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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 2003 Decided October 21, 2003
No. 02-3033
UNITED STATES OF AMERICA,
APPELLEE
v.
CRAIG PETTIGREW,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 96cr00336–01)
Robert S. Becker argued the cause for appellant.
Mary B. McCord, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and John R. Fisher, Thomas J.
Tourish, Jr., and Mary Ann Snow, Assistant U.S. Attorneys.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: EDWARDS, RANDOLPH, and GARLAND, Circuit Judges.
Opinion for the court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Appellant Craig Pettigrew con-
tends that his 1997 drug convictions and sentence are uncon-
stitutional under Apprendi v. New Jersey, 530 U.S. 466
(2000), because a judge rather than a jury determined the
quantity of drugs involved in his crimes. Pettigrew, however,
failed to raise this claim at trial or on direct appeal. As a
consequence, we may not consider Pettigrew’s challenge on
collateral review unless he shows ‘‘cause and prejudice’’ suffi-
cient to overcome his procedural default. We conclude that
the appellant has failed to satisfy his burden of demonstrating
that he suffered prejudice from the alleged Apprendi error,
and we therefore affirm the district court’s denial of his
motion for collateral relief.
I
On September 26, 1996, a grand jury returned a four-count
indictment against Pettigrew that grew out of an undercover
investigation of his drug trafficking activities. Counts 1 and 2
charged him with distributing cocaine base (crack cocaine) on
March 7, 1996: Count 1 charged a violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A)(iii) for distributing 50 grams or more
of the drug; Count 2 charged a violation of 21 U.S.C. § 860(a)
for distributing 50 grams or more of cocaine base within 1000
feet of a school. Counts 3 and 4 of the indictment charged
Pettigrew with violations of the same two statutes for distrib-
uting cocaine base in a second transaction on March 22, 1996.
Pettigrew’s case went to trial on January 22, 1997. An
undercover police officer and a government informant testi-
fied regarding the defendant’s participation in the two drug
transactions. Their testimony was supported by audiotape
and, in the case of the second transaction, videotape record-
ings. The officer testified that Pettigrew had agreed to
provide two ounces of crack cocaine for $2000 on each occa-
sion. A government chemist, in turn, testified that the crack
cocaine Pettigrew actually provided in the first transaction
weighed 50.62 grams, and that the amount he provided in the
3
second weighed 50.57 grams. Pettigrew testified in his own
defense, conceding that he had engaged in the drug deals, but
insisting that he had been entrapped into so doing.
Consistent with then-prevailing precedent in this circuit,
the trial court did not instruct the jury that, to convict, it
must find the 50–gram drug quantity recited in the indict-
ment for each count; instead, the court told the jury, without
objection from the defendant, that ‘‘[t]he Government need
not prove that the defendant distributed any particular nu-
merical amount of cocaine base or crack but it must prove
beyond a reasonable doubt that the defendant distributed a
detectable or measurable amount of cocaine base or crack.’’
1/27/97 Tr. at 100. On January 28, 1997, the jury convicted
Pettigrew on Counts 1, 3, and 4, but acquitted him on Count
2. The trial court later vacated Count 3 as a lesser included
offense of Count 4. It subsequently entered a judgment of
conviction on Count 1 for the distribution of 50 grams or more
of cocaine base on March 7, in violation of § 841(a)(1) and
(b)(1)(A)(iii), and on Count 4 for the distribution of cocaine
base within 1000 feet of a school on March 22, in violation of
§ 860(a).
