In the
United States Court of Appeals
For the Seventh Circuit

Nos. 98-3449, 98-3639, 98-3640,
98-3841, 00-1047/*

United States of America,

Plaintiff-Appellee,

v.

Desmond Cavender, a/k/a Grip, Demetrius
Campbell, a/k/a Ill, Solomon Montague,
a/k/a "C," a/k/a C-Man, a/k/a Chinaman, and
Milton Buchanan, a/k/a Romie, a/k/a Romeo,

Defendants-Appellants.



Appeals from the United States District Court
for the Northern District of Illinois, Western Division.
No. 97 CR 50026--Philip G. Reinhard, Judge.


Argued November 1, 1999--Decided October 3, 2000



  Before Easterbrook, Ripple, and Diane P. Wood, Circuit
Judges.

   Diane P. Wood, Circuit Judge. This case arose
from a major cocaine bust in Rockford, Illinois.
Appellants Milton Buchanan, Solomon Montague,
Desmond Cavender, and Demetrius Campbell were,
along with several others, indicted in December
of 1997 for their role in the conspiracy.
Cavender and Buchanan pleaded guilty to
particular charges, while Montague and Campbell
went to trial and were convicted by the jury. All
four have appealed, raising a variety of points
related to their convictions and sentences. One
serious evidentiary error has persuaded us that
we must reverse Campbell’s conviction; we find
the remainder of the arguments raised either
without merit, harmless, or waived, and we
therefore affirm the judgments entered against
Buchanan, Montague, and Cavender.

I
  The defendants were involved in a sophisticated
business arrangement for the sale of crack
cocaine (more formally known to the law as
cocaine base) in the Rockford area. Along with
Bennie Griffith, who later turned state’s
evidence, they were the key players. According to
the grand jury’s indictment, the conspiracy began
as early as June 1994 and continued through July
1997, and it involved the distribution of
multiple kilograms of cocaine base. Some
participants purchased large quantities of the
drug, some cut and bagged it for distribution,
and others sold it from designated "spots" run by
the conspirators.

  At Campbell and Montague’s trial, the government
presented Griffith as its star witness. Griffith
explained that he began selling drugs with
Cavender and Buchanan in late 1994, and that
Montague joined the group in 1996. Griffith
testified that they all, at various points in
time, purchased large amounts of cocaine, and
hired workers to bag and sell it. He said that he
sold crack to Campbell beginning in 1996, and
that Campbell had told him that he was reselling
the drugs on the west side. Griffith identified,
through photos, several spots that the conspiracy
controlled and used as sales locations, including
various residences and the area around the Jane
Addams housing project. The government also
introduced 118 tapes of conversations into
evidence. The recorded conversations were all in
code and street slang, but Griffith deciphered
them for the jury (which otherwise would have had
little to no idea of what the people were talking
about).

  Two other cooperating government witnesses who
were former members of the conspiracy also
testified at trial. The first, James Perkins,
said that he engaged in several drug transactions
with Montague and Buchanan. Noah Miller, the
other, said that he worked mainly with Montague
dealing drugs, but he knew that others were
working with Montague. Miller offered his own
explanations of the recorded conversations for 11
of the 118 tapes. His definitions were in many
instances different from those Griffith had used-
-a discrepancy Griffith explained by saying that
the code he used in conversing with the
conspirators was his special language, not
general street slang. Miller identified his own
voice in all 11 tapes, and identified Montague’s
voice in some of them.
  The remaining testimony came from various FBI
and police officers, who reported that they had
seen Montague, Buchanan, Cavender, and sometimes
Campbell in vehicles together at different times
driving to and from what Griffith had described
as the conspiracy’s drug spots. Three Rockford
police officers also testified that they found
some bags of crack in Montague’s pants one
evening near the Jane Addams housing project.

