                                                       [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                   FOR THE ELEVENTH CIRCUIT      U.S. COURT OF APPEALS
                    ________________________       ELEVENTH CIRCUIT
                                                     OCTOBER 17, 2001
                          No. 00-13347              THOMAS K. KAHN
                    ________________________             CLERK


                D.C. Docket No. 98-00049-CR-HLM-4-5

UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

    versus

IGNASIO MALDENALDO SANCHEZ,

                                               Defendant-Appellant.

                     ______________________

                          No. 00-13447
                     ______________________

               D. C. Docket No. 98-00049-CR-06-HLM-4


UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

    versus

SANTIAGO GILBERTO SANCHEZ,
                                               Defendant-Appellant.
                           ________________________

                   Appeals from the United States District Court
                       for the Northern District of Georgia
                         _________________________

                                (October 17, 2001)

Before ANDERSON, Chief Judge, and TJOFLAT, EDMONDSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON,
Circuit Judges.

HULL, Circuit Judge:

      Defendants-Appellants Ignasio Maldenaldo Sanchez and Santiago Gilberto

Sanchez (“the Sanchezes”) appeal their convictions and sentences after pleading

guilty to a single-count indictment that charged them with conspiracy to distribute

and to possess with intent to distribute methamphetamine and amphetamine, in

violation of 21 U.S.C. §§ 841, 846. They challenge their convictions and sentences

primarily based on Apprendi v. New Jersey, 530 U.S. 466 (2000). A panel of this

Court affirmed. See United States v. Sanchez, 242 F.3d 1294 (11th Cir. 2001).

Relying on United States v. Rogers, 228 F.3d 1318 (11th Cir. 2000), the panel

concluded that “in light of Apprendi, drug quantity is an element of the offense that

must be charged in the indictment.” Sanchez, 242 F.3d at 1298 (citing Rogers, 228

F.3d at 1324). The panel opinion repeated Rogers’s statement that “‘drug quantity

in sections 841(b)(1)(A) and 841(b)(1)(B) cases must be charged in the indictment


                                          2
and proven to a jury beyond a reasonable doubt.’” Id. (quoting Rogers, 228 F.3d at

1327). Because the indictment did not allege a specific drug quantity, the panel

opinion found that both defendants’ plea colloquies were “technically inadequate.”

Id. The panel opinion held, however, that there was “no prejudice” because, inter

alia, the Sanchezes’ sentences fell below the maximum penalty permitted under 21

U.S.C. § 841(b)(1)(C). Id. at 1300.

      We subsequently sua sponte vacated the panel opinion and, by vote of a

majority of the judges in active service, ordered that the case be reheard en banc.

See United States v. Sanchez, 247 F.3d 1306 (11th Cir. 2001). We address en

banc: whether, in light of Apprendi, drug quantity is now always an element of an

offense under § 841 that must be charged in the indictment, submitted to a jury,

and proven beyond a reasonable doubt; whether the district court properly denied

the Sanchezes’ motion to dismiss the indictment; whether the district court’s drug

quantity findings under § 841(b)(1)(B) and utilization of that sentencing scheme,

which exposed the Sanchezes to enhanced sentences under that section but did not

result in an actual term of imprisonment beyond the otherwise applicable

maximum penalty in § 841(b)(1)(C), violated Apprendi; whether Apprendi applies

to the Sanchezes’ § 841 indictment, guilty pleas, convictions, and sentences given

that the district court’s drug quantity findings did not increase their ultimate


                                           3
sentences beyond the otherwise applicable maximum penalty in § 841(b)(1)(C); in

this regard, whether we should adopt the analyses of Apprendi’s impact on § 841

cases in United States v. Rogers, 228 F.3d 1318 (11th Cir. 2000) and United States

v. Camacho, 248 F.3d 1286 (11th Cir. 2001), or the analyses in United States v.

Gerrow, 232 F.3d 831 (11th Cir. 2000), cert. denied, ___ S. Ct. ___, No. 00-9373

(Oct. 1, 2001), and other circuits’ decisions finding that Apprendi does not apply

unless a judge-made determination of drug quantity increases a defendant’s

sentence beyond the otherwise applicable maximum penalty in § 841(b)(1)(C);

whether Apprendi rendered the Sanchezes’ plea colloquies inadequate under Rule

11 and their guilty pleas unintelligent or involuntary if the court advised them

about the higher statutory maximum penalties under §§ 841(b)(1)(A) and

841(b)(1)(B); whether terms of supervised release for § 841 convictions are

controlled by 21 U.S.C. § 841(b)(1)(C) or 18 U.S.C. § 3583(b)(2) and whether the

Sanchezes’ four-year terms violated Apprendi; and what is the proper standard of

review for each issue.

      After such review and for the reasons discussed herein, we see no error,

under Apprendi or otherwise, in the Sanchezes’ indictment, plea colloquies,

convictions, or sentences. We therefore affirm their convictions and their

sentences.


                                          4
      This opinion proceeds as follows. In Part I, we review the proceedings in

the district court. In Part II, we review the Supreme Court’s decisions in Jones v.

United States, 526 U.S. 227 (1999) and Apprendi. We then discuss the federal

drug statute, our precedent construing that statute, and Apprendi’s effect on both.

In Part III, we address the Sanchezes’ challenges to their indictment, guilty pleas,

and sentences, along with the corresponding standards of review. In Part IV, we

summarize our conclusions.

                       I. PROCEDURAL BACKGROUND

      In the district court, the Sanchezes challenged not only their sentences but

also their indictment and convictions based on Jones, and on appeal, they rely

primarily on Apprendi. Additionally, for the first time on appeal they challenge

their plea colloquies under Rule 11 based on Apprendi. The Sanchezes emphasize

that from the outset of their cases the government sought enhanced penalties under

§ 841(b)(1)(B) based on drug quantities. They seek to expand Apprendi’s

constitutional principle to, and thereby show constitutional error at, all stages of

their cases. Thus, we first review in detail the proceedings in the district court.

A.    Sanchezes’ Indictment

      In late 1998, a federal grand jury returned a single-count indictment

charging that the Sanchezes “did combine, conspire, confederate, agree, and have a


                                           5
tacit understanding with each other, and with others known and unknown to the

Grand Jury, to violate Title 21, United States Code, § 841, to wit: to knowingly and

intentionally possess with the intent to distribute and distribute quantities of

methamphetamine and amphetamine, both being Schedule II controlled substances,

in violation of Title 21, United States Code, Section 846.”1 The indictment

referenced 21 U.S.C. §§ 841, 846 and the type of drugs involved but not the

quantities. Both defendants pled not guilty.

       On April 21, 1999, defendant Ignasio Sanchez filed a “Motion to Dismiss

Indictment for Failure to Allege Facts that Increase Maximum Penalty,”

specifically relying on Jones. The motion stated, “Jones clearly holds that the

Constitution requires an indictment to allege ‘any fact (other than prior conviction)

that increases the maximum penalty for a crime.’ Furthermore, such a fact must be

submitted to a jury for a decision as to proof beyond a reasonable doubt.”2 On this

basis, Ignasio Sanchez argued that the indictment had to be dismissed because the

various statutory maximum penalties under 21 U.S.C. § 841(b) for a violation of

       1
       Four other defendants were charged in the indictment, but this appeal involves only the
Sanchezes.
       2
         The motion quoted in full the now-famous footnote six from Jones v. United States, 526
U.S. 227 (1999), and in particular relied on its statement that “under the Due Process Clause of
the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact
(other than prior conviction) that increases the maximum penalty for a crime must be charged in
an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id. at 243 n.6; see
also infra Section II.A (discussing footnote six in Jones and Jones more generally).

                                               6
21 U.S.C. § 841(a) were determined by drug quantity, and the indictment against

him did not allege a specific drug quantity.

