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

No. 04-2700
WILLIAM S. SIMPSON,
                                                          Applicant,
                                  v.

UNITED STATES       OF   AMERICA,
                                                        Respondent.

                            ____________
        Application for an Order Authorizing the District Court
    to Consider a Second or Successive Motion for Collateral Review.
                            ____________
       SUBMITTED JULY 6, 2004—DECIDED JULY 16, 20041
                       ____________
                OPINION PUBLISHED JULY 23, 2004
                         ____________



    Before RIPPLE, ROVNER, WILLIAMS, Circuit Judges.
  ROVNER, Circuit Judge. William Simpson asks this
court’s permission to file a second or successive collateral
attack under 28 U.S.C. § 2255. He proposes attacking his
conviction under Blakely v. Washington, 124 S. Ct. 2531
(2004). For the reasons that follow, we dismiss Simpson’s
application without prejudice to renewing his request should
the Supreme Court make the rule announced in Blakely
applicable to cases on collateral review.


1
    The decision was originally released in typescript.
2                                                No. 04-2700

  In September 2000, Simpson pleaded guilty to possessing
with intent to distribute approximately 1,000 grams of a
mixture containing cocaine. The district court sentenced
Simpson to 157 months’ imprisonment and entered judg-
ment against him on January 3, 2001. Simpson, who did not
appeal the judgment, filed his first § 2255 motion in
December 2001, arguing that counsel rendered ineffective
assistance, his guilty plea was involuntary, and his sentence
violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The
district court denied the § 2255 motion after determining
that Simpson’s waiver of the right to seek collateral relief
was enforceable. Additionally, the court concluded that
Simpson could not establish an Apprendi violation because
his 157-month sentence was well below the 40-year statu-
tory maximum for trafficking 1,000 grams of cocaine. Again
Simpson did not seek this court’s review. Finally, in August
2003, Simpson filed a second § 2255 motion, which the
district court dismissed for lack of jurisdiction. Simpson did
not appeal the dismissal of his second § 2255 motion.
  Simpson proposes attacking his sentence under Blakely v.
Washington, 124 S. Ct. 2531 (2004). He claims that, despite
his plea to trafficking about 1,000 grams of cocaine, the
trial court sentenced him based on its finding that he
cooked the cocaine into around 500 grams of crack. Simpson
argues that his proposed claim satisfies the criteria of
§ 2255 ¶8(2), which allows the court to authorize a proposed
claim relying on a new rule of constitutional law announced
and made retroactive by the Supreme Court.
  A case announces a new constitutional rule if the Supreme
Court bases its decision in the Constitution and the rule it
announces was not dictated or compelled by precedent.
Beard v. Banks, 124 S. Ct. 2504 (2004); Ashley v. United
States, 266 F.3d 671 (7th Cir. 2001). Blakely iterates the
holding in Apprendi that, under the Sixth Amendment, all
facts used to increase a defendant’s sentence beyond the
statutory maximum must be charged and proven to a jury.
No. 04-2700                                                  3

124 S. Ct. at 2536. Blakely, however, alters courts’ under-
standing of “statutory maximum”: “[T]he relevant ‘statutory
maximum’ is not the maximum sentence a judge may
impose after finding additional facts, but the maximum he
may impose without any additional findings.” Id. at 2537
(emphasis in original). In other words, upward adjustments
based on judicial fact finding that are dictated by the guide-
lines violate Blakely. United States v. Booker, No. 03-4225,
2004 WL 1535858, at *3 (7th Cir. July 9, 2004) (“Blakely
dooms the guidelines insofar as they require that sentences
be based on facts found by a judge.”).
  The rule announced in Blakely is based in the Constitution
and was not dictated or compelled by Apprendi or its prog-
eny. In fact, before Blakely was decided, every federal court
of appeals had held that Apprendi did not apply to guideline
calculations made within the statutory maximum. See, e.g.,
United States v. Hughes, 369 F.3d 941, 947 (6th Cir. 2004);
United States v. Francis, 367 F.3d 805, 820 (8th Cir. 2004);
United States v. Jardine, 364 F.3d 1200, 1209 (10th Cir.
2004); United States v. Alvarez, 358 F.3d 1194, 1211-12 (9th
Cir. 2004); United States v. Phillips, 349 F.3d 138, 143 (3d
Cir. 2003): United States v. Patterson, 348 F.3d 218, 228-29
(7th Cir. 2003); United States v. Randle, 304 F.3d 373, 378
(5th Cir. 2002); United States v. Sanchez, 269 F.3d 1250,
1268 (11th Cir. 2001); United States v. Webb, 255 F.3d 890,
898 (D.C. Cir. 2001); United States v. Angle, 254 F.3d 514,
518 (4th Cir. 2001); United States v. Caba, 241 F.3d 98, 100
(1st Cir. 2001); United States v. Garcia, 240 F.3d 180, 183-
84 (2d Cir. 2001).
  Under our new understanding of the statutory maximum,
Simpson may be able to show that his sentence is unconsti-
tutional. Under Blakely, the relevant statutory maximum
“is the maximum sentence a judge may impose solely on the
basis of facts reflected in the jury verdict or admitted by the
defendant.” 124 S. Ct. at 2537 (emphasis in original).
According to the application, Simpson pleaded guilty to
4                                                   No. 04-2700

trafficking 1,000 grams of cocaine, but, at sentencing, the
judge determined that Simpson had cooked the cocaine into
500 grams of crack and sentenced him accordingly. Under
the guidelines, the base offense level for 1,000 grams of
cocaine is 26, which has a sentencing range of 63 to 78
months; for 500 grams of crack, the base offense level is 36,
which has a sentencing range of 188 to 235 months.2 In
other words, according to Simpson, the judge imposed a
longer sentence than that supported solely on the facts he
admitted during his plea colloquy. If true, the sentence may
violate Blakely.
  Assuming that the Supreme Court announced a new
constitutional rule in Blakely and that Simpson’s sentence
violates that rule, the proposed claim is premature. The
Supreme Court has not made the Blakely rule applicable to
cases on collateral review as is required for authorization
under § 2244(b)(2)(A) and § 2255 ¶8(2). See In re Dean, No.
04-13244, 2004 WL 1534788 (11th Cir. July 9, 2004). In
Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000), and
Hernandez v. United States, 226 F.3d 839 (7th Cir. 2000),
this court developed a procedure for analyzing Apprendi
claims proposed before the Supreme Court ruled on its
retroactive application, namely: if the applicant could state
a claim under Apprendi, the application was dismissed
without prejudice; if she could not, the application was
denied on the merits. In keeping with the approach devel-
oped in Talbott and Hernandez, we DISMISS without
prejudice Simpson’s application for leave to file a successive
collateral attack. Should the Supreme Court announce that
Blakely applies retroactively to cases on collateral review,
Simpson can file a renewed application.


2
   Assuming Simpson’s factual recitation is accurate, the district
court must have granted a two- or three-level reduction—perhaps
for acceptance of responsibility—before imposing the 157 month
term: offense level 33 yields a 135-168 month sentencing range;
offense level 34 yields a 151-188 month range.
No. 04-2700                                          5

A true Copy:
      Teste:

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




               USCA-02-C-0072—7-23-04