  The jury convicted Campbell on Count 1
(conspiracy to possess with intent to distribute
and to distribute cocaine base, in violation of
21 U.S.C. sec. 846), and Montague on Counts 1 and
16 (possession of cocaine base with intent to
distribute, in violation of 21 U.S.C. sec.
841(a)(1)). Campbell received a life sentence, to
be followed by 10 years of supervised release,
and Montague received a life sentence along with
a concurrent 30 years of imprisonment on Count
16, also to be followed by 10 years of supervised
release. Cavender, who pleaded guilty to Count 1,
was sentenced to 312 months’ imprisonment
followed by eight years of supervised release.
Buchanan’s guilty plea covered both Count 1
(conspiracy), Counts 8, 9, 11, and 15
(distribution of cocaine base), and Count 17
(possession with intent to distribute cocaine
base). His sentence was for 420 months’
imprisonment followed by eight years of
supervised release.

II

  A. Impeachment of Griffith:    Evidentiary
rulings

  Griffith, as we have already noted, was the
linchpin of the government’s case at the trial.
Naturally, this meant that Campbell and Montague
had a strong interest in undermining him in front
of the jury, and the government had an equally
strong interest in demonstrating his credibility.
Toward the latter end, on direct examination
Griffith was asked about his drug use before he
left Chicago for Rockford and joined the
conspiracy. He insisted that he had neither used
nor sold any drugs during that time period:

Q: [Government’s attorney]: And when you were
in Chicago did you sell drugs?

A:   No.

Q:   Never?

A:   No.

Q:   Did you use drugs?

A:   No.

On cross examination, he stuck to that story and
added that he had not dealt in drugs while he was
living in Chicago, in the following exchange:

Q: [Montague’s attorney]: Bennie, you testified
earlier you lived in Chicago, right?

A:   That is correct.

Q:   But in Chicago you didn’t deal any drugs,
right?

A:   That is correct.

At least with respect to Griffith’s testimony on
direct examination about use (rather than
dealing), it is almost certain that he was lying.
In fact, Griffith had been convicted of a felony
in Chicago in 1994 for possession of a controlled
substance. After the exchange we have just noted,
Montague’s attorney attempted to impeach Griffith
by introducing evidence of that 1994 Chicago drug
possession conviction. The district court
sustained the government’s objection to the
evidence, and it was excluded from the trial.
Both Montague and Campbell objected.

  On appeal, Campbell and Montague argue that
this ruling was in error. Montague argued that it
violated his Sixth Amendment confrontation
rights, and both claim that it misapplied Federal
Rules of Evidence 609(a) and 403. Normally, we
review a restriction on cross-examination only
for abuse of discretion. See United States v.
Graffia, 120 F.3d 706, 712 (7th Cir. 1997). The
exception arises when the restriction implicates
the criminal defendant’s Sixth Amendment right to
confront witnesses against her, in which case the
standard of review is de novo. See United States
v. Sasson, 62 F.3d 874, 882 (7th Cir. 1995).

  Under the Sixth Amendment, a criminal defendant
has the right to confront the witnesses against
her. U.S. Const. amend. VI. The exposure of a
witness’s motivations to lie is a proper and
important function of the constitutionally
protected right of cross-examination. See Sasson,
62 F.3d at 882. The right to cross-examine
adverse witnesses, however, is not absolute. See
id. The Confrontation Clause guarantees only an
opportunity to conduct a thorough and effective
cross-examination during which the defense has a
chance to discredit the witness, "not cross-
examination that is effective in whatever way,
and to whatever extent, the defense might wish."
Delaware v. Fensterer, 474 U.S. 15, 20 (1985)
(per curiam). The district court retains wide
latitude to impose reasonable limits on the scope
and extent of cross-examination based on concerns
about things like harassment, prejudice,
confusion of the issues, or interrogation that is
repetitive or only marginally relevant. See
Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986).

  In this case, the district court’s decision not
to allow the defense to impeach Griffith did not
rise to the level of a Sixth Amendment violation.
The defense was allowed to put into evidence the
fact that Griffith had a conviction of some crime
on his record, and it was allowed to explain that
Griffith was profiting as a result of his
testimony by getting a lower sentence under his
plea agreement. Because the defense was able to
question Griffith about some of his potential
biases, and thus to introduce the idea that
Griffith might not be a reliable witness, this
situation differs from that in Van Arsdall, where
the defense was completely foreclosed from
presenting any evidence of a witness’s bias. See
id.

  This does not mean, however, that the exclusion
of the felony drug possession conviction was
inconsequential. To the contrary, Rule 609(a)(1)
of the Federal Rules of Evidence states that
"evidence that a witness other than an accused
has been convicted of a crime shall be admitted,
subject to Rule 403," if it was punishable by
imprisonment in excess of one year. (Emphasis
added.) Rule 403 codifies the court’s power to
exclude otherwise relevant evidence whose
probative value "is substantially outweighed by
the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of time, or
needless presentation of cumulative evidence."
Thus, unless Rule 403 justified its exclusion,
the evidence of Griffith’s former conviction
should have been admitted.
  The government argues that there was such a
reason, because the evidence would have been
cumulative and a waste of time. We are hard
pressed to see what it was with which this
evidence cumulated. The only impeachment evidence
admitted at trial was some testimony indicating
that Griffith lied to an officer when he was
first arrested, and evidence that Griffith was
being compensated for testifying. The jury heard
absolutely nothing that would have hinted to them
that Griffith was lying to them right there as he
sat in the witness stand. The evidence of his
prior conviction would have strongly suggested at
a minimum that he had lied during his direct
examination, when he denied that he had used
drugs in Chicago. Splitting hairs, the government
argues that the evidence of his conviction for
possession would not truly have operated to
impeach him, because there is a difference
between possession and use. There may indeed be
a semantic difference between these two, but when
the shoe is on the other foot the government
frequently argues that a jury can infer use from
possession: people normally do not run the risk
of purchasing user quantities of controlled
substances just to put them on the shelf.
Further, Griffith also disavowed selling drugs.
In the real world, it is hard to imagine what
Griffith would have done with the drugs if he did
not either use or sell them. Had the evidence of
the conviction come in, the jury would have been
entitled to come to the reasonable conclusion
that Griffith had just lied to them. And if he
was willing to tell them a bald-faced lie on that
point, it might also have wondered what the rest
of his testimony was worth. Even though the
standard of review for this kind of evidentiary
ruling is abuse of discretion, we conclude in
this case that it was error to exclude the
evidence of Griffith’s narcotics conviction.


 B.   Harmless Error

  This leads us to the government’s alternative
argument, which predictably enough is that, even
if the decision to exclude the conviction
evidence was error, it was harmless. A harmless
error, as Federal Rule of Criminal Procedure
52(a) tells us, is one that "does not affect
substantial rights," and it must be disregarded.
See United States v. Norwood, 798 F.2d 1094, 1098
(7th Cir. 1986). An error in the refusal to admit
evidence is harmless if the evidence of guilt was
overwhelming and the defendant was allowed to put
on a defense, even if that defense was not as
complete as the defendant might have preferred.
See United States v. King, 75 F.3d 1217, 1222
(7th Cir. 1996); United States v. Hanson, 994
F.2d 403, 407 (7th Cir. 1993). The problem with
the government’s harmless error argument in this
case is that Griffith was the prosecution’s key
witness. He was the only witness to connect all
of the defendants to each other. He was the only
witness to explain the meaning of all but 11 of
the 118 tapes admitted at trial. He set up the
time frame for the conspiracy, and he connected
the various drug "spots" to members of the
conspiracy. Evidence indicating that Griffith was
lying on the stand might well have caused the
jury to discount his testimony. We must therefore
examine carefully the remaining evidence in order
to determine whether the error was harmless. Upon
doing so, we are convinced that the case against
Montague was so strong that the error was indeed
harmless, but that without Griffith the case
against Campbell falls apart.

  Montague was convicted on two counts of the
indictment: Count 16, which charged him with
possession of three grams of crack that three
police officers found on him one night at the
Jane Addams housing project, and Count 1, the
conspiracy charge. The conviction on Count 16 was
supported by testimony from all three of the
police officers who caught him red-handed. That
was ample standing alone, and thus any error
committed with respect to Griffith was harmless
for that conviction. Similarly, we find that
Montague’s conviction on Count 1 was supported by
overwhelming evidence, even disregarding
Griffith. A conspiracy conviction requires a
showing that a conspiracy existed (two or more
persons joined together for the purpose of
committing a criminal act) and that the charged
party knew of and intended to join the agreement.
See United States v. Gutierrez, 978 F.2d 1463,
1469 (7th Cir. 1992). The worst one can say is
that without Griffith, the precise time frame for
the conspiracy was less clear and the importance
of certain locations might not have been
established. But the key points were supported
through the testimony of James Perkins and Noah
Miller. Both of them testified that Montague
worked with Buchanan to run a drug conspiracy.
Perkins and Miller admitted to being members of
that conspiracy. They both claimed to have helped
exchange large amounts of money with large
amounts of crack, for and with Montague and
Buchanan. Miller explained 11 tapes linking
himself to Montague and drug sales. Perkins and
Miller’s testimony easily showed that a
conspiracy existed, and that Montague knew about
it and was an important part of it.

  Perkins and Miller had nothing to say about
Campbell, however. Perkins listed the individuals
whom he believed were the members of the
conspiracy he had joined, and his list did not
include Campbell. In fact, Perkins testified that
he had no dealings with Campbell. Miller said
that he had met with Campbell, but only on less
than five occasions. He speculated that Campbell
worked for Montague, but he was unable to come up
with any acts, statements, or reasoning to
support that belief. None of the tapes that
Miller translated for the court contained
Campbell’s voice. Once Griffith’s testimony is
excluded, the only evidence implicating Campbell
in the conspiracy is police testimony that
Campbell rode in a car with Montague a few times,
and Campbell’s admission that he is a crack
addict and sometimes bought drugs from Montague.
This is too slender a reed to show that Campbell
knew about any conspiracy between Montague and
Buchanan and anyone else, or that he
intentionally aided that conspiracy.

  Perhaps, one might say, the independent evidence
against Montague would have bolstered Griffith’s
general credibility, and thus counteracted the
impeaching effect of the evidence of Griffith’s
lying that the jury should have heard. Maybe then
the jury might have decided to rely on Griffith’s
testimony connecting Campbell to the conspiracy
notwithstanding his demonstrated mendacity. But
such unfounded speculation is not enough to show
that Campbell’s substantial rights were not
affected by the exclusion of the evidence; he is
not required to prove his innocence beyond a
reasonable doubt to prevail on this point. The
jury should have heard the excluded testimony
about Griffith; the error in excluding it was
harmful to Campbell and requires the reversal of
his conviction. Compare Lindh v. Murphy, 124 F.3d
899, 902 (7th Cir. 1997) (finding a trial court’s
decision to restrict impeachment evidence of a
key witness to violate the defendant’s
Confrontation Clause rights).

III

  We need not tarry on the remaining claims the
various defendants raise. To make the opinion
easier to follow, we organize our consideration
of them defendant-by-defendant.

 A.    Campbell

  Campbell argues that there was insufficient
evidence from which a jury could find that he was
a member of the conspiracy. We examine his
insufficiency claim, even though we have already
decided his conviction must be reversed, because
if inclusion of Griffith’s testimony could not
cure an insufficiency of evidence underlying
Campbell’s conviction, then he would be entitled
to acquittal and the government could not retry
him for the same crime.

