In the
United States Court of Appeals
For the Seventh Circuit

No. 98-3481

Randy Horton,

Petitioner-Appellant,

v.

United States of America,

Respondent-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 50121--Philip G. Reinhard, Judge.


Argued January 19, 2000--Decided June 29, 2000




  Before Bauer, Cudahy and Evans, Circuit Judges.

  Cudahy, Circuit Judge. Randy Horton was a leader
of a nineteen-person drug ring active between
1989 and 1993 in Rockford, Illinois. In 1994, a
federal jury convicted Horton of conspiring to
distribute cocaine or cocaine base, in violation
of 21 U.S.C. sec. 846, and of distributing 62.6
grams of cocaine base in two transactions, in
violation of 21 U.S.C. sec. 841(a)(1). The court
sentenced Horton to life imprisonment for the
sec. 846 conviction and 40 years imprisonment, to
run concurrently, for the sec. 841 convictions.
Horton did not take a direct appeal from his
conviction, instead appealing only his sentence,
which this panel affirmed in United States v.
Russell, 96 F.3d 1450, 1996 WL 508598 (7th Cir.
Dec. 20, 1996) (unpublished order). Horton now
appeals the denial of his recent motion under 28
U.S.C. sec. 2255.

I.   Facts and Disposition Below

  We have already described the underlying drug
conspiracy in other opinions, see United States
v. Edwards, 105 F.3d 1179 (7th Cir. 1997); United
States v. Evans, 92 F.3d 540 (7th Cir. 1996);
Russell, 1996 WL 508598, at *1, so we need not do
so again. But some details of the proceedings
leading to this appeal are warranted. In 1993, a
federal grand jury returned a fifteen-count
indictment, charging Horton, along with eighteen
others, with conspiring knowingly and
intentionally to possess with intent to
distribute mixtures containing cocaine and
cocaine base (Count I). Horton was also indicted
on two substantive counts for distributing 21.6
grams of cocaine base on one occasion and 41
grams on another (Counts VII and XIII). The jury
convicted Horton of all three charges against
him. At sentencing, the district court determined
that Horton and his coconspirators had conspired
to possess with intent to distribute about ten
kilograms of cocaine and ten kilograms of cocaine
base. See Russell, 1996 WL 508598, at *5. On
December 15, 1994, the district court sentenced
Horton to life in prison on the sec. 846
conspiracy count with concurrent 40-year
sentences on the two substantive distribution
counts. Horton appealed only his sentence to the
Seventh Circuit, and we affirmed the district
court on December 20, 1996. See Russell, 1996 WL
508598, at *3-*5. Horton filed a petition for
writ of certiorari with the Supreme Court, which
was denied on April 21, 1997. Horton did not
petition the Supreme Court for rehearing.

  Horton filed the present motion under 28 U.S.C.
sec. 2255 in the district court on April 23,
1998, claiming that the jury instructions on the
drug conspiracy count resulted in an ambiguous
and unconstitutional verdict. The trial court had
instructed the jury on the conspiracy count as
follows:

  The government does not have to prove that the
alleged conspiracy involved an exact amount of
cocaine or cocaine base. Neither does the
government have to prove that the amount of
cocaine or cocaine base charged in the indictment
was distributed or possessed. However, the
government must prove that the conspiracy, the
distribution charges, and the possession charges
involved measurable amounts of cocaine or cocaine
base.

The jury’s general verdict of guilty on the sec.
846 conspiracy was ambiguous, Horton argues,
because the phrase "measurable amounts of cocaine
or cocaine base" used in the instruction opened
up the possibility that, for example, four jurors
thought Horton conspired to distribute only
cocaine while the other eight thought he
conspired to distribute only cocaine base. This
verdict, argues Horton, was therefore not
unanimous and denied him his constitutional right
to a jury verdict, contending that the Supreme
Court’s decision in Edwards v. United States, 118
S. Ct. 1475 (1998), supports this position. The
government filed its response to this motion
late, but the district court decided to accept
the filing (by granting the government’s motion
to accept the response) without a hearing. The
government raised three grounds for denial of
Horton’s amended sec. 2255 motion: (1) Horton’s
original motion was untimely, since it was filed
more than one year after his judgment of
conviction had become final; (2) Horton’s jury
instruction claim was procedurally defaulted
because he failed to raise this claim in his
direct appeal; and (3) the Supreme Court’s
decision in Edwards actually supported the denial
of Horton’s sec. 2255 motion. Although it noted
that there may be problems with the timeliness of
Horton’s motion, the district court denied
Horton’s motion on the merits. Horton moved to
reconsider that ruling, which the district court
denied. This appeal followed.