The district court conducted a sentencing hearing on July
3, 1997. The Presentence Investigation Report (PSR), pre-
pared by the U.S. Probation Office, recited the quantities of
crack cocaine as reported by the government chemist. The
report stated that, as a consequence of his convictions for
violating both § 841(b)(1)(A) and § 860(a), Pettigrew was
subject to a statutory mandatory minimum sentence of im-
prisonment for 10 years followed by supervised release for an
additional 10 years. PSR ¶ ¶ 43, 45; see infra Part II. The
Probation Office calculated Pettigrew’s sentencing range un-
der the United States Sentencing Guidelines as 151 to 188
months’ imprisonment.1
1 The Probation Office calculated Pettigrew’s guidelines offense
level as 34: a base offense level of 2 under § 2D1.2 (the guideline
applicable to 21 U.S.C. § 860(a)) for committing an offense near a
protected location, plus an offense level of 32 under § 2D1.1(c)(4)
(the drug quantity table) for distributing 50 to 150 grams of cocaine
4
The district court adopted the presentence report’s factual
findings and guidelines calculations. Judgment at 4. But the
court announced that it would depart downward from the
guidelines range, based on what it perceived to be an unjusti-
fied disparity in the guidelines sentences for offenses involv-
ing crack as compared to powder cocaine. 5/2/97 Tr. at 11–
21.2 The court then sentenced Pettigrew to the statutory
mandatory minimum of 120 months’ imprisonment and 10
years’ supervised release. Pettigrew filed a direct appeal,
and, on September 24, 1999, we affirmed the judgment of the
district court. United States v. Pettigrew, 203 F.3d 53 (D.C.
Cir. 1999). The defendant did not petition the Supreme
Court for a writ of certiorari.
On November 8, 2000, Pettigrew filed a motion pursuant to
28 U.S.C. § 2255, asking the district court to vacate, set
aside, or correct his sentence.3 He asserted that his convic-
tions and sentence were unlawful in light of Apprendi v. New
Jersey, which the Supreme Court had issued in June of that
year. 530 U.S. 466 (2000). The district court denied Petti-
grew’s motion, holding that no violation of Apprendi had
occurred in the case, but issued a certificate of appealability
pursuant to 28 U.S.C. § 2253.
base. See U.S. SENTENCING GUIDELINES MANUAL § 2D1.2 (1995)
(U.S.S.G.); id. § 2D1.1(c)(4); see also id. § 3D1.2(d) (explaining
that counts should be grouped and their respective quantities
aggregated when the offense level is determined largely according
to drug quantity). The offense level of 34, combined with Petti-
grew’s criminal history category of I, generated a sentencing range
of 151 to 188 months. See PSR ¶ ¶ 13, 25, 44; U.S.S.G. ch.5, pt. A.
2 This court has held, and had held at the time of Pettigrew’s
sentencing, that ‘‘the crack/powder disparity’’ is not ‘‘a valid basis
for downward departure.’’ In re Sealed Case, 292 F.3d 913, 915
(D.C. Cir. 2002) (citing United States v. Anderson, 82 F.3d 436,
440–42 (D.C. Cir. 1996)). The government, however, did not appeal
from the district court’s decision. See Appellees’ Br. at 2 n.1.
3 Pettigrew timely filed his § 2255 motion within one year of the
date upon which the judgment of conviction became final. See Clay
v. United States, 537 U.S. 522, 123 S. Ct. 1072, 1076 (2003); United
States v. Hicks, 283 F.3d 380, 387 (D.C. Cir. 2002).
5
II
We begin with a description of Pettigrew’s claim of error,
and of the standard of review that we must apply to that
claim.
Section 841(b)(1) of Title 21 of the United States Code
provides three escalating penalty ranges for the distribution
of cocaine base: § 841(b)(1)(C) authorizes a maximum sen-
tence of 20 years’ imprisonment (with no mandatory mini-
mum), followed by at least 3 years of supervised release, for
distributing any detectable amount of the drug;
§ 841(b)(1)(B) provides a mandatory minimum sentence of 5
years’ and a maximum sentence of 40 years’ imprisonment,
followed by at least 4 years of supervised release, for distrib-
uting 5 grams or more; and § 841(b)(1)(A) — the section
under which Pettigrew was convicted for the March 7 trans-
action — provides a mandatory minimum sentence of 10
years’ and a maximum sentence of life imprisonment, followed
by at least 5 years of supervised release, for distributing 50
grams or more. See United States v. Webb, 255 F.3d 890, 894
(D.C. Cir. 2001). A violation of § 860(a), under which Petti-
grew was convicted for the March 22 transaction, subjects a
defendant to double the maximum prison term and minimum
supervised release term authorized by the applicable subsec-
tion of § 841(b) — here, § 841(b)(1)(A) — resulting in a
supervised release term for Pettigrew of at least 10 years.4
In Apprendi, the Supreme Court held that, ‘‘[o]ther than
the fact of 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. After Apprendi, this circuit held
that a conviction under § 841(b)(1)(A) ‘‘is not proper unless
the relevant drug threshold has been stated in the indictment,
submitted to the jury, and proven beyond a reasonable
doubt.’’ Webb, 255 F.3d at 900 (citing United States v.
