Jerry E. BENHAM, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee, 27 F. App'x 696

ORDER The district court denied Jerry Earl Benham’s motion to vacate his sentence under 28 U.S.C. § 2255 on grounds that the motion was barred by the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996. The district court, however, granted Benham a certificate of appealability to address whether Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), provides a basis for an initial § 2255 motion that would otherwise be time-barred. We affirm.

In January 1996 Benham pleaded guilty to one count of possession with intent to distribute approximately 95 grams of amphetamine in violation of 21 U.S.C. § 841(a)(1) and one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g). In determining the applicable guideline sentencing range, the district court considered Benham’s conduct relevant to the amphetamine offense. See U.S.S.G. § 1B1.3.

The court found that in connection with that offense Benham was involved in distributing a larger quantity of amphetamine as well as methamphetamine and marijuana totaling the marijuana equivalent of 47.796 kilograms. Based on that determination the court increased Benham’s base offense level under the guidelines from 26 to 38. See U.S.S.G. § 2Dl.l(c)(l). After the court adjusted for acceptance of responsibility. Benham had an offense level of 35 and a criminal history category of III, which yielded a guideline imprisonment range of 210 to 262 months.

On May 10, 1996, the court sentenced Benham to 210 months’ imprisonment. Because he did not appeal, his conviction became final on that date. More than four years later, on January 26, 2001. Benham filed a collateral attack under § 2255, arguing that his sentence violated the rule announced by the Supreme Court in Apprendi, and that his motion was timely because it was filed within a year of that decision.

Indeed, a federal prisoner may commence a first collateral attack under § 2255 within a year of a new rule of constitutional law recognized by the Supreme Court and “made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255 If 6(3). The district court, relying on our decision in Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000), held that Benham’s motion was time-barred because the Supreme Court, itself had not made Apprendi retroactive to cases on collateral review.

The court recognized that Talbott addressed the retroactivity exceptions for second or successive collateral attacks under 28 U.S.C. § 2244(b)(2)(

A) and 2255 If 8(2), but reasoned that the statutory language analyzed in that case is virtually identical to the retroactivity exception set forth in § 2255 If 6(3) for untimely initial motions. Accordingly, the district court concluded that it lacked jurisdiction to consider Benham’s motion. The government now seeks to have Benham’s appeal dismissed for lack of jurisdiction.

But shortly after the district court ruled, we addressed the retroactivity exception under § 2255 H 6(3) and held that, unlike in the case of a successive petition, a district court’s jurisdiction to consider an untimely initial motion is not dependent upon the Supreme Court making Apprendi retroactive. See Ashley v. United States, 266 F.3d 671, 673 (7th Cir. 2001). That is because, we explained, the retroactivity exceptions for successive collateral attacks under § 2244(b)(2)(

A) and 2255 II 8(2) explicitly require that the new rule be made retroactive “by the Supreme Court”; § 2255 H 6(3), by contrast, omits that language. Id. at 673. A district court therefore has jurisdiction to “make” the retroactivity decision when determining whether an initial collateral attack would otherwise be time-barred. Id. at 673. Like the district court in Ashley, the district court here dismissed Benham’s petition as untimely without reaching its own conclusion about whether Apprendi applies retroactively to collateral attacks.

In Ashley we remanded the case to the district court to make that determination. Id. at 674. But remand is unnecessary here if Benham’s Apprendi argument would fail irrespective of the district court’s retroactivity determination. See id.; see also Brannigan v. United States, 249 F.3d 584, 587 (7th Cir.2001) (“[Wjhen an argument invoking Apprendi would fail even if that case turns out to be fully retroactive, we deny it on the merits in order to forestall a further round of litigation”).

Apprendi holds 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 the jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. Benham claims that his sentence violated that rule because it was increased based on the district court’s speculation that he distributed larger quantities of amphetamine and other drugs that were not charged in the indictment.

True, the district court significantly increased Ben-ham’s base offense level under the Sentencing Guidelines (from level 26 to 38) based on its relevant-conduct finding. But Apprendi requires only that drug type and quantity be set forth in the indictment and proven beyond a reasonable doubt if the sentence imposed exceeds a default statutory maximum. United States v. Williams, 238 F.3d 871, 876-77 (7th Cir. 2001); United States v. Jones, 245 F.3d 645, 650-51 (7th Cir.2001); see also United States v.

Westmoreland, 240 F.3d 618, 636 (7th Cir.2001) (consistent with Apprendi, “[sentencing judges may look to the conduct surrounding the offense of conviction in fashioning an appropriate sentence, regardless of whether the defendant was ever charged with or convicted of that conduct” as long as the defendant’s sentence is not increased beyond the prescribed statutory maximum (quotation omitted)); Talbott, 226 F.3d at 869 (“Ap-prendi does not affect application of the relevant-conduct rules under the Sentencing Guidelines to sentences that fall within a statutory cap.”).

Benham’s sentence did not exceed the prescribed statutory maximum. He was convicted of possession with intent to distribute 95 grams of amphetamine, a

Schedule II controlled substance, in violation of 21 U.S.C. § 841(a). The lowest statutory maximum sentence for a violation of § 841(

a) when a

Schedule II controlled substance is involved is twenty years. See 21 U.S.C. § 841(b)(1)(C). Benham was sentenced to a term of seventeen years and six months, and so he could not have a viable Apprendi claim. Benham argues that Apprendi nonetheless applies because the lowest statutory maximum sentence for his offense was not twenty years but five. That is because, he says, amphetamine is fisted in 21 U.S.C. § 812 as a

Schedule III substance and not a

Schedule II substance. Indeed, amphetamine was identified as a

Schedule III substance in 1970 when the Comprehensive Drug Abuse Prevention and Control Act, 21 U.S.C. § 801, et seq., was enacted. See 21 U.S.C. § 812(

c) sch. 111(a)(1). The Act, however, expressly authorized the Attorney General to add or remove substances, or move substances from one

schedule to another according to the procedures specified in the statute. See Tou-by v. United States, 500 U.S. 160, 162, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991); see also 21 U.S.C. § 811(a). In 1974 the Attorney General properly moved amphetamine from

Schedule III to

Schedule II. see United States v. White, 560 F.2d 787, 788-89 (7th Cir.1977), where it has remained ever since, see 21 C.F.R. § 1308.12(d)(1). Accordingly, the lowest statutory maximum penalty for violations of § 841(

a) involving amphetamine was increased from five to twenty years. And because Benham’s sentence fell within that twenty-year cap, his Apprendi claim fails. See Talbott, 226 F.3d at 869 (“[w]hen a drug dealer is sentenced to less than 20 years’ imprisonment-the limit under 21 U.S.C. § 841(b)(1)(

C) for even small-scale dealing in

Schedule I and II controlled substances ... Apprendi is irrelevant.”). The government’s motion to dismiss this appeal for lack of jurisdiction is DENIED, and the judgment of the district court is AFFIRMED.