecting

      11
        In Reed, the Court recognized two other situations where a new rule may not
be reasonably available to counsel: 1) where the Supreme Court explicitly overrules its
own prior precedent and, 2) where the Court disapproves a practice arguably
sanctioned by the Court in prior cases. 468 U.S. at 17. Addressing a rule falling within
the second category, the Court held in Reed that the argument was not reasonably
available. See id. at 18, 20.
                                          14
constitutional principles that had been followed by lower courts for over 100 years.
See Gosa, 413 U.S. at 673, 685; Stovall, 388 U.S. at 299-300. The Supreme Court has
never relied on the "longstanding and widespread practice" exception as a basis for
excusing default, but based on its origin, the exception appears inapplicable when the
issue has been settled for what is only a mere moment in the time line of lower federal
court jurisprudence. The constitutional validity of judge-found quantity determinations
was only conclusively established among the circuit courts in the early 1990s, and we
respectfully disagree with the dissent's assertion that the lower courts' treatment of the
issue constitutes a "longstanding" practice.

      Finally, our conclusion that an Apprendi-type argument was reasonably available
does not hold defense counsel to an unattainable or impractical standard of legal
competence and sophistication. As we noted, defense counsel often challenged judge-
found drug quantity determinations, and several commentators, and courts, had
adequately set forth the legal basis supporting the proposition that drug quantity is an
element of the offense. See, e.g., Susan N. Herman, The Tail That Wagged the Dog:
Bifurcated Fact-Finding under the Federal Sentencing Guidelines and the Limits of Due
Process, 66 S. Cal. L. Rev. 289 (1992); Judy Clarke, The Need for a Higher Burden
of Proof for Factfinding under the Guidelines, 4 Fed. Sent. Rep. 300 (1992); Rigsby,
943 F.2d at 639-43 (following circuit precedent but explaining in detail why drug
quantity under § 841(b) should be treated as an element of the offense). Because the
Apprendi claim Moss now seeks to raise was reasonably available to his counsel, he
cannot show cause for his failure to raise the issue as part of his direct appeal and is
procedurally barred from raising it now.




                                           15
                                          III.

      For the foregoing reasons, we affirm the judgment of the district court.

RICHARD S. ARNOLD, Circuit Judge, dissenting.

        The defendant in this case, Darius Moss, is now serving a sentence of 360
months (30 years) for conspiring to possess crack cocaine with the intent to distribute
it, in violation of 21 U.S.C. §§ 841(a)(1) and 846. In fact, the statutory maximum for
this offense, in Mr. Moss's circumstances, is 20 years. The United States has
conceded, see ante at 4, that the sentence imposed violates the Constitution. This
Court agrees. See ibid. Yet, the sentence is left in place, and Mr. Moss will serve ten
years more than the Constitution allows. I cannot accept this state of affairs, and I
therefore respectfully dissent.

                                           I.

       In my view, the new rule of law announced in Apprendi v. New Jersey, 120 S.
Ct. 2348 (2000), falls within the "watershed exception" to the non-retroactivity doctrine
of Teague v. Lane, 489 U.S. 288 (1989). A rule that qualifies under this exception
"must not only improve accuracy [of the trial and conviction], 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 quotation marks and
quoted cases omitted). Apprendi meets these qualifications. It raises the standard for
determining factors that subject a criminal defendant to a higher term of imprisonment
from a preponderance of the evidence to beyond a reasonable doubt, thereby increasing
accuracy. It also requires such factors to be submitted to a jury, thereby enforcing a
defendant's constitutional right to trial by jury. Similarly, the requirement that every
element of a crime, defined as every fact that increases the statutory maximum, be
charged in the indictment improves the accuracy of the fact-finding process, because

                                           16
it reduces the risk that an innocent person might be convicted of a more serious crime,
or that a guilty person might be punished more severely than the law allows.

        The language used by the Supreme Court itself in Apprendi is telling. The Court
stated: "At stake in this case are constitutional protections of surpassing importance:
the proscription of any deprivation of liberty without 'due process of law,' Amdt. 14,
and the guarantee that '[i]n all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury.' Amdt. 6." 120 S. Ct. at 2355. The
Court described the state procedure before it, wherein a factor that increased the
statutory maximum of an offense was decided by the judge, as "an unacceptable
departure from the jury tradition that is an indispensable part of our criminal justice
system," id. at 2366. The Court further recognized that the reasonable-doubt standard
was at stake. This standard, as stated in In re Winship, 397 U.S. 358 (1970), "plays
a vital role in the American scheme of criminal procedure. It is a prime instrument for
reducing the risk of convictions resting on factual error. The standard provides
concrete substance for the presumption of innocence--that bedrock axiomatic and
elementary principle whose enforcement lies at the foundation of the administration of
our criminal law." Id. at 363 (quoted case omitted).

       To me, this signals the Supreme Court's own understanding that Apprendi
recognizes bedrock procedures that are implicit in the concept of ordered liberty and
that touch on the fundamental fairness of the trial. Indeed, four Justices almost
explicitly endorsed a Teague exception for Apprendi claims by stating, "[t]oday, in
what will surely be remembered as a watershed change in constitutional law, the Court
imposes as a constitutional rule the principle it first identified in Jones." 120 S. Ct. at
2380 (O'Connor, J., dissenting). No doubt it is true that civilized systems of justice
exist in which judges, not juries, decide criminal cases. But the Anglo-American
tradition is otherwise. Every element of a criminal offense must be submitted to and
found by a jury beyond a reasonable doubt. I find it regrettable that this Court feels
free to minimize the hard-won right of trial by jury.

                                           -17-
        The Court makes the point that the "new rule announced [in Apprendi] floats and
flows with the tide of legislative pronouncements." Ante, at 10. There is a sense in
which this is true. It is certainly the case that legislatures, in this instance Congress,
define the elements of crimes, and that these definitions are, at least to some degree,
subject to change. This principle, however, is not without limits. Mullaney v. Wilbur,
421 U.S. 684 (1975), is a good example. In that case, the Supreme Court invalidated
a Maine statute that presumed that a defendant who acted with an intent to kill
possessed the "malice aforethought" necessary to constitute murder under state law.
The statute purported to place on the defendant the burden of proving that he had acted,
for example, in the heat of passion, so that he would be guilty of manslaughter instead
of murder. The Supreme Court rejected the argument that the due-process and jury-
trial protections expressed in Winship could be circumvented in this way. A state may
not evade the right of trial by jury merely by "redefin[ing] the elements that constitute
different crimes, characterizing them as factors that bear solely on the extent of
punishment." Mullaney, 421 U.S. at 698. Thus, there are clearly some limits on
Congress's ability to redefine elements of crimes so as to increase the punishment on
the basis of judge-found facts. What these limits may be it is not necessary to explore
in the present case. It suffices to say that the Apprendi rule does not subsist completely
at the mercy of any and all congressional efforts to confine the right of jury trial only
to some elements of crimes.

       In addition, I question the Court's statement that an Apprendi violation is not a
structural error requiring per se reversal. The Supreme Court, in Neder v. United
States, 527 U.S. 1, 8-9 (1999), has held that it is not always reversible error to fail to
submit to a jury an essential element of a criminal charge. If, for example, no
reasonable jury could have found against the prosecution with respect to this element,
the error can be treated as harmless. The same thing, however, cannot be said of the
other part of the Apprendi principle — that every element of a crime must be charged
in an indictment (if the crime is federal). As far as I am aware, no case has ever held
that the omission of an element of a crime from an indictment can be harmless error.

                                          -18-
In such cases, we do not ask whether a jury would have found that element on the
evidence submitted to it, or, indeed, whether the grand jury would have returned an
indictment including that element if it had been asked to do so. Rather, an indictment
that omits an element of a crime is structurally deficient and provides no lawful basis
for bringing anyone to trial. Failure to include an essential element in a federal
indictment warrants relief even if the government later proves the omitted element at
trial. See United States v. Zangger, 848 F.2d 923, 925 (8th Cir. 1988); United States
v. Camp, 541 F.2d 737, 740 (8th Cir. 1976).

                                            II.

       The Court also holds that Mr. Moss faces a procedural hurdle because he did not
raise his Apprendi claim on direct appeal. The government relies on the rule stated in
United States v. Bousley, 523 U.S. 614, 621-22 (1998) (quoted cases omitted), that
collateral review


      is an extraordinary remedy and 'will not be allowed to do service for an
      appeal.' . . . 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.'


      I believe that this is an instance where a claim's legal basis was "not reasonably
available to counsel," thereby establishing cause for failing to raise it on direct appeal.
Reed v. Ross, 468 U.S. 1, 16 (1984), quoted in Bousley, 523 U.S. at 622. As
explained by the Court in Reed v. Ross, such "cause" arises where a new constitutional
rule overturns "a longstanding and widespread practice to which this Court has not
spoken, but which a near-unanimous body of lower court authority has expressly



                                           -19-
approved." Id. at 17 (quoting United States v. Johnson, 457 U.S. 537, 551 (1982)).
This is precisely the situation before us.

      The rule announced in Apprendi was a departure from long accepted
procedures. The dissenting opinion characterizes the holding as follows:

      In its opinion, the Court marshals virtually no authority to support its
      extraordinary rule. Indeed, it is remarkable that the Court cannot identify
      a single instance, in the over 200 years since the ratification of the Bill of
      Rights, that our Court has applied, as a constitutional requirement, the
      rule it announces today.


120 S. Ct. at 2381. With this in mind, it cannot be fairly argued that an Apprendi claim
was "reasonably available" to counsel at the time of Mr. Moss's appeal. Thus the
failure to raise the Apprendi claim on direct appeal is excusable. Our Court today,
citing other courts of appeals, questions the vitality of Reed, but the Supreme Court
itself has reaffirmed Reed as recently as 1998. Bousley, supra, 523 U.S. at 622. In
Reed, the novelty of a claim was held to excuse a lawyer's failure to raise it on direct
appeal. It is ironic that the claim thus preserved from procedural default was a claim
under Winship and Mullaney that a criminal defendant had been deprived of due
process by an instruction that failed to require the prosecution to bear the burden of
persuasion with respect to each element of a crime.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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