        [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

            United States Court of Appeals
                      For the First Circuit


Nos.        01-1321
       01-1573

                          UNITED STATES,

                             Appellee,

                                v.

                      JEAN BAPTISTE-CALIXCE,

                       Defendant, Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF NEW HAMPSHIRE

       [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]


                              Before

                        Boudin, Chief Judge,
               Torruella and Lipez, Circuit Judges.



     Jean Baptiste-Calixce on brief pro se.
     Gretchen Leah Witt, United States Attorney, and Peter E.
Papps, Assistant U.S. Attorney, on Motion for Summary
Disposition for appellee.




                        September 28, 2001
            Per Curiam. These consolidated appeals by Jean

Baptiste-Calixce are from the district court’s denial of his

post-appeal motions for relief from his 168-month prison

sentence.    In 1998, Calixce was convicted following a jury

trial of possessing with intent to distribute cocaine and

cocaine base.    The indictment referenced 21 U.S.C. § 841(a),

but not § 841(b), and did not refer to any specific drug

quantity.    At sentencing, the court adopted the probation

department’s    finding    regarding    drug   quantity,   and    the

applicable     guideline   sentencing     range   based    on    that

quantity.    On direct appeal, Calixce did not challenge his

indictment or sentence, but argued only that the district

court had erred in denying his pre-trial suppression motion.

This court affirmed Calixce’s conviction in an unpublished

opinion dated April 2, 1999.

            Almost two years later, Calixce filed two motions

in district court.    The first one was a motion to amend his

prison sentence pursuant to 18 U.S.C. § 3582(c)(2).               The

second one was a motion to dismiss pursuant to Fed.R.Civ.P.

12(b)(1) and for review of his sentence pursuant to 18

U.S.C. § 3742.    The district court denied both motions.          We

agree with the district court that Calixce has failed to
show that he is entitled to the relief that he sought in

these motions.

             I. Appeal No. 01-1321: Appeal from Motion to Amend

Sentence

             Under 18 U.S.C. § 3582, the district court may

reduce a defendant’s sentence “in the case of a defendant

who has been sentenced to a term of imprisonment based on a

sentencing range that has subsequently been lowered by the

Sentencing Commission.”       In this case, Calixce claims that

Amendment 591 to the United States Sentencing Guidelines,

effective November 1, 2000, lowered the sentencing range on

which his sentence was based.             Specifically, he refers to

the amendment to U.S.S.G. § 1B1.1(a).

             Calixce seems to argue that, Amendment 591 altered

the sentencing guidelines by requiring that a sentence may

only    be   based   on   factors    that    are    specified   in   the

indictment.     A review of the sentencing guidelines before

and    after   Amendment    591   took     effect   belies   Calixce’s

interpretation.      Both the pre- and post-amendment guidelines

refer to the “offense         conduct charged in the count of

indictment” as the basis for determining the appropriate

“offense guideline section.”          And both the pre- and post-

amendment guidelines provide that the applicable “offense


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guideline range” should be determined “in accordance with §

1B1.3    (Relevant    Conduct).”     U.S.S.G.     §    1B1.2(b).         The

background notes to §1B1.3 (both pre- and post- amendment)

specifically provide that

           [c]onduct that is not formally charged
           or is not an element of the offense of
           conviction    may    enter  into   the
           determination     of   the  applicable
           guideline sentencing range.

§1B1.3, comment. (backg’d.)(Nov. 2000).

           The amendment on which Calixce relies did not lower

the   sentencing     range   on   which   his   sentence      was    based.

Therefore, the district court did not abuse its discretion

in denying him relief under 18 U.S.C. §3582(c)(1)(B).                    The

denial of that motion is affirmed.

           II. Appeal No. 01-1573: Motion to Dismiss for Want

of Jurisdiction and for Review of Sentence under 18 U.S.C.

§ 3742

           In this motion, Calixce argued that his indictment,

conviction and sentence are unconstitutional under Apprendi

v. New Jersey, 530 U.S. 466 (2000).               He contended that

because the indictment failed to specify a drug quantity (as

required by Apprendi), it was a nullity and the district

court    lacked    jurisdiction      over   the       case.         In   the

alternative, Calixce argued in his motion, as he does in his


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brief on appeal, that he is entitled to be resentenced based

upon the lowest possible quantity of cocaine under the

guidelines.

           The   time    for    Calixce   to   appeal   his   sentence

pursuant to § 3742 has long since expired. See Fed.R.App.P.

4(b).   Moreover, Calixce filed a timely appeal from his

sentence in which he did not include the present challenge

to the district court’s jurisdiction.           This court has held

that

           an objection that an indictment fails to
           state an essential element of an offense
           “shall be noticed by the court at any
           time   during  the   pendency   of   the
           proceedings.” Fed.R.Crim.P. 12(b)(2).
           This means that the defendant may raise
           the objection for the first time on
           appeal or that this court may raise the
           issue sua sponte.

United States v. Mojica-Baez, 229 F.3d 292, 309 (1 st Cir.

2000)(emphasis added), cert. denied, __ U.S. __, 121 S.Ct.

2215 (2001).      Because the pendency of the proceedings in

Calixce’s case had already passed when he filed this motion,

however,   he    is     not    entitled   to   relief   pursuant    to

Fed.R.Crim.P. 12(b)(2).          Instead, the appropriate form in

which to raise the Apprendi issue would be a motion pursuant

to 28 U.S.C. § 2255.           This court has not yet decided the

question whether Apprendi applies retroactively to cases on


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collateral review, an issue on which courts are divided. See

United States v. Clark, __ F.3d. __, 2001 WL 845193 (5 th

Cir., July 26, 2001) (Circuit Judge Parker, dissenting).   We

need not reach that question, however, because Calixce’s

only reference to § 2255 in his filings in the district

court or this court was in an objection to the government’s

suggestion that of one of his motions might be construed as

pursuant to § 2255. In any event, this court has recognized

the right of a petitioner to “have his motion decided as he

had framed it.” See Raineri v. United States, 233 F.3d 96,

100 (1st Cir. 2000).

          Calixce is not entitled to the relief he sought

pursuant to Rule 12(b) or 18 U.S.C. § 3742.   Therefore, the

district court’s denial of that motion is affirmed.

          Calixce’s motion in opposition to consolidation of

these appeals is denied.




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