II.    Discussion

  Horton’s appeal places two issues squarely
before us: (1) was his motion under sec. 2255
timely filed? And (2) is the object of a sec. 846
conspiracy an element of the offense to be
determined by the jury? We review de novo a
district court’s decision denying a motion under
28 U.S.C. sec. 2255, see Lanier v. United States,
205 F.3d 958, 962 (7th Cir. 2000), and we can
affirm the district court’s decision "on any
ground that was not waived or forfeited in the
district court." See United States v. Jackson,
207 F.3d 910, 917 (7th Cir. 2000)./1


  A.    Timeliness

  Under the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214, a sec. 2255 motion must be filed
within one year of "the date on which the
judgment of conviction becomes final." 28 U.S.C.
sec. 2255(1). Horton filed this sec. 2255 motion
on April 23, 1998--a year and two days after the
Supreme Court denied certiorari on his direct
appeal. Although the district court opted not to
address the timeliness of Horton’s sec. 2255
motion, the government certainly argued it, and
given the importance of procedure under the
AEDPA, we will decide this issue. Therefore, we
must determine whether the two extra days
rendered Horton’s filing untimely.

  Horton contends that his sec. 2255 motion is
not barred by AEDPA’s one-year limitation period
because his conviction did not become "final"
under sec. 2255(1) until after his opportunity to
move the Supreme Court to reconsider its denial
of certiorari had passed. Horton argues that
because he had 25 days to file such a motion with
the Court, see Sup. Ct. R. 44.2, his conviction was
not "final" until that 25-day period had expired.
On this basis, he claims that, rather than being
two days late, his sec. 2255 motion was filed 23
days before the expiration of the limitation
period.

  In a case decided while this opinion was in the
works, this court held that a defendant’s
conviction becomes "final" when his petition for
certiorari is denied. See United States v.
Marcello, Nos. 99-2294, 99-2451, 2000 WL 580669,
at *2 (7th Cir. May 15, 2000). However, this does
not quite end our analysis because the Marcello
opinion does not address Horton’s argument that
the 25-day period during which he could have
petitioned the Supreme Court for rehearing
delayed the finality of his conviction. The Fifth
Circuit and the Tenth Circuit have, on the other
hand, recently addressed arguments similar to
Horton’s and reached the same conclusion we
reached in Marcello: both other circuits
concluded that, absent an actual suspension of an
order denying certiorari by the Court or a
Justice, a judgment of conviction is "final" for
purposes of the one-year limitation period in
sec. 2255(1) when the petition for writ of
certiorari is denied. See United States v.
Thomas, 203 F.3d 350, 355 (5th Cir. 2000); United
States v. Willis, 202 F.3d 1279, 1280-81 (10th
Cir. 2000). Marcello, Thomas and Willis all
relied on Supreme Court Rule 16.3, which states:

Whenever the Court denies a petition for writ of
certiorari, the Clerk will prepare, sign, and
enter an order to that effect and will notify
forthwith counsel of record and the court whose
judgment was sought to be reviewed. The order of
denial will not be suspended pending disposition
of a petition for rehearing except by order of
the Court or a Justice.

Sup. Ct. R. 16.3. Essentially, this Rule makes
plain that an "order denying certiorari is
effective at the time of its entry by the Supreme
Court," Marcello, 2000 WL 580669, at *2, barring
extraordinary intervention from the Court or a
Justice, see Thomas, 203 F.3d at 355-56; Willis,
202 F.3d at 1281. Nor does the mere filing for a
petition for rehearing with the Supreme Court
affect the legal import of the denial of
certiorari. See Thomas, 203 F.3d at 356; Willis,
202 F.3d at 1281. Thus, Marcello, Thomas and
Willis without exception hold that the denial of
certiorari itself renders a defendant’s
conviction final under 28 U.S.C. sec. 2255(1).

  Horton, however, argues that our decision in
Gendron v. United States, 154 F.3d 672 (7th Cir.
1998), cert. denied sub nom., Ahitow v. Glass,
119 S. Ct. 1758 (1999), requires this panel to
disagree with Marcello and the other circuits we
have noted and hold that his conviction was not
"final" until the period during which he could
have petitioned the Supreme Court for rehearing
but did not had passed. In Gendron, we held that
when a federal prisoner decides not to seek
certiorari at all, his conviction becomes final
on the date this court issues the mandate in his
direct criminal appeal, see 154 F.3d at 674, and
Horton’s argument begins, quite simply, with the
proposition that, because the court of appeal’s
mandate issues only after the period to petition
for rehearing expires, see Fed. R. App. P. 41(b) and
(d)(1), a conviction does not become "final"
under Gendron until after the possibility of a
petition for rehearing expires. So, in this case,
Horton argues that, even though he did not seek
a rehearing from the Supreme Court, his
conviction did not become "final" until after his
opportunity to do so was foreclosed. Horton’s
proposal seemingly points to a tension between
Marcello and Gendron, but his argument is clearly
misplaced, as a look at the applicable court
rules demonstrates.

  Petitions for rehearing before the courts of
appeals and petitions for rehearing before the
Supreme Court have strikingly different effects.
Filing a timely petition for rehearing in the
court of appeals automatically stays the mandate
until the petition for rehearing is decided. See
Fed. R. App. P. 41(d)(1). Thus, the filing of a
petition for rehearing delays the court of
appeal’s last act in disposing of the case, which
is the issuance of the mandate. However, a
petition for rehearing before the Supreme Court
does essentially nothing with respect to the
matters of concern here. See Sup. Ct. R. 16.3. A
rehearing petition does not stay the denial of
certiorari: the denial of certiorari is effective
when issued, and it disposes of the case before
the Supreme Court. See id. See also Marcello,
2000 WL 580669, at *2; Thomas, 203 F.3d at 356;
Willis, 202 F.3d at 1281. Thus, the critical
difference for the purpose of sec. 2255(1)
finality between a petition for rehearing before
the court of appeals and before the Supreme Court
is that the former automatically delays the
termination of the court’s involvement with the
case and the latter does not. Because Gendron’s
holding can be read to imply that once a court’s
last required action is taken to dispose of the
case (there the issuance of the appellate
mandate), Gendron itself supports a finding that
Horton’s conviction became "final" when the
Supreme Court denied certiorari on his direct
appeal. After Horton’s petition for a writ of
certiorari was denied on April 21, 1997, no
federal court needed to take another action to
dispose of Horton’s appeal. Since no further
action was required from any court, Horton’s
conviction was "final" at that time. We,
therefore, see no reason to depart from our
recent holding in Marcello, and we hold that a
defendant’s conviction becomes "final" under sec.
2255(1) when the Supreme Court denies the
defendant’s petition for a writ of certiorari
(absent a suspension order from the Court or a
Justice), irrespective of the opportunity to
petition the Supreme Court for rehearing.
Accordingly, Horton’s conviction became final on
April 21, 1997. Because Horton’s sec. 2255 motion
was not filed until April 23, 1998, one year and
two days later, his sec. 2255 motion was untimely
and properly dismissed by the district court.

  B.   Merits

  Although we hold that Horton’s sec. 2255 motion
is untimely, we will, for the sake of
completeness, briefly address his merits
argument. Horton’s argument that the jury
instructions were constitutionally flawed in
stating that the jury could convict upon finding
that the conspiracy distributed "measurable
amounts of cocaine or cocaine base" turns on
whether the particular drug that forms the object
of a sec. 846 conspiracy is an element of the
offense or merely a sentencing factor. "An
element of the crime must be charged in the
indictment, submitted to a jury, and proved
beyond a reasonable doubt." United States v.
Hardin, 209 F.3d 652, 654 (7th Cir. 2000). "A
sentencing factor, by contrast, need not be set
forth in the indictment, may be decided by the
judge, and must be proved only by a preponderance
of the evidence or perhaps in extreme
circumstances by clear and convincing evidence."
Id.

