In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4253

United States of America,

Plaintiff-Appellee,

v.

Anthony A. Smith,

Defendant-Appellant.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 91-CR-30018-04-WDS--William D. Stiehl, Judge.


Submitted December 11, 2000--Decided February 8, 2001




  Before Coffey, Easterbrook, and Evans, Circuit
Judges.

  Easterbrook, Circuit Judge. For a fourth time we
consider arguments presented by Anthony Smith.
The first time the case was here, on direct
appeal from his conviction, we rejected most of
his contentions but remanded for inquiry into the
possibility of juror prejudice. United States v.
Smith, 26 F.3d 739 (7th Cir. 1994). The district
court rejected Smith’s position on remand, and we
affirmed in an unpublished order. 1997 U.S. App.
Lexis 2332 (7th Cir. Feb. 7, 1997).

  In April 1996 Smith began the current round of
proceedings by filing a motion for resentencing
under 18 U.S.C. sec.3582(c), contending that a
retroactive change in the Sentencing Guidelines
required a reduction in his sentence. The
district court agreed and reduced Smith’s
punishment from life to 405 months’ imprisonment.
But Smith was not happy with this change, even
though it is the one specified by the amended
guideline. He asked the district judge to cut his
sentence still further, to 240 months, because
the jury had not determined the amount of crack
cocaine in which he had dealt. Twenty years (240
months) is the maximum for a person convicted of
dealing in any small quantity of that substance.
21 U.S.C. sec.841(b)(1)(C). The district court
rejected that argument, as did we in an
unpublished order. 2000 U.S. App. Lexis 14038 (7th
Cir. June 5, 2000). But after issuing Apprendi v.
New Jersey, 120 S. Ct. 2348 (2000), the Supreme
Court remanded Smith’s case to us for further
consideration. 121 S. Ct. 336 (2000).

  Apprendi establishes that the district court
erred in 1992 when it failed to tell the jury to
determine whether Smith is accountable for more
than 50 grams of crack cocaine, which authorizes
a maximum term of life imprisonment,
sec.841(b)(1)(A), or only some lesser amount. See
United States v. Nance, No. 00-1836 (7th Cir.
Dec. 29, 2000). If Smith possessed at least 5
grams of crack with intent to distribute, then
the statutory maximum is 40 years,
sec.841(b)(1)(B), and for any lesser weight the
maximum is 20 years. Smith’s 405-month sentence
is under 40 years, so 5 grams would have
sufficed. Given the extensive criminal conduct
narrated in our 1994 opinion concerning Smith and
his many confederates, who operated an extensive,
multi-year drug ring, such a finding would have
been ordained. The judge found Smith accountable
for more than 15 kilograms of crack cocaine, and
the lowest plausible estimate was around 9
kilograms. 26 F.3d at 756-57. It is inconceivable
that the jury would have convicted Smith of
participating in the overall conspiracy, as it
did, yet believed that he and his co-conspirators
jointly dealt in less than 5 grams of crack.
(Smith is answerable for all criminal acts of his
co-conspirators within the scope of the
conspiracy.) Thus, just as in Nance, the error in
1992 was not "plain error."

  Smith did not raise this issue in 1992, when it
would have been possible to submit the question
to a jury, so "plain error" would be the standard
if this were a direct appeal. But it is not. It
is effectively a collateral attack, where the
standard is even higher. Smith did not raise this
contention in the district court at the time of
trial, or in this court on direct appeal. His
conviction and sentence thus became final.
Smith’s post-judgment request for resentencing
rested on a change in the Sentencing Guidelines.
Only at his resentencing under the amended
guideline did Smith first raise the contention
that the jury should have been told to determine
whether the conspiracy dealt in 50, 5, or less
than 5, grams of crack cocaine. That was a new
issue, one not authorized by sec.3582(c), for it
is unrelated to any change in the Sentencing
Guidelines. It is instead the sort of contention
usually raised by motion under 28 U.S.C.
sec.2255, and because the argument falls within
the scope of sec.2255 para.1 we treat it as a
collateral attack under that statute. See United
States v. Evans, 224 F.3d 670 (7th Cir. 2000);
Romandine v. United States, 206 F.3d 731 (7th
Cir. 2000).

  To obtain collateral relief Smith must show
"cause and prejudice," because he did not contend
at his trial in 1992 that the jury must determine
the quantities of drugs involved in the
conspiracy. See United States v. Frady, 456 U.S.
152 (1982); Engel v. Isaac, 456 U.S. 107 (1982).
Smith may believe that his neglect is excused
because United States v. Jones, 526 U.S. 227, 243
n.6 (1999), represents the Supreme Court’s first
express statement that the Constitution requires
issues of this kind to be resolved by juries. A
negative implication to the same effect may be
derived from Edwards v. United States, 523 U.S.
511 (1998), which holds that the judge determines
drug quantities for purposes of the Sentencing
Guidelines; the Court reserved the question
whether the thresholds under sec.841(b) must be
presented to juries. Even Edwards, however, was
released long after Smith’s 1992 trial.

  Nonetheless, the lack of precedent for a
position differs from "cause" for failing to make
a legal argument. Indeed, even when the law is
against a contention, a litigant must make the
argument to preserve it for later consideration.
See Bousley v. United States, 523 U.S. 614, 622-
24 (1998); Engel, 456 U.S. at 130 n.35 (that a
legal argument would have been unpersuasive to a
given court does not constitute "cause" for
failing to present that argument). "Cause" means
some impediment, and Smith does not contend that
any outside force impeded his legal defense in
1992. (Nor does he contend that counsel was
ineffective for failure to anticipate Apprendi;
no such argument would be tenable.) The lack of
any reasonable legal basis for a claim may
constitute "cause," see Reed v. Ross, 468 U.S. 1,
16 (1984), but the foundation for Apprendi was
laid long before 1992. Other defendants had been
making Apprendi-like arguments ever since the
Sentencing Guidelines came into being, and in
McMillan v. Pennsylvania, 477 U.S. 79 (1986), the
Court addressed on the merits an argument along
similar lines. Smith could have invoked the
themes in McMillan, and for that matter In re
Winship, 397 U.S. 358 (1970), just as the
Justices themselves did in Apprendi. See Garrott
v. United States, No. 99-2921 (7th Cir. Jan. 30,
2001). Thus Smith has not established cause; and
for the same reason that he could not show plain
error (if that were the right standard) he cannot
show prejudice either.

  In discussing cause and prejudice we have
assumed that Apprendi applies in the first place.
This is by no means clear. Under Teague v. Lane,
489 U.S. 288 (1989), few constitutional arguments
apply retroactively on collateral attack even if
properly preserved. The Supreme Court has not
held that Apprendi is retroactively applicable on
collateral attack. See Talbott v. Indiana, 226
F.3d 866 (7th Cir. 2000). Given our conclusion
that Smith has established neither cause nor
prejudice, however, it is unnecessary to explore
the subject of retroactivity.

Affirmed