Fields, 251 F.3d 1041, 1043 (D.C. Cir. 2001)). Based on these
4 Section 860(a) also imposes a minimum prison term of 1 year,
‘‘[e]xcept to the extent a greater minimum sentence is otherwise
provided by section 841(b) of this title.’’ 21 U.S.C. § 860(a).
6
developments, which postdate his direct appeal, Pettigrew
argues that his conviction for violating § 841(b)(1)(A) was
unlawful, because the fact that his offense involved 50 grams
or more of cocaine base was decided by a judge rather than a
jury. Pettigrew further argues that his sentence was also
unlawful, because it was only the improper conviction under
§ 841(b)(1)(A) that compelled the district court to impose the
10–year mandatory minimum periods of incarceration and
supervised release5 — a sentence the court indicated it would
not have imposed had it been permitted to depart below the
statutory minimum term. Pettigrew thus asks us to vacate
his § 841(b)(1)(A) conviction, and to remand the case for
entry of a conviction and attendant resentencing under
§ 841(b)(1)(C) — the only provision of § 841(b)(1) that does
not contain a threshold drug quantity.6
The government responds that there was no Apprendi
error at all in Pettigrew’s case. It avers that even if the drug
quantity found by a judge increases a defendant’s mandatory
minimum sentence, Apprendi does not apply as long as the
sentence imposed does not exceed the maximum sentence
provided by § 841(b)(1)(C). See Appellee’s Br. at 22–24
(citing Harris v. United States, 536 U.S. 545 (2002)).7 But
5As noted above, the 10-year supervised release term was the
product of Pettigrew’s convictions under both § 841(b)(1)(A) and
§ 860(a).
6 Although Pettigrew’s proposed disposition does not expressly
refer to his conviction on Count 4 for violating § 860(a), presumably
he believes that the concurrent sentence he received on that count
must be corrected as well — since it was based on the district
court’s determination that the March 22 transaction also involved 50
grams or more of crack cocaine. See 21 U.S.C. § 860(a) (subjecting
violators to ‘‘twice the maximum punishment’’ and ‘‘at least twice
any term of supervised release’’ authorized by the relevant portion
of 21 U.S.C § 841(b)).
7 Pettigrew replies that Harris is inapposite because that case
involved a statute under which a fact (brandishing a firearm)
increased only the minimum and not the maximum sentence, while
in his case the determination that Pettigrew’s crime involved 50
grams of crack increased both. Although he concedes that facts
7
the government also maintains that, for two reasons, we
should not reach the merits of Pettigrew’s Apprendi claim at
all. First, it argues that Apprendi does not apply to cases,
like Pettigrew’s, that became final before Apprendi was an-
nounced, because Apprendi does not meet the requirements
for retroactive application set forth in Teague v. Lane, 489
U.S. 288 (1989).8 Second, the government argues that, even
if Apprendi were retroactively applied, Pettigrew’s failure to
challenge the omission of a quantity instruction at trial or on
direct review constitutes a procedural default that he cannot
overcome.
We need not decide the retroactivity question because the
government’s second point is sufficient to resolve this case.9
‘‘Where a defendant has procedurally defaulted a claim by
that trigger incremental changes in mandatory minimums may be
found by the judge, he contends that facts that change both
minimum and maximum terms function as offense elements and
must be submitted to the jury. Appellant’s Br. at 10–12.
8 Under Teague, ‘‘new constitutional rules of criminal procedure
will not be applicable to those cases which have become final before
the new rules are announced,’’ unless the new rule ‘‘places certain
kinds of primary, private individual conduct beyond the power of
the criminal law-making authority to proscribe,’’ or constitutes a
‘‘watershed rule[ ] of criminal procedure’’ implicating the fundamen-
tal fairness and accuracy of the criminal proceeding. Id. at 310–11
(citations, internal quotation marks, and alterations omitted).