  In a drug offense, the type of drug is a
sentencing factor, and not an element of the
offense. We have held that when a defendant is
convicted of a sec. 846 conspiracy charge, the
judge alone determines which drug was
distributed, and in what quantity. United States
v. Edwards, 105 F.3d 1179, 1180 (7th Cir. 1997),
aff’d 118 S. Ct. 1475 (1998). Our Edwards
decision is on all fours with the case before us.
The appellants in Edwards were, in fact, Horton’s
codefendants, and they were challenging the same
jury instruction that Horton challenges now, but
on a different basis.

  In Edwards, the appellants challenged their
sentences, arguing that they should have been
sentenced based on a cocaine-only conspiracy
because the general jury verdict was ambiguous
regarding whether the object of the conspiracy
was cocaine only, cocaine base only or both. The
Edwards panel rejected these arguments and
explained that, ultimately, what a jury believes
about which drug the conspirators distributed is
not conclusive at sentencing, and a verdict that
fails to answer a question committed to the judge
has no effect on the judge’s sentencing options.
See id., 105 F.3d at 1181. Horton, however,
challenges his conviction on the ground that the
jury was not unanimous on an element of the
offense--in his argument, the type of drug. But
our conclusion in Edwards that the type and
quantity of drug distributed by a conspiracy is
a sentencing factor to be determined by the
sentencing judge, see id., 105 F.3d at 1181-82,
necessarily implies that type and quantity are
not elements of the offense. See Hardin, 209 F.3d
at 654. This is not an auspicious beginning for
Horton’s challenge.
  However, our Edwards decision was not the final
word: the Supreme Court granted certiorari and
heard the case. The Supreme Court affirmed our
decision in Edwards, but Horton argues that
because that affirmance did not expressly adopt
our reasoning, we should reach a different result
in this case. This argument is wholly without
merit. The Supreme Court clearly explained that
"regardless of the jury’s actual, or assumed,
beliefs about the conspiracy, the Guidelines
nonetheless require the judge to determine
whether the ’controlled substances’ at issue
consisted of cocaine, crack, or both." Edwards v.
United States, 118 S. Ct. 1475, 1477 (1998). By
treating the type of drug as a sentencing factor,
the Supreme Court’s Edwards decision firmly
supports the conclusion that the type of drug is
not an element of the offense./2 Accordingly,
even if Horton’s sec. 2255 motion had been
timely, which it was not, we would have rejected
Horton’s argument on the merits.

III.   Conclusion

  For the above-stated reasons, and because we
find the remainder of Horton’s arguments to be
without merit, the judgment of the district court
is Affirmed.


/1 Horton argues that the government has waived its
timeliness argument on appeal because it filed
the response to his sec. 2255 motion late in the
district court. Under Fed. R. Civ. P. 6(b), a
district court has the authority to accept a late
filing, but Horton argues that the district court
erred in doing so here because an extension can
only be given for "excusable neglect." See id.
The district court certainly had the discretion
to determine whether to accept the government’s
late filing on the basis of excusable neglect,
and in doing so we do not believe that it abused
its discretion. See Silva v. City of Madison, 69
F.3d 1368, 1377 (7th Cir. 1995). Therefore,
Horton’s argument that the government waived its
untimeliness argument fails.

/2 Although it has no bearing on the case before us,
we note that the Supreme Court seemed to indicate
that what a jury believes about the object of a
conspiracy--whether, for example, it is cocaine
or cocaine base--may matter in some
circumstances, but only if "the sentences imposed
exceeded the maximum that the statutes permit for
a cocaine-only conspiracy." Edwards, 118 S. Ct.
at 1477-78. This is so, explained the Court, not
because the type of drug suddenly becomes an
element of the offense but "because a maximum
sentence set by statute trumps a higher sentence
set forth in the Guidelines." Id. This certainly
does not undermine the validity of Horton’s
conviction, nor would it affect his sentence. The
district court found that Horton conspired to
distribute approximately ten kilograms of powder
cocaine and ten kilograms of cocaine base, and
either of these findings independently yields a
statutory maximum sentence of life imprisonment.
See 21 U.S.C. sec. 841(b)(1)(A) (stating that
more than five kilograms of cocaine or more than
fifty grams of cocaine base yield a sentence
"which may not be less than 10 years or more than
life").
