MEMORANDUM OPINION AND ORDER

SHIRA A. SCHEINDLIN, United States District Judge.

I. INTRODUCTION

Pro se petitioner David Garcia brings this petition pursuant to Title 28, United States Code, Section 2255, attacking his sentence for conspiracy to distribute cocaine in violation of Title 21, United States Code, Section 846. Despite being sentenced to half the statutory maximum, petitioner claims that his sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000). For the following reasons, Garcia's petition is dismissed.

On July 12, 1996, Garcia pled guilty to conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846. A violation of Section 846, even with an unspecified amount of cocaine, carries a statutory maximum sentence of twenty years imprisonment. See 21 U.S.C. § 841 (b)(1)(C) and 846 (subjecting defendant to "same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy"). On October 30, 1996, Garcia was sentenced to 120 months imprisonment. Court records show that he did not directly appeal his conviction. Garcia's petition was filed with this Court on August 2, 2001.

I. DISCUSSION

A. Relevant Standard

Section 2255 allows a convicted person being held in federal custody to petition the sentencing court to vacate, set aside or correct a sentence. A properly filed motion under Section 2255 must allege that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255. Accordingly, collateral relief under Section 2255 is available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes `a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428(1962)); accord United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989).

B. Apprendi Does Not Apply Retroactively to Cases on Collateral Review

Assuming Garcia's petition is timely, his reliance on Apprendi is misplaced as Apprendi should not be applied retroactively on collateral review. The Supreme Court has not held that the constitutional rule of criminal procedure announced in Apprendi would be made retroactive. See Forbes v. United States, 262 F.3d 143, 145 (2d Cir. 2001) (" Apprendi itself said nothing about its retroactivity. Nor has any Supreme Court decision since indicated that it has retroactive effect on cases on collateral review.").

Under Teague v. Lane, 489 U.S. 288(1989), a new rule of criminal procedure is not retroactive unless one of the following two exceptions applies:

(1) new rules which "place an entire category of primary conduct beyond the reach of the criminal law, or new rules that prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense;" and (2) "new watershed rules of criminal procedure that are necessary to the fundamental fairness of the criminal proceeding."

Plainly, the first exception does not apply. The second exception, for "watershed rules," is also inapplicable. Teague and its progeny explain that watershed rules "`alter our understanding of the bedrock procedural elements' essential to the fairness of a proceeding." Sawyer, 497 U.S. at 242 (quoting Teague, 489 U.S. at 311). Indeed, it is a rare case in which a new rule of criminal procedure applies retroactively. As the Second Circuit recently noted, the Supreme Court "has measured at least eleven new rules, or proposed new rules, of criminal procedure against the criteria for the second [ Teague] exception and, in every case, has refused to apply the rule at issue retroactively." United States v. Mandanici, 205 F.3d 519, 529 (2d Cir. 2000).

The rule in Apprendi — requiring any fact (other than a prior conviction) that increases the penalty for a crime beyond the prescribed statutory maximum be submitted to a jury and proved beyond a reasonable doubt — falls short of Teague's high standard. Apprendi, while certainly a significant decision, only shifts the determination of factors that enhance a maximum statutory penalty from the judge to the jury. In similar circumstances, the Second Circuit concluded that a new Supreme Court rule that shifted the determination of an element of a crime from the judge to a jury was not a watershed rule. See Bilzerian, 127 F.3d at 241 (concluding that the rule stated in United States v. Gaudin, 515 U.S. 506(1995), shifting the determination of materiality from the judge to the jury in prosecutions for concealing a material fact from a federal entity, does not fit within the second Teague exception); see also Mandanici, 205 F.3d at 529-31 (same). Accordingly, Apprendi should not be applied retroactively on collateral review.

