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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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, 333 F.3d 151 (3d Cir.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 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 United States v. Swinton, 151 F.3d 1027 (3d Cir.1998) (unpublished table decision).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, 119 S.Ct. 139, 142 L.Ed.2d 113 (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 [483]*483again 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 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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, 120 S.Ct. 2348.
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. § 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, 533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) and In re: Turner, 267 F.3d 225, 227-28 (3d Cir.2001).
[484]*484(2)If the language is distinguishable, is the Supreme Court’s opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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) 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 Unit[485]*485ed States Constitution requires that the finding of bias upon which his hate crime sentence was based must be proved to a jury beyond a reasonable doubt.” Apprendi 530 U.S. at 471, 120 S.Ct. 2848. 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, 120 S.Ct. 2348.
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, 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, 121 S.Ct. 2478, 150 L.Ed.2d 632 (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 [486]*486applicable 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 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.” 533 U.S. at 664, 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 prece-dential) 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 petition?” 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, 122 S.Ct. 222, 151 L.Ed.2d 158 (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, 119 S.Ct. 1707, 143 L.Ed.2d 985 (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 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 “ § 2255(3) does not require that the retroactivity determination must be made by the Supreme Court itself.” Lo[487]*487pez, 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, 537 U.S. 895, 123 S.Ct. 180, 154 L.Ed.2d 163 (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, 121 S.Ct. 2120, 150 L.Ed.2d 251 (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, 121 S.Ct. 2120. 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, 121 S.Ct. 2120. 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 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, 109 S.Ct. 1060, 103 L.Ed.2d 334 (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, 109 S.Ct. 1060. 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, 109 S.Ct. 1060. 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, 110 S.Ct. 2822, 111 L.Ed.2d 193 (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 [488]*488particular 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 for establishing those facts” which increase the penalty for a crime. Appel-lee’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, — U.S. -, 123 S.Ct. 1919, 155 L.Ed.2d 840 (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, 120 S.Ct. 2348). 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, 120 S.Ct. 2348). 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, 537 U.S. 976, 123 S.Ct. 451, 154 L.Ed.2d 334 (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.
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. de[489]*489nied, 536 U.S. 906, 122 S.Ct. 2362, 153 L.Ed.2d 183 (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, 122 S.Ct. 573, 151 L.Ed.2d 445 (2001).
We agree with our sister circuits that Apprendi announced a new rule of criminal procedure, as has the panel in Jenkins, 333 F.3d 151 (3d Cir.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 “[ujnless 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, 109 S.Ct. 1060. 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, 109 S.Ct. 1060. 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, 114 S.Ct. 948, 127 L.Ed.2d 236 (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 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-retroac-tivity 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, 106 S.Ct. 2411, 91 L.Ed.2d 67 (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 [490]*490States 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, 122 S.Ct. 848, 151 L.Ed.2d 725 (2002); Sanders, 247 F.3d at 147. We also hold now that Apprendi established a new rule for purposes of Teague. Because Appren-di 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 iii 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, 152 L.Ed.2d 860 (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 convicted.’” 252 F.3d at 998-99 (quoting Teague, 489 U.S. at 312, 109 S.Ct. 1060). 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.2002) (“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, 537 U.S. 939, 123 S.Ct. 48, 154 L.Ed.2d 243 (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, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ].”), cert. denied, 537 U.S. 961, 123 [491]*491S.Ct. 388, 154 L.Ed.2d 315 (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, 329 F.3d 77, 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, 122 S.Ct. 2672, 153 L.Ed.2d 845 (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 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.