United States v. Swinton

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

6-23-2003

USA v. Swinton

Precedential or Non-Precedential: Precedential

Docket No. 01-1004

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PRECEDENTIAL

Filed June 23, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-1004

UNITED STATES OF AMERICA

v.

ANDRE SWINTON,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 94-cr-00008-1)

District Judge: Hon. Harvey Bartle, III

Submitted Under Third Circuit LAR 34.1(a)

December 19, 2002

Before: SLOVITER, McKEE, and ROSENN, Circuit Judges

(Filed June 23, 2003)

David Rudovsky

Kairys, Rudovsky, Epstein &

Messing

Philadelphia, PA 19l07

Attorney for Appellant

2

Patrick L. Meehan

United States Attorney

Laurie Magid

Deputy United States Attorney

for Policy and Appeals

Craig Margolis

Assistant United States Attorney

Robert A. Zauzmer

Assistant United States Attorney

Senior Appellate Counsel

Robert K. Reed

Office of United States Attorney

Philadelphia, PA 19l06

Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

The issue presented in this appeal is whether the rule of

law announced by the Supreme Court in Apprendi v. New

Jersey, 530 U.S. 466 (2000), applies retroactively to cases

on collateral review. The courts of appeals that have

considered the issue have uniformly held that Apprendi

does not apply retroactively to cases on collateral review.

We also so hold. See also United States v. Jenkins, No. 01-

1722 (3d Cir. June 18, 2003).

I.

BACKGROUND

Appellant Andre Swinton was charged with various drug

offenses in a six-count superseding indictment returned in

1994. He was found guilty after a jury trial of one count of

conspiracy to distribute more than fifty grams of cocaine

base (crack), in violation of 21 U.S.C. § 846 (Count One),

one count of distribution of more than fifty grams of

cocaine base (crack) within 1,000 feet of a school, in

violation of 21 U.S.C. § 860 (Count Three), two counts of

3

distribution of more than fifty grams of cocaine base

(crack), in violation of 21 U.S.C. § 841(a)(1) (Counts Four

and Five), and retaliation against a witness/informant in

violation of 18 U.S.C. § 1513 (Count Six).

The District Court sentenced Swinton to 324 months

incarceration on Counts One, Three, Four, and Five, and

120 months incarceration on Count Six, all terms to run

concurrently, followed by ten years of supervised release. It

also imposed a $5,000 fine and a $250 special assessment.

On appeal, this court affirmed the judgment and sentence.

United States v. Swinton, 151 F.3d 1027 (3d Cir. 1998)

(unpublished table decision). The United States Supreme

Court denied Swinton’s petition for a writ of certiorari on

October 5, 1998. Swinton v. United States, 525 U.S. 857

(1998).

On August 12, 1999, within a year of the final judgment

in his case, Swinton filed a pro se motion to vacate, set

aside or correct his sentence pursuant to 28 U.S.C. § 2255,

raising various ineffective assistance of counsel claims.

However, because Swinton did not properly complete the

requisite forms for filing a § 2255 motion, the District Court

ordered him to do so within thirty days. Swinton did file the

necessary forms on October 8, 1999, but once again he

failed to follow the requisite procedure. Instead of listing his

grounds for relief on the § 2255 motion form as required by

the local rules, Swinton referred the court to an attached

memorandum. The District Court dismissed the motion

without prejudice. On November 29, 1999, only slightly

more than two weeks after the District Court’s dismissal,

Swinton filed another § 2255 motion setting forth his

ineffective assistance of counsel claims on the motion form

and, on August 2, 2000, the District Court ordered the

Government to file a response.

On September 8, 2000, before the Government filed its

response, Swinton filed a document titled “Supplement to

Petitioner’s Motion to Vacate, Set Aside or Correct Sentence

Pursuant to 28 U.S.C. § 2255” (the “Supplemental Motion”)

in which he moved the District Court to allow him to

incorporate an additional issue into his § 2255 motion.

Swinton claimed that his rights to due process and a jury

trial were violated because the jury was instructed that the

4

Government need not prove the quantity and identity of the

drugs involved in his case. Although not mentioned in his

filing, this claim was based on the Supreme Court’s

decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),

decided June 26, 2000, less than three months earlier. 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 statutory maximum must be

submitted to a jury, and proved beyond a reasonable

doubt.” Id. at 490.

The Government filed a response to the § 2255 motion,

contending that there was no merit to Swinton’s ineffective

assistance of counsel claims. The Government further

argued that the Supplemental Motion should be denied

because Apprendi has not been made retroactive to cases

on collateral review, and accordingly the Supplemental

Motion was time-barred under the statute of limitations

provision of § 2255. Also, it argued that even if Apprendi

were applicable, Swinton’s claim would fail because the

District Court did not commit plain error in sentencing

Swinton based on a drug quantity that was supported by

credible and undisputed evidence.

The District Court held that the November 29, 1999

§ 2255 motion was untimely because Swinton filed it more

than one year after his judgment of conviction became final.

In the alternative, it ruled that Swinton’s ineffective

assistance of counsel claims lacked merit. The District

Court also ruled that Swinton’s Supplemental Motion

raising his Apprendi claim is a second or successive § 2255

motion that requires authorization from this court before it

can be filed in the District Court. It denied the

Supplemental Motion without prejudice and with leave to

file the necessary motion in this court. Swinton filed a

timely notice of appeal and a request for a certificate of

appealability with this court.

We granted a certificate of appealability limited to the

following issues:

(1) [W]hether the language “made retroactively

applicable to cases on collateral review” in the

statute of limitations set forth in 28 U.S.C.

5

§ 2255(3) is distinguishable from the language

“made retroactive to cases on collateral review by

the Supreme Court” in the requirement for

authorization to file a second or successive Section

2255 motion, as that language was discussed in

Tyler v. Cain, 121 S.Ct. 2478 (2001) and In re:

Turner, 267 F.3d 225, 227-28 (3d Cir. 2001).

(2) If the language is distinguishable, is the Supreme

Court’s opinion in Apprendi v. New Jersey, 530

U.S. 466 (2000), retroactively applicable on

collateral review, and does it make Swinton’s

Supplemental Section 2255 motion timely under

§ 2255(3).

The court appointed counsel to represent Swinton.1

II.

JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 28 U.S.C.

§ 2255. We have jurisdiction pursuant to 28 U.S.C. § 1291

and 28 U.S.C. § 2253(a). We review issues of statutory

interpretation de novo. Kapral v. United States, 166 F.3d

565, 567 (3d Cir. 1999).