Significantly, at least three circuits have considered whether Apprendi meets the test set forth in Teague and have determined that Apprendi should not be applied retroactively to cases on collateral review. See Jones v. Smith, 231 F.3d 1227, 1238 (9th Cir. 2000) ("we find that the non-retroactivity principle announced in Teague v. Lane prevents [p]etitioner from benefitting from Apprendi's new rule on collateral review") (citation omitted); United States v. Sanders, 247 F.3d 139, 150 (4th Cir.) ("[W]e do no read Apprendi to hold that the country's criminal justice system malfunctioned so fundamentally prior to the year 2000, as to merit the retroactive application of the Court's new procedural rule."), cert. denied, 122 S.Ct. 573 (2001); and In re Joshua, 224 F.3d 1281, 1283 (11th Cir. 2000). Because Apprendi should not be applied retroactively, Garcia's petition must be dismissed.

C. Garcia's Petition Must be Denied on the Merits

Even if Apprendi announced a new rule of constitutional law made retroactive to cases on collateral review, Garcia's petition would nonetheless be denied as being devoid of merit. Apprendi does not apply to Garcia because he was sentenced below the statutory maximum for the offense for which he was convicted.

Apprendi imposes a clear obligation to submit to the jury any facts (other than a prior conviction) — including drug quantity in narcotics cases where the statutory maximum sentences are tied to the drug quantity — that increase a defendant's sentence beyond the statutory maximum. Conversely, Apprendi has no bearing where the defendant has not been sentenced beyond the statutory maximum for the indicted offense. This was the conclusion reached by the Second Circuit in two recent cases. In United States v. White, 240 F.3d 127 (2d Cir. 2001), the court held that where "factual determinations were used to sentence the defendant within the maximum allowed by statute, Apprendi is not controlling, and such determinations can be made by the court without violating the defendant's right to due process." 240 F.3d at 136. The court further held that Apprendi applies "only when a sentencing court's findings increase the penalty faced by the defendant above the statutory maximum for a given count, and not when they merely affect the length of a sentence within the statutory range." Id. Similarly, in United States v. Garcia, 240 F.3d 180 (2d Cir.), cert. denied, 121 S.Ct. 2615(2001), the court held that "a guideline factor, unrelated to a sentence above a statutory maximum or to a mandatory statutory minimum, may be determined by a sentencing judge and need not be submitted to a jury." 240 F.3d at 184. In sum, Apprendi does not circumscribe a sentencing judge's authority to determine facts relevant to a sentence within the statutory maximum. See United States v. Breen, 243 F.3d 591, 599 (2d Cir.) (holding that Apprendi not violated in narcotics case where the defendant's sentence did not exceed the statutory maximum penalty), cert. denied, 122 S.Ct. 214(2001).

Here, Garcia pled guilty to and was convicted of one count of conspiracy to distribute and possess with intent to distribute a controlled substance (cocaine) in violation of 21 U.S.C. § 846. Garcia ultimately received a sentence of 120 months imprisonment. A violation of Section 846, even with an unspecified amount of cocaine, carries a statutory maximum sentence of twenty years imprisonment. See 21 U.S.C. § 841(b)(1)(C) and 846. Because Garcia was sentenced to less than this statutory maximum, Apprendi does not apply. As stated by the Seventh Circuit, "[w]hen a drug dealer is sentenced to less than 20 years imprisonment . . . Apprendi is irrelevant. . . ." Talbott v. United States, 226 F.3d 866, 869 (7th Cir. 2000) Furthermore, even if Apprendi were applicable, Garcia waived any right he had to have the drug quantity determined by the jury by pleading guilty to the drug conspiracy.

III. CONCLUSION

For the reasons stated above, Garcia's petition is dismissed. Because petitioner has failed to make a substantial showing of a denial of a constitutional right, this Court will not issue a certificate of appealability. See Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.) (holding that a substantial showing exists where (i) the issues involved in the case are debatable among jurists of reasons, or (ii) a court could resolve the issues in a different manner, or (iii) the questions are adequate to deserve encouragement to proceed further), cert. denied, 531 U.S. 873(2000). The Clerk of the Court is directed to close this motion and case.

SO ORDERED: