Michael A. ROE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee, 38 F. App'x 313

Order In this collateral attack under 28 U.S.C. § 2255, Michael Roe contends that the 10-year sentence he received—the mandatory minimum sentence for a person with Roe’s record of convictions who conspires to distribute more than 500 grams of cocaine, see 21 U.S.C. § 841(b)(1)(B)—is constitutionally invalid given the principles articulated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Arguments that Apprendi applies to mandatory minimum sentences have been unpersuasive in this circuit. See, e.g. United States v. Hill, 252 F.3d 919, 921 (7th Cir.2001) (collecting other cases).

We have thought it sufficient that a sentence be within a statutory maximum given facts found (or necessarily implied) by the jury’s verdict. That verdict exposed Roe to a 20-year term, the lowest statutory cap for a person convicted of conspiring to distribute any quantity of cocaine. There is, however, a division of authority on the subject, and the conflict may be resolved this spring by Harris v. United States, cert. granted, - U.S. -, 122 S.Ct. 663, 151 L.Ed.2d 578 (2001) (to be argued Mar. 25, 2002).

It is unnecessary for us to hold these proceedings pending the decision in Hams, however, because Roe forfeited his contention by not raising it at sentencing or on direct appeal. See United States v. Smith, 241 F.3d 546 (7th Cir.2001). Some defendants contend that their forfeiture should be excused because they could not have anticipated the holding in Apprendi. Roe does not make such an argument, however, and for good reason.

Certiorari had been granted in Apprendi before Roe’s direct appeal was briefed, and we decided his appeal on April 11, 2000, see 210 F.3d 741, while Apprendi was under advisement in the Supreme Court. If Roe wanted the benefit of Ap-prendi, all he had to do was file a petition for certiorari from our decision two years ago. He did not take that step and is in no position to complain now. He does contend that forfeiture doctrines are inapplicable because, in his view, the district court lacked “jurisdiction” to sentence him, but this misunderstands the nature of subject-matter jurisdiction in criminal cases.

See, e.g., United States v. Bjorkman, 270 F.3d 482 (7th Cir.2001). Roe therefore cannot prevail on collateral attack. The district court reached the same conclusion, and its judgment is AFFIRMED.