III.

DISCUSSION

A. Statute of Limitations Under 28 U.S.C. § 2255

Under the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), a one-year period of limitation applies to

a motion to vacate a sentence filed under § 2255. Paragraph

6 of § 2255 provides that the limitation period shall run

from the latest of:

1. Although the parties address in their briefs the issue of whether the

Supplemental Motion is second or successive, we did not grant a

certificate of appealability on this issue and thus we will not address it.

6

(1) the date on which the judgment of conviction

becomes final;

(2) the date on which the impediment to making a

motion created by governmental action in violation

of the Constitution or laws of the United States is

removed, if the movant was prevented from

making a motion by such governmental action;

(3) the date on which the right asserted was initially

recognized by the Supreme Court, if that right has

been newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral

review; or

(4) the date on which the facts supporting the claim

or claims presented could have been discovered

through the exercise of due diligence.

28 U.S.C. § 2255 (emphasis added).

Swinton filed his Supplemental Motion more than one

year after his judgment of conviction became final.

However, because he claims a violation of Apprendi,

Swinton argues that the Supplemental Motion was timely

under subparagraph (3) above because he filed it within a

year after Apprendi was decided. Swinton can take

advantage of that provision only if Apprendi creates a “right

[that] has been [1] newly recognized by the Supreme Court

and [2] made retroactively applicable to cases on collateral

review.” Id.

In Apprendi, defendant, who pled guilty to various state

firearm offenses, was sentenced to an enhanced sentence

under the New Jersey hate crime law. That statute provides

for an extended term of imprisonment if the trial judge

finds by a preponderance of the evidence that the defendant

acted with a purpose to intimidate an individual or group of

individuals because of race, color, gender, handicap,

religion, sexual orientation or ethnicity. In the state courts

and then in the Supreme Court of the United States,

Apprendi challenged the constitutionality of the statute,

arguing that “the Due Process Clause of the United States

Constitution requires that the finding of bias upon which

his hate crime sentence was based must be proved to a jury

7

beyond a reasonable doubt.” Apprendi, 530 U.S. at 471.

The Supreme Court agreed and 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.” Id. at 490.

The decision in Apprendi impacts both the statutory

provision in paragraph 6 of 28 U.S.C. § 2255, which

requires tolling the statute of limitations for certain claims

of new rights recognized by the Supreme Court, and

paragraph 8 of § 2255, which requires that second or

successive claims must be certified by the court of appeals

before they can be filed in the district courts. There are

several requirements under each of those provisions and

the language is somewhat different. Under paragraph 6 the

right at issue must have been “newly recognized by the

Supreme Court” whereas paragraph 8 refers to “a new rule

of constitutional law.” 28 U.S.C. § 2255.

The parties do not dispute that Apprendi establishes a

constitutional right under the applicable language of both

provisions. In Ashley v. United States, 266 F.3d 671, 672

(7th Cir. 2001), where the court construed paragraph 6, the

same issue before us, i.e. when the statute of limitations

begins to run on newly recognized rights, the court stated,

“[n]o one could doubt that Apprendi ‘newly’ or ‘initially’

recognizes a constitutional right. Apprendi caused this

court to overrule numerous cases, a sign that something

novel occurred.” In In re Turner, 267 F.3d 225, 227-28 (3d

Cir. 2001), this court considered the related issue under

paragraph 8 of section 2255 and concluded that Apprendi

establishes a “new rule of constitutional law” for purposes

of filing a second or successive habeas application

pursuant to 28 U.S.C. §§ 2255 and 2244.

Having concluded that Apprendi recognized a new rule of

constitutional law, we reach the issue of the retroactive

application of Apprendi and must first decide whether that

is an issue reserved to the Supreme Court or whether the

lower federal courts also have authority to determine

whether Apprendi can be applied retroactively to cases on

collateral review. In Turner, where, as noted above, the

issue arose in the context of a second or successive motion,

8

we denied the petitioner authorization to file a second

§ 2255 motion because the Supreme Court had not made

Apprendi retroactive to cases on collateral review. Id. at

231. The language of paragraph 8 is explicit as it refers to

“a new rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court, . . .” 28 U.S.C.

§ 2255 ¶ 8 (emphasis added). By the time of the Turner

opinion, the Supreme Court had already decided in Tyler v.

Cain, 533 U.S. 656, 663 (2001), that it is the only court

that can make a new rule retroactive for purposes of filing

a second or successive habeas corpus application. In Tyler,

the Court was construing § 2244(b)(2)(A), which applies to

state prisoners, and which contains the same language as

in § 2255, which applies to federal prisoners. Our decision

in Turner followed as a matter of course.

Tyler is not dispositive of the issue before us because of

the difference in the language between paragraph 6 and

paragraph 8. Paragraph 6 merely states that the limitation

period shall run from “the date on which the right asserted

was initially recognized by the Supreme Court, if that right

has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review [.]” 28

U.S.C. § 2255. Significantly, paragraph 6 does not include

the phrase “by the Supreme Court” when referring to the

retroactivity decision.

It was this difference in statutory language that led the

Court of Appeals for the Seventh Circuit to hold that courts

of appeals and district courts may determine whether a

novel decision of the Supreme Court applies retroactively,

and thus whether a collateral attack is timely under § 2255.

Ashley, 266 F.3d at 673-74. The reasoning of the Ashley

court is persuasive and, because we cannot improve it, we

adopt it:

An initial petition may be filed within a year of a

decision that is “made retroactively applicable to cases

on collateral review[.]” A second petition, by contrast,

depends on “a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme

Court” (emphasis added). Both statutes make it clear

that only the Supreme Court may issue the new

decision. But who decides whether that new decision

9

applies retroactively? The first formulation (“made

retroactive”) leaves that question open. The second

formulation (“made retroactive . . . by the Supreme

Court”) answers it. To treat the first formulation as

identical to the second is not faithful to the difference

in language. By omitting the restriction contained in

¶ 8(2), ¶ 6(3) implies that courts of appeals and district

courts may “make” the retroactivity decision. Tyler

concludes that the word “made” in ¶ 8(2) means “held.”

___ U.S. at ___, 121 S.Ct. at 2483. District and

appellate courts, no less than the Supreme Court, may

issue opinions “holding” that a decision applies

retroactively to cases on collateral review. The

jurisdictional (and precedential) scope of that holding

differs, but it is a holding nonetheless.