9 See United States v. Dale, 140 F.3d 1054, 1056 (D.C. Cir. 1998)
(declining to reach the question of retroactive application because
the appellant could not meet his burden under the ‘‘prejudice’’
prong of the ‘‘cause and prejudice’’ test for procedural default);
United States v. Smith, 241 F.3d 546, 549 (7th Cir. 2001) (same
where the appellant established neither cause nor prejudice). Al-
though a court ‘‘must apply Teague before considering the merits of
the claim’’ when the government challenges the retroactive applica-
tion of a decision, Caspari v. Bohlen, 510 U.S. 383, 389 (1994), a
disposition based on the appellant’s procedural default does not
require us to decide the merits of the underlying Apprendi claim.
See United States v. Lafayette, 337 F.3d 1043, 1048 n.7 (D.C. Cir.
2003).
8
failing to raise it on direct review, the claim may be raised in
habeas only if the defendant can first demonstrate either
‘cause’ and actual ‘prejudice,’ or that he is ‘actually inno-
cent.’ ’’ Bousley v. United States, 523 U.S. 614, 622 (1998)
(citations omitted); see United States v. Frady, 456 U.S. 152,
167–68 (1982) (applying the same standard to a challenge
brought under 28 U.S.C. § 2255). As Pettigrew has not
professed actual innocence,10 ‘‘he must show both (1) ‘cause’
excusing his double procedural default, and (2) ‘actual preju-
dice’ resulting from the errors of which he complains.’’ Fra-
dy, 456 U.S. at 167–68.
To establish ‘‘actual prejudice,’’ Pettigrew ‘‘must shoulder
the burden of showing, not merely that the errors at his trial
created a possibility of prejudice, but that they worked to his
actual and substantial disadvantage, infecting his entire trial
with error of constitutional dimensions.’’ Frady, 456 U.S. at
170. Although the required showing has not been precisely
delineated,11 it is clear that Pettigrew must at least demon-
strate that ‘‘there is a reasonable probability that, but for [the
errors], the result of the proceeding would have been differ-
ent.’’ United States v. Dale, 140 F.3d 1054, 1056 n.3 (D.C.
Cir. 1998) (quoting Strickland v. Washington, 466 U.S. 668,
694 (1984)).12 Indeed, the ‘‘showing of prejudice’’ required to
overcome procedural default on collateral review ‘‘is signifi-
10 See Bousley, 523 U.S. at 623 (‘‘It is important to note TTT that
‘actual innocence’ means factual innocence, not mere legal insuffi-
ciency.’’).
11 See RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS
PRACTICE AND PROCEDURE § 26.3c, at 1219–25 (4th ed. 1998).
12In Dale, we added that ‘‘[c]ircuit precedent suggests that
habeas prejudice may require a greater showing, namely, ‘by a
preponderance of the evidence, that the outcome of his trial would
have been different but for the errors in question.’ ’’ 140 F.3d at
1056 n.3 (quoting United States v. Saro, 24 F.3d 283, 287 (D.C. Cir.
1994)) (emphasis in Dale); cf. Frady, 456 U.S. at 174 (rejecting as
insufficient to support a collateral attack a claim of prejudice
resulting from erroneous jury instructions, where there was ‘‘no
substantial likelihood the erroneous TTT instructions prejudiced [the
defendant’s] chances with the jury’’).
9
cantly greater than that necessary’’ to establish plain error on
direct review. Murray v. Carrier, 477 U.S. 478, 493–94
(1986); see also Frady, 456 U.S. at 166; Dale, 140 F.3d at
1057; United States v. Saro, 24 F.3d 283, 287 (D.C. Cir. 1994).
To establish the latter, the defendant ‘‘bears the burden of
persuasion’’ in showing ‘‘that the error TTT affected the
outcome of the district court proceedings.’’ United States v.
Olano, 507 U.S. 725, 734 (1993).13 We must require at least
as much from Pettigrew.
In the following Part, we assume for purposes of analysis
that there was Apprendi error in Pettigrew’s case, and ask
whether that error resulted in actual prejudice under the
standard just described. Because we conclude that Pettigrew
has not demonstrated that he suffered such prejudice, we find
it unnecessary to determine whether he has demonstrated the
kind of ‘‘cause’’ also required to excuse his procedural default.
See Frady, 456 U.S. at 168; Dale, 140 F.3d at 1056 n.4.
