In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4162

WILLIE EDWARDS, JR.,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:98-CV-152-RL--Rudy Lozano, Judge.

Submitted August 15, 2001/*--Decided September 24, 2001



  Before Posner, Ripple, and Diane P. Wood,
Circuit Judges.

  Per Curiam. Some years ago, Willie
Edwards was charged and convicted on one
count of conspiring to distribute heroin
and cocaine, in violation of 21 U.S.C.
sec.sec. 846 and 841(a)(1), and another
count of using a telephone to facilitate
the distribution of heroin and cocaine,
in violation of 21 U.S.C. sec. 843(b). He
was sentenced to 324 months’ imprisonment
on the first count and, concurrently, 96
months on the second. This court affirmed
both the convictions and sentences on
direct appeal, in United States v.
Edwards, 115 F.3d 1322 (7th Cir. 1997).
Like many others before him, Edwards has
now filed a motion under 28 U.S.C. sec.
2255 seeking to obtain relief from his
sentence based on the Supreme Court’s
decision in Apprendi v. New Jersey, 530
U.S. 466 (2000). The district court
denied his motion, and we now affirm that
judgment.

  Before reaching the merits of Edwards’s
Apprendi argument, however, we must
address a preliminary question touching
this court’s jurisdiction. The district
court denied Edwards’s sec. 2255 motion
on July 29, 1999; it entered judgment on
the same day. On August 16, 1999, the
district court docketed a paper from
Edwards entitled "Motion Pursuant to Rule
59(e) and Request for Evidentiary Hearing
Pursuant to Rule 8(c) that Governs Habeas
Corpus and 28 U.S.C. sec. 2243." Edwards
had tendered this paper, with the correct
postage, to the prison authorities on
August 10, 1999. About two months later,
on October 14, 1999, the district court
denied the motion, and Edwards filed his
notice of appeal to this court on October
22, 1999.

  The question is whether Edwards filed
that notice of appeal in a timely manner.
In general, because the United States is
a party to a sec. 2255 case, a petitioner
has 60 days in which to appeal. See Fed.
R. App. P. 4(a)(1)(B). Measuring that
time from the original judgment, however,
yields a time for appeal of September 27,
1999, well before Edwards’s actual filing
date of October 22, 1999. This means that
Edwards’s appeal was not timely unless
the time for filing was tolled by his
Motion Pursuant to Rule 59(e). Those
motions must be filed within 10 business
days of the district court’s order, see
Fed. R. Civ. P. 59(e), 6(a). The tenth
business day after July 29, 1999, was
August 12, 1999, two days after Edwards
tendered his motion to the prison
authorities and four days before the
district court received and docketed the
motion. If the motion was a timely Rule
59(e) filing, it served to toll the time
for taking an appeal until the district
court disposed of it. See, e.g., Life
Ins. Co. of N. Am. v. VonValtier, 116
F.3d 279, 282 (7th Cir. 1997). If it was
not timely for purposes of Rule 59(e),
then Edwards’s appeal must be dismissed
on jurisdictional grounds. (We note that
everyone from the district court to the
parties before us has assumed that the
motion was timely, but because the
question goes to our jurisdiction, we
must examine it independently.)

  In Houston v. Lack, 487 U.S. 266 (1988),
the Supreme Court decided that for
purposes of Fed. R. App. P. 4(a)(1), a
notice of appeal filed by a pro se
prisoner would be considered "filed" at
the moment of delivery to the prison
authorities, rather than at a later point
in time after the authorities had
forwarded the notice to the court and the
court had formally recorded its receipt.
Rule 4(c)(1) of the Appellate Rules now
reflects this holding. The question here
is whether this "mailbox rule" should
apply to a pro se prisoner’s filing of a
motion under Rule 59(e) as well.

  In 1999, this court extended Houston’s
mailbox rule to the filing of petitions
for a writ of habeas corpus, but it noted
in the same decision that "this circuit
has not ruled on whether the rule should
be extended to a pro se prisoner’s filing
of other papers." Jones v. Bertrand, 171
F.3d 499, 501 (7th Cir. 1999). In other
cases, such as Simmons v. Ghent, 970 F.2d
392, 393 (7th Cir. 1992), we assumed that
the mailbox rule applies to all prisoner
district court filings, including those
under Rule 59(e). This appears to be the
rule in every other circuit to have
considered the point. See In re Rashid,
210 F.3d 201, 204 (3d Cir. 2000) (per
curiam); Garrett v. United States, 195
F.3d 1032, 1034 (8th Cir. 1999);
Anyanwutaku v. Moore, 151 F.3d 1053, 1057
(D.C. Cir. 1998). The Sixth and the Tenth
Circuits have come to the same conclusion
in unpublished orders. See Tate v.
Hemingway, No. 00-1220, 2001 WL 345772,
at *1 (6th Cir. Mar. 27, 2001); Klein v.
McClaury, No. 00-1065, 2000 WL 1005238,
at *1 n.1 (10th Cir. July 20, 2000).
Finally, other circuits have applied the
mailbox rule to other kinds of filings in
the district court. See Cooper v.
Brookshire, 70 F.3d 377, 380 (5th Cir.
1995) (complaint); Caldwell v. Amend, 30
F.3d 1199, 1201 (9th Cir. 1994) (Rule
50(b) motion); Dory v. Ryan, 999 F.2d
679, 682 (2d Cir. 1993) (complaint);
Garvey v. Vaughn, 993 F.2d 776, 783 (11th
Cir. 1993) (complaint); Thompson v.
Raspberry, 993 F.2d 513, 515 (5th Cir.
1993) (per curiam) (objections to
magistrate judge’s report and recommenda
tion); Faile v. Upjohn Co., 988 F.2d 985,
988 (9th Cir. 1993) (discovery request);
Lewis v. Richmond City Police Dep’t, 947
F.2d 733, 736 (4th Cir. 1991) (per
curiam) (complaint).

  The policy on which the Houston Court
relied--that is, that institutional
constraints prevent prisoners from
monitoring the delivery of a notice of
appeal after it has been entrusted to the
prison authorities--applies with equal
force to the filing of a motion under
Rule 59(e). We need not decide here
whether there is any kind of paper, or
any circumstance, under which a district
court would be entitled to hold a pro se
prisoner litigant to an actual receipt
standard, but we are confident that this
would be an exceptional situation. As the
Houston Court put it, the "pro se
prisoner [ ] cannot personally travel to
the courthouse to see that the notice is
stamped ’filed’ or to establish the date
on which the court received the notice."
487 U.S. at 271. We hold, therefore, that
the mailbox rule applies to motions filed
pursuant to Rule 59(e). This in turn
means that Edwards may proceed with his
appeal: he has certified to this court
that he deposited the motion in the
prison mailbox with the correct postage
on August 10, 1999, two days before the
August 12, 1999, deadline.

  Unfortunately for Edwards, this
procedural victory is not a harbinger of
success on the merits. On appeal, he has
abandoned the grounds for the sec. 2255
motion that he had presented to the
district court and has instead urged us
to find that Apprendi requires us to set
aside his conviction and sentence. This
court granted a certificate of
appealability on two issues: (1) whether
Edwards’s sentence of 324 months is
lawful in light of Apprendi, and (2)
whether Apprendi applies retroactively to
first-time motions under 28 U.S.C. sec.
2255, as opposed to second or successive
motions.

  Upon closer examination of the record,
we have concluded that neither one of
these questions is properly presented in
Edwards’s case. Even assuming that
Apprendi applies retroactively to cases
on collateral review, Edwards’s sentence
does not run afoul of its holding. It was
uncontested that Edwards had a prior
felony drug conviction. The government
filed an enhancement information under 21
U.S.C. sec. 851, and we have now made it
clear on a number of occasions that we do
not read Apprendi as having overruled
Almendarez-Torres v. United States, 523
U.S. 224 (1998), which held that
enhancements based on recidivism are
still sentencing factors, not elements of
the offense. See Dahler v. United States,
259 F.3d 763, 765-66 (7th Cir. 2001);
United States v. Brough, 243 F.3d 1078,
1081 (7th Cir. 2001). Given all this,
Edwards faced a statutory maximum prison
term of 30 years (360 months) under sec.
841(b)(1)(C), and his sentence of 324
months does not exceed that cap. See
United States v. Jones, 245 F.3d 645,
650-51 (7th Cir. 2001).

  We therefore AFFIRM the judgment of the
district court.

FOOTNOTES

/* After an examination of the briefs and the
record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the
briefs and the record. Fed. R. App. P. 34(a)(2).
