On Appeal From the United States District Court For the Middle District of Pennsylvania (D.C. Crim. No. 97-cr-00023) District Court Judge: William J. Nealon
Before: Alito and McKEE, Circuit Judges, and
SCHWARZER,*fn1 Senior District Judge
The opinion of the court was delivered by: Schwarzer, Senior District Judge
Argued: February 13, 2003
William R. Jenkins was convicted of ten of eleven counts charging conspiracy to distribute marijuana, drug trafficking, possessing and transferring machine guns and related offenses. 18 U.S.C. §§ 2, 371, 922(a)(4) and (6), 922(g)(1), 922(o), 924(c)(1), 1952; 21 U.S.C. §§ 841(a)(1), 846; and 26 U.S.C. § 5861. The convictions were affirmed. United States v. Jenkins, 185 F.3d 863 (3d Cir. 1999) (unpublished), cert. denied, 528 U.S. 978 (1999).
The indictment on which Jenkins was convicted did not specify the quantity of drugs with which he was charged. The sentence the district judge imposed on the drug counts was for an offense involving between sixty and ninety kilograms of marijuana, based on the calculation in the presentence report. Because the resulting sentence exceeded the statutory maximum for an offense involving less than fifty kilograms under 21 U.S.C. § 841(b)(1)(D), Jenkins moved under 28 U.S.C. § 2255 to vacate his sentence on the drug counts, invoking Apprendi v. New Jersey, 530 U.S. 466 (2000).
Apprendi was not decided until after Jenkins's conviction had been affirmed and become final. Although the government opposed his motion on the ground of Apprendi' s non-retroactivity, the district court did not rule on the issue. Instead, the court ruled, erroneously as the government concedes, that Jenkins's sentence of 210 months did not exceed the statutory maximum of 480 months on the two drug counts. See United States v. McCulligan, 256 F.3d 97, 104-05 (3d Cir. 2001); United States v. Henry, 282 F.3d 242, 251 (3d Cir. 2002) (finding the statutory maximum under § 841(b)(1)(D) is sixty months).
Jenkins appealed the denial of his motion and this court issued a certificate of appealability limited to the Apprendi issue. We have jurisdiction under 28 U.S.C. §§ 1291 and 2255. Our review of an order denying a motion under § 2255 is plenary. Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). We may affirm an order of the district court on any ground supported by the record. See In re Columbia Gas System Inc., 50 F.3d 233, 237 n.6 (3d Cir. 1995).
I. RETROACTIVITY OF APPRENDI
In Apprendi, the Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. Jenkins contends that his constitutional rights were violated because the jury did not make a determination beyond a reasonable doubt of the amount of drugs for which he was held responsible. We held in In re Turner, 267 F.3d 225 (3d Cir. 2001), that Apprendi is not retroactive to a successive habeas petition in light of the specific requirement of the Antiterrorism and Effective Death Penalty Act of 1996 for such petitions that "a new rule of constitutional law [must have been] made retroactive to cases on collateral review by the Supreme Court." 28 U.S.C. § 2255 ¶ 8. We now decide whether Apprendi is retroactive to initial motions for post conviction relief which are not subject to that requirement.
All eight courts of appeals to have addressed the question have held that it is not. See United States v. Brown, 305 F.3d 304, 309 (5th Cir. 2002), rehearing en banc denied, 54 Fed. Appx. 415, ___ F.3d ___, (2002), petition for cert. filed, (2003); Curtis v. United States, 294 F.3d 841, 842-44 (7th Cir. 2002), cert. denied, 123 S. Ct. 451 (2002); United States v. Mora, 293 F.3d 1213, 1218-19 (10th Cir. 2002), cert. denied, 123 S. Ct. 388 (2002); United States v. Moss, 252 F.3d 993, 997-1001 (8th Cir. 2001), cert. denied, 543 U.S. 1097 (2002); Goode v. United States, 305 F.3d 378, 382 (6th Cir. 2002), cert. denied, 123 S. Ct. 711 (2002); United States v. Sanchez-Cervantes, 282 F.3d 664, 667-71 (9th Cir. 2002), cert. denied, 123 S. Ct. 48 (2002); McCoy v. United States, 266 F.3d 1245, 1256-58 (11th Cir. 2001), cert. denied, 122 S. Ct. 2362 (2002); and United States v. Sanders, 247 F.3d 139, 141 (4th Cir. 2001), cert. denied, 534 U.S. 1032 (2001).
Jenkins contends that the retroactivity analysis of Apprendi should be approached on the premise that its principle lies on a "continuum midway between the procedural and substantive standards," requiring a determination whether a non-retroactive application of Apprendi would "clearly result in an egregious injustice," citing United States v. Woods, 986 F.2d 669, 678 (3d Cir. 1993). There, the court found that the Supreme Court's decision in Hughey v. United States, 495 U.S. 411 (1990), limiting the district court's statutory authority to ...