Id. at 673.

The court set forth three reasons justifying the difference

between the statute of limitations and the second or

successive provisions. First, permitting a district or

appellate court to make the retroactivity decision for an

initial petition may be essential to put the question before

the Supreme Court for final resolution. Id. It asked, “[h]ow

else would a retroactivity question get before the Supreme

Court so that it could make the decision that would in turn

authorize second or successive petitions?” Id. Second, a

court of appeals only has thirty days to decide whether a

second or successive petition may be filed. Id. In contrast,

no such time limit applies to an initial petition for collateral

review and courts have time to conduct a retroactivity

analysis. Id. Finally, the conditions for filing successive

petitions are substantively and procedurally more

restrictive because the prisoner has already had one

opportunity to raise his collateral claims. Id.

Similarly, in United States v. Lopez, 248 F.3d 427 (5th

Cir.), cert. denied, 534 U.S. 898 (2001), the court of appeals

was required to decide whether it could make the

retroactivity determination of Richardson v. United States,

526 U.S. 813 (1999), the Supreme Court’s decision holding

a jury must be instructed to reach a unanimous verdict on

each of the specific violations that comprise the “continuing

series of violations” charged as a continuing criminal

10

enterprise. Using reasoning similar to that in Ashley, the

court, noting the omission of the words “by the Supreme

Court” in paragraph 6 of § 2255, the statute of limitations

provision, held that Ҥ 2255(3) does not require that the

retroactivity determination must be made by the Supreme

Court itself.” Lopez, 248 F.3d at 432; see also Garcia v.

United States, 278 F.3d 1210, 1212-13 (11th Cir.)

(assuming that the Supreme Court need not make the

retroactivity determination required in the statute of

limitations provision and recognizing cases holding same),

cert. denied, 123 S. Ct. 180 (2002).

The Supreme Court also has stated that “ ‘[w]here

Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it

is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.’ ” Duncan

v. Walker, 533 U.S. 167, 173 (2001) (citations omitted). In

Duncan, the Supreme Court considered whether a federal

habeas corpus petition is an “application for State post

conviction or other collateral review” for purposes of tolling

the statute of limitations under 28 U.S.C. § 2244(d)(2). Id.

at 169. In construing the statutory language and

concluding that Congress did not intend federal petitions to

toll the limitation period, the Court explained that Congress

used both the words “State” and “Federal” to denote state

and federal proceedings in other portions of the statute. Id.

at 172. The same principle applies here.

We conclude — and the parties agree — that the statute

of limitations provision of § 2255 allows district courts and

courts of appeals to make retroactivity decisions. We turn

now to whether Apprendi applies retroactively to cases on

collateral review.

B. Apprendi Retroactivity Analysis

When analyzing the retroactivity of a new rule of law, we

must decide whether the rule is substantive or procedural

in nature because “ ‘the Supreme Court has created

separate retroactivity standards for new rules of criminal

procedure and new decisions of substantive criminal law.’ ”

Turner, 267 F.3d at 229 (quoting United States v. Woods,

986 F.2d 669, 676 (3d Cir. 1993)). “Under the substantive

11

retroactivity standard, the appropriate inquiry is whether

the claimed legal error was a ‘fundamental defect which

inherently results in a complete miscarriage of justice,’ and

whether ‘it presents exceptional circumstances where the

need for the remedy afforded’ by collateral relief is

apparent.’ ” Turner, 267 F.3d at 229 (citations omitted).

In Teague v. Lane, 489 U.S. 288 (1989), the Supreme

Court set forth the general principles regarding retroactivity

for new rules of criminal procedure. It explained that

because of the interest in finality of judgments in the

criminal justice system, a new rule of criminal procedure

does not apply retroactively to cases that have become final

before the new rule is announced. Id. at 309-10. There are

two narrow exceptions. A new rule of criminal procedure

will apply retroactively if it (1) places certain kinds of

primary, private individual conduct beyond the power of the

criminal law-making authority to proscribe; or (2) requires

the observance of those procedures that are implicit in the

concept of ordered liberty. Id. at 311. Teague’s second

exception is reserved for watershed rules of criminal

procedure that not only improve the accuracy of trial, but

also “ ‘alter our understanding of the bedrock procedural

elements’ ” essential to the fairness of a proceeding. Sawyer

v. Smith, 497 U.S. 227, 242 (1990) (citations omitted).

Swinton, seeking the retroactive application of Apprendi,

argues that Apprendi announced a rule of substantive

criminal law and that Teague is inapplicable. He contends

that Apprendi redefines when a particular fact is deemed to

be an element of an offense and argues that the fact that

Apprendi has the procedural consequence of proof to a jury

beyond a reasonable doubt does not render it a rule of

procedure. Swinton states, “it is illogical to say that this

procedural implication is Apprendi’s ‘new rule,’ because it

has always been the case that a defendant is entitled to ‘a

jury determination that [he] is guilty of every element of the

crime with which he is charged, beyond a reasonable

doubt.’ ” Appellant’s Br. at 22-23. The Government, on the

other hand, argues that Apprendi is a new rule of criminal

procedure that does not apply retroactively under Teague.

It states that Apprendi did not address the substance of a

statute but “merely established the necessary procedures

12

for establishing those facts” which increase the penalty for

a crime. Appellee’s Br. at 38.

The courts of appeals that have considered this issue

have held that Apprendi establishes a procedural rule. In

United States v. Brown, 305 F.3d 304, 310 (5th Cir. 2002),

cert. denied, 2003 WL 1609400 (U.S. Apr. 28, 2003), for

example, the court held that the principles articulated in

Teague were applicable to Apprendi claims asserted on

collateral review and that Apprendi does not apply

retroactively to initial motions under § 2255. In so holding,

the court rejected the petitioner’s argument that the rule

announced in Apprendi is substantive, rather than

procedural. Id. at 307-09. It relied on the Supreme Court’s

own description in Apprendi of the issue before it as

procedural, where the Court stated that “ ‘[t]he substantive

basis for New Jersey’s [sentencing] enhancement is thus

not at issue; the adequacy of New Jersey’s procedure is.’ ”

Id. at 308 (quoting Apprendi, 530 U.S. at 475). The Brown

court also noted that in Apprendi the Court stated that

having the jury decide the elements of an offense under a

reasonable doubt standard “ ‘has a vital role in our criminal

procedure for cogent reasons.’ ” Id. (quoting Apprendi, 530

U.S. at 484). The court in Brown further explained that

Apprendi focused on the right to have a jury decide whether

the sentence should be enhanced, not whether the

enhancement was essential to a conviction. Id. In other

words, Apprendi did not change what the government must

prove, it only changed the requirement that it must be the

jury, rather than the judge, who decided the question of

drug quantity. Id. at 309.

