                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-3213
                                     ___________

Gerald Dasean Jarrett,                      *
                                            *
      Petitioner - Appellant,               *
                                            * Appeal from the United States
      v.                                    * District Court for the
                                            * District of Minnesota.
United States of America,                   *
                                            *
      Respondent - Appellee.                *


                                     ___________

                                Submitted: May 14, 2001

                                    Filed: October 2, 2001
                                     ___________

Before LOKEN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
                           ___________

JOHN R. GIBSON, Circuit Judge.

       Gerald Jarrett appeals the district court’s refusal to reconsider his petition under
28 U.S.C. § 2255 (Supp. IV 1998) challenging his life sentence for drug trafficking
offenses. After Jarrett’s Section 2255 petition was denied, he filed a postjudgment
motion arguing that his sentence should be vacated in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). The district court denied the motion on the ground that
this argument could have been raised before judgment. An intervening decision of
this court has squarely rejected the Apprendi claim that Jarrett seeks to raise, so we
will affirm on that basis.

       In 1996 a jury convicted Jarrett of four counts arising from his participation in
a conspiracy to traffic in crack cocaine. Jarrett’s jury made no findings on the
quantity of drugs involved. At sentencing, the district court determined by a
preponderance of the evidence that Jarrett was responsible for between 500 and 1500
grams of cocaine base. Under the Sentencing Guidelines, that finding increased
Jarrett’s sentence to life imprisonment. This court affirmed Jarrett’s conviction.
United States v. Davis, 154 F.3d 772 (8th Cir. 1998), cert. denied, Jarrett v. United
States, 525 U.S. 1163 (1999).

       Jarrett then filed a pro se petition under 28 U.S.C. § 2255 for postconviction
relief from his sentence, claiming ineffective assistance of counsel. On June 26,
2000, while Jarrett’s Section 2255 petition was still pending before the district court,
the Supreme Court handed down Apprendi, which held that “[o]ther 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.” 530 U.S. at 490. However, Jarrett did not add the Apprendi-
related claim to his Section 2255 petition while it was pending. The district court
denied the petition on August 10, 2000.

       Two weeks later, Jarrett timely filed a pro se motion for reconsideration
pursuant to Fed. R. Civ. P. 59(e), titling it a motion to “amend” his rejected petition.
Jarrett’s 59(e) motion asserted, for the first time, that his sentence was invalid under
Apprendi because the drug quantity involved in his offenses was not determined by
the jury beyond a reasonable doubt. The district court denied the motion, concluding
that Jarrett could have raised this Apprendi argument before judgment was originally
entered on his Section 2255 petition; therefore, Rule 59(e) could not be used to raise



                                          -2-
the argument after judgment. See, e.g., Concordia Coll. Corp. v. W.R. Grace & Co.,
999 F.2d 326, 330 (8th Cir. 1993).

       We issued a certificate of appealability on the Apprendi issue. Jarrett argues
that he should have been allowed to raise his new argument in the court below, and
that Apprendi should be applied retroactively to vacate his sentence since his jury did
not make a finding of drug quantity.

       We do not need to decide whether the district court abused its discretion under
Rule 59(e) in ruling that Jarrett could have raised his Apprendi claim earlier. After
we heard oral argument in this case, another panel of this court decided United States
v. Moss, 252 F.3d 993 (8th Cir. 2001), which held that Apprendi was not a decision
of such “watershed magnitude” that it would apply retroactively on collateral review.
Moss, 252 F.3d at 1000.1 Therefore, as the government argues in this appeal, the
general rule of nonretroactivity in Teague v. Lane, 489 U.S. 288 (1989), conclusively
bars a petitioner like Jarrett, whose conviction became final before Apprendi, from
raising an Apprendi claim in a Section 2255 petition. See Moss, 252 F.3d at 997.

       While Moss was a product of a divided court, we are bound by its holding. See
Dukes v. United States, 255 F.3d 912, 914 (8th Cir. July 11, 2001) (“One panel may
not overrule another.”) (quoting United States v. Reynolds, 116 F.3d 328, 329 (8th
Cir. 1997)).




      1
        Interestingly, Justice O’Connor, joined by three other Justices in Apprendi,
did speak of the case as a “watershed change.” 530 U.S. at 524 (O’Connor, J.,
dissenting). But more recently the Court has emphasized that even those newly
acknowledged constitutional errors that are “structural” in nature, or that relate to
“fundamental requirements of due process,” may still fall short of the “watershed”
status contemplated in Teague. Tyler v. Cain, 121 S. Ct. 2478, 2484 n.7 (2001).

                                         -3-
     Thus, even if we assume that on these facts Jarrett was entitled to raise his
Apprendi claim in a Rule 59(e) motion, the district court still properly denied his
motion because Apprendi does not apply retroactively on collateral review.2

      The judgment of the district court is therefore affirmed.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      2
        We are willing to resolve the case without resolving the procedural propriety
of Jarrett’s Rule 59(e) motion because we do not view the rule applied in the district
court’s decision as raising a jurisdictional issue. See Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 101-02 (1998).

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