226 F.3d 839 (7th Cir. 2000)
Salvador A. Hernandez, Petitioner,v.United States of America, Respondent.
No. 00-3048
In the  United States Court of Appeals  For the Seventh Circuit
Submitted August 18, 2000Decided September 1, 2000*

On Motion for an Order Authorizing the District Court  To Entertain a Second or Successive  Motion for Collateral Review.
Before Ripple, Diane P. Wood, and Evans, Circuit  Judges.
Diane P. Wood, Circuit Judge.


1
As he is required  to do under 28 U.S.C. sec. 2244(b)(3), Salvador  Hernandez has applied for an order from this  court authorizing the district court to consider  a second or successive motion for collateral  review under 28 U.S.C. sec. 2255. In his proposed  motion, he wishes to argue that the Supreme  Court's recent decision in Apprendi v. New  Jersey, 120 S. Ct. 2348 (2000), announces a new  rule of constitutional law that should apply to  his case, implicitly invoking 28 U.S.C. sec. 2255  para. 8(2). See also Castillo v. United States,  120 S. Ct. 2090 (2000). There are two problems  with this position: first, the Supreme Court has  not yet had an occasion to consider whether  Apprendi should be applied retroactively to cases  on collateral attack (another requirement of sec.  2255 para. 8(2)), and second, there is no  Apprendi problem in any event in Hernandez's  particular case. We explain both of these points  briefly, and deny Hernandez's application.


2
The offense and conviction that lie behind  Hernandez's present application were for  conspiracy to kidnap, 18 U.S.C. sec. 1201(c), and  kidnapping, 18 U.S.C. sec. 1201. Under the U.S.  Sentencing Guidelines, the base offense level for  kidnapping is 24, and that level can be increased  depending on a number of specific offense  characteristics. See U.S.S.G. sec. 2A4.1.  Depending on the criminal history category that  applies to the individual defendant, a level 24  carries with it a sentencing range from 51 to 63  months (criminal history category I) to 100 to  125 months (criminal history category VI).  Obviously, those ranges increase as the offense  level goes up under sec. 2A4.1(b). During the  sentencing proceedings, the district court made  upward adjustments to Hernandez's offense level  under sec. 2A4.1(b)(1) (ransom demand or demand  upon government, for six levels), sec.  2A4.1(b)(3) (use of a dangerous weapon, for two  levels), and sec. 2A4.1(b)(4)(B) (victim not  released before seven days had elapsed, for one  level). With these adjustments and his criminal  history, his final sentence was for 200 months.  This court affirmed both his convictions and his  sentence on direct appeal. See United States v.  Hernandez, 106 F.3d 737 (7th Cir. 1997).


3
Hernandez is now trying to file a second or  successive motion under 28 U.S.C. sec. 2255. We  must first decide whether presentation of a claim  under a new Supreme Court decision at a time  before the Court has announced whether it is  retroactively applicable to cases on collateral  attack amounts to an "adjudication" of that claim  or not. If the answer is yes, then our  disposition of Hernandez's application will have  an effect on any future applications he may file;  if it is no, and if his claim cannot be disposed  of otherwise, then he would be entitled to  another bite at the apple.


4
Any claim that was presented in an earlier  motion or  application must be dismissed, under  28 U.S.C. sec. 2244(b)(1) (for sec. 2254 cases)  and 28 U.S.C. sec. 2255 para. 8. What happens,  however, if the earlier claim rests on a new rule  of constitutional law for which the Supreme Court  has not yet announced a decision about  retroactivity? It is clear from the language of  sec. 2255 para. 8(2) that the earlier application  would have had to be denied, for the simple  reason that it did not satisfy the statutory  requirement of relying on "a new rule of  constitutional law, made retroactive to cases on  collateral review by the Supreme Court, that was  previously unavailable." (Emphasis added.) See  Bennett v. United States, 119 F.3d 470 (7th Cir.  1997). But the real question is whether such a  denial should be regarded as analogous to a non-  merits dismissal like a failure to exhaust state  remedies. In Gray-Bey v. United States, 209 F.3d  986 (7th Cir. 2000), we indicated that a new rule  that is retroactive for purposes of collateral  attack is not "available" for a sec. 2255 motion  until the Supreme Court has clearly ruled that  this is the case. Id. at 988 ("[b]ut for purposes  of sec. 2255 para. 8(2) a rule is 'unavailable'  until the Supreme Court renders its decision, for  it is the high court's decision that must be held  retroactive (as Bailey [v. United States, 516  U.S. 137 (1995)] was held retroactive by Bousley  [v. United States, 523 U.S. 614 (1998)]"). Under  that logic, it follows that potentially  meritorious claims that rely on new rules of  constitutional law are not ripe for presentation  until the Supreme Court has ruled on the  retroactivity question. Just as we do with  applications relying on unexhausted claims, we  would dismiss such an application without  prejudice to re-filing at such time as the Court  renders a decision in favor of retroactivity.


5
Dismissal without prejudice is not required,  however, if there are alternate grounds for  resolving the claim once and for all at the time  it is presented. That is the case with Hernandez,  since we are able to ascertain from the face of  his application that Apprendi cannot possibly be  of any help to him. Hernandez reasons that the  additional facts that supported the upward  adjustments under the Sentencing Guidelines, such  as his demand for a ransom, were facts that  should have been charged in the indictment,  submitted to the jury, and proven beyond a  reasonable doubt, under the rule announced in  Apprendi. In so arguing, however, he overlooks  the distinction between the prescribed statutory  maximum and the various levels of punishment  authorized by the Sentencing Guidelines. See  United States v. Cepero, 224 F.3d 256, 268 n. 5 (3d Cir.2000). The kidnapping  statute clearly authorizes a sentence for "any  term of years or for life" for  both the  substantive offense created in 18 U.S.C. sec.  1201(a) and the conspiracy offense of 18 U.S.C.  sec. 1201(c). Thus, the prescribed statutory  maximum, which is what concerned the Apprendi  Court, is life imprisonment (and in some narrow  circumstances not relevant to Hernandez, death).


6
The Sentencing Commission, as it is charged to  do, issued guidelines prescribing various  sentencing levels within those statutory limits.  The fact that different levels under the  statutory maximum depend on proof of various  aggravating facts is not enough to make those  facts "elements of the offense" rather than  "sentencing factors." Indeed, we rejected a  similar argument in United States v. Smith, 223 F.3d 554 (7th Cir.2000). In Smith, some of the defendants  argued that 21 U.S.C. sec. 848(b), which makes a  life sentence mandatory for certain leaders of a  continuing criminal enterprise, created a new  offense or merely affected the sentencing range  for all those convicted of violating that  statute. We held that because the range for all  violations of sec. 848 included life in prison,  sec. 848(b) did not increase the prescribed  statutory maximum and the facts required to  invoke it were thus sentencing factors, not  elements of the offense. Id. at 262-63. The same is  true here, with even greater force, since the  only issue concerns different levels well within  a single prescribed statutory maximum.


7
Because the rule of Apprendi can therefore be  of no use to Hernandez, there is nothing in his  application that would justify granting  permission to file a second or successive motion,  and it is hereby Denied.



Notes:


*
  This opinion was originally released in  typescript.


