207 F.3d 910 (7th Cir. 2000)
United States of America,    Plaintiff-Appellee-Cross-Appellant,v.Harold JACKSON, Kevin Williams, Dion Lewis  & Jathel Garrett,    Defendants-Appellants-Cross-AppelleesandDerrick Mallett, Richard Wash, Scott Davis,  James Doty, Michelle Gaines, Clarence Haywood,  Cedric Parks & James A. Yates,    Defendants-Appellants.
Nos.  98-2696, 98-2697, 98-2703, 98-2704, 98-2705, 98-2714, 98-2715, 98-2716, 98-2766,  98-2799, 98-2800, 98-2821 & 98-2965
In the  United States Court of Appeals  For the Seventh Circuit
Argued January 21, 2000Decided March 23, 2000

Appeals from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 95 CR 510--George M. Marovich, Judge. [Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Posner, Chief Judge, and Diane P. Wood and  Evans, Circuit Judges.
Posner, Chief Judge.


1
The government in 1995  indicted 39 members of the Gangster Disciples, a  street gang operating in southwestern Chicago and  the southern Chicago suburbs, on federal  narcotics charges. Twelve of these individuals,  convicted by a jury in the federal district court  in Chicago after a three-month trial, appeal to  us, challenging their convictions and heavy  sentences--three of the defendants were sentenced  to life in prison, and only four received  sentences shorter than 20 years. The government  has cross-appealed, complaining that several of  the sentences were too short. Many issues are  raised but few have sufficient merit to warrant  discussion. The evidence of each defendant's  guilt was clearly sufficient and the alleged  trial errors were for the most part--though with  an important exception--either nonexistent or  clearly harmless.


2
Taking the evidence as favorably to the  government as the record permits, as we are  required to do, we have a gang some 6,000 strong  engaged mainly in the sale of crack and powder  cocaine, led by an Illinois state prison inmate  named Larry Hoover. By the early 1990s the gang  had revenues of some $100 million a year. As  befits an operation of such magnitude, the gang  had an elaborate structure. Hoover was assisted  by a board of directors, and below the board were  governors and regents having territorial  jurisdictions, along with assistant governors,  treasurers, security chiefs, and other officials  all with defined responsibilities. The defendants  in this case are drawn mainly from the leadership  ranks (and include governors, assistant  governors, and regents), although some of them  merely assisted the leaders.


3
Some of the government's strongest evidence was  obtained by electronic surveillance of Hoover.  Microphones were concealed in the visitors'  badges of Hoover's visitors--many of whom were  gang officials--and the conversations captured on  those microphones were relayed from the prison,  which is in southern Illinois, to Chicago, and  there recorded, and listened to, by federal  agents. Two of the discussion-worthy issues  raised by the defendants concern this electronic  surveillance. A third issue relating to  electronic surveillance (though not of Hoover)  requires only the briefest of mentions. It is  whether a warrant that authorizes "roving  surveillance," such as the interception  authorized here, pursuant to 18 U.S.C. sec.  2518(11), of calls to and from any cellular  phones that one of the Gangster Disciples (Darryl  Johnson) might use, violates the Fourth  Amendment's requirement of particularity of  description of the place to be searched. Cellular  phones have no fixed locus and here were not even  identified by a telephone number. But the cases  hold that such roving surveillance is  constitutional, United States v. Gaytan, 74 F.3d  545, 553 (5th Cir. 1996); United States v.  Bianco, 998 F.2d 1112, 1120-25 (2d Cir. 1993);  United States v. Petti, 973 F.2d 1441, 1443-45  (9th Cir. 1992); see also Michael Goldsmith,  "Eavesdropping Reform: The Legality of Roving  Surveillance," 1987 U. Ill. L. Rev. 401, 415-25,  and we have nothing to add to their analysis of  the issue.


4
The first issue we do want to discuss is whether  the chief judge of the federal district court in  the Northern District of Illinois (which is  mainly Chicago) had jurisdiction to authorize the  surveillance. Title III, the federal statute  regulating electronic surveillance, authorizes an  interception order by a judge "within the  territorial jurisdiction of the court in which  the judge is sitting." 18 U.S.C. sec. 2518(3).  Hoover's prison is in the Southern District of  Illinois and the defendants argue that therefore  the judge lacked the power to issue the order. If  this is right, the evidence obtained by the  surveillance was inadmissible. 18 U.S.C. sec.sec.  2515, 2518(10)(a); see also United States v.  Ojeda Rios, 495 U.S. 257, 260 n. 1 (1990). The  government points out that so far as bears on  this case "interception" is defined as "the aural  or other acquisition" of the contents of a  communication, 18 U.S.C. sec. 2510(4), and that  an "acquisition" took place in the Northern  District, since the agents first listened to the  conversations in Chicago. This is literally true  and has persuaded the other courts in which the  issue has arisen to uphold the government's  position, United States v. Denman, 100 F.3d 399,  402-04 (5th Cir. 1996); United States v.  Rodriguez, 968 F.2d 130, 135-36 (2d Cir. 1992);  see also United States v. Tavarez, 40 F.3d 1136,  1138 (10th Cir. 1994); cf. United States v.  Ramirez, 112 F.3d 849, 852 (7th Cir. 1997), but  it creates, as the government's lawyer  acknowledged with refreshing candor at argument,  a potential for abuse that resembles the familiar  problem of "judge shopping" for conventional  search and arrest warrants. Candace McCoy, "The  Good-Faith Warrant Cases--What Price Judge-  Shopping?," 21 Crim. L. Bull. 53, 62 (1985); see  also United States v. Leon, 468 U.S. 897, 918  (1984). This is true even though the cases gloss  "acquisition" to mean "first acquisition." United  States v. Denman, supra, 100 F.3d at 403; United  States v. Rodriguez, supra, 968 F.2d at 136. The  government still could ask any federal judge in  the United States to issue an interception order,  and simply arrange for the intercepted  communications to be relayed to the judge's  district and listened to there by federal agents.  The judge might be in Hawaii, the intercepted  communication in Florida, and the investigation  to which the interception pertained in Maine.


5
Although the potential for abuse is undeniable,  it does not authorize us to rewrite the statute,  especially because the defendants do not argue  that the potential has ever become actual and  because their position, while curing one problem,  would create another--namely that interception  orders would often have to be obtained from  judges at locations wholly adventitious in  relation to the investigation to which the  interception pertained. Admittedly this is a  feature of discovery practice as well, and so is  not quite the anomaly that the government depicts  it as. See, e.g., Fed. R. Civ. P. 45(a)(2).  Still, it is sheer accident that Hoover was  imprisoned in southern Illinois rather than in  the Northern District of Illinois, or for that  matter in Colorado or Indiana; the location of  his prison bears no relation to the location of  his and his confederates' crimes and of the  government's investigation of those crimes. And  this means that the privacy interest that the  statute seeks to protect is likely to be better  protected under the government's interpretation,  because the judge who is familiar with the  investigation is in a better position to appraise  the materiality of the communications that the  government wants to intercept.


6
Furthermore, although the parties have assumed  that the reference to "the territorial  jurisdiction of the court" is to the district in  which the judge sits, this is not certain, since  for many purposes the jurisdiction of a district  court extends beyond the boundaries of the  district. For example, the personal jurisdiction  of a federal district court often extends beyond  the district and even state boundaries, and  indeed to the nation as a whole under statutes  that provide for nationwide service of process.  Some districts are coterminous with entire states  that are much larger than other districts;  compare the District of Montana with the Southern  District of New York. The position for which the  defendants contend would not cure the abuse that  concerns them. This is a problem for Congress to  solve if the problem is serious enough to warrant  solution.


7
The next and most troublesome issue concerns the  requirement of prompt judicial sealing of  recordings of intercepted communications. Because  tape recordings of conversations are powerful  evidence yet susceptible to tampering that may be  extremely difficult to discover, they must "be  done in such way as will protect the recording  from editing or other alterations." 18 U.S.C.  sec. 2518(8)(a). To this end, the recording must  be judicially sealed "immediately upon the  expiration of the period of the order, or  extensions thereof," id.; see United States v.  Ojeda Rios, supra, 495 U.S. at 263; United States  v. Plescia, 48 F.3d 1452, 1463 (7th Cir. 1995);  United States v. Wong, 40 F.3d 1347, 1375 (2d  Cir. 1994), and if it is not sealed immediately  it can't be used in evidence unless the  government offers a "satisfactory explanation"  for the delay in sealing. 18 U.S.C. sec.  2518(8)(a); United States v. Ojeda Rios, supra,  495 U.S. at 262-65; United States v. Plescia,  supra, 48 F.3d at 1463; United States v. Maxwell,  25 F.3d 1389, 1393 (8th Cir. 1994); United States  v. Pedroni, 958 F.2d 262, 265 (9th Cir. 1992).


8
The recordings of Hoover's intercepted  conversations were not sealed until 32 days after  the expiration of the surveillance warrant. That  was much too long to qualify as an immediate  sealing, United States v. Williams, 124 F.3d 411,  429-30 (3d Cir. 1997); United States v.  Wilkinson, 53 F.3d 757, 759-60 (6th Cir. 1995);  United States v. Wong, supra, 40 F.3d at 1375;  United States v. Pitera, 5 F.3d 624, 627 (2d Cir.  1993), and so we must consider whether the  government's explanation was adequate. The  warrant was to expire on January 2, 1994, but on  December 19 Hoover had discovered the concealed  microphone, interrupting the surveillance. The  government wanted to continue recording but with  a smaller microphone that Hoover would be less  likely to discover. It needed, or rather thought  it needed, access to the existing recordings in  order to compare them with recordings made with  the new microphone to make sure the new  recordings were acoustically no worse than the  old. The old ones had been so poor, United States  v. Parks, 100 F.3d 1300, 1302 (7th Cir. 1996),  that if the new were worse (as they eventually  turned out to be), there was no use installing  them in the visitors' badges. Since the  government wanted to have access to the old tapes  for purposes of comparison, it didn't want them  sealed.


9
If this were all there was to the government's  explanation for failing to have the recordings  judicially sealed immediately, it wouldn't be  enough. A satisfactory explanation is one that is  "objectively reasonable," United States v. Ojeda  Rios, supra, 495 U.S. at 266-67; United States v.  Quintero, 38 F.3d 1317, 1328-30 (3d Cir. 1994);  United States v. Carson, 969 F.2d 1480, 1497-98  (3d Cir. 1992); cf. Tuke v. United States, 76  F.3d 155, 156-57 (7th Cir. 1996), as well as  sincere. United States v. Quintero, supra, 38  F.3d at 1326-27; United States v. Vastola, 989  F.2d 1318, 1325 (3d Cir. 1993). Hoover's  conversations had been recorded in triplicate, so  the government could have sealed one set of  recordings and used one of the others to compare  with recordings made with the new microphone. It  is surprising, to say the least, that the  Assistant U.S. Attorney in charge of the  investigation, a long-time senior member of the  U.S. Attorney's office, Ronald Safer, was unaware  that there were duplicate recordings of the  intercepted conversations. (It would be reckless  not to record in duplicate or, as here,  triplicate, since it is so easy for recording  equipment to fail.) Such an oversight could not  be thought reasonable. One of the sets of tapes  could have been sealed, leaving two others for  purposes of comparison. And it is better, from  the standpoint of minimizing the risk of  tampering, to seal the tapes and then unseal them  as needed than to leave them unsealed for an  indefinite time (though the statutory permission  to leave the original tapes unsealed during any  extension of the original surveillance warrant,  18 U.S.C. sec. 2518(8)(a); United States v.  Carson, supra, 969 F.2d at 1487, makes the  requirement of sealing a rather porous  prophylactic against tampering). Nor is it  obvious why comparison was a necessary or useful  method for determining audibility. Recordings  made with the new microphone either were, or were  not, audible. Listening to the old tapes would  cast little if any light on the new.


10
But there is more. First and least, Safer  believed that he didn't have to have the tapes  sealed as soon as the interception warrant  expired, because he anticipated seeking an  extension of the warrant within what he thought a  reasonable time (30 days) after its expiration.  He was confident that the new recording system  would be up and running by then and he thought  that during this period he would need the  original recordings for purposes of comparison.  When toward the end of this period he realized it  wouldn't be ready in time, he had them sealed at  last. But thirty days is merely the maximum  period for which electronic surveillance can be  authorized, 18 U.S.C. sec. 2518(5); it has no  relevance to the period within which surveillance  recordings must be sealed. There is no basis in  the statute or the case law (nor was there when  Safer had to make the decision whether to have  the recordings sealed, which is the relevant  time, United States v. Ojeda Rios, supra, 495  U.S. at 266), for a rule that the government can  leave surveillance recordings unsealed for up to  30 days while it ponders whether to seek an  extension. The government must have a reason for  such a delay. It is true that months later, in  May, the government obtained a new authorization  to record Hoover's conversations. But "an order  authorizing surveillance of the same subject, at  the same location, regarding the same matter as  an earlier authorized surveillance, constitutes  an 'extension' of the earlier authorization for  purposes of section 2518(8)(a) if, but only if,  the new authorization was obtained as soon as  administratively practical or any delay is  satisfactorily explained, i.e., is shown to have  occurred without fault or bad faith on the part  of the government." United States v. Carson,  supra, 969 F.2d at 1488.


11
So large a mistake of law as thinking that one  has an automatic 30 days to seal surveillance  tapes, and so large a mistake of fact as not  realizing that multiple tapes were cut, are  difficult to describe as being "without fault."  Safer's affidavit, the only evidence the  government tendered with regard to the  reasonableness of the delay, states that he  believed that "30 days was well within that  reasonable period of time given the nature of  this extension, i.e., the same place of  intercept, same criminal conduct, same  interceptees," but the affidavit gives no reason  for picking 30 days; nor is the fact that good  grounds existed for the extension a rational  basis for delay in seeking it--the opposite might  well be argued. The affidavit adds that Safer  "wanted to have the original tapes available for  comparison to tapes produced by the new device,"  but does not explain why this was necessary when  there were three sets of original tapes.


12
The government has an alternative ground for  affirmance on this point--that the recordings  didn't have to be sealed because an order  extending the original interception order had not  yet expired. 18 U.S.C. sec. 2518(8)(a). This  ground was not presented to the district court,  but the government asks us to overlook the  forfeiture because the facts underlying the  argument are not contested. But we cannot do that  when the case is before us after a trial. We can  affirm a judgment on any ground that was not  waived or forfeited in the district court, unless  one of the conditions for relieving a party from  a waiver or forfeiture is present. Jenkins v.  Nelson, 157 F.3d 485, 497 (7th Cir. 1998); Door  Systems, Inc. v. Pro-Line Door Systems, Inc., 83  F.3d 169, 173-74 (7th Cir 1996); Singletary v.  Continental Illinois National Bank & Trust Co., 9  F.3d 1236, 1240 (7th Cir. 1993); cf. Rowe v.  Schreiber, 139 F.3d 1381, 1382 and n. 2 (11th  Cir. 1998). The qualification that we have  italicized is not always explicit, see, e.g.,  Massachusetts Mutual Life Ins. Co. v. Ludwig, 426  U.S. 479, 481 (1976) (per curiam), though we have  found only two cases in which it was explicitly  rejected (but without discussion). African  American Voting Rights Legal Defense Fund, Inc.  v. Villa, 54 F.3d 1345, 1356 (8th Cir. 1995);  International Ore & Fertilizer Corp. v. SGS  Control Services, Inc., 38 F.3d 1279, 1286 (2d  Cir. 1994). Plenty of other cases, it is true,  have broad language that might be thought to  imply the rejection of the qualification. E.g.,  Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th  Cir. 1995). But that language is probably  inadvertent, or influenced by the exceptions  built into waiver doctrine, such as the plain-  error doctrine, of which more shortly. The  qualification that the language of these cases  occludes (that the ground not have been waived or  forfeited in the district court) is easily  overlooked because a party is not required to  advance all its possible grounds in a motion for  judgment on the pleadings or summary judgment,  with the result that the failure to advance a  ground, and the resulting failure of the district  court to address it, do not work a forfeiture.  Door Systems, Inc. v. Pro-Line Door Systems,  Inc., supra, 83 F.3d at 173-74; cf. Curran v.  Kwon, 153 F.3d 481, 487 and n. 11 (7th Cir.  1998). But a ground not raised at trial is  forfeited and therefore cannot be used on appeal.  "[A] defendant can move to dismiss or for summary  judgment on fewer than all possible grounds  without waiving the others, . . . but if the case  goes to trial he cannot hold some of his grounds  in reserve for use should he lose on the grounds  he does present." Smith v. Richert, 35 F.3d 300,  305 (7th Cir. 1994).


13
Perhaps, though, it would be a plain error to  reject the government's ground; and while it is  unusual for the government to be arguing plain  error in a criminal case, there is nothing to  prevent its doing so. United States v. Brown, 164  F.3d 518, 522 (10th Cir. 1998); United States v.  Zeigler, 19 F.3d 486, 494 (10th Cir. 1994);  United States v. Sprei, 145 F.3d 528, 533-34 (2d  Cir. 1998); United States v. Barajas-Nunez, 91  F.3d 826, 833-34 (6th Cir. 1996). (See also Fed.  R. Crim. P. 52(b), which draws no distinction  between the government and the defendant.) It is  true that the government has failed to argue  plain error to us; it has argued error, but has  failed to argue that the error was plain, not  realizing, apparently, that it had forfeited the  error in the district court and thus had to  invoke the plain-error rule to prevail. But when  an error is plain, the interests of justice  require the court, if it can, to notice the error  without prompting rather than to perpetrate an  unjust decision. Unhappily for the government,  the error is not plain; it is not an error at  all. For remember that the new authorization to  conduct surveillance of Hoover's conversations  was not sought until May, and the previous order  had expired the previous January. Recordings  cannot be left unsealed indefinitely just because  months or years later the government is able to  convince a judge to allow the surveillance to  resume. Allowing such a hiatus would defeat the  purpose of the requirement of sealing. See United  States v. Ojeda Rios, supra, 495 U.S. at 263-64;  United States v. Carson, supra, 969 F.2d at 1488,  1497-98.


14
If the requirement is violated without  reasonable excuse, evidence obtained in violation  of it must be excluded, period; there is no  mitigation beyond what the excuse provision  itself allows. 18 U.S.C. sec. 2518(8)(a); United  States v. Ojeda Rios, supra, 495 U.S. at 260. The  harmless-error rule is applicable, but the  government does not and could not argue harmless  error here, since the Hoover conversations were  the linchpin of its case.


15
The government has one last string to its bow.  Although not in Safer's affidavit, the government  argues in its brief to us that the real reason  for the delay was that it expected the new  bugging apparatus to be completed sooner.  Remember that Hoover discovered the original bug  on December 19, at which point the government had  two weeks to obtain either an extension or a  judicial seal. If on January 2 the government  reasonably expected the new bug to be completed  and in working condition within a few days, this  would be a reasonable basis for delaying the  seeking of an extension for a few days. At some  point it became clear that "a few days" were  going to stretch on indefinitely; and then the  government, having no immediate use for an  extension (which depended on the new apparatus),  did seek to have the recordings placed under  judicial seal. If the technicians kept assuring  the prosecutors that the bug was a day away from  completion, naturally the prosecutors would think  they could wait another day. As we say, this was  argued in the government's brief but does not  appear in Safer's affidavit--which doesn't mean  it's untrue, especially since it was one of the  reasons the district judge gave for allowing the  recordings of Hoover's conversations to be  admitted into evidence; and the defendants do not  argue that the government waived the point in the  district court. There is no suggestion that the  government postponed the sealing of the tapes in  order to tamper with them, and in the absence of  any such suggestion we have no reason to doubt  that the delay did result from a mistake about  when the new bugging device would be available.  The defendants' reply that Safer and the  technicians should have communicated with each  other more effectively, which is true; but the  failure of communication does not strike us, any  more than it struck the district judge, as so  wanton a blunder as not to constitute a (barely)  satisfactory explanation within the meaning of  the statute.


16
A few more issues require discussion. Defendant  Yates complains about the absence of his lawyer  from the instructions conference. Such a denial,  if it is deemed as Yates asks us to deem it an  abandonment by the lawyer of his client, leaving  the client without representation, rather than  merely a failure to come up to a minimum standard  of legal professionalism, would require reversal  irrespective of prejudice. Roe v. Flores-Ortega,  120 S. Ct. 1029, 1038-39 (2000); United States v.  Cronic, 466 U.S. 648, 658-60 (1984); United  States v. Morrison, 946 F.2d 484, 503 (7th Cir.  1991) (dictum); cf. Neder v. United States, 119  S. Ct. 1827, 1833 (1999); United States v.  Santos, 201 F.3d 953, 959-60 (7th Cir. 2000). But  in the particular setting of this case, with  multiple defendants and multiple counsel, we do  not think the lawyer's missing one instructions  conference constituted abandonment. Yates was one  of twelve defendants. All the other defendants'  lawyers were present at the conference and with  one exception he is unable either to specify a  defense peculiar to him that might have warranted  a special instruction had his lawyer been there  to urge it on the judge or to indicate any  respect in which the other lawyers failed to  protect the interests common to all the  defendants including himself. With that  exception, he had virtual representation by the  other lawyers of a kind that is commonplace in  multidefendant criminal cases, as illustrated by  the rule that in such a case an objection by one  defendant's lawyer preserves the objection for  the other defendants. E.g., United States v.  Gatling, 96 F.3d 1511, 1521 (D.C. Cir. 1996). The  exception has to do with Yates's defense that he  had withdrawn from the gang in time to avoid  liability for the acts that were attributed to  him as a member of the conspiracy. That was his  defense alone and the lawyers for the other  defendants did not press it at the conference.  But there was a later instructions conference,  which, though abbreviated, gave Yates (by now  representing himself by his own choice) the  opportunity, which he took advantage of, to press  for such an instruction. A criminal defendant who  decides to represent himself will not be heard to  complain that he was denied the effective  assistance of counsel. Faretta v. California, 422  U.S. 806, 834-35 n. 46 (1975); United States v.  Chapman, 954 F.2d 1352, 1363 (7th Cir. 1992).


17
Several of the defendants press on us Richardson  v. United States, 119 S. Ct. 1707 (1999), which  was decided after the trial in this case and  holds that a conviction for participation in a  continuing criminal enterprise requires that the  jury agree unanimously on the specific acts that  are the predicate for such a conviction. Our  cases prior to Richardson imposed no such  requirement and so the judge didn't give such an  instruction. The jury, however, found all three  defendants guilty of many more than three  predicate offenses relating to the drug  conspiracy. The jury thus unanimously agreed that  each of the defendants had committed three of the  predicate offenses with which he was charged,  showing that the omission of the instruction was  a harmless error. Lanier v. United States, No.  98-2689, 2000 WL 201527, at *5-6 (7th Cir. Feb.  9, 2000); Murr v. United States, 200 F.3d 895,  904-06 (6th Cir. 2000); United States v. Long,  190 F.3d 471, 476 n. 3 (6th Cir. 1999); United  States v. Escobar-de Jesus, 187 F.3d 148, 161-62  (1st Cir. 1999); compare United States v. Brown,  202 F.3d 691, 699-703 (4th Cir. 2000).


18
The only other issues that merit discussion  concern sentencing. First is whether Yates was  properly sentenced to life imprisonment for being  "one of several . . . principal administrators,  organizers, or leaders" of a continuing criminal  enterprise, namely the Gangster Disciples. 21  U.S.C. sec. 848(b)(1). Yates was a "governor,"  one of about ten, which put him two levels below  the top of the Disciples hierarchy. The top level  was occupied by Hoover and the second level by  the board of directors, for unlike the  conventional corporation the Disciples board  reported to its CEO rather than vice versa. We do  not know how large the board was (in fact there  were two boards, one for Disciples in prison and  the other for those at large, though we can  ignore this detail), and it rather strains the  ordinary meaning of the word "several" to  describe Yates as one of "several" administrators  of the enterprise. The government asks us to  count from the bottom up rather than from the top  down, pointing out that since the Disciples had  about 6,000 members during the period at issue,  Yates belonged to a relatively quite tiny layer  of top-level supervisors and the evidence is that  he had six regents and 411 rank and file  Disciples under his command.


19
The statute's drafters probably did not envisage  such a large criminal enterprise, for the minimum  annual receipts of a continuing criminal  enterprise that are necessary to make a principal  administrator, organizer, or leader subject to  mandatory life imprisonment is $10 million, 21  U.S.C. sec. 848(b)(2)(B), which is less than a  tenth of the annual gross receipts that the judge  could and did attribute to the Gangster  Disciples. We think the literal meaning is not  strained overmuch by construing "several" in  relative rather than absolute terms, the better  to carry out the purpose behind the provision,  although we cannot find a case dealing with the  issue. Of course there are limits to the  relativity of "several." If we assume there were  30 GDs at Yates's level or higher, that would be  one-half of one percent of the total number of  conspirators, and it would be distinctly odd to  think that a reference to "several" Americans  could be to 1,375,000 people; but we think  "several" will stretch to 30, bearing in mind the  statute's objective.


20
Next is the vexing question, made urgent by the  Supreme Court's recent decision in Jones v.  United States, 119 S. Ct. 1215 (1999), as well as  by dicta in Edwards v. United States, 523 U.S.  511, 515 (1998), and cases such as United States  v. Dale, 178 F.3d 429, 432-44 (6th Cir. 1999),  whether type and quantity of drugs are elements  of the federal drug offense that is created by 21  U.S.C. sec. 841 and so must be proved at trial  beyond a reasonable doubt, or are mere sentencing  factors to be determined by the judge, applying a  lower standard of proof, at the sentencing  hearing. Jones construed a federal carjacking  statute that appeared to make the infliction of  grave bodily injury in the course of a carjacking  a sentencing factor as making it an element of  the crime. It did so in order to avoid the  constitutional problem that would be presented if  Congress tried to skirt the requirement of proof  beyond a reasonable doubt and the right of trial  by jury in criminal cases by redefining elements  of a crime as sentencing factors. One can imagine  in the limit replacing the separate statutes for  assault and murder by a single statute in which  the violator would be punished by probation if he  committed an assault that caused no injury at all  and by death if the assault consisted in the  intentional killing of the victim.


21
The avoidance of the constitutional issue by  statutory construction is not available in the  case of section 841, because the division between  the elements of the crime and factors relating to  how severely to punish offenders is much clearer  than in the statute interpreted in Jones.  Subsection (a), captioned "Unlawful acts,"  defines the offense of distributing, etc. a  controlled (or counterfeit controlled) substance,  while subsection (b), captioned "Penalties,"  specifies how the "person who violates subsection  (a) . . . shall be sentenced"--namely more  severely depending on the type and quantity of  the drug. The defendants in this case were  convicted of distributing a variety of drugs,  including marijuana, the distribution of which  calls for a much lighter sentence in section  841(b) than other drugs, notably crack cocaine,  one of the major commodities sold by the Gangster  Disciples. It is apparent that Congress intended  the type and quantity of the drugs distributed by  a defendant convicted under section 841(a) to be  determined at sentencing, unlike the situation in  Jones, and Congress's determination of the  appropriate allocation of decisional  responsibilities carries a presumption of  constitutionality.


22
We adhere to our decisions holding that the  allocation is constitutional. United States v.  Arango-Montoya, 61 F.3d 1331, 1338-39 (7th Cir.  1995) (per curiam); United States v. Trujillo,  959 F.2d 1377, 1381-84 (7th Cir. 1992); cf.  United States v. Edwards, 105 F.3d 1179, 1180  (7th Cir. 1997), aff'd on other grounds, 523 U.S.  511 (1998); see also United States v. Thomas, No.  98-1051, 204 F.3d 381, 2000 WL 228218, at *3 (2d Cir. Feb. 14,2000) (per curiam); United States v. Swiney, 203 F.3d 397, 404 n. 5 (6th Cir. Feb. 14, 2000);  United States v. Hester, 199 F.3d 1281, 1291-93  (11th Cir. 2000); United States v. Jones, 194  F.3d 1178, 1183-86 (10th Cir. 1999); United  States v. Williams, 194 F.3d 100, 104-07 (D.C.  Cir. 1999). We emphasize a reason that is  practical rather than traditional, although it  may explain the tradition. A glance at section  841(b) reveals numerous and minute gradations.  For example, a heavier punishment is prescribed  for distributing 50 or more grams of a mixture or  substance containing crack than for distributing  5 or more grams, 21 U.S.C. sec.sec. 841(b)(1)  (A)(iii), (B)(iii), and a heavier punishment for  distributing 5 or more grams than for  distributing fewer than 5 grams, sec.sec. 812  Schedule II, 841(b)(1)(C), even though the  differences among these quantities is slight  (there are about 28 grams to an ounce). If a jury  were required to determine whether the defendant  had distributed 3, 6, 49, or 52 grams of mixture  or substance containing crack, its attention  would be deflected from the question at once more  fundamental to culpability and more manageable by  a lay factfinder whether the defendant had  distributed a forbidden substance. Similar  problems would attend a requirement that the jury  discriminate among particular controlled  substances, such as powder and crack cocaine.


23
The defendants' argument amounts to saying that  the federal sentencing guidelines must be  administered by juries, with the exception of the  criminal history provisions, which the defendants  concede, as they must, Jones v. United States,  supra, 526 U.S. at 246-50, 119 S. Ct. at 1226-27, identify proper  sentencing considerations. But the guidelines are  too complicated to be applied by lay persons;  even lawyers and judges cannot apply them without  training and experience. The Constitution does  not require the impossible. The practical effect  of the defendants' argument would be the  elimination of most gradations in criminal  punishment. We are reluctant to embark upon a  path that leads to such a dubious destination. We  grant that our position is less compelling when  the issue is the type rather than the amount of  the drug, but note that in this case, even if  type were a jury issue, the failure to instruct  the jury that it had to decide whether the  defendants were selling cocaine or marijuana  would be harmless, as the evidence is  overwhelming that it was the former. United  States v. Barnes, 158 F.3d 662, 668 (2d Cir.  1998). We add that the due process clause  protects defendants from being sentenced on the  basis of unreliable evidence, albeit it does not  give them all the protections that the  Constitution has been interpreted to give  criminal defendants at the guilt phase of their  trials.


24
Last we consider the government's cross-appeal.  The district judge properly increased the offense  levels of four of the defendants--"regents," each  of whom supervised more than a hundred Gangster  Disciples--three steps under a provision of the  guidelines commanding such a punishment bonus for  managers or supervisors of a criminal activity  involving five or more participants. U.S.S.G.  sec. 3B1.1(b). But then he reduced their offense  levels two steps under sec. 3B1.2(b), which  provides for such a reduction for a minor  participant, defined as one "less culpable than  most other participants." Id., Application Note  3. The judge--who made this reduction though not  requested to do so by the defendants--considered  regents minor participants in relation to some of  the other defendants, who were governors, and to  some of the other members of the conspiracy, such  as Hoover and the members of his boards of  directors. The government argues that a section  3B1.1 sentencing bonus and a 3B1.2 sentencing  reduction are not possible in the same case,  pointing to an introductory comment to chapter 3  of the guidelines that describes these as  alternatives: "When an offense is committed by  more than one participant, sec.3B1.1 or sec.3B1.2  (or neither) may apply."


25
The argument was not made to the district judge,  but the government argues that his error was  plain. The government could, but does not, argue  that it should not have to show a plain error--  that because the judge made the reduction without  any forewarning, the government was surprised and  should not be held to have forfeited its  objection to the judge's action. E.g., United  States v. Muzika, 986 F.2d 1050, 1055 (7th Cir.  1993); United States v. Alba, 933 F.2d 1117, 1120  (2d Cir. 1991). We think there was error here and  that it was plain, though the government goes too  far in arguing that there can never be a  situation in which a defendant could receive both  a punishment bonus for being a manager or  supervisor and a punishment discount for being a  minor participant. Section 3B1.2 does not say  that a manager or supervisor cannot be a minor  participant; all that is required is that he be  less culpable than most of the other  participants. In a case such as United States v.  Tsai, 954 F.2d 155, 166-67 (3d Cir. 1992),  involving a top-heavy conspiracy in which the  managers outnumbered the rank and file, it is  possible for one of the managers to be less  culpable than most of the participants though  more culpable than the (few) foot soldiers, and  then both adjustments would be possible. But the  present case involves a conspiracy with 6,000  participants, and since the defendants in  question were, as regents, members of a small  supervisory layer consisting of no more than 2  percent of the membership, they clearly were not  less culpable than "most" of the participants,  and so they were not entitled to the section  3B1.2 reduction. So clear is this that the  judge's sentencing error must be deemed plain,  provided that the error is prejudicial. United  States v. Olano, 507 U.S. 725, 732-35 (1993). But  we think it was, as it is evident that the judge  would have sentenced these defendants more  heavily if he had not given them a minor-  participant discount. In the obverse situation,  where a criminal defendant establishes that the  judge by virtue of committing a clear error gave  him a heavier sentence, the error is deemed plain  and the defendant is ordered resentenced. E.g.,  United States v. Spears, 159 F.3d 1081, 1088 (7th  Cir. 1998); United States v. Szabo, 147 F.3d 559,  561-62 (7th Cir. 1998); United States v. Whiting,  28 F.3d 1296, 1310-12 (1st Cir. 1994).   The four regents must be resentenced; in  addition the government concedes that the  conspiracy convictions of three of the defendants  must be vacated in accordance with Rutledge v.  United States, 517 U.S. 292, 307 (1996). With  these modifications, the judgments are


26
Affirmed.


27
Diane P. Wood, Circuit Judge, concurring in part  and dissenting in part.


28
This was a complicated  case, and the defendants individually and  collectively have raised a number of points that  require our serious consideration. I join my two  colleagues in concluding that nothing here  requires us to reverse the convictions returned  by the jury. Insofar as results are concerned, my  disagreement is confined to the disposition of  the government's cross-appeal. On that single  part of the case, I have grave reservations about  the proposition that the government has the right  to invoke the plain error doctrine to avoid the  consequences of its own oversights. Even if it  does, I believe that the question of how the  familiar rules about obviousness of the error and  prejudice apply to the prosecutor is an  exceedingly difficult one. It calls for an answer  that is sensitive to the broader purposes of the  harmless error rule. In the cases of Harold  Jackson, Kevin Williams, Dion Lewis, and Jathel  Garrett (the four "regents" to whom the majority  refers), even if the district court made an  obvious error in conferring "minor participant"  status upon them under U.S.S.G. sec. 3B1.2,1  that error did not sufficiently affect the  government's "substantial rights," as the term is  used in both Fed. R. Cr. P. 52(b) and United  States v. Olano, 507 U.S. 725, 732 (1993), to  justify a reversal.


29
The majority suggests, ante at 922, that we  always find "prejudice" where mistakes during  criminal proceedings result in the misapplication  of the Guidelines and a longer sentence for a  defendant. I accept the proposition that extra  time in prison qualifies as prejudice for Rule  52(b) purposes under this court's law, and that  it should have this consequence from the  perspective of the defendant. But this does not  answer the question whether the prosecutor's  failure to win a few extra months inflicts  similar prejudice on the government. For one  thing, a mechanical comparison between the two  situations ignores the basic fact that Assistant  U.S. Attorneys do not serve prison time as a  result of error. More importantly, the  application of the plain error rule should be  related to the purpose behind this exception to  our normal rules of forfeiture and waiver--an  exception which is, as we have pointed out  before, "inconsistent with the premises of an  adversary system," United States v. Caputo, 978  F.2d 972, 974 (7th Cir. 1992). As Caputo put it,  "What could justify the anomaly in the criminal  sphere? It is the injustice of allowing the  conviction of an innocent person, or an unlawful  sentence imposed upon a guilty person, to stand."  Id. No such injustice occurs if the prosecutor  obtains a sentence that is only a year or two  less than the court would have imposed if the  prosecutor had been on her toes. I therefore  disagree with the majority's conclusion that an  erroneous downward departure is merely the  reverse of what we see more typically--an  erroneous decision that has the effect of  increasing a sentence. It is the special  deprivation of liberty resulting from a criminal  sentence that justifies relieving a defendant of  the consequences of a forfeited objection.  Because no such deprivation occurs for the  government, I reject the simple analogy the  majority has drawn.


30
It is interesting to speculate about whether the  government can ever establish prejudice for Rule  52(b) purposes, but I have no need at this  juncture to rule out that possibility absolutely.  There may be unusual circumstances in which an  error that benefits a defendant may be so severe  that it "seriously affect[s] the fairness,  integrity or public reputation of judicial  proceedings." United States v. Young, 470 U.S. 1,  15 (1985), quoting United States v. Atkinson, 297  U.S. 157, 160 (1936). This court adopted that  formulation in United States v. Durrive, 4 F.3d  548, 551 (7th Cir. 1993), to govern collateral  attacks on sentences. It reflects the fact that  collateral attack is normally reserved for only  the gravest of mistakes--those of constitutional  dimension or those that cast doubt on the  integrity of the verdict, and thus implicate both  the individual defendant and the public interest  more broadly.


31
In all criminal cases, the public interest is  what the government represents. As appellant, the  government here is now seeking to be relieved of  the consequences of its forfeiture of a point at  sentencing. If this relief is available to it at  all, it should be granted only where the error  was plain and it had a serious effect on the  fairness, integrity, or public reputation of  judicial proceedings. One example of such an  error might be the situation the Sixth Circuit  considered in United States v. Barajas-Nunez, 91  F.3d 826 (6th Cir. 1996). There, the court  considered an erroneous downward departure that  resulted in a sentence that was only eight  months, instead of more than 57, as the correct  Guidelines range prescribed. Id. at 833. The  court concluded that such an extreme departure  would "fly in the face of one of the primary  purposes of the sentencing guidelines--the  elimination of disparities in sentencing." Id. In  our case, the district court's erroneous  application of section 3B1.2 resulted in an  offense level of 36 rather than 38, only slightly  shortening the defendants' already decades-long  sentences. There is no chance that this mistake,  with its minimal sentencing consequences, will  prompt the public to look askance upon the  criminal justice system. Compare Durrive, where a  similar discrepancy was deemed insufficient to  meet the relevant standard for collateral  attacks. I therefore respectfully dissent from  the court's disposition of the government's  cross-appeal.



Notes:


1
 For the record, I am not at all convinced that  the failure of the Assistant United States  Attorney to object was such a clear mistake that  the court had a duty to notice the problem on its  own. For purposes of this dissent, however, I am  not taking issue with that part of the majority's  analysis.