Similarly, in Curtis v. United States, 294 F.3d 841 (7th

Cir.), cert. denied, 123 S.Ct. 451 (2002), the court stated,

Yet Apprendi is about nothing but procedure — who

decides a given question (judge versus jury) and under

what standard (preponderance versus reasonable

doubt). Apprendi does not alter which facts have what

legal significance, let alone suggest that conspiring to

distribute marijuana is no longer a federal crime

unless the jury finds that some particular quantity has

been sold.

13

. . .

Because Apprendi is concerned with the identity of the

decision-maker, and the quantum of evidence required

for a sentence, rather than with what primary conduct

is unlawful, it identifies a new rule of criminal

procedure that falls within the set of legal changes to

which the Teague standard applies.

294 F.3d at 843; see also McCoy v. United States, 266 F.3d

1245, 1257 n.16 (11th Cir. 2001) (“The application of

Apprendi merely changes the method or procedure for

determining drug quantity and [McCoy’s] sentence; it does

not make McCoy’s conduct not criminal[.]”), cert. denied,

536 U.S. 906 (2002); United States v. Sanders, 247 F.3d

139, 147 (4th Cir.) (“Apprendi constitutes a procedural rule

because it dictates what fact-finding procedure must be

employed to ensure a fair trial.”), cert. denied, 534 U.S.

1032 (2001).

We agree with our sister circuits that Apprendi

announced a new rule of criminal procedure, as has the

panel in Jenkins, No. 01-1722 (3d Cir. June 18, 2003), an

opinion filed last week. Thus, we must apply a Teague

analysis to determine whether Apprendi applies

retroactively on collateral review.

As stated above, Teague enunciated the principle that

“[u]nless they fall within an exception to the general rule,

new constitutional rules of criminal procedure will not be

applicable to those cases which have become final before

the new rules are announced.” 489 U.S. at 310. The

Supreme Court explained that “a case announces a new

rule when it breaks new ground or imposes a new

obligation on the States or the Federal Government.” Id. at

301. It stated, “a case announces a new rule if the result

was not dictated by precedent existing at the time the

defendant’s conviction became final.” Id.

In its opinion in Caspari v. Bohlen, 510 U.S. 383, 390

(1994), the Supreme Court set forth the steps a federal

court should take when faced with a habeas petition

seeking relief based on a rule announced after the

defendant’s conviction became final. The court must survey

“ ‘the legal landscape’ ” as it existed on the date the

14

defendant’s conviction became final and then determine if

a “ ‘court considering [the defendant’s] claim at the time his

conviction became final would have felt compelled by

existing precedent to conclude that the rule [he] seeks was

required by the Constitution.’ ” Id. (citations omitted). Even

if the court determines that the defendant seeks the benefit

of a new rule, the court must decide whether that rule falls

within one of the two narrow exceptions to the non-

retroactivity principle set forth above. Id.

Although Swinton does not argue that Apprendi did not

announce a “new rule” for purposes of a Teague analysis,

we will address this issue briefly. At the time Swinton’s

conviction became final on October 5, 1998, the Supreme

Court had held that a state did not need to prove the

existence of a sentencing factor beyond a reasonable doubt.

McMillan v. Pennsylvania, 477 U.S. 79, 84-86 (1986). It was

the general understanding of federal courts that drug

quantity was a sentencing factor to be determined by the

judge based on a preponderance of the evidence. See

Sanders, 247 F.3d at 147 (citing cases). Thus, at the time

Swinton’s conviction became final, a reasonable jurist

would not have felt compelled to rule that 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.

The decision in Apprendi, of course, dramatically changed

that understanding. Accordingly, courts considering this

issue have held that Apprendi established a “new rule”

under Teague. In McCoy, the Court of Appeals for the

Eleventh Circuit concluded that the rule in Apprendi was

not dictated by precedent existing before Apprendi was

decided, and that before Apprendi, the courts of appeals

had been upholding sentences that were greater than the

otherwise applicable maximum sentences based on a drug

quantity not charged in the indictment, submitted to the

jury and proved beyond a reasonable doubt. 266 F.3d at

1256; see also United States v. Moss, 252 F.3d 993, 997

(8th Cir. 2001) (“Apprendi is obviously a ‘new rule’ subject

to the general rule of non-retroactivity.”), cert. denied, 534

U.S. 1097 (2002); Sanders, 247 F.3d at 147. We also hold

now that Apprendi established a new rule for purposes of

15

Teague. Because Apprendi had not been decided at the time

Swinton’s conviction became final, it does not apply

retroactively on collateral review unless it satisfies one of

Teague’s two narrow exceptions.

Swinton argues that Teague’s second exception, that the

new rule requires the observance of those procedures that

are implicit in the concept of ordered liberty, applies. Other

courts of appeals that have addressed this issue have

consistently held to the contrary. In Brown, for example,

the Court of Appeals for the Fifth Circuit agreed with the

reasoning of those courts that the rule in Apprendi is not a

“watershed” rule that improved the accuracy of determining

the guilt or innocence of a defendant. 305 F.3d at 309.

Rather, the accuracy improved by Apprendi is in the

imposition of a proper sentence, and Apprendi did not alter

our understanding of bedrock elements essential to a

fundamentally fair proceeding. Id.

Similarly, in Curtis, the Court of Appeals for the Seventh

Circuit addressed whether the rights identified in Apprendi

are so fundamental that any system of ordered liberty is

obliged to include them. 294 F.3d at 843. The court looked

to the Supreme Court’s decision in United States v. Cotton,

535 U.S. 625, 122 S. Ct. 1781 (2002), where the defendants

argued on direct appeal that their sentences were invalid

under Apprendi because the drug quantity was not alleged

in the indictment or submitted to the petit jury. Applying a

plain error standard of review, the Supreme Court held that

the error did not seriously affect the fairness, integrity or

public reputation of the judicial proceedings given the

overwhelming and undisputed evidence that the defendants

were involved in a vast drug conspiracy. 122 S. Ct. at 1786-

87. Because an Apprendi violation does not necessarily

undermine the fairness of judicial proceedings, the court in

Curtis concluded that Apprendi did not alter a bedrock rule

of procedure. Curtis, 294 F.3d at 843-44.

The Court of Appeals for the Eighth Circuit reached the

same conclusion in Moss. The court stated that the

accuracy element of the watershed exception derives from

the function of habeas corpus to “ ‘assure that no man has

been incarcerated under a procedure which creates an

impermissibly large risk that the innocent will be

16

convicted.’ ” 252 F.3d at 998-99 (quoting Teague, 489 U.S.

at 312). It questioned whether Apprendi increases the

reliably of the guilt-innocence determination at all because

the rule does not protect the innocent from conviction, but

limits the sentencing exposure of those who have been

validly convicted. Id. at 999. The court further noted the

narrow application of this exception and concluded that

Apprendi does not impart a fundamental procedural right

that is a necessary component of a fair trial. Id.; see also

United States v. Sanchez-Cervantes, 282 F.3d 664, 670 (9th

Cir.) (“Sending the drug quantity determination to the jury

cannot be fundamental to the fairness of the proceeding if

the judge is allowed to make such findings in some

circumstances.”), cert. denied, 123 S. Ct. 48 (2002); United

States v. Mora, 293 F.3d 1213, 1219 (10th Cir.) (noting that

Apprendi is “clearly not on the same level as a truly

landmark decision such as Gideon [v. Wainwright, 372 U.S.

335 (1963)].”), cert. denied, 123 S. Ct. 388 (2002); McCoy,

266 F.3d at 1258 (holding Apprendi does not satisfy second

exception in Teague); Sanders, 247 F.3d at 151 (same).

Just recently, the Court of Appeals for the Second Circuit

joined this array. Coleman v. United States, 2003 U.S. App.

LEXIS 8646 (2d Cir. May 7, 2003).

I do not differ with the view, expressed in Judge Rosenn’s

dissent, of the importance to a criminal defendant of the

protections that the Apprendi decision requires the courts

to provide. In fact, it was that view that led me to dissent

from the majority of the en banc court in United States v.

Vazquez, 271 F. 3d 93, 117 (3d Cir. 2001) (Sloviter, J.,

dissenting), cert. denied, 536 U.S. 963 (2002), when it held

that the Apprendi violations did not seriously affect the

fairness, integrity, or public reputation of judicial

proceedings because the court concluded that a jury would

have found, beyond a reasonable doubt, that the required

amount of drugs was involved. I wrote, for the minority of

the en banc court, that the increase in prison time that

resulted after the Apprendi violation affected the

defendant’s substantial rights. But I was not writing for the

court.

Although the issue before us now is a different one, a

similar issue arises in considering whether to apply the

17

exception to Teague for fundamental rights. I gather that

Judge Rosenn would treat the Apprendi rights in that

fashion. But our en banc court has not done so. Nor has

any of our sister circuits done so. Nothing in the panel

decision of our court on which Judge Rosenn relies, Woods

v. United States, 986 F.2d 669 (3d Cir. 1993), suggests that

we should do so.

We agree with these courts that Apprendi does not satisfy

Teague’s second exception to non-retroactivity. Accordingly,

we hold that Apprendi does not apply retroactively to cases

on collateral review.2

IV.

CONCLUSION

For the reasons discussed above, we will affirm the order

of the District Court denying Swinton’s Supplemental

Motion, albeit for different reasons than given by the

District Court.

2. Because Apprendi does not apply retroactively to cases on collateral

review, we need not further address whether Swinton’s Supplemental

Motion raising the Apprendi claim was timely.

18

ROSENN, Circuit Judge, dissenting:

At stake in this appeal is not merely a decision on an

important question of law, but the right of a defendant to

challenge his sentence for crimes for which he was not

convicted by a jury. The majority concludes that the

decision of the Supreme Court in Apprendi v. New Jersey,

530 U.S. 466 (2000), decided while Swinton’s pro se motion

to vacate or correct his sentence was pending, had no

retroactive effect on his amended motion presenting his

Apprendi claim. I am constrained to disagree. Although the

majority applies decisions of several other courts of appeals

that have reached a similar conclusion, I believe that their

decisions are flawed and inconsistent with the precedent of

our court. They give inappropriate weight to the right to a

jury trial and the beyond-a-reasonable-doubt standard as

constitutional bulwarks of fairness and the presumption of

innocence. I, therefore, respectfully dissent.

I.

According to the statutory scheme of 21 U.S.C. § 841

under which Swinton was convicted, a defendant guilty of

distributing even a minimal amount of a controlled

substance is subject to a maximum sentence of twenty

years imprisonment. Under § 841(b)(1)(B) of the statute, a

defendant guilty of distributing more than 500 grams of

cocaine is subject to a maximum sentence of forty years. A

defendant guilty of distributing 50 grams of cocaine base

(crack), or more than 5 kilograms of cocaine, is subject to

a maximum sentence of life imprisonment under

§ 841(b)(1)(A). Thus, the drug type and the quantity of the

drug distribution can mean twenty or more additional years

of lost liberty.

Prior to Apprendi, to convict under the enhanced-penalty

provisions of § 841, once the existence of some quantity of

some controlled substance is proven to the jury, the

Government had to prove the precise drug type and

quantity only before the sentencing judge and then only by

a preponderance of the evidence. See United States v. Monk,

15 F.3d 25, 27 (2d Cir. 1994). Apprendi held that

consistent with the Sixth and Fourteenth1 Amendments of

1. In the case of a federal criminal proceeding, the controlling principle

is the Fifth Amendment due process clause, rather than the Fourteenth.

19

our Constitution, a defendant is entitled to a jury finding

on each element of a crime that increases his or her

maximum statutory sentence. In the case of § 841

prosecutions occurring after Apprendi, the Government

unquestionably must prove the drug type and quantity

beyond a reasonable doubt before a jury in order to obtain

a correspondingly enhanced sentence. See United States v.

Vazquez, 271 F.3d 93, 96 (3d Cir. 2001) (en banc) (holding

that post-Apprendi, drug quantity is an element of the

offense to be proven to jury). The critical question here is

whether this change ought to be applied retroactively to

convictions such as Swinton’s, occurring before the rule

was announced.2

By way of background I note the following facts. Although

the issues of drug type and quantity were placed before the

jury in Swinton’s trial, the jury instructions were vague and

inconsistent as to the standard of proof required for these

elements. At times, the judge told the jury that it had to

find beyond a reasonable doubt that the drug was crack

and that the amount was over 50 grams in order to impose

a more serious sentence. However, at another point in the

jury instructions, the judge stated, “It’s sufficient if the

evidence is shown that he knew the substance was one of

the drugs whose distribution Congress has made unlawful.”

