United States v. Wheeler , 24 F. App'x 218 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 01-4414
ERIC WHEELER, a/k/a E,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-96-53)
Submitted: November 20, 2001
Decided: January 18, 2002
Before WILLIAMS and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Reversed and remanded by unpublished per curiam opinion.
COUNSEL
Gretchen C.F. Shappert, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellant. Sandra J.
Barrett, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WHEELER
OPINION
PER CURIAM:
The Government appeals the district court’s order granting in part
Eric Wheeler’s motion filed under 28 U.S.C.A. § 2255 (West Supp.
2001) in light of the Supreme Court’s decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000). Because the court’s order squarely con-
flicts with our recent decision in United States v. Sanders, 247 F.3d
139 (4th Cir. 2001), petition for cert. filed (Oct. 9, 2001) (No. 01-
6715), we reverse.
Four days after the district court’s order, we issued our decision in
Sanders, holding that Apprendi does not apply retroactively on collat-
eral review. The Government filed a motion for reconsideration citing
Sanders, which was denied by the district court. The court, relying on
its own decision in Darity v. United States, 124 F. Supp. 2d 355(W.D.N.C. 2000), found that Sanders merely held that Apprendi does
not apply retroactively to an untimely filed § 2255 motion. The dis-
trict court vacated Wheeler’s life sentence on his drug conviction and
imposed a term of thirty years.
The Government raises two issues on appeal. First, it claims that
the district court erred as a matter of law in finding that Apprendi
applied retroactively to Wheeler on collateral review. Second, the
Government claims that Wheeler’s collateral attack on his sentence
was time-barred by the AEDPA one-year limitations period. We
review a district court’s grant of a § 2255 motion de novo. United
States v. Brown, 155 F.3d 431, 434 (4th Cir. 1998).
We find that the district court applied an overly narrow interpreta-
tion of our decision in Sanders. Rather than relying exclusively on the
untimeliness issue, we stated that even assuming Sanders’ motion was
timely, he nonetheless faced "two insurmountable obstacles." Sand-
ers, 247 F.3d at 144. First, Sanders procedurally defaulted his claim
by failing to argue at his original sentencing hearing or on direct
appeal that he was entitled to a jury determination as to the types or
quantities of drugs involved in the conspiracy. Moreover, he failed to
establish cause and actual prejudice for the default. Id. Second, we
UNITED STATES v. WHEELER 3
found that Sanders was unable to overcome the strictures of Teague
v. Lane, 489 U.S. 288 (1989). Id. at 146.
Here, as in Sanders, Wheeler failed to challenge his conviction at
trial or on direct appeal on the ground that he was entitled to a jury
determination of drug quantity. Moreover, Wheeler does not attempt
to make any showing of cause and prejudice in his formal brief before
this Court. Finally, Wheeler cannot overcome the applicability of
Teague v. Lane.
Accordingly, we need not consider the timeliness of Wheeler’s
§ 2255 motion. Even assuming it was timely, he cannot overcome the
two additional obstacles set forth in Sanders. We therefore reverse the
district court’s order and remand with instructions to reimpose the
original life sentence on the drug count. We deny Wheeler’s motion
for substitution of counsel. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
REVERSED AND REMANDED