  We may overturn a verdict due to insufficient
evidence only when the record contains no
evidence, regardless of how it is weighed, from
which the jury could find guilt beyond a
reasonable doubt. See United States v. Moore, 115
F.3d 1348, 1363 (7th Cir. 1997). With Griffith’s
testimony in the mix, as it would be on a retrial
(albeit with the impeaching evidence as well),
the evidence to convict Campbell was sufficient.
Griffith claimed that he sold crack to Campbell
from 1996 on, and that Campbell was reselling it
on the West Side. Griffith interpreted some of
the tapes to include Campbell discussing drug
sales with other members of the conspiracy. A
jury would be entitled, though not compelled, to
believe this account. If it did, a conviction
could stand. Campbell is therefore not entitled
to avoid a possible retrial.


  B.    Montague

  In his initial appeal (No. 98-3640), Montague
argues that his sentence should not have been
increased under U.S.S.G. sec. 2D1.1(b)(1) for
possession of a firearm or under U.S.S.G. sec.
3A1.3 for physical restraint of a victim. We
review factual determinations made at sentencing
for clear error. See United States v. Wade, 114
F.3d 103, 105 (7th Cir. 1997). A defendant’s
sentence may be enhanced under sec. 2D1.1(b)(1)
if the defendant possessed a firearm during the
commission of her offense, or if a co-conspirator
possessed the firearm while acting in furtherance
of the conspiracy and the co-conspirator’s
possession was reasonably foreseeable to the
defendant. See United States v. Vold, 66 F.3d
915, 920 (7th Cir. 1995); U.S.S.G. sec.
1B1.3(a)(1)(B). In one of the audio tapes
introduced into evidence, Griffith identified
himself and Montague as the speakers. He
explained that he said he had a .380, and
Montague responded "I know, I got something too."
Montague also referred to a "zero." Griffith said
that these statements referred to guns possessed
by both himself and Montague. The district court
(which, of course, was fully aware of the
potentially impeaching evidence which it did not
allow into the trial and was not constrained by
the formal rules of evidence at the sentencing
phase), acted within its discretion in finding
Griffith credible and in inferring from these
tapes that either Montague had possessed a
firearm in order to further the drug sale
conspiracy, or that Griffith possessed it and his
possession was reasonably foreseeable (in fact
actually known) to Montague.

  We also find no error in the district court’s
two level enhancement of Montague’s sentence for
physical restraint of a victim during an offense
under sec. 3A1.3. Montague’s presentence report
stated that in March of 1996, Cavender and
Buchanan tried to restrain a drug supplier whom
they were trying to rob, and that they bound the
supplier’s girlfriend with duct tape. The
district court relied on the presentence report
in determining that sec. 3A1.3 should apply.
Montague argues that this reliance was error, but
he is wrong. A sentencing judge may consider a
wide variety of information that would be
inadmissible at trial. See United States v.
Agyemang, 876 F.2d 1264, 1271 (7th Cir. 1989).
District judges routinely rely on the information
contained in presentence reports, which they are
entitled to do as long as the report relied on
bears the requisite indicia of reliability. See
United States v. Hall, 212 F.3d 1016, 1023 (7th
Cir. 2000). Montague points to nothing that would
indicate that the information in this report
failed that test.

  Montague next argues that he was not involved
in the incident of physical restraint. However,
just as in the gun possession enhancement, if the
act of restraint was committed by a
co-conspirator in furtherance of the conspiracy,
and if the act was reasonably foreseeable to
Montague, then it may be considered relevant
conduct for purposes of Montague’s sentencing.
See U.S.S.G. sec.sec. 1B1.3(a)(1)(A) & (B). The
district court did not clearly err when it
decided that Cavender and Buchanan’s restraint of
the drug supplier’s girlfriend was both
reasonably foreseeable to Montague and undertaken
in furtherance of the conspiracy’s goal of
possessing and distributing drugs.