The jury was also told it could find the existence of the

requisite quantum of drugs if the Government showed the

accuracy of the alleged amount “with a reasonable degree of

certainty.”

At sentencing, Swinton contested the sufficiency of the

evidence as to drug type. The trial judge convened a

hearing, at which witnesses were called, to determine

whether the drug in question was crack. At this sentencing

hearing, the Government asserted that its burden was a

preponderance of the evidence. Although it was unclear

what standard he applied, the judge found that the

2. The issue specified in the Certificate of Appealability is strictly a legal

one, whether Apprendi should be applied retroactively. It would,

therefore, be a matter for the District Court, if Apprendi were deemed

retroactive, to determine whether Swinton’s sentence should be corrected

or whether he should be granted a new trial.

20

evidence “overwhelmingly” showed that the drug in

question was crack.

II.

Deeply embedded in our constitutional jurisprudence is

the proposition that a defendant may not be punished for

a crime unless every element thereof is proven to a jury

beyond a reasonable doubt: “[T]he proscription of any

deprivation of liberty without ‘due process of law,’ Amdt.

14, and the guarantee that ‘[i]n all criminal prosecutions,

the accused shall enjoy the right to a speedy and public

trial, by an impartial jury,’ Amdt. 6, [t]aken together, . . .

indisputably entitle a criminal defendant to ‘a jury

determination that [he] is guilty of every element of the

crime with which he is charged, beyond a reasonable

doubt.’ ” Apprendi, 530 U.S. at 476-77 (citing United States

v. Gaudin, 515 U.S. 506, 510 (1995)) (alterations in

original). Apprendi addressed the novel issue of whether,

once a jury finds guilt of an underlying offense, additional

facts that determine the defendant’s maximum statutory

sentence can be left for the judge to decide by a

preponderance of the evidence, or whether they too are

elements of the crime to be determined by the jury by proof

beyond a reasonable doubt. See Apprendi, 530 U.S. at 500

(Scalia, J., concurring).

The Supreme Court concluded that a factual

determination made after a defendant’s conviction of an

underlying offense that dictates maximum statutory

sentence goes to “the degree of criminal culpability” for the

offense and is therefore an element of the crime that must

be proven beyond a reasonable doubt before a jury. The

threat of heightened sentence is indistinguishable from the

threat of conviction for a separate offense:

If a defendant faces punishment beyond that provided

by statute when an offense is committed under certain

circumstances but not others, it is obvious that both

the loss of liberty and the stigma attaching to the

offense are heightened; it necessarily follows that the

defendant should not—at the moment the State is put

to proof of those circumstances—be deprived of [the

21

constitutional] protections that have, until that point,

unquestionably attached.

Apprendi, 530 U.S. at 484. In some cases, many years of

additional imprisonment hang on the determination of the

enhanced sentencing factors.

The right to a jury trial and the beyond-a-reasonable-

doubt standard of proof “provide concrete substance for the

presumption of innocence, and . . . reduce the risk of

imposing . . . deprivations erroneously.” Apprendi, 530 U.S.

at 484 (internal citations and quotations omitted). The

protections extend to enhanced maximum penalties, just as

surely as to an “underlying” offense, because a defendant

should “never get more punishment than he bargained for

when he did the crime.” Id. at 498 (Scalia, J., concurring)

(emphasis in original). Before the Court announced the

Apprendi rule, then, defendants were subject to a

constitutionally intolerable risk of being sentenced for a

period of time in excess of the legislatively prescribed

sentence.

Thus, Congress, by making a defendant’s liberty

contingent on drug type and quantity in § 841

prosecutions, effectively mandated that these elements be

proven to a jury, because our Constitution bars the

deprivation of liberty on any other basis. See Apprendi, 530

U.S. at 494 n.19. (“[W]hen the term ‘sentence enhancement’

is used to describe an increase beyond the maximum

authorized statutory sentence, it is the functional

equivalent of an element of a greater offense than the one

covered by the jury’s guilty verdict.”). Because our

Constitution entrusts the jury to ascertain the truth of all

criminal allegations and does not permit conviction based

on anything less than a jury finding (unless there is a

waiver of jury trial) of all relevant facts beyond a reasonable

doubt, drug type and quantity must be submitted to the

jury.

III.

As the majority correctly observes, the § 2255

retroactivity inquiry generally involves a preliminary

determination of whether the new rule is substantive or

22

procedural, because different retroactivity analyses apply

depending on its categorization.3 In Davis v. United States,

417 U.S. 333 (1974) the Supreme Court suggested that

failure to retroactively apply substantive new rules,

“inherently results in a complete miscarriage of justice and

presents exceptional circumstances that justify collateral

relief under § 2255.” Id. at 346-47 (1974) (internal

quotations omitted). Unlike substantive new rules, which

are essentially automatically retroactive, Teague v. Lane,

489 U.S. 288 (1988), set forth very narrow criteria under

which a procedural rule ought to be given retroactive effect.

The Court held that an exception to the general rule

forbidding retroactivity would be a “watershed” new rule

raising an issue of fundamental fairness that is “implicit in

the concept of ordered liberty.” Id. at 307, 311. The Court

also noted that it could envision very few such new rules

that had not yet come into existence. Id. at 313. Unless a

new procedural rule falls within this exception to the

general rule, it “will not be applicable to those cases which

have become final before the new rule[ ] [is] announced.”4

Id. at 310.

The threshold question before us then, is whether

Apprendi is substantive or procedural. In Davis, the Court

deemed substantive a new rule under which “[defendant’s]

conviction and punishment are for an act that the law does

not make criminal.” Davis, 417 U.S. at 346. Bousley v.

United States, 523 U.S. 614 (1998) reiterated the

paradigmatic “substantive” new rule: it held that Supreme

Court decisions altering the “substantive” terms of a federal

statute, i.e., which hold that a statute “does not reach

certain conduct . . . [,] necessarily carry a significant risk

that a defendant stands convicted of an act that the law

does not make criminal,” and were to be applied

retroactively. Id. at 620 (internal citations and quotations

3. As the majority correctly holds, the instant case announces a new rule

because it imposes upon the prosecution a new obligation to prove

beyond a reasonable doubt to a jury that the defendant committed the

enhancing factors that warranted additional sentencing.

