[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 15, 2001
________________________
THOMAS K. KAHN
CLERK
No. 00-14670
Non-Argument Calendar
________________________
D.C. Docket Nos. 97-04395-CV-FAM
94-00694-CR-FAM
ULYESSES HAMM, JR.,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 15, 2001)
Before EDMONDSON, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Ulyesses Hamm Jr., a federal prisoner, was convicted by a jury of four
counts: conspiring to import marijuana into the United States, in violation of 21
U.S.C. § 952(a) and 963 (Count I); conspiring to possess marijuana with the intent
to distribute it, in violation of 21 U.S.C. § 841(a)(1) and § 846(Count II);
possessing marijuana with the intent to distribute it, in violation of 21 U.S.C.
841(a)(1) and 18 U.S.C. § 2 (Count III); and, importing marijuana into the United
States, in violation of 21 U.S.C. § 952(a) and 18 U.S.C. § 2 (Count IV). He was
sentenced in 1995 to concurrent terms of 188 months on each count to be followed
by 8 years of supervised release. On appeal, we affirmed his conviction and
sentence.
In 1997, Hamm filed a 28 U.S.C. § 2255 motion to vacate, which the district
court denied in an order issued on June 30, 2000. On July 19, 2000, Hamm filed a
motion for reconsideration, raising for the first time an Apprendi v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348 (2000), claim. Specifically, his claim was that
because only a “detectible amount of marijuana” had been alleged in the
indictment and (implicitly) found by the jury, it was unconstitutional to sentence
him to more than the ten-year maximum (enhanced from five years because of a
prior conviction) under 21 U.S.C. § 841(b)(1)(D) for each § 841(a) offense, and
to more than the five-year maximum under 21 U.S.C. § 960(b)(4) for each § 952
2
offense. Without asking for or receiving a response for the government, the district
court denied that claim on the merits.
Hamm appeals from the district court’s denial of his motion for
reconsideration. He contends that, in light of the Supreme Court’s decision in
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), his sentence should
be reduced to the statutory maximums provided for the least quantity of marijuana,
because the indictment under which he was convicted did not allege any larger
amount, and the jury did not make a finding as to drug quantity.1 He contends that
Apprendi errors are jurisdictional.
Hamm’s position is foreclosed by our recent decision in McCoy v. United
1
Although the district court denied this claim on the merits, the government contends that
it could and should have been denied as untimely, because the claim was first raised in a motion for
reconsideration that was filed outside the one-year statute of limitations. See 28 U.S.C. § 2255 (para.
6). Hamm argues that the claim was timely raised because the underlying motion was filed within
the one-year limitations period, and the motion for reconsideration was filed within the time for such
motions. We need not address this untimeliness issue because of our holding that the claim is barred
from § 2255 review applies regardless of whether it is also barred by the statute of limitations.
For the same reason, we need not address an issue arising from the fact that Hamm raised
the Apprendi claim for the first time in a motion for reconsideration after the district court had
denied all the claims in his initial § 2255 motion. That issue is whether the motion for
reconsideration is an impermissible attempt to circumvent the restrictions on second or successive
motions that are contained in § 2255 (para. 8) and § 2244(a) - (b). If it is, the district court should
have denied the motion for failure to comply with § 2244(b)(3)(A), and any application in this Court
for permission to file a second motion in order to raise the Apprendi claim would have been denied
because of In re Joshua, 224 F.3d 1281 (11th Cir. 2000). For present purposes only, we assume that
the motion for reconsideration Hamm filed is not subject to the restrictions on second and
successive motions, and we will treat his Apprendi claim as though it had been raised in the § 2255
motion he initially filed.
3
States, ___ F.3d ___, No. 00-16434 (11th Cir. Sept. 25, 2001), which held that
Apprendi errors are not jurisdictional, and also held that under the doctrine of
Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989), the Apprendi decision is not
retroactively applicable to cases in which the conviction became final before the
Apprendi decision was released on June 29, 2000. Hamm’s conviction became
final no later than February 13, 1997 when we issued the mandate affirming his
conviction and sentence. So, his claim is Teague-barred. 2
We realize, of course, that Hamm’s Apprendi claim differs from the one in
McCoy, because the sentences imposed on Hamm exceeded the maximum
sentences for the crimes of conviction when only a detectable amount of the drug
is involved (and his indictment alleged in each count only “a detectible amount of
marijuana’).3 In other words, Hamm’s claim might be meritorious under Apprendi
2
Hamm argues that we should not apply the Teague bar because the government did not raise
it in a timely fashion. Of course, the government did not raise any defenses to the Apprendi claim
in the district court, because the court denied the claim on the merits without a response from the
government. In any event, as the McCoy opinion establishes, ___ F.3d at ___, this Court can and
should apply the Teague bar to Apprendi claims even when that defense was not raised in the district
court. See also Spaziano v.Singletary, 36 F.3d 1028, 1041 - 42 n.5 (11th Cir. 1994).
3
In his reply brief, shifting from the position he took in the district court, Hamm argues that
for Counts II and III the maximum sentence to which he should have been exposed is not the ten
years (enhanced from five years because of a prior conviction) set out in 21 U.S.C. § 841(b)(1)(D),
but because of §§ 841(b)(4) and 844, the appropriate maximum sentence for those counts is one
year. He cites United States v. Lowe, 143 F.Supp.2d 613 (S.D.W.Va.)(2000), in support of that
position. Putting aside the fact that Hamm did not raise this contention until he filed his reply brief,
it is just as Teague-barred as the earlier version of his Apprendi claim relating to those counts.
4
if the rule of that decision was available to him. But the Teague bar applies
without regard to the merits of the underlying claim, or that doctrine would have
no function and meaning. The effect of McCoy’s holding that Apprendi is not
retroactively applicable to cases on collateral review – or more accurately, that
Apprendi is not applicable to cases in which the conviction had become final
before that decision was released – is to bar all Apprendi claims in such cases
whether or not they are meritorious.4
AFFIRMED.
4
The government did not argue procedural default in this case, and in view of our decision
that the Apprendi claim is Teague-barred, we have no need to address that issue, anyway.
5