  Last, Montague complains in appeal No. 00-1047
that the district court erred in refusing to
grant a motion for new trial under Rule 33 of the
Federal Rules of Criminal Procedure that he filed
on December 17, 1999, approximately 18 months
after the jury returned its verdict on June 19,
1998. His motion argued that he was entitled to
a new trial because the district court
constructively amended the indictment under which
he was being tried when it permitted the excision
of a reference to the Vice Lords gang just before
the case was sent to the jury. There are many
reasons why this argument is unavailing. The
easiest one is the one on which the district
court relied: Rule 33 contains time limits for
filing motions for new trial, and Montague missed
his. A motion for new trial based on newly
discovered evidence may be filed within three
years of the verdict, but an allegation of a
constructive amendment to the indictment that
occurred during the trial is hardly "newly
discovered evidence." Otherwise, the Rule states
that the motion "may be made only within 7 days
after the verdict . . . ." Many times seven days
had passed before Montague presented this point
to the district court, and the court had no
choice but to refuse to consider it.


 C.   Cavender

  Cavender presents two arguments on appeal: 1)
that the district court erred in denying his
motion to vacate his guilty plea, and 2) that the
court erred when it added three points to his
criminal history based on a past firearms
conviction. Cavender moved to withdraw his guilty
plea because the preliminary sentence
calculations described in his plea agreement were
lower than the actual sentence he received. The
discrepancy arose because the government was
unaware of his prior juvenile convictions when
the plea agreement was drafted. Cavender says
that the attorney representing him in the
juvenile proceedings told him that those
convictions could not be used against him in the
future. Cavender therefore decided not to tell
either the government or his current attorney
about the convictions, and they were not factored
into the sentence proposed in his plea agreement.
  While Federal Rule of Criminal Procedure 32(d)
permits withdrawal of a plea upon a showing by
the defendant of any fair and just reason, a
defendant has no absolute right to withdraw a
guilty plea. See United States v. McFarland, 839
F.2d 1239, 1241 (7th Cir. 1988). The decision to
permit a plea withdrawal rests within the
discretion of the district court, and we will
reverse that decision only if the court abused
that discretion. See United States v. Knorr, 942
F.2d 1217, 1219 (7th Cir. 1991). There was no
abuse of discretion here. Usually, where the
sentencing calculations in a plea agreement are
described as "preliminary," the later imposition
of a higher sentence does not violate the plea
agreement. See id. at 1220. Nor does it provide
the defendant with a "fair and just" reason to
withdraw his guilty plea. See id. Cavender’s plea
agreement specifically said that the guideline
calculations were "preliminary in nature," and
explained that the probation office would conduct
its own investigation in order to come to a final
calculation. The government did not deliberately
mislead Cavender. (If anyone was engaged in
misleading behavior, it was Cavender, who would
have been well advised to be more forthcoming
with his own lawyer at the very least.) The court
was well within its discretion to deny his motion
to withdraw his guilty plea.

  Cavender’s second claim is that the district
court should not have added three points to his
criminal history for his prior firearms
conviction under U.S.S.G. sec. 4A1.1. He argues
that the prior conviction was equivalent to
possessing a firearm in furtherance of the
conspiracy, which was already factored into his
sentence in a two level upward departure under
U.S.S.G. sec. 2D1.1(b)(1). We need not delve into
the merits of this argument, because Cavender has
waived the right to make it. A defendant may
waive her right to appeal as part of a written
plea agreement, see United States v. Woolley, 123
F.3d 627, 631 (7th Cir. 1997), and Cavender did.
His plea agreement stated that the "defendant
knowingly waives the right to appeal any sentence
imposed within the maximum provided . . . or the
manner in which that sentence was determined."
The court questioned Cavender to ensure that he
understood the unambiguous waiver and its effect
of precluding him from appealing the sentencing
decision for any reason. Cavender swore in open
court that he did understand it, and that is the
end of the matter.


  D.   Buchanan

  Buchanan’s challenges to the constitutionality
of his sentence and indictment are easily
dismissed as well. His argument that the
Sentencing Guidelines are unconstitutional is
foreclosed by Mistretta v. United States, 488
U.S. 361, 371 (1989). His argument that his
sentence violates the Eighth Amendment’s
prohibition against cruel and unusual punishment
because his sentence was longer than that of his
co-defendants also fails. First of all, while the
severe disproportionality in sentencing may lead
to an Eighth Amendment violation, see Solem v.
Helm, 463 U.S. 277, 290 (1983), there is no
constitutional guarantee of proportionality in
non-capital cases. See Harmelin v. Michigan, 501
U.S. 957, 965 (1991). Second, whether Buchanan’s
sentence is "disproportionate" to those of his
co-defendants is not a pertinent question to ask,
because we have a system of individualized
sentencing which takes into account factors other
than the type of crime, such as the criminal
history of the particular defendant and the
specific circumstances of the crime. See, e.g.,
Solem, 463 U.S. at 291. The difference between
Buchanan’s and his co-conspirators’ sentences
stems from the differences in their criminal
histories and personal backgrounds, not from an
Eighth Amendment violation. Compare United States
v. McMutuary, 217 F.3d 477 (7th Cir. 2000)
(rejecting justified disparities among co-
defendants as a normal ground for departures);
United States v. Hamzat, Nos. 97-1987 et al., 217
F.3d 494 (7th Cir. 2000) (same). Buchanan next
raises the often-rejected argument (which we
reject again here) that the higher sentencing
range for cocaine base versus cocaine powder
violates the Fifth Amendment’s guarantee of equal
protection. See, e.g., United States v. Booker,
73 F.3d 706, 710 (7th Cir. 1996).

  Finally, Buchanan claims that he was denied due
process because his indictment under 21 U.S.C.
sec.sec. 846 and 841 did not list the specific
quantity of cocaine base which he was ultimately
convicted of possessing. Elements of an offense,
unlike mere sentencing factors, must be charged
in the indictment, submitted to a jury, and
proven by the government. See Apprendi v. New
Jersey, 120 S. Ct. 2348 (2000); Castillo v.
United States, 120 S. Ct. 2090 (2000); Jones v.
United States, 526 U.S. 227, 232 (1999). In an
opinion handed down before Apprendi and Castillo
were decided, we concluded that the quantity of
a drug is a sentencing factor which need not be
included in an indictment charging a sec. 841
violation. See United States v. Jackson, 207 F.3d
910, 920 (7th Cir. 2000).

  We have no occasion here to consider whether
Jackson should be reconsidered in light of the
more recent decisions from the Supreme Court. We
note, however, that different subsections of 21
U.S.C. sec. 841(b) carry different maximum prison
terms, which was the point that the Court
emphasized in Apprendi, where it held 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." 120 S. Ct. at 2362-63. So, for
example, sec. 841(b)(1)(A) specifies quantities
of various drugs that lead to sentences of 10
years to life (unless death or serious bodily
injury result, in which case the minimum is 20
years); sec. 841(b)(1)(B), which deals with
lesser quantities, calls for a sentence of 5 to
40 years (again with an exception for death or
serious bodily injury); sec. 841(b)(1)(C) has a
normal maximum of 20 years, and sec. 841(b)(1)(D)
has a normal maximum of five years. In this case,
however, the indictment charged that the
defendants had handled "multiple kilograms of
mixtures containing cocaine base," and this was
the evidence put before the jury. That is all
Apprendi would have required, and so even
assuming that Apprendi requires us to reconsider
Jackson, any error in this case was harmless. We
stress that we are making no ruling today that
Jackson is wrong; we reserve that question for a
future case in which it will make a difference.

IV
  We Reverse the judgment against Demetrius
Campbell, and we Affirm the convictions and
sentences of Desmond Cavender, Solomon Montague,
and Milton Buchanan.



/* Appeal No. 00-1047 was filed after oral argument
in the first four consolidated cases. We have
concluded that it should be treated as a
successive appeal under Internal Operating
Procedure 6(b), and this panel has accordingly
added it to the other cases. After reviewing the
briefs in No. 00-1047, we have concluded that
additional oral argument is unnecessary. The case
is therefore submitted on the briefs. See Fed. R.
App. P. 34(a).