4. Teague also set forth another exception, involving rules which place

certain primary conduct beyond the power of the legislature to proscribe.

This exception has no relevance to this case.

23

omitted). Procedural new rules are generally characterized

by the introduction of novel mechanisms to improve

fairness and the ascertainment of truth in criminal

proceedings. See Woods v. United States, 986 F.2d 669, 678

(3d Cir. 1993).

In Woods v. United States, our court also considered the

question of retroactivity in a criminal adjudication arising

out of a change in the law after the defendant’s conviction.

The central issue there was the retroactivity of the Supreme

Court’s Hughey decision, Hughey v. United States, 495 U.S.

411 (1990), which dealt with the imposition of the penalty

of restitution based on alleged wrongdoing that was found

by a judge and not a jury. The statute at issue in Hughey

had been interpreted to allow for judge-decreed restitution

on the basis of related credit card fraud crimes, once the

defendant was indicted and convicted of a single credit card

fraud offense under the statute. Hughey held that, as a

matter of statutory construction, conviction of each

instance of fraud was required before corresponding

restitution could be imposed. 495 U.S. at 415-16. The

Woods court, in considering a motion under Rule 35 of the

Rules of Criminal Procedure to correct an unlawful

sentence, turned to the Supreme Court’s retroactivity

jurisprudence developed under §§ 2254 and 2255 habeas

corpus proceedings to determine Rule 35 retroactivity.

Woods, 986 F.2d at 676.

Woods observed that the Hughey rule did not fit neatly

into either the “substantive” or “procedural” categories as

set forth by the Supreme Court: “In contrast to Davis . . .,

Hughey has in no way implied that Woods was convicted

for acts that the . . . statute did not make criminal.” Woods,

986 F.2d at 677. Therefore, because it did not render

previously unlawful primary conduct lawful, Hughey was

not substantive. Yet, our court noted,

Hughey’s holding also cannot readily be defined as a

new rule of criminal procedure. In its retroactivity

analysis the Court has treated as new rules of criminal

procedure such developments as the application to the

states of the Fourth Amendment exclusionary rule in

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d

1081 (1961), the prohibition on race-based peremptory

24

challenges of Batson v. Kentucky, 476 U.S. 79, 106

S.Ct. 1712, 90 L.Ed.2d 69 (1986), and the

requirements of Miranda v. Arizona, 384 U.S. 436, 86

S.Ct. 1602, 16 L.Ed.2d 694 (1966). In our view,

Hughey’s limitation on a district court’s authority to

order restitution bears little resemblance to what the

Court has commonly characterized as a new criminal

procedural rule for retroactivity purposes.

Woods, 986 F.2d at 677-678 (internal citations omitted).

Unlike the Gideon rule, considered the paradigmatic

watershed procedural rule, or these other procedural rules,

there is nothing especially new about the procedure in

Apprendi: “The new part of the Apprendi rule . . . is the

Supreme Court’s novel application of this long-recognized

constitutional principle.” Rosario v. United States, 2001 WL

1006641, at *3 (S.D.N.Y.,2001) (emphasis in original).

We are confronted, then, with a rule requiring that all

facts correlated to a defendant’s sentence be subject to the

constitutional protections of our criminal factfinding

procedure — the jury and the beyond-a-reasonable-doubt

standard. And yet, much like the case of the Hughey rule,

the existing framework for determining the retroactivity of

new rules is inadequate to address the significant

deprivations our system has imposed on drug offenders in

the absence of factfinding surety. Drug offenders convicted

prior to Apprendi may have surrendered twenty or more

years of their liberty on the basis of findings which have

been deemed constitutionally inadequate to support a

conviction. Although I recognize the limited circumstances

set forth in Davis/Bousley and Teague for determining

retroactivity, I do not believe that the Supreme Court

intended to foreclose retroactivity in instances of such grave

injustice as this.

Therefore, in accordance with Judge Becker’s rationale in

Woods, I believe that the retroactivity of Swinton ought to

be viewed in light of the considerations that undergird the

retroactivity doctrines. The selectiveness with which

retroactivity is applied reflects the underlying importance of

finality of adjudication in our legal system. However, there

are countervailing factors which sometimes warrant

retroactivity. Davis “concluded that the injustice that would

25

occur but for the retroactive application of the new circuit

court decision was sufficiently egregious to warrant

retroactivity.” Woods, at 676-77. Moreover, Bousley was

concerned with the possibility of actual innocence of the

defendant and the impermissibly large risk that the

innocent will be convicted. Bousley, 523 U.S. at 620. What

underlies these cases is the fear of unjust punishment

based on unreliable factfinding. Substantive new rules are

most likely to give rise to such risk, but this principle

should not be so narrowly circumscribed. Similarly, a new

procedural rule may partly qualify under the Teague

exception if it improves accuracy of the trial and sentence,

and confidence in our judicial process. Sawyer v. Smith,

497 U.S. 227, 242 (1990). Thus we can divine basic

principles from these decisions.

Here, therefore, as in Woods, “rather than risk applying

what may be a wooden or unduly formulaic approach, we

will analyze [ ] retroactivity with a view toward the common

animating principles underlying the two retroactivity

doctrines.” Woods, 986 F.2d at 678. In Woods, Judge

Becker concluded that the two separate doctrinal standards

that the Court has created “for the retroactive application of

new rules of substantive and procedural law are not, at

bottom, all that different. Rather, there are common

animating principles underlying the two.” Id. at 678. Both

doctrinal procedural and substantive standards, he wrote,

reflect the principle that “new decisions will not be

retroactively applied without substantial justification.” Id.

In Woods, he set out to balance the interest in finality with

the interest in avoiding unjust punishments. In making this

determination, Judge Becker considered the risk of

inaccurate factfinding and the severity of the punishment.

Observing that the judge-rendered determination of guilt in

restitution offenses provided some assurance of accuracy

and, most importantly, that the right at stake was one of

property and not liberty, Woods held that the interest in

finality outweighed the risk of unjust conviction. Judge

Becker therefore concluded that Hughey was not to be

retroactively applied to the defendant in Woods. Id. at 671.