Before proceeding to the prejudice inquiry, we pause to
consider Pettigrew’s threshold objection to the entire enter-
prise of asking whether his procedural default may be over-
come by a showing of cause and prejudice. In Pettigrew’s
view, because the jury did not find that he distributed 50
grams of crack cocaine before convicting him, the district
court ‘‘lacked jurisdiction’’ to sentence him under
§ 841(b)(1)(A). Appellant’s Br. at 32. Pettigrew asserts that
such a ‘‘jurisdictional defect’’ cannot be ‘‘waived’’ by a proce-
dural default, and that he therefore cannot be required to
13 This formulation derives from the third prong of the plain error
standard, which requires that the error ‘‘affec[t] substantial rights.’’
Olano, 507 U.S. at 734 (quoting FED. R. CRIM. P. 52(b)). The fourth
prong of that standard requires that the error also ‘‘seriously affect
the fairness, integrity or public reputation of judicial proceedings.’’
Id. at 736; see Johnson v. United States, 520 U.S. 461, 466–67
(1997). Although the Supreme Court has not been explicit on the
point, its admonition that ‘‘to obtain collateral relief a prisoner must
clear a significantly higher hurdle than would exist on direct appeal
under the plain error standard,’’ Frady, 456 U.S. at 166, indicates
that a prisoner must, at a minimum, satisfy all of the requirements
of the plain error standard in order to succeed in a collateral attack.
10
show cause and prejudice — or even plain error — before the
court may address the merits of his claim.
This argument is readily dispatched in light of United
States v. Cotton, in which the Supreme Court held: the
omission of drug quantity from an indictment, in claimed
violation of Apprendi, does not deprive a trial court of
jurisdiction; such a claim can be forfeited by a defendant’s
failure to raise it in the trial court; and such a forfeited claim
may only be corrected on direct review if it meets the plain
error standard. 535 U.S. 625, 629 (2002). As the Court
explained, ‘‘a district court ‘has jurisdiction of all crimes
cognizable under the authority of the United States,’ ’’ and
the ‘‘ ‘objection that the indictment does not charge a crime
against the United States goes only to the merits of the
case.’ ’’ Id. at 630 (quoting Lamar v. United States, 240 U.S.
60, 65 (1916)). If defects in an indictment do not deprive a
court of power to adjudicate a case, we see no reason why
defects in jury instructions — the error that Pettigrew alleg-
es here — would yield a different result.14 Indeed, in Cotton,
the Court noted that it had previously applied the plain error
standard on direct review when a defendant had failed to
object to jury instructions in which the materiality element of
a ‘‘false statements’’ charge was omitted: ‘‘The important role
of the petit jury did not,’’ the Court observed, ‘‘prevent us TTT
from applying the longstanding rule ‘that a constitutional
right may be forfeited in criminal as well as civil cases by the
failure to make timely assertion of the right.’ ’’ Id. at 634
(referring to Johnson v. United States, 520 U.S. 461 (1997),
and quoting Yakus v. United States, 321 U.S. 414, 444 (1944)).
In short, the omission of drug quantity from jury instruc-
tions is not a jurisdictional error. Rather, when a defendant
14 In Cotton itself, drug quantity was omitted from the jury
instructions as well as from the indictment, although the Court did
not discuss the relevance of the former omission. See Cotton, 535
U.S. at 628. In Pettigrew’s case, although the issue of drug
quantity was omitted from the jury instructions, each count of the
indictment alleged the distribution of 50 grams or more of cocaine
base.
11
fails to make a timely objection to such an omission, a court
must apply the standard of review appropriate to the stage of
the proceedings at which it is eventually raised: plain error
on direct review, or cause and prejudice on collateral attack.15
In this case, because the appropriate standard is cause and
prejudice, we now proceed to consider how Pettigrew’s claim
fares under the ‘‘prejudice’’ prong of that standard.
III
The evidence of drug quantity at Pettigrew’s trial was
twofold. First, the undercover officer testified that Pettigrew
had promised on each occasion to provide ‘‘two ounces’’ of
crack cocaine, 1/23/97 Tr. at 21, 50, an amount that corre-
sponds to 56.70 grams. Second, the government chemist
testified that he analyzed and weighed the crack that Petti-
grew actually provided, and found that Pettigrew sold the
undercover officer 50.62 grams in the first transaction and
50.57 grams in the second. Although defense counsel had a
full opportunity to cross-examine the witnesses, and did in
fact cross-examine the chemist about his weighing technique,
counsel did not question the quantities that the chemist
reported.
With quantity uncontested at trial, there is no reason to
expect that the trial’s outcome would have been different had
the issue been specifically put to the jury. As we said in
United States v. Dale, a case in which the defendant attacked
his conviction on the ground that the judge rather than the
jury had determined the ‘‘materiality’’ element of the offense
15 See Dale, 140 F.3d at 1057 (holding that the ‘‘cause and
prejudice’’ standard applies on collateral review when an element of
an offense has been decided by a court rather than a jury, and
rejecting the contention that the failure to submit an element to the
jury is necessarily prejudicial merely ‘‘because it requires specula-
tion about what a hypothetical jury could have decided, had it been
allowed to do so’’) (citation omitted); cf. Neder v. United States, 527
U.S. 1, 8–9 (1999) (holding that the omission of an element is not a
‘‘structural’’ error subject to automatic reversal, but rather —
where objected to — is subject to harmless error analysis).
12
of making false statements: ‘‘In the absence of any basis for
finding that [the defendant’s] misrepresentations were not
material, we cannot say that the judge’s failure to submit
materiality to the jury worked to [the defendant’s] actual and
substantial disadvantage.’’ Dale, 140 F.3d at 1056 (internal
quotation marks omitted).
Pettigrew raises two objections to this conclusion. First,
he contends that, because the weight of the crack cocaine in
each transaction was just slightly above the 50–gram thresh-
old, the evidence of quantity was not ‘‘overwhelming,’’ and the
jury might therefore have reached a different conclusion than
did the judge. But whether or not the evidence of quantity
may be characterized as ‘‘overwhelming,’’ there is no question
that it was uncontested.16 And in the absence of any evidence
to the contrary, the jury would have had no basis for conclud-
ing that Pettigrew distributed less than 50 grams in each of
his criminal transactions. This was not a case, for example,
in which the government recovered a quantity of drugs less
than the 50–gram statutory threshold, and thus had to rely on
‘‘vague testimonial’’ rather than physical evidence to prove
that the threshold was met. Fields, 251 F.3d at 1045. In-
stead, Pettigrew’s claim relies on nothing more than specula-
tion that the jury might have decided differently than the
judge did. Such naked speculation is simply insufficient to
establish prejudice.17
16 Cf. Neder, 527 U.S. at 19 (stating that the omission of an
element from a jury instruction would not be deemed harmless on
direct review if ‘‘the defendant contested the omitted element and
raised evidence sufficient to support a contrary finding’’); Brecht v.
Abrahamson, 507 U.S. 619, 637–39 (1993) (holding, on habeas
review, that a constitutional trial error ‘‘did not ‘substantial[ly] TTT
influence’ the jury’s verdict,’’ and hence was harmless, where ‘‘the
State’s evidence of guilt was, if not overwhelming, certainly
weighty’’) (quoting Kotteakos v. United States, 328 U.S. 750, 766
(1946)).
17 See Frady, 456 U.S. at 172 (holding in a murder case that ‘‘the
strong uncontradicted evidence of malice in the record, coupled with
[the defendant’s] utter failure to come forward with a colorable
claim that he acted without malice, disposes of his contention that
13
Second, Pettigrew objects that, although he did fail to
contest drug quantity at trial, he had no incentive to dispute
it at all since courts did not think that drug quantity was a
question for the jury before Apprendi. We have rejected
similar arguments in the past because regardless of the
incentive that defendants had to challenge drug quantity at
pre-Apprendi trials, they still had ‘‘every incentive to contest
it at sentencing.’’ Webb, 255 F.3d at 901–02; see United
States v. Johnson, 331 F.3d 962, 969 (D.C. Cir. 2003). In this
case, for example, the difference between more and less than
50 grams per transaction was the difference between a guide-
lines sentence constrained by a mandatory minimum of 10
years’ incarceration and 10 years’ supervised release, and a
guidelines sentence constrained only by a mandatory mini-
mum of 5 years’ incarceration and 8 years’ supervised release.
See 21 U.S.C. §§ 841(b)(1)(B)(iii), 860(a). And, as Pettigrew
correctly notes, the district judge made it quite clear that, but
for § 841(b)(1)(A)’s mandatory minimum, he would have de-
parted even further from the guidelines and imposed an even
shorter sentence than he did. Appellant’s Br. at 6, 18, 23;
see 5/2/97 Tr. at 12–21.18 Hence, had Pettigrew thought
he suffered TTT actual prejudice’’ from an instructional error that
relieved the government of the burden of proving that element);
Dale, 140 F.3d at 1054 (finding no prejudice where the defendant
‘‘suggested no facts or theory to rebut the district judge’s legal
conclusion that the charged nondisclosures were material’’); cf.
Neder, 527 U.S. at 19 (finding that the omission of an element from
jury instructions was harmless ‘‘where [the] defendant did not, and
apparently could not, bring forth facts contesting the omitted
element’’); United States v. Johnson, 331 F.3d 962, 969 (D.C. Cir.
2003) (finding an Apprendi error not plain where the defendant
‘‘offered the jurors no scenario under which they could have convict-
ed him of unlawful possession with intent to distribute cocaine base,
yet found that the quantity involved was less than 50 grams’’).
18 As noted above, the only ground for departure adopted by the
district court was an improper one. See supra note 2. This
suggests a second reason why the defendant suffered no prejudice
from the alleged Apprendi error, at least with respect to his term of
incarceration. Even if we were to do what Pettigrew asks of us —
14
there was any basis for challenging the chemist’s determina-
tion of drug quantity, he would have had every incentive to
object to the incorporation of that determination in the pre-
sentence report upon which the sentencing judge relied.
Instead, he advised the Probation Office that the report
contained ‘‘no factual/material inaccuracies.’’ PSR at 11.
Indeed, even on this appeal, where the incentive for demon-
strating prejudice could not be greater, Pettigrew has sug-
gested no grounds upon which he could contest the chemist’s
testimony or otherwise challenge the evidence of drug quanti-
ty. Cf. Webb, 255 F.3d at 902 (concluding that an Apprendi
error was not plain where the defendant offered no ‘‘scenario
under which he could plausibly have disputed the drug quan-
tities specified by the chemist’’).
In sum, because Pettigrew has failed to demonstrate that
the omission of drug quantity from his jury instructions
affected the outcome of his district court proceedings, he has
failed to establish prejudice sufficient to overcome his proce-
dural default. As a consequence, this court cannot overturn
his convictions for violating 21 U.S.C. § 841(b)(1)(A) and
§ 860(a). And because those convictions stand, the sentence
that Pettigrew received — which he concedes was appropri-
ate for the violation of those statutes — stands as well. See
vacate his conviction under § 841(b)(1)(A) and remand for entry of a
conviction and resentencing under § 841(b)(1)(C) — he would still
receive at least the same prison term he received before. Although
a minimum 10–year term would no longer be dictated by the
statute, the Sentencing Guidelines would still dictate an even longer
term in light of the court’s finding that Pettigrew’s offenses in-
volved a total of 101.19 grams of cocaine base. See U.S.S.G.
§§ 2D1.1(c)(4), 2D1.2 (prescribing a sentence of 151 to 188 months
where the relevant offense conduct involves a total of 50 to 150
grams of cocaine base). And because no lawful ground for a
departure from the guidelines has been suggested, the court would
be required to impose a term within the guidelines range. See
Lafayette, 337 F.3d. at 1051 n.14; see also Webb, 255 F.3d at 898
(holding that a court does not violate Apprendi if it makes a
quantity determination and sentences a defendant, convicted of
violating § 841(b)(1)(C), to a guidelines sentence below
§ 841(b)(1)(C)’s statutory maximum of 20 years).
15
Johnson, 331 F.3d at 970 (holding that where a conviction
survives an Apprendi challenge under plain error review, a
sentence appropriate for that conviction also survives); Webb,
255 F.3d at 900, 902 (same).19
IV
For the foregoing reasons, we affirm the district court’s
judgment denying Pettigrew’s motion under 28 U.S.C.
§ 2255.
Affirmed.
19 For this reason, we have no need to address Pettigrew’s
contention that, although his 10–year supervised release term is
appropriate for a conviction under §§ 860(a) and 841(b)(1)(A), it is
not appropriate for a conviction under §§ 860(a) and 841(b)(1)(C).
See Johnson, 331 F.3d at 967 n.4; Webb, 255 F.3d at 902 n.16.