                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 05-1238
LAWRENCE WHITE,
                                                Petitioner-Appellant,
                                  v.

DEIRDRE BATTAGLIA, Warden,
                                                Respondent-Appellee.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
            No. 03 C 1897—Harry D. Leinenweber, Judge.
                          ____________
     ARGUED FEBRUARY 10, 2006—DECIDED JULY 21, 2006
                          ____________


  Before POSNER, RIPPLE, and KANNE, Circuit Judges.
  POSNER, Circuit Judge. In 1996 Lawrence White pleaded
guilty in an Illinois state court to first-degree murder. At
a hearing to determine whether he could be sentenced
to death, the judge found that White, who had waived
his right to have a jury answer that question, could be
because he was guilty of felony murder. The judge decided
not to sentence him to death, however, but instead to 80
years in prison. Under Illinois law in 1996, the maximum
sentence for first-degree murder was 60 years unless, so
far as bears on this case, “the offense was accompanied by
exceptionally brutal or heinous behavior indicative of
2                                                 No. 05-1238

wanton cruelty.” 730 ILCS 5/5-5-3.2(b)(2); see 730 ILCS 5/5-
8-2(a)(1). A finding of such behavior authorized the judge to
increase the defendant’s sentence by up to 40 more years.
  The finding was made by the judge; after exhausting his
state remedies, White sought federal habeas corpus, con-
tending that Apprendi v. New Jersey, 530 U.S. 466, 475-76
(2000), entitled him to have a jury determine whether the
murder was indeed “accompanied by exceptionally brutal
or heinous behavior indicative of wanton cruelty.” The
district judge agreed but thought the error harmless, and
White appeals. Even though he did not seek federal habeas
corpus until 2003—long after he pleaded guilty in 1996—his
suit is timely because the challenges to his sentence that he
mounted in the Illinois state courts were not resolved until
four months before he filed his habeas corpus action. And
while Apprendi is not retroactive, Curtis v. United States, 294
F.3d 841 (7th Cir. 2002); see Schriro v. Summerlin, 542 U.S.
348 (2004), White’s sentence was still pending on direct
appeal when Apprendi was decided.
  In deciding to waive a jury at his death-penalty hearing,
White was not indicating a preference for having the
judge rather than a jury decide whether his behavior had
been “exceptionally brutal or heinous behavior indicative of
wanton cruelty.” That issue arose only after the judge
decided not to sentence White to death. The state argues,
however, that by pleading guilty to first-degree murder
after the judge advised him that he could be sentenced to an
extended term if the judge found “certain aggravat-
ing circumstances,” White waived any claim to have a
jury make findings that might affect his sentence.
  A guilty plea does not waive challenges to the sentence
imposed after the plea is accepted, United States v. Bjorkman,
270 F.3d 482, 492 (7th Cir. 2001) (per curiam); United States
No. 05-1238                                                 3

v. González-Mercado, 402 F.3d 294, 301 (1st Cir. 2005)—unless
the defendant “consents to judicial factfinding.” Blakely v.
Washington, 542 U.S. 296, 310 (2004); United States v. Milam,
443 F.3d 382, 385-88 (4th Cir. 2006); United States v. Sahlin,
399 F.3d 27, 32-33 (1st Cir. 2005). But the fact that White
pleaded guilty after being told that he could be sentenced to
an extended term if the judge found aggravating circum-
stances was not a waiver of his right to challenge the judge’s
authority to impose such a sentence. Under Illinois law, he
could not have pleaded guilty while reserving the right to
make such a challenge, because the law as it then stood
required that the finding be made by the judge. 730 ILCS
5/5-5-3.2(b) (1996). What he could have done was challenge
the constitutionality of this requirement, and his failure to
do so could have been deemed a forfeiture by the Supreme
Court of Illinois, which upheld the sentence. But that
court did not rule the failure a forfeiture; and so we come to
the merits.
   White argues that he could not have been sentenced
to more than 60 years had it not been for the sentencing
judge’s finding that the murder had been accompanied by
exceptionally brutal or heinous behavior indicative of
wanton cruelty. That is not correct. He had agreed that the
judge rather than a jury would determine whether he
was eligible for the death penalty. The judge found he
was eligible; and that finding authorized a sentence of
anywhere from 20 years to life if no death sentence was
imposed. 730 ILCS 5/5-8-1(a)(1)(a), (b). The “brutal or
heinous” enhancement applies to first-degree murder rather
than to capital murder, as one cannot meaningfully add
years to a sentence of natural life. As the Supreme Court of
Illinois explained in a case materially identical to this one,
“the trial court’s subsequent finding that the murder ‘was
accompanied by exceptionally brutal or heinous behavior
4                                                No. 05-1238

indicative of wanton cruelty’ did nothing to increase the
penalty that defendant was facing. Rather, it simply guided
the trial court in fashioning an appropriate sentence that
was both specifically authorized by statute and below the
prescribed statutory maximum.” People v. Ford, 761 N.E.2d
735, 739 (Ill. 2001). Since the “brutal and heinous” finding
did not increase White’s sentence above an otherwise
applicable ceiling, Apprendi is inapplicable.
                                                  AFFIRMED.

A true Copy:
       Teste:

                          _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                   USCA-02-C-0072—7-21-06