By contrast, in the instant case, mere money is not at

stake; liberty is. This court noted, significantly, that

26

“restitution cannot . . . be considered the same as

incarceration for retroactivity purposes. [A scenario

involving incarceration] would present us with far stronger

considerations in favor of retroactive relief. When liberty is

not at stake, the reasons to apply a new decision

retroactively, and hence to bend the usual rules of finality,

are not necessarily lacking, but are more likely to be

missing.” Id. at 680-81. Thus Woods, despite holding the

restitution rule non-retroactive, adumbrates a different

outcome in cases, such as Swinton’s, where a liberty

interest is at stake. In the instant case, the prosecution has

never presented proof to a jury and beyond a reasonable

doubt that Swinton was guilty of distributing the type of

drug and the quantity by which his sentence was

enhanced. Imposing an additional twenty years of

confinement without having the facts pertaining to

sentencing enhancement submitted to a jury for fact

finding beyond a reasonable doubt, as required by

Apprendi, constitutes a miscarriage of justice that trumps

the judicial preference for finality.

Swinton cites us to authority that Apprendi announced a

substantive new rule in the recent decision of the Supreme

Court in Ring v. Arizona, 536 U.S. 584 (2002). The case

held that Arizona’s sentencing scheme was incompatible

with the Sixth Amendment because the scheme permitted

a judge to make the factual determination that statutory

aggravating factors existed warranting the death sentence.

The question presented in Ring was whether that

aggravating factor may be found by the judge, as Arizona

law specified, or whether the Sixth Amendment’s jury trial

guarantee, made applicable to the states by the Fourteenth

Amendment, requires that the aggravating factor be

entrusted to the jury. Id. at 588-89. In deciding this

question, the Ring court painstakingly reviewed its decision

in Apprendi, noting the fusion therein of the core crime with

the hate crime enhancement. The court held that, as in

Apprendi, the death sentence violated the defendant’s right

to a jury determination that he is guilty of every element of

the crime with which he is charged. Id.

Ring, despite the similarity in issues and treatment to

Apprendi, provides little illumination on whether the

27

Apprendi rule is substantive or procedural. However,

significant to the case now before us, the Supreme Court in

Ring rejected the proposition “that judicial authority over

the finding of aggravating factors may be a better way to

guarantee against the arbitrary imposition of the death

penalty,” holding instead that

[t]he Sixth Amendment jury trial right, however, does

not turn on the relative rationality, fairness, or

efficiency of potential factfinders. Entrusting to a judge

the finding of facts necessary to support a death

sentence might be an admirably fair and efficient

scheme of criminal justice designed for a society that is

prepared to leave criminal justice to the State. The

founders of the American Republic were not prepared

to leave it to the State, which is why the jury-trial

guarantee was one of the least controversial provisions

of the Bill of Rights. It has never been efficient; but it

has always been free.

Ring, 536 U.S. at 607 (internal quotations and citations

omitted). Although Ring involved capital punishment, the

Court made clear that the same legal considerations would

apply to a non-capital criminal case.

Thus, one does glean from Ring that the Court would

consider the right to a jury trial a question of “fundamental

fairness” — “implicit in the concept of ordered liberty.” See

Teague, 489 U.S. at 314. Although trying elements of a

crime before a judge may have some efficiency benefits, and

may not be an entirely inaccurate factfinding mechanism,

the Ring court suggests that the right to a jury trial is,

nonetheless, essential to popular confidence in the fairness

of the system. Teague suggests that such new rules,

implicating “fundamental fairness,” are not barred from

retroactive application.

Moreover, the Apprendi decision gives meaning to the

venerable presumption of innocence in criminal

proceedings. “An Apprendi claim in the context of § 841,

. . . asserts that while a defendant is guilty of possessing an

unspecified quantity of a controlled substance, he is

actually innocent of possessing the quantity necessary to

be found guilty and sentenced under the more onerous

28

provisions of 21 U.S.C. § 841(b).” United States v. Clark,

260 F.3d 382, 388 (5th Cir. 2001) (R.M. Clark, J.,

dissenting). In this vein, the Supreme Court has portrayed

the right to a finding of guilt beyond a reasonable doubt as

follows:

The standard of proof beyond a reasonable doubt,

“plays a vital role in the American scheme of criminal

procedure,” because it operates to give “concrete

substance” to the presumption of innocence to ensure

against unjust convictions, and to reduce the risk of

factual error in a criminal proceeding. 397 U.S., at

363, 90 S.Ct., at 1072. At the same time by impressing

upon the factfinder the need to reach a subjective state

of near certitude of the guilt of the accused, the

standard symbolizes the significance that our society

attaches to the criminal sanction and thus to liberty

itself. Id., at 372, 90 S.Ct., at 1076 (Harlan, J.,

concurring).

Jackson v. Virginia, 443 U.S. 307, 315 (1979) (quoting In re

Winship, 397 U.S. 358 (1970)). Similarly, the Supreme

Court has also recognized the centrality of the right to a

trial by jury as a guardian against unjust conviction:

Providing an accused with the right to be tried by a

jury of his peers gave him an inestimable safeguard

against the corrupt or overzealous prosecutor and

against the compliant, biased, or eccentric judge. If the

defendant preferred the common-sense judgment of a

jury to the more tutored but perhaps less sympathetic

reaction of the single judge, he was to have it.

Duncan v. Louisiana, 391 U.S. 145, 156 (1968).

Therefore, even though Apprendi fits snugly into neither

the substantive nor procedural analytic categories, it is

distinguished by the fundamental character of the rights it

confers. It both ensures that the presumption of innocence

is given substance and that public confidence in the

fairness of criminal proceedings is maintained, particularly

where loss of liberty is at stake. Under these

circumstances, Apprendi is the kind of rule that

retroactivity doctrine was intended to capture in a case

such as this.

29

IV.

[F]ailing to apply Apprendi [in § 841 cases] retroactively

. . . create[s] the [ ] troubling possibility that a defendant

has been convicted of conduct that constitutes a less

serious offense than the one for which he was sentenced.”

Coleman v. United States, 329 F.3d 77, 93 (2d Cir. 2003)

(B.D. Parker, J., concurring). Neither Woods nor our long-

standing faith in the jury system and the beyond-a-

reasonable-doubt standard will countenance such a

troubling possibility. Thus, following the rationale of this

court’s decision in Woods, Swinton’s situation entitles him

to the retroactive application of Apprendi for the reasons

set forth above. I, therefore, respectfully dissent. I would

remand this case to the District Court for further

proceedings consistent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit