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 March 28, 2001/1



  Before Bauer, Cudahy and Evans, Circuit Judges.

  Cudahy, Circuit Judge. Randy Horton was a leader
of a 19-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Dec. 20, 1996) (unpublished order).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 18
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 15-count
indictment, charging Horton, along with 18
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 co-conspirators had conspired
to possess with intent to distribute about 10
kilograms of cocaine and 10 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, a motion that 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 type of drug that 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)./2


  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. 2255para.6(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. 2255para.6(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. Rule
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, 212 F.3d 1005, 1008 (7th Cir. 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 is "final" for purposes of the one-year
limitation period in sec. 2255para.6(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, 212 F.3d at 1008, 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.
2255para.6(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 (May 17, 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 appeals’ mandate issues only
after the period to petition for rehearing
expires, see Fed. R. App. P. 41(b) & (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
appeals’ 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,
212 F.3d at 1008; Thomas, 203 F.3d at 356;
Willis, 202 F.3d at 1281. Thus, the critical
difference for the purpose of sec. 2255para.6(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.
2255para.6(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, which was, of course, the basis of the
district court’s analysis. Horton argues that the
jury instructions were constitutionally flawed
because they stated that the jury could convict
him upon finding that "measurable amounts of
cocaine or cocaine base" were distributed as a
result of the conspiracy. The propriety of this
jury instruction turns on whether the type of
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.

  The Supreme Court has already indicated on
which side of this distinction the jury
instructions in question here will lie. In
affirming this court’s decision in United States
v. Edwards, 105 F.3d 1179, 1180 (7th Cir. 1997),
the Court addressed the constitutional validity
of the very sentencing instructions at issue in
this case. 523 U.S. 511 (1998). Indeed, the
appellants in Edwards were Horton’s co-
defendants, and they were challenging the same
jury instruction that Horton challenges now, but
on a different basis.

  In Edwards, the appellants argued that they
should have been sentenced based on a cocaine-
only conspiracy because the general jury verdict
was ambiguous as to whether the object of the
conspiracy was cocaine only, cocaine base only,
or both. This court rejected these arguments and
explained that, ultimately, what a jury believes
about which drug the conspirators distributed was
not conclusive at sentencing. See Edwards, 105
F.3d at 1181. Horton, however, challenges his
conviction on the ground that the jury may not
have been unanimous on an element of the offense-
-in his argument, the type of drug. But our
conclusion in Edwards that the type 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 is not an element of the offense. See
Hardin, 209 F.3d at 654. This was confirmed in
the Supreme Court’s affirmance of our decision,
where it 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, 523 U.S. at
514. 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. This
conclusion is not changed by the fact that type
of drug is sometimes a factor that must be
determined by a jury--when such a determination
will increase the maximum penalty authorized by
statute. See Apprendi v. New Jersey, 120 S.Ct.
2348 (2000).

  It is possible that, had Horton contested the
judge’s finding as to the quantity of drugs, and
timely filed his motion, he may have had an
argument under Apprendi. Whether classified as a
sentencing factor or as an element of the
offense, a fact cannot increase the penalty for
a crime beyond the prescribed statutory maximum
applicable to the crime, as presented to the
jury: "Other than the fact of a prior conviction,
any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a
reasonable doubt." Apprendi, 120 S.Ct. at 2362-
63. The Supreme Court in Apprendi eschewed rigid
use of the distinction between "elements" and
"sentencing factors" for the purpose of
determining whether submission to a jury is
required: "the relevant inquiry is not one of
form, but of effect--does the required finding
expose the defendant to a greater punishment than
that authorized by the jury’s guilty verdict?"
120 S.Ct. at 2365.
  What a jury believes about the object of a
conspiracy--whether, for example, it involves
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, 523 U.S. at
515. This is so, explained the Court, "because a
maximum sentence set by statute trumps a higher
sentence set forth in the Guidelines." Id. The
district court found that Horton conspired to
distribute more than five kilograms of cocaine,
and more than 50 grams 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)./3 Because it is
uncontested that Horton possessed the amount of
drugs required to place him under the penalty
provision of sec. 841(b)(1)(A), the sentence he
received was not in excess of the statutory
maximum, which is life imprisonment regardless of
the type of drugs involved. Thus, in this case,
the type of drug is properly considered a
"sentencing factor," a matter for the judge to
decide by a preponderance of the evidence, and
not an element of the offense.

  Apprendi does not alter this conclusion. The
Apprendi Court was careful to reserve the term
"sentencing factor" for "a circumstance, which
may be either aggravating or mitigating in
character, that supports a specific sentence
within the range authorized by the jury’s finding
that the defendant is guilty of a particular
offense." 120 S.Ct. at 2365 n.19. This is
distinguished from a "sentence enhancement,"
which increases the sentence beyond the
statutorily authorized maximum, and is "the
functional equivalent of an element of a greater
offense than the one covered by the jury’s guilty
verdict." Id.

  Had Horton contested the trial court’s finding
as to quantity, he would have had a potential
Apprendi claim. This is because, if drug quantity
is not proven to the jury beyond a reasonable
doubt, a defendant’s rights are violated when the
sentence dictated by the drug quantity is greater
than the statutory maximum prescribed by sec.
841(b). See United States v. Nance, 236 F.3d 820
(7th Cir. 2000). But we need not reexamine
Horton’s sentence in light of Apprendi, because
Horton has not appealed the sentencing judge’s
finding as to quantity of drugs, and he has
already lost on the timeliness issue.

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 This case was originally decided on June 29,
2000. Three days earlier, the Supreme Court
decided Apprendi v. New Jersey, 120 S.Ct. 2348
(2000), which is relevant to the merits of this
case. While Apprendi does not change the ultimate
outcome here, our original opinion was withdrawn
to incorporate a discussion of Apprendi, and we
thereupon reissue it.

/2 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 Rule 6(b) of the Federal
Rules of Civil Procedure, 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.

/3 Under 21 U.S.C. sec. 846, persons who conspire to
commit an offense "shall be subject to the same
penalties as those prescribed for the offense,
the commission of which was the object of the
attempt or conspiracy."