       The district court denied the motion, noting that under this circuit’s

precedent “[t]he statutory scheme set forth in § 841 establishes that drug quantity is

a sentencing consideration.” The court continued that “the Constitution does not

require drug quantity to be considered as an element of the criminal offense

defined by § 841.” The court noted that Jones “does not stand for the proposition

that every fact which exposes a criminal defendant to a higher maximum penalty

must be alleged in an indictment.” Subsequently, the court granted, without

objection, Santiago Sanchez’s request to adopt Ignasio Sanchez’s motion to

dismiss the indictment and denied that motion as well.3

B.     Guilty Pleas and Rule 11 Colloquies

       In early 2000, the district court conducted separate, but substantially similar,

plea colloquies for each defendant pursuant to Rule 11. See Fed. R. Crim. P. 11.

The court advised both defendants of their various constitutional rights and asked



       3
         The Supreme Court decided Jones on March 24, 1999 and Apprendi on June 26, 2000.
The present case exemplifies how, well before Apprendi, defendants in this circuit were
asserting that drug quantity under § 841 had to be charged in the indictment and decided by a
jury, even though prior circuit precedent repeatedly had held otherwise. See infra note 28. As
explained in United States v. Candelario, 240 F.3d 1300 (11th Cir.), cert. denied, 121 S. Ct. 2535
(2001), “[a] defendant may be deemed to have made a constitutional objection if his objection
invokes Apprendi or Jones.” Id. at 1304 (citations omitted).

                                                7
whether each defendant understood that, by pleading guilty to the single-count

indictment, he waived those constitutional rights and there would not be a trial of

any kind. Each defendant responded in the affirmative. The court read the entire

indictment and advised the Sanchezes that before a jury could find them guilty, the

government was required to prove the various elements of the offense, as stated in

the indictment, beyond a reasonable doubt.

       Regarding sentencing, the district court advised Ignasio Sanchez that

depending on the amount of drugs found to be attributable to him, he faced a

sentence of either (a) ten years to life imprisonment, five years’ supervised release,

and a $4,000,000 fine, or (b) five to forty years’ imprisonment, four years’

supervised release, and a $2,000,000 fine. The court advised Santiago Sanchez

only of the first of these two sentences. Although not citing any particular

subsections within § 841(b), the court, in effect, described the content of §§

841(b)(1)(A) and 841(b)(1)(B).4 The court also discussed the Sentencing

Guidelines and stated that a sentencing range would be developed for each

defendant within which the court had discretion to impose a sentence depending on

the circumstances of the case.

       4
         A sentence of ten years to life imprisonment, five years’ supervised release, and a
$4,000,000 fine – of which both defendants were advised – corresponds to § 841(b)(1)(A). A
sentence of five to forty years’ imprisonment, four years’ supervised release, and a $2,000,000
fine corresponds to § 841(b)(1)(B).

                                                8
       Both defendants, after acknowledging that they understood the nature of the

charge against them, pled guilty to the single-count indictment. Ignasio Sanchez

entered a written plea of guilty which, pursuant to Rule 11(a)(2),5 was conditional

on his reservation of the right to appeal the denial of his motion to dismiss the

indictment.6 See Fed. R. Crim. P. 11(a)(2). Santiago Sanchez likewise was

allowed to enter a conditional guilty plea.7

       5
        “A defendant who wishes to preserve appellate review of a non-jurisdictional defect
while at the same time pleading guilty can do so only by entering a ‘conditional plea’ in
accordance with [Federal Rule of Criminal Procedure 11(a)(2)].” United States v. Pierre, 120
F.3d 1153, 1155 (11th Cir. 1997) (quoting Fed. R. Crim. P. 11(a)(2)). Rule 11(a)(2) provides:
       Conditional Pleas. With the approval of the court and the consent of the government, a
       defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing
       the right, on appeal from the judgment, to review of the adverse determination of any
       specified pretrial motion. A defendant who prevails on appeal shall be allowed to
       withdraw the plea.
Fed. R. Crim. P. 11(a)(2).
       6
        Ignasio Sanchez’s plea agreement stated, “Pursuant to Rule 11(a)(2), the defendant
reserves the right to appeal the District Court’s Order . . . denying the defendant’s motion to
Dismiss the Indictment . . . .”
       7
          We note that Santiago Sanchez’s reservation of his right to appeal this issue did not
comply with the requirements of Rule 11(a)(2), because it was not in writing. See Pierre, 120
F.3d at 1155 (noting that “[t]he conditional plea must be in writing and must be consented to by
the court and by the government”) (citing Fed. R. Crim. P. 11(a)(2)). Because the government
agreed to Santiago Sanchez’s oral reservation of his right to appeal this issue and because the
district court later granted Santiago Sanchez permission to do so, we, however, treat Santiago
Sanchez’s orally entered guilty plea as having properly reserved the right to appeal the denial of
his motion to dismiss the indictment. Indeed, the prosecutor stated:
         Your honor, the government’s not going to have an objection for the late adoption of the
         motion by counsel for Santiago Sanchez, wouldn’t put on extra work for the government
         to file its responsive brief. I would advise the court that, normally, when defendants
         tender a plea of guilty, that such motions would be waived by the plea of guilty.
         [Counsel for Ignasio Sanchez] had requested that he be allowed to retain that right to
         appeal that issue, and that was specifically addressed in his [written] plea agreement for
         Ignasio Sanchez. We consented to that in light of the fact the two defendants are brothers

                                                 9
C.     Pre-Sentence Reports

       The initial pre-sentence reports recommended that the Sanchezes be held

accountable for specific quantities of methamphetamine and amphetamine which

resulted in marijuana equivalencies of 38,106.94 kilograms for Ignasio Sanchez

and 50,803.91 kilograms for Santiago Sanchez. Although § 841 specifies grams of

methamphetamine and amphetamine, the Sentencing Guidelines convert certain

drug quantities into marijuana equivalencies as part of calculating the offense level

for the guideline range. See United States Sentencing Guidelines § 2D1.1(c), cmt.

n.10 (drug equivalency tables). The statutory penalty for the Sanchezes’ drug

quantities was ten years’ to life imprisonment, as set forth in 21 U.S.C.

§ 841(b)(1)(A)(viii).8 Regarding the guideline range within this statutory range,



        or related and that there’s been a closeness in terms of the defense by the defendants; that
        the government would be willing to permit, with the court’s permission, to allow
        Santiago Sanchez, if he feels so inclined, to raise that issue on appeal in terms of failure
        to allege any drug quantities in the indictment.
Only after the government agreed did the district court grant permission to Santiago Sanchez to
reserve the right to appeal this issue. We note, however, that the district court was not required
to do so.
       8
        At the time of the Sanchezes’ offenses, the penalty provisions applicable to a drug
offense involving methamphetamine and amphetamine required that the offense involve “100
grams or more of methamphetamine . . . or 1 kilogram or more of a mixture or substance
containing a detectable amount of methamphetamine,” or “10 grams or more of
methamphetamine . . . or 100 grams or more of a mixture or substance containing a detectable
amount of methamphetamine.” 21 U.S.C. §§ 841(b)(1)(A)(viii), 841(b)(1)(B)(viii) (1994). In
1998, Congress amended these provisions to require methamphetamine quantities of 50 to 500
grams, and 5 to 50 grams, respectively. See 21 U.S.C. §§ 841(b)(1)(A)(viii), 841(b)(1)(B)(viii)
(1998).

                                                10
the initial pre-sentence reports recommended a custodial term of 210 to 262

months for both defendants.9

       Both defendants and the government timely filed written objections. For

example, Ignasio Sanchez objected “to all factual findings of the presentence report

as a matter of due process under the Jones rationale.” Ultimately, revised pre-

sentence reports recommended that Ignasio Sanchez and Santiago Sanchez be held

accountable for reduced amounts of methamphetamine and amphetamine, resulting

in reduced marijuana equivalencies of 5,447.74 kilograms and 6,713.99 kilograms,

respectively. These reduced amounts resulted in a reduced guideline range for

both defendants of 135 to 168 months.10 The revised reports stated that the

“Statutory Penalty” was “5 to 40 years.”11 While this penalty corresponded to §

841(b)(1)(B), the revised reports did not specifically cite to that section of the


       9
         The drug quantities in the initial pre-sentence reports resulted in a base offense level of
38 for both defendants. The reports recommended a two-level increase for possession of a
weapon during the offense and a three-level reduction for acceptance of responsibility. Both
reports concluded that the Sanchezes’ total adjusted offense level was level 37 with a criminal
history of Category I. There was never any contention that either Sanchez had a prior drug
felony conviction.
       10
          Both amounts resulted in a base offense level of 34. The recommended two-level
increase for possession of a weapon and three-level reduction for acceptance of responsibility
resulted in an total adjusted offense level of 33, which, with a criminal history of Category I,
yielded a guideline range of 135 to 168 months.
       11
        The revised reports noted that a mandatory minimum penalty of five years’
imprisonment applied. Those reports also stated that the “Fine Guideline Range” was $17,500 to
$2,000,000 and that the term of “Supervised Release” was four years.

                                                 11
statute.

D.     Sentencing

       The Sanchezes were sentenced in two joint sentencing hearings. At the

outset of the first hearing, Ignasio Sanchez orally renewed his motion to dismiss

the indictment based on Jones and specifically “based upon the lack of specificity

and quantity in the indictment.” He continued that this argument “would have an

effect at this time . . . in that the findings must be beyond a reasonable doubt under

my motion.” Both defendants, however, agreed that if validly charged and

convicted under this indictment, the court could find that they were accountable for

(a) one transaction involving two pounds of methamphetamine, which is equivalent

to 1,814.4 kilograms of marijuana, and (b) two other transactions each involving

six pounds of amphetamine, the combination of which is equivalent to 1,087.2

kilograms of marijuana. On the basis of the government’s evidentiary proffer and

the Sanchezes’ concessions, the district court found “as a matter of fact by a

preponderance of the evidence” that each defendant was responsible for drug

amounts resulting in a total marijuana equivalency of 2,903.04 kilograms.12

       Regarding the statutory penalty, the district court then stated that its


       12
         We note that the total of the drug quantities to which the Sanchezes pled guilty is
actually 2,901.6 kilograms. This slight error in arithmetic, however, would not change the base
offense level.

                                               12
sentencing option was a statutory mandatory minimum sentence of five years up to

forty years. While not expressly referencing § 841(b)(1)(B), the court described

the content of that section. In calculating the guideline range within that statutory

range, the court determined that the above drug amounts, along with other

guideline calculations, produced a custodial guideline range of 87 to 108 months

for Ignasio Sanchez and 108 to 135 months for Santiago Sanchez.13 Stating an

intention to sentence at the bottom end of those ranges, the court sentenced Ignasio

Sanchez to 87 months’ imprisonment and Santiago Sanchez to 108 months’

imprisonment, followed by four years’ supervised release for each defendant.

       After imposing the sentences, the court asked for objections. Citing Jones,

Ignasio Sanchez’s counsel objected to drug quantity not being charged in the

indictment and not being proved beyond a reasonable doubt. Santiago Sanchez’s

counsel adopted the Jones objection made by Ignasio Sanchez’s counsel.



       13
         The different custodial guideline ranges for the defendants resulted from Ignasio
Sanchez’s receiving a minor role adjustment. The Sanchezes’ drug quantities resulted in the
same base offense level of 32. The district court applied a two-level increase for firearm
possession, resulting in an offense level of 34. Regarding Ignasio Sanchez, the court then
applied a two-level reduction for playing a minor role in the offense and a three-level reduction
for acceptance of responsibility. These adjustments produced an offense level of 29, which with
a criminal history of Category I carried a guideline range for Ignasio Sanchez of 87 to 108
months. Regarding Santiago Sanchez, the court applied only a three-level reduction for
acceptance of responsibility. This adjustment produced an offense level of 31, which with a
criminal history of Category I carried a guideline range for Santiago Sanchez of 108 to 135
months.

                                               13
Subsequently, both defendants timely appealed.14



                                      II. DISCUSSION

       The Sanchezes challenge their single-count indictment, plea colloquies,

convictions, and sentences based on Jones and Apprendi. We can discern no error

in any of these phases of the Sanchezes’ cases. We begin by analyzing Jones and

Apprendi. We then review the federal drug statute, this circuit’s precedent

construing that statutory scheme, and what effect Apprendi has on that landscape.

A.     Jones v. United States

       Jones was a case of statutory interpretation, in which a grand jury charged

the defendant with violating the federal carjacking statute, 18 U.S.C. § 2119.15 A

       14
         The record shows that the two pounds of methamphetamine agreed to in the sentencing
hearing was referenced in the pre-sentence reports as 907.2 grams of methamphetamine. (A
pound of methamphetamine equals 453.6 grams, so that two pounds equal 907.2 grams of
methamphetamine.) This 907.2 grams of methamphetamine is greater than the 500-grams
threshold required to trigger a sentence of not less than 10 years under 21 U.S.C. §
841(b)(1)(A)(viii). The government, however, never requested a mandatory minimum sentence
of 10 years, never made any objections to the sentences imposed, and has not cross appealed. At
the conclusion of the sentencing hearing, the government even affirmatively indicated that it had
“no exceptions.”
       15
         At the time that the grand jury in Jones returned the indictment, § 2119 read:
       “Whoever, possessing a firearm as defined in section 921 of this title, takes a motor
       vehicle that has been transported, shipped, or received in interstate or foreign commerce
       from the person or presence of another by force and violence or by intimidation, or
       attempts to do so, shall –
         (1) be fined under this title or imprisoned not more than 15 years, or both,
         (2) if serious bodily injury (as defined in section 1365 of this title) results, be fined
       under this title or imprisoned not more than 25 years, or both, and

                                                14
jury found the defendant guilty. The Supreme Court stated, “This case turns on

whether the federal carjacking statute, 18 U.S.C. § 2119, . . . defined three distinct

offenses or a single crime with a choice of three maximum penalties, two of them

dependent on sentencing factors exempt from the requirements of charge and jury

verdict.” Id. at 229. After analyzing the carjacking statute’s text, structure, and

legislative history, and after comparing the statute to others in which “serious

bodily injury” was “unmistakably identified” as an offense element, the Supreme

Court adopted the former interpretation of the statute, concluding that “the fairest

reading of § 2119 treats the fact of serious bodily harm as an element, not a mere

enhancement.” Id. at 239.

       While resolving Jones based on this statutory interpretation, the Supreme

Court further justified its construction by invoking the doctrine of constitutional

doubt. The Supreme Court observed that under the alternative statutory

interpretation, in which serious bodily injury was construed as a sentencing factor,


           (3) if death results, be fined under this title or imprisoned for any number of years up to
        life, or both.”
Jones, 526 U.S. at 230 (quoting 18 U.S.C. § 2119 (1988 ed., Supp. V)). The Jones indictment
did not cite the statute’s three numbered subsections, and neither the indictment nor the jury
instructions mentioned the facts of “serious bodily injury” or “death.” Id. at 230-31. After the
jury found the defendant guilty, the pre-sentence report recommended a twenty-five year
sentence under § 2119(2) because a victim suffered “serious bodily injury” during the carjacking
offense. Id. at 231. The defendant objected, arguing that “serious bodily injury was an element
of the offense defined in part by § 2119(2), which had been neither pleaded in the indictment nor
proven before the jury.” Id. Over this objection, the district court sentenced the defendant to
twenty-five years’ imprisonment. Id.

                                                 15
“the statute would be open to constitutional doubt in light of a series of cases over

the past quarter century, dealing with due process and the guarantee of trial by

jury.” Id. at 240 (citing cases). In the now-famous footnote six, the Supreme

Court described the principle “animating” its view that this alternative

interpretation “may violate the Constitution,” as follows: “[U]nder the Due Process

Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth

Amendment, any fact (other than prior conviction) that increases the maximum

penalty for a crime must be charged in an indictment, submitted to a jury, and

proven beyond a reasonable doubt.” Id. at 243 n.6. The Supreme Court continued

that “[b]ecause our prior cases suggest rather than establish this principle, our

concern . . . rises only to the level of doubt, not certainty.” Id.

B.    Apprendi v. New Jersey

      In contrast to its task of statutory interpretation in Jones, the Supreme Court

in Apprendi squarely addressed the constitutionality of a statutory sentencing

scheme that allowed judge-made findings to increase a defendant’s statutory

maximum penalty. The defendant, Charles Apprendi, admitted to firing several

bullets into the home of an African-American family who had recently moved into

a previously all-white neighborhood in New Jersey. Apprendi, 530 U.S. at 469. A

New Jersey grand jury returned a 23-count indictment charging Apprendi with


                                           16
various shootings and with the unlawful possession of various weapons. Id.

      Apprendi pled guilty to only three counts in the indictment, including two

counts of the second-degree offense of possession of a firearm for an unlawful

purpose, in violation of § 2C:39-4(a) of the New Jersey Statutes. Id. at 469-70.

That state firearm statute provided, “Any person who has in his possession any

firearm with a purpose to use it unlawfully against the person or property of

another is guilty of a crime of the second degree.” N.J. Stat. Ann. § 2C:39-4(a)

(West 1995). As a second-degree crime, this firearm offense was punishable by a

term of imprisonment “between five years and 10 years.” Id. § 2C:43-6(a)(2)

(“Except as otherwise provided, a person who has been convicted of a crime may

be sentenced to imprisonment . . . [i]n the case of a crime of the second degree, for

a specific term of years which shall be fixed by the court and shall be between five

years and 10 years.”).

      An entirely separate New Jersey statute, however, provided for higher

minimum and maximum sentences than those normally applicable to second-

degree crimes if the sentencing court made certain factual findings. That statute

provided, “The court shall, upon application of the prosecuting attorney, sentence a

person who has been convicted of a crime . . . to an extended term if it finds, by a

preponderance of the evidence, the grounds in subsection e,” specifically, that


                                          17
“[t]he defendant in committing the crime acted with a purpose to intimidate an

individual or group of individuals because of race, color, gender, handicap,

religion, sexual orientation or ethnicity.” N.J. Stat. Ann. § 2C:44-3(e) (West Supp.

2000) (emphasis added).

      The “extended term” permitted for a second-degree crime, such as

possession of a firearm for an unlawful purpose, was “between 10 and 20 years.”

N.J. Stat. Ann. § 2C:43-7a(3) (“In the cases designated in section 2C:44-3, a

person who has been convicted of a crime may be sentenced . . . to an extended

term of imprisonment . . . [i]n the case of a crime of the second degree, for a term

which shall be fixed by the court between 10 and 20 years.”). This “extended

term” of imprisonment was identical to the penalty normally applicable to first-

degree crimes. See id. § 2C:43-6(a)(1).

      It was this separate state statute – providing for an “extended term” of

imprisonment upon a finding that the defendant acted “with a purpose to intimidate

. . . because of race” – that was the focus of the Supreme Court’s decision in

Apprendi. Only after Apprendi pled guilty to the second-degree crime of firearm

possession for an unlawful purpose, which carried a maximum penalty of ten

years’ imprisonment, the state requested that the sentencing court impose an

enhanced sentence on one of the two firearms counts, pursuant to N.J. Stat. Ann.


                                          18
§ 2C:44-3(e). Following an evidentiary hearing on whether Apprendi’s “purpose”

for the shooting at issue in that count was “to intimidate . . . because of race,” the

trial judge found by a preponderance of the evidence “that the crime was motivated

by racial bias” and thus that Apprendi acted “with a purpose to intimidate . . .

because of race” as stated in the statute. Apprendi, 530 U.S. at 471.

      Under the terms of the state statute, this judge-made finding triggered an

“extended term” of imprisonment of ten to twenty years. Accordingly, the trial

judge, over Apprendi’s constitutional objection, sentenced Apprendi to twelve

years’ imprisonment on that count. Id. This sentence was two years above the ten-

year maximum ordinarily applicable to the second-degree offense with which

Apprendi had been charged and to which he had pled guilty. Id. In addition to this

sentence on one of the firearm counts, the court sentenced Apprendi to shorter,

concurrent terms on the remaining two counts of the indictment to which Apprendi

had pled guilty. Id.

      Apprendi appealed his twelve-year sentence on the one firearm count. Id.

He argued that the Due Process Clause of the Constitution required that the finding

of racial bias upon which his sentence was increased be made by a jury beyond a

reasonable doubt, rather than by a judge based on a preponderance of the evidence

standard. Id. The state supreme court affirmed Apprendi’s sentence, and he


                                           19
petitioned for certiorari to the Supreme Court of the United States. Id. at 472.

      The Supreme Court framed the issue as follows: “The question presented is

whether the Due Process Clause of the Fourteenth Amendment requires that a

factual determination authorizing an increase in the maximum prison sentence for

an offense from 10 to 20 years be made by a jury on the basis of proof beyond a

reasonable doubt.” Id. at 469. The Supreme Court noted that the answer to this

question was “foreshadowed” by its earlier opinion in Jones. Id. at 476.

      The Supreme Court stated that the rights set forth in the Sixth and

Fourteenth Amendments “indisputably entitle a criminal defendant to ‘a jury

determination that [he] is guilty of every element of the crime with which he is

charged, beyond a reasonable doubt.’” Id. at 477 (quoting United States v. Gaudin,

515 U.S. 506, 510 (1995)). After conducting a historical examination of this

entitlement, the Court noted that the “due process and associated jury protections

extend, to some degree, to determinations that [go] not to a defendant’s guilt or

innocence, but simply to the length of his sentence.” Id. at 484 (internal quotation

marks omitted).

      The Supreme Court continued that its decision did not strip the term

“sentencing factor” of all meaning, but rather, the “term appropriately describes a

circumstance, which may be either aggravating or mitigating in character, that


                                         20
supports a specific sentence within the range authorized by the jury’s finding that

the defendant is guilty of a particular offense.” Id. at 494 n.19. The Court

recognized, “On the other hand, when the term ‘sentence enhancement’ is used to

describe an increase beyond the maximum authorized statutory sentence, it is the

functional equivalent of an element of a greater offense than the one covered by the

jury’s guilty verdict. Indeed, it fits squarely within the usual definition of an

‘element’ of the offense.” Id. (emphasis added).

      The Supreme Court then squarely adopted the following constitutional

principle, which was foreshadowed by Jones and has since provided the Sanchezes

and so many other criminal defendants ammunition with which to attack their

sentences: “Other 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. Applying this principle

to the facts of Apprendi’s case, the Supreme Court concluded that the sentencing

procedure permitted by the New Jersey statutory scheme – which allowed a judge-

made finding of racial bias by a preponderance of the evidence to increase a

defendant’s term of imprisonment for a firearm offense beyond the prescribed

statutory maximum of ten years and up to twenty years – was invalid. Id. at 491.




                                          21
The Court therefore reversed Apprendi’s 12-year sentence on the firearm offense.16

Id. at 497.

       Thus, Apprendi’s holding does not paint with the wide brush suggested by

the Sanchezes. Rather, Apprendi was a sentencing case, presented a narrow

sentencing issue, and made only a narrow holding about New Jersey’s sentencing

procedure, specifically: A trial judge cannot find a fact, such as racial bias, and

then use that fact to impose a sentence higher than the prescribed statutory

maximum penalty for the underlying criminal offense. Indeed, the Court itself

characterized the question presented in Apprendi as a “narrow issue.” Id. at 474.

       Moreover, the Apprendi opinion expressly limited the applicability of the

constitutional principle it described. Fundamentally, Apprendi did not require that

all sentencing factors be submitted to a jury and proven beyond a reasonable doubt.



       16
          Apprendi challenged only his sentence and did not seek to withdraw his guilty plea or
attack his indictment. The Supreme Court ordered that the “judgment” of the state court be
reversed and that the case be “remanded for further proceedings not inconsistent with this
opinion.” Apprendi, 530 U.S. at 497. Thus, we read Apprendi as reversing only the defendant’s
sentence and not his conviction. This conclusion is supported by the fact that the indictment was
not at issue. Indeed, the Supreme Court expressly noted that “Apprendi has not here asserted a
constitutional claim based on the omission of any reference to sentence enhancement or racial
bias in the indictment.” Id. at 477 n.3. The Court noted that Apprendi relied “entirely on the
fact that the ‘due process of law’ that the Fourteenth Amendment requires the States to provide
to persons accused of crime encompasses the right to a trial by jury, and the right to have every
element of the offense proved beyond a reasonable doubt,” and it continued that the Fourteenth
Amendment “has not . . . been construed to include the Fifth Amendment right to ‘presentment
or indictment of a Grand Jury.’” Id. (citation omitted). Thus, the Court expressly did “not
address the indictment question separately.” Id.

                                               22
Instead, Apprendi expressly reaffirmed the long-established general principle that a

judge-decided fact may affect a defendant’s sentence within the applicable

statutory range without invoking the constitutional principles articulated in

Apprendi. In describing the origins of the requirement that all elements of a crime

be proven to a jury, the Court stated, “We should be clear that nothing in this

history suggests that it is impermissible for judges to exercise discretion – taking

into consideration various factors relating both to offense and offender – in

imposing a judgment within the range prescribed by statute. We have often noted

that judges in this country have long exercised discretion of this nature in imposing

sentence within statutory limits in the individual case.” Id. at 481 (citing Williams

v. New York, 337 U.S. 241, 246 (1949)). The Court continued that its “periodic

recognition of judges’ broad discretion in sentencing . . . has been regularly

accompanied by the qualification that that discretion was bound by the range of

sentencing options prescribed by the legislature.” Id.

      In this same vein, the Supreme Court in Apprendi also expressly preserved

its earlier opinion in McMillan v. Pennsylvania, 477 U.S. 79 (1986), in which the

Court permitted a fact triggering a mandatory minimum sentence to be decided by




                                          23
a judge based on a preponderance of the evidence standard. Id. at 86-88.17 In

Apprendi, the Supreme Court specifically stated, “We do not overrule McMillan.

We limit its holding to cases that do not involve the imposition of a sentence more

severe than the statutory maximum for the offense established by the jury’s verdict

– a limitation identified in the McMillan opinion itself.” Apprendi, 530 U.S. at 487

n.13. Thus, Apprendi actually reaffirmed the longstanding practice of allowing

judge-decided facts to affect the length of a defendant’s sentence, including leaving

the imposition of a mandatory minimum sentence within the purview of the trial

judge. Apprendi carved out only a limited exception to this general rule for facts

that actually cause the sentence imposed on a defendant to exceed the prescribed

statutory maximum, requiring that such facts be proven to a jury beyond a

       17
         At issue in McMillan was Pennsylvania’s Mandatory Minimum Sentencing Act, 42 Pa.
Const. Stat. § 9712, which provided that anyone convicted in state court of certain enumerated
felonies was subject to a mandatory minimum sentence of five years’ imprisonment if the
sentencing judge found by a preponderance of the evidence that the defendant “visibly possessed
a firearm” during the commission of the offense. McMillan, 477 U.S. at 81. As the Supreme
Court explained, “The Act operates to divest the judge of discretion to impose any sentence of
less than five years for the underlying felony; it does not authorize a sentence in excess of that
otherwise allowed for that offense.” Id. at 81-82. The Act expressly provided that visible
possession was not an element of the crime. Id. at 81 n.1 (quoting Pa. Const. Stat. § 9712(b)).
        The Supreme Court concluded that the terms of the Act did not violate the Due Process
Clause, thereby following its precedent that rejected the contention that “whenever a State links
the ‘severity of punishment’ to ‘the presence or absence of an identified fact’ the State must
prove that fact beyond a reasonable doubt.” Id. at 84 (quoting Patterson v. New York, 432 U.S.
197, 214 (1977)). The Court noted, “Section 9712, which comes into play only after the
defendant has been convicted of an enumerated felony, neither provides for an increase in the
maximum sentence for such felony nor authorizes a separate sentence; it merely requires a
minimum sentence of five years, which may be more or less than the minimum sentence that
might otherwise have been imposed.” Id. at 83.

                                               24
reasonable doubt rather than decided by a judge based on a preponderance of the

evidence standard.

      Likewise, Apprendi does not apply to judge-made determinations pursuant

to the Sentencing Guidelines. See, e.g., United States v. Nealy, 232 F.3d 825, 829

n.3 (11th Cir. 2000) (“The Sentencing Guidelines are not subject to the Apprendi

rule.”); United States v. Harris, 244 F.3d 828, 829-30 (11th Cir. 2001) (holding

that Apprendi does not apply to the relevant conduct provision of the Sentencing

Guidelines); see also United States v. Diaz, 248 F.3d 1065, 1105 (11th Cir. 2001)

(noting that “Sentencing Guideline issues are not subject to the Apprendi rule and,

thus, there is no requirement that sentencing facts be submitted to a jury and found

beyond a reasonable doubt”). As the Supreme Court in Apprendi noted, “The

Guidelines are, of course, not before the Court. We therefore express no view on

the subject beyond what this Court has already held.” Apprendi, 530 U.S. at 497

n.21. While Apprendi was silent on the issue, its inapplicability to the Sentencing

Guidelines follows from its holding. A factual finding under the Guidelines

determines the sentence within the statutory range rather than outside it. Because

Apprendi only addresses facts that increase the penalty for a crime beyond the

statutory maximum, it does not apply to those findings that merely cause the




                                         25
guideline range to shift within the statutory range.18

       Apprendi also did not hold that judge-decided facts that expose a defendant

to a higher statutory maximum penalty must be proven to a jury beyond a

reasonable doubt. The analysis employed in, and the holding of, Apprendi make

clear that any consideration of a defendant’s sentence in light of Apprendi is to be

conducted retrospectively rather than prospectively. The defendant in Apprendi

was not merely exposed to a higher sentence than otherwise applicable but was

actually sentenced to twelve years’ imprisonment under New Jersey’s entirely

separate “hate crime” statute, which was above the prescribed statutory maximum

of ten years’ imprisonment for his firearm offense. Our reading of Apprendi

anchors its holding to the facts involved. In sum, Apprendi is implicated only


       18
          In this regard, the Sanchezes also assert that the district court erred in applying the two-
level increase for firearm possession. Specifically, they contend that the firearm increase must
be proven beyond a reasonable doubt in light of Apprendi and that the testimony of the sole
government witness did not connect any weapons to the drug conspiracy. This argument lacks
merit. First, Apprendi does not apply to the Sentencing Guidelines. Second, the government’s
evidence satisfied its burden of proof. Sentencing Guideline § 2D1.1(b)(1) provides for a two-
level increase for possession of a firearm during the offense. The accompanying commentary
explains that this “adjustment should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1(b)(1), cmt. n.3.
“Once the prosecution has shown by a preponderance of the evidence that the firearm was
present at the site of the charged conduct, the evidentiary burden shifts to the defendant to show
that a connection between the firearm and the offense is clearly improbable.” United States v.
Hall, 46 F.3d 62, 63 (11th Cir. 1995). Here, Kenneth Green testified that he delivered guns to
the Sanchezes as partial payment for drugs and that later he took law enforcement authorities to a
storage center where he had stored four or five rifles and shotguns. The district court
specifically found Green’s testimony to be credible, and this finding was not clearly erroneous.
See id. (“We review findings of fact for clear error only.”).

                                                 26
when a judge-decided fact actually increases the defendant’s sentence beyond the

prescribed statutory maximum for the crime of conviction.19

C.     The Federal Drug Statute

       We next examine the impact of Apprendi on the federal drug statute, 21

U.S.C. § 841. To do so, we review initially the plain language and structure of the

statutory scheme itself and then our precedent regarding that statute. We then

ascertain the effect of Apprendi on both. In reviewing a statutory scheme, “[o]ur

task is to construe what Congress has enacted. We begin, as always, with the

language of the statute.” Duncan v. Walker, 121 S. Ct. 2120, 2124 (2001).20

       19
          The Sanchezes emphasize certain language in Apprendi convenient for the contrary
position. See, e.g., Apprendi, 530 U.S. at 482-83 (“The historic link between verdict and
judgment and the consistent limitation on judges’ discretion to operate within the limits of the
legal penalties provided highlight the novelty of a legislative scheme that removes the jury from
the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding
the maximum he would receive if punished according to the facts reflected in the jury verdict
alone.”) (emphasis added); id. at 483 n.10 (“Put simply, facts that expose a defendant to a
punishment greater than that otherwise legally prescribed were by definition ‘elements’ of a
separate legal offense.”); id. at 494 (“Despite what appears to us the clear ‘elemental’ nature of
the factor here, the relevant inquiry is one not of form, but of effect – does the required finding
expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?”);
id. at 495 (“But it can hardly be said that the potential doubling of one’s sentence – from 10
years to 20 – has no more than a nominal effect.”). As discussed above, however, Apprendi’s
holding was itself limited to judge-decided facts that actually increased the defendant’s sentence
beyond the prescribed statutory maximum penalty. The opinion’s “exposure” language quoted
by the Sanchezes does not supercede Apprendi’s actual decision. See generally Crawford-El v.
Britton, 523 U.S. 574, 585 (1998) (“There is, of course, an important difference between the
holding in a case and the reasoning that supports that holding”).
       20
         Within broad constitutional limits, “[t]he definition of the elements of a criminal
offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely
creatures of statute.” Staples v. United States, 511 U.S. 600, 604 (1994) (internal quotation
marks omitted).

                                                 27
       The Sanchezes were charged with conspiring to distribute and to possess

with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a).21

Section 841(a), entitled “Unlawful acts,” describes the prohibited conduct and the

state of mind required for a drug offense. Specifically, § 841(a)(1) renders it

“unlawful for any person knowingly or intentionally . . . to manufacture, distribute,

or dispense, or possess with intent to manufacture, distribute, or dispense, a

controlled substance.” 21 U.S.C. § 841(a)(1) (emphasis added).22 The Sanchezes



       21
          Conspiracy is made a separate offense by 21 U.S.C. § 846. That statute provides, “Any
person who attempts or conspires to commit any offense defined in this subchapter shall be
subject to the same penalties as those prescribed for the offense, the commission of which was
the object of the attempt or conspiracy.” 21 U.S.C. § 846. The “subchapter” to which this
conspiracy statute refers is 21 U.S.C. § 841. Thus, for simplification, we will discuss only § 841
in this opinion. Given that the penalties for a violation of § 846 track the penalties for a
violation of § 841(a), our discussion applies equally to both statutes.
       22
          Similarly, § 841(a)(2) makes it “unlawful for any person knowingly or intentionally . . .
to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit
substance.” 21 U.S.C. § 841(a)(2). Again, while for simplification we focus on § 841(a)(1), our
discussion applies equally to § 841(a)(2).
         Likewise, while we discuss in this opinion methamphetamine and amphetamine, our
discussion applies equally to any drug meeting the definition of a “controlled substance” as set
forth in the statute. Specifically, the statute provides, “The term ‘controlled substance’ means a
drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B
of this subchapter.” 21 U.S.C. § 802(6). Those schedules are contained in 21 U.S.C. § 812(c),
and the drugs included in each schedule share certain characteristics. For example, the statute
provides that the inclusion of a drug on Schedule II – on which methamphetamine and
amphetamine, the drugs involved in this case, are included – requires “findings” that:
         (A) The drug or other substance has a high potential for abuse.
         (B) The drug or other substance has a currently accepted medical use in treatment in the
         United States or a currently accepted medical use with severe restrictions.
         (C) Abuse of the drug or other substances may lead to severe psychological or physical
         dependence.
21 U.S.C. § 812(b)(2).

                                                28
pled guilty to conspiring to violate § 841(a)(1).

       According to the plain language of § 841(a)(1), a “controlled substance” is a

distinct element of that drug offense. Because § 841(a) makes it unlawful for a

person knowingly or intentionally to possess with intent to distribute a “controlled

substance,” then necessarily there must be an actual “controlled substance” of

some quantity involved in that drug offense.23 Thus, to some extent, when a

defendant pleads guilty to, or a jury finds the defendant guilty of, an indictment

charging possession with intent to distribute a “controlled substance,” a drug

quantity of some amount is already part of the underlying crime of conviction.

       Section 841(b), entitled “Penalties,” provides the penalties for violations of

§ 841(a). It states that “any person who violates subsection (a) of this section shall

be sentenced as follows.” 21 U.S.C. § 841(b) (emphasis added). What follows in

§ 841(b) are myriad sentencing factors (including serious bodily injury, prior

felony drug convictions, and drug types and quantities) and associated penalties.

Thus, the penalties in § 841(b) become applicable only after a defendant has been

duly convicted of a substantive violation of § 841(a).

       Section 841(b)’s penalties begin with a statutory maximum of life


       23
         Although the indictment here charged “quantities” of two controlled substances,
specifically, methamphetamine and amphetamine, an indictment charging simply possession
with intent to distribute “a controlled substance” equally charges some drug type and amount.

                                               29
imprisonment in § 841(b)(1)(A) and decrease in severity based on this host of

sentencing factors, including drug types and quantities.24 The first three

subsections of § 841(b)(1) govern offenses involving controlled substances listed

in schedules I and II, such as the methamphetamine and amphetamine involved in

this case. Accordingly, those three subsections will receive the brunt of our

attention.

       Section 841(b)(1)(A) provides that “[i]n the case of a violation of subsection

(a)” of § 841 “involving” certain enumerated quantities of certain enumerated drug

types, the defendant “shall be sentenced to a term of imprisonment which may not

be less than 10 years or more than life.” 21 U.S.C. § 841(b)(1)(A). Section

841(b)(1)(B) largely mirrors § 841(b)(1)(A), providing that “[i]n the case of a

violation of subsection (a)” of § 841 “involving” certain lesser amounts of those

same drugs set forth in § 841(b)(1)(A), the defendant “shall be sentenced to a term

of imprisonment which may not be less than 5 years and not more than 40 years.”

Id. § 841(b)(1)(B).


       24
          One estimate is that if the factors in § 841(b) are treated as elements of an offense for
constitutional purposes, and not sentencing factors as clearly enacted by Congress, then this
analysis results in approximately 350 different offenses based on these factors. See United
States v. Promise, 255 F.3d 150, 175 (4th Cir. 2001) (en banc) (stating a “rough estimation” that
“some 350 separate offenses” would exist in § 841 under “an interpretation of that provision that
deems the facts in subsection (b) to be elements of the § 841(a) offenses”) (Luttig, J.,
concurring).


                                                30
       Section 841(b)(1)(C) applies to all other violations of § 841(a) involving

schedule I or II substances and provides, “In the case of a controlled substance in

schedule I or II, . . . except as provided in subparagraphs (A), (B), and (D), such

person shall be sentenced to a term of imprisonment of not more than 20 years.”

21 U.S.C. § 841(b)(1)(C).25 Section 841(b)(1)(C) sets a term of imprisonment for

offenses without regard to drug quantity.26

       Thus, § 841 is bifurcated, providing a clear dichotomy of offense elements

and sentencing factors. Specifically, the plain language and structure of the statute

reflect a congressional intent to create a single offense, defined in § 841(a), and to

provide for penalties in § 841(b) dependant upon sentencing factors, such as drug

types and quantities.27

       25
          Section 841(b)(1)(D), referred to in § 841(b)(1)(C), governs offenses involving certain
amounts of marijuana and other drugs and provides for a maximum term of imprisonment of five
years in the absence of a prior conviction for a felony drug offense. 21 U.S.C. § 841(b)(1)(D);
see infra note 37.
       26
          We have described § 841(b)(1)(C) as a “catchall provision.” United States v. Trout, 68
F.3d 1276, 1280 (11th Cir. 1995). Other circuits have adopted the same terminology. See
United States v. Houle, 237 F.3d 71, 79 (1st Cir.) (“Section 841(b)(1)(C), the statutory catchall[,]
authorizes a term of imprisonment for a schedule I or II narcotic, such as cocaine, without
reference to drug quantity, of ‘not more than 20 years.’”), cert. denied, 121 S. Ct. 2234 (2001);
United States v. Allison, 953 F.2d 870, 873 (5th Cir. 1992) (stating that § 841(b)(1)(C) “is a
more lenient catchall provision for all Schedule II drugs not addressed in” §§ 841(b)(1)(A) or
841(b)(1)(B)), opinion amended on other grounds, 986 F.2d 896 (5th Cir. 1993); United States v.
Marshall, 908 F.2d 1312, 1322 (7th Cir. 1990) (describing § 841(b)(1)(C) as “the catchall
statute”).
       27
         In contrast, other federal statutes that were the subject of the Supreme Court’s attention
in recent cases lack this bifurcated structure, clear dichotomy, and indisputable congressional

                                                31
D.     Circuit Precedent Prior to Apprendi

       On multiple occasions prior to both Jones and Apprendi, this Court

construed the federal drug statute and concluded that while a “controlled

substance” is an element of an offense under § 841(a), neither the nature nor the

quantity of that substance is an element of that offense that must be submitted to a

jury or proved beyond a reasonable doubt. Instead, this Court held that in order to

obtain a conviction, the government need show only that some controlled

substance was involved.28 The defendants in these pre-Apprendi cases often


intent. See Jones, 526 U.S. at 235 (construing the carjacking statute); Castillo v. United States,
530 U.S. 120, 124-25, 131 (2000) (construing 18 U.S.C. § 924(c)(1) (1988 ed., Supp. V), and
noting that “Congress placed the element ‘uses or carries a firearm’ and the word ‘machinegun’
in a single sentence, not broken up with dashes or separated into subsections” and that this
structure indicated that “Congress intended that the firearm type-related words . . . refer[red] to
an element of a separate, aggravated crime”).
       28
          See, e.g., United States v. Rutherford, 175 F.3d 899, 906 (11th Cir. 1999) (concluding
that to prove completely the elements of an offense under § 841(a), the government need not
prove that a particular controlled substance was involved in the offense conduct, it need only
show that some controlled substance was involved); United States v. Mejia, 97 F.3d 1391, 1392-
93 (11th Cir. 1996) (“To sustain a conviction for possession of cocaine with intent to distribute,
the government must prove beyond a reasonable doubt that the defendant knowingly possessed
the cocaine and that he intended to distribute it.”); United States v. Perez, 960 F.2d 1569, 1574
(11th Cir. 1992) (“The rule that has developed in this circuit . . . is that the weight or quantity of
a controlled substance is not an element of the offense that must be included in a § 841(a)(1)
indictment.”); United States v. Gomez, 905 F.2d 1513, 1514 (11th Cir. 1990) (“[I]t is well-
settled that to sustain a conviction for possession with intent to distribute a controlled substance,
it need not be proved that the defendant had knowledge of the particular drug involved, as long
as he knew he was dealing with a controlled substance.”); United States v. Williams, 876 F.2d
1521, 1525 (11th Cir. 1989) (“A violation of section 841(a)(1) occurs when the government
proves beyond a reasonable doubt that a defendant possessed and intended to distribute a
‘controlled substance,’ regardless of whether that substance is cocaine or cocaine base.”); United
States v. Smith, 840 F.2d 886, 888 (11th Cir. 1988) (noting that the express language of § 841(a)
“puts no quantity requirement on the amount of controlled substance possessed”), abrogated on

                                                 32
argued that drug quantity was an essential element of their offenses.29 We

consistently rejected this claim, construing § 841(a) as setting forth a single,

complete offense and § 841(b) as setting forth sentencing factors relevant only to

determining a defendant’s sentence for having violated § 841(a).30

       We preserved this interpretation of § 841 even after Jones. See United

States v. Hester, 199 F.3d 1287 (11th Cir.), vacated and remanded, 531 U.S. 941

(2000).31 Hester represented the first serious encounter between our prior statutory

other grounds, Gozlon-Peretz v. United States, 498 U.S. 395 (1991); United States v. Simmons,
725 F.2d 641, 643 (11th Cir. 1984) (“The statute makes it a crime for a person to possess with
intent to distribute a controlled substance . . . . [T]he crime can be proved without any
consideration of the amount involved . . . .”).
       29
         Indeed, in our circuit, defendants were raising the due process issue long before Jones
and Apprendi were decided. In United States v. Perez, 960 F.2d 1569, 1574 (11th Cir. 1992), we
summarized some of our decisions starting in 1984 that involved defendants’ challenges to the
enhanced penalties in § 841(b) based on the failure of the indictment to allege a specific drug
quantity. Those decisions, however, focused on whether the specific allegation of drug quantity
was needed in the indictment in order to give the defendant fair notice of the government’s intent
to seek enhanced penalties, rather than on whether the jury was required to make that
determination beyond a reasonable doubt. Subsequently, beginning in 1990, our decisions began
to address not only whether a specific drug quantity must be alleged in the indictment to give the
defendant notice of the enhanced penalties but also whether it must be proven to a jury beyond a
reasonable doubt. See United States v. Cross, 916 F.2d 622, 623-24 (11th Cir. 1990).
       30
          Our reading of the statute was consistent with that of every other circuit to address the
issue. See United States v. Promise, 255 F.3d 150, 176 (4th Cir. 2001) (en banc) (listing cases
and observing, “[s]ignificantly, even in the wake of Jones, which raised the spectre of a
constitutional limitation on the legislative power to define offenses, and thus would have
prompted a more searching, cautious statutory interpretation, every single court still held that
Congress intended the facts in section 841(b) to be sentencing factors”) (Luttig, J., concurring);
id. at 167 (Niemeyer, J., concurring) (noting that “no court reached a different conclusion in
interpreting this statute”).
       31
         The defendant in Hester was sentenced to a twenty-year mandatory minimum sentence,
and this Court affirmed. See Hester, 199 F.3d at 1288-89. On October 16, 2000, the Supreme

                                                 33
interpretation and the constitutional rule of Apprendi, which at that time existed in

more embryonic form as footnote six of Jones. In Hester, we noted that our

precedent construing § 841 constituted “binding authority” in which we “clearly

rejected the characterization of the amount of drugs as an element of the offense

under [section] 841.” Id. at 1291 (citing cases). We then noted that this precedent

foreclosed any argument that drug quantity was an element of an offense under §

841 “unless the Supreme Court decided otherwise in Jones.” Id. After quoting and

discussing footnote six, we adopted a narrow reading of Jones and concluded that

the constitutional principles referenced in Jones did not disrupt our prior approach

to § 841 cases.32 Id. at 1291-92. We therefore continued to follow our precedent

holding that § 841 is clear and unambiguous and reaffirmed that “[a]s we have

announced in our previous cases, Congress decided that the elements of a § 841


Court summarily vacated the judgment and remanded the case “for further consideration in light
of” Apprendi. Hester v. United States, 121 S. Ct. 336 (2000) (mem.). Hester remains pending in
this Court.
       32
          We determined in Hester that the language used in footnote six “allow[ed] two plausible
readings of Jones.” Hester, 199 F.3d at 1291. The first was that “footnote six means exactly
what it says,” thus resulting in “a broad rule” that we presciently observed “would have
sweeping implications for factors that Congress has traditionally considered sentencing
considerations, not elements of the crime.” Id. at 1291-92. The alternative, and narrower,
reading was that “when a court finds a statute and its legislative history unclear,” as the Supreme
Court found regarding the federal carjacking statute at issue in Jones, the court “should err in
favor of the defendant and consider an element of the offense any factor which increases the
maximum penalty for the offense.” Id. We adopted this latter, narrower reading of Jones,
concluding that the Jones Court proceeded with the statutory analysis “only because it first found
Congress’ intent ambiguous.” Id. at 1292.

                                                34
offense do not include the weight of the drugs.” Id. at 1292.33

E.     Apprendi’s Impact on § 841 and Our Precedent

       Such was the landscape applicable to the federal drug statute before

Apprendi squarely adopted the constitutional principle 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.” Apprendi, 530 U.S. at 490. Our reading of the tenor of the

Supreme Court’s decisions is that § 841 is impacted by Apprendi but only to the

limited extent that judge-decided facts actually increase a defendant’s sentence

above the prescribed statutory maximum. We explain the narrow manner in which

Apprendi affects § 841.34

       33
         We noted also that other circuits had, at that time, “adopted the narrower reading of
Jones,” a reading that the Tenth Circuit deemed a “‘more reasonable reading of Jones, one that
anchors its holdings to its facts, i.e., the statutory provision involved.’” Hester, 199 F.3d at 1292
(quoting United States v. Eads, 191 F.3d 1206, 1213-14 (10th Cir. 1999), cert. denied, 530 U.S.
1231 (2000)).
       34
          In this case, the government does not ask that we construe § 841(b) as prescribing an
overall statutory maximum sentence of life imprisonment for all § 841(a) violations, a view
recently endorsed by four judges of the Fourth Circuit. See United States v. Promise, 255 F.3d
150, 169-70 (4th Cir. 2001) (en banc) (“As a consequence of th[e] indisputable congressional
definition of the section 841 offenses, . . . the statutory maximum sentence for commission of
these offenses, and therefore the punishment authorized by the jury’s verdict of guilt of a section
841 offense, is life imprisonment, plus fine, with the actual sentence imposed dependent upon
judicial findings of the presence or absence of the various sentencing factors, including drug
amount and type, identified in section 841(b).”) (Luttig, J., concurring); see also id. at 165
(Wilkinson, C.J., concurring); id. at 167-68 (Niemeyer, J., concurring); id. at 186 (Gregory, J.,
concurring). This approach, which we have adopted when permitted by the plain statutory
language, effectively immunizes § 841 from any Apprendi problem. See United States v.

                                                 35
       Fundamentally, Apprendi did not announce any new principles of statutory

construction. Rather, Apprendi addressed only the constitutionality of a state

statutory sentencing scheme, and its holding only described constitutional

principles affecting such statutory sentencing schemes. Apprendi thus does not

change our precedent interpreting § 841 outlined above but instead imposes only

an external constitutional restraint under the Sixth Amendment and the Due

Process Clause. While Apprendi does not affect our prior statutory construction of

§ 841(b) as setting forth purely sentencing factors, it does alter our prior

conclusion that such judge-decided facts satisfy a defendant’s constitutional rights

to due process and a jury trial even when those factors increase a defendant’s

sentence beyond the prescribed statutory maximum.35

       This external constitutional restraint, however, does not apply to the vast

majority of sentencing scenarios. To repeat the oft-repeated, Apprendi explicitly

limited its holding to facts “that increase[] the penalty for a crime beyond the

prescribed statutory maximum.” Apprendi, 530 U.S. at 490 (emphasis added).

Pounds, 230 F.3d 1317, 1319 (11th Cir. 2000) (holding in a case involving 18 U.S.C. § 924(c)(1)
that “Apprendi is inapplicable under the present facts because every conviction under §
924(c)(1)(A) carries with it a statutory maximum sentence of life imprisonment, regardless of
what subsection the defendant is sentenced under”), cert. denied, 121 S. Ct. 1631 (2001).
       35
         Because Apprendi announced a new rule of constitutional law, we apply it to criminal
cases pending on direct review. See Griffith v. Kentucky, 479 U.S. 314, 322 (1987). This is
especially true here, as the Sanchezes timely raised the issues decided by Apprendi not only in
this Court but in the district court as well.

                                               36
Therefore, Apprendi has no effect on cases in which a defendant’s actual sentence

falls within the range prescribed by the statute for the crime of conviction. As

stated above, § 841(b)(1)(C) provides a statutory penalty range applicable to all

drug offenses involving the controlled substances listed on Schedules I or II

without regard to drug quantity. Apprendi thus does not even apply when a

defendant’s actual sentence for a § 841 drug offense falls within that range. See

United States v. Gerrow, 232 F.3d 831, 834 (11th Cir. 2000) (“[T]here is no error,

plain or otherwise, under Apprendi where the term of imprisonment is within the

statutory maximum set forth in § 841(b)(1)(C) for a cocaine offense without regard

to drug quantity.”), cert. denied, ___ S. Ct. ___, No. 00-9373 (Oct. 1, 2001);

United States v. Gallego, 247 F.3d 1191, 1197 (11th Cir. 2001) (noting that

because the defendant’s sentence of 168 months’ imprisonment fell “below the

twenty year maximum prescribed by section 841(b)(1)(C),” there is “no error under

Apprendi”); United States v. Le, 256 F.3d 1229, 1240 (11th Cir. 2001) (stating in a

case under the Hobbs Act that because the defendant’s sentence was below the

statutory maximum, “Apprendi is inapplicable”).36 Accordingly, in a § 841 case,

       36
          In United States v. Shepard, 235 F.3d 1295 (11th Cir. 2000), cert. denied, ___ S. Ct.
___, No. 00-10410 (Oct. 1, 2001), we utilized a slightly different approach to reach the same
result, stating that there was Apprendi error but concluding that because the defendant’s sentence
“falls within the authorized range, we find no prejudice.” Id. at 1297. In United States v.
Candelario, 240 F.3d 1300 (11th Cir.), cert. denied, 121 S. Ct. 2535 (2001), we discussed
Shepard and pointed out:

                                               37
when a defendant’s sentence falls at or below the statutory maximum penalty in §

841(b)(1)(C), there is no Apprendi error and there is no need for drug quantity to

be submitted to a jury and proven beyond a reasonable doubt.37

       Additionally, Apprendi has no application to cases in which statutory

sentencing factors trigger a mandatory minimum sentence. As noted above,

Apprendi expressly preserved McMillan, in which the Supreme Court approved the

use of judge-made factual findings to sentence a defendant to a mandatory

minimum penalty. Apprendi, 530 U.S. at 487 n.13. Therefore, in a § 841 case,

Apprendi does not prohibit a judge from making drug quantity findings and

sentencing a defendant to one of the mandatory minimum sentences in § 841(b),

provided that the mandatory minimum term does not exceed the otherwise

applicable statutory maximum. This important proposition leaves intact our pre-

        Shepard’s holding was merely that a sentence that falls below the twenty year
        maximum, as set forth in 21 U.S.C. § 841(b)(1)(C), is not subject to reversal due
        to Apprendi. Shepard thus stands only for the proposition, along with Gerrow,
        that “there is no error, plain or otherwise, under Apprendi where the term of
        imprisonment is within the statutory maximum set forth in § 841(b)(1)(C) for a
        cocaine offense without regard to drug quantity.”
Id. at 1308 n.11 (quoting Gerrow, 232 F.3d at 834) (internal citation omitted). To resolve any
doubt, however, we hereby limit Shepard’s holding to the above proposition and reject its
prejudice-based analysis. When a sentence for a § 841 offense does not exceed the prescribed
statutory maximum under § 841(b)(1)(C), Apprendi is irrelevant.
       37
         The only exception involves quantities of marijuana, hashish, hashish oil, and the other
drugs specified in § 841(b)(1)(D), for which the maximum sentence is five years’ imprisonment.
See 21 U.S.C. § 841(b)(1)(D). The same rules discussed in this opinion, however, also apply to
those cases, with the only difference being that the prescribed statutory maximum penalty is five
years’ imprisonment.

                                               38
Apprendi cases involving the imposition of mandatory minimum sentences under

§ 841(b). See, e.g., United States v. Gomez, 905 F.2d 1513, 1514 (11th Cir. 1990)

(“As to sentencing, it is now equally well-settled that a defendant need not know

the quantity of drug involved in the offense in order to be subject to a mandatory

minimum sentence based on quantity under § 841(b)(1).”). Thus, we join six other

circuits in concluding that there is no error under Apprendi when the district court

sentences a defendant to a mandatory minimum sentence under § 841(b).38

       Instead, Apprendi applies to § 841 cases only in this limited sense: In light

of Apprendi, there is constitutional error in a defendant’s sentencing procedures

when drug quantity increases a defendant’s sentence beyond the prescribed

statutory maximum under § 841(b)(1)(C), unless it was submitted to a jury and

proven beyond a reasonable doubt. Conversely, in a § 841 case in which a

defendant’s ultimate sentence falls at or below the statutory maximum penalty in

§ 841(b)(1)(C), there is no Apprendi error and drug quantity need not have been

       38
          All but one of the seven circuits to consider the issue have decided that Apprendi does
not invalidate the imposition of a mandatory minimum sentence under §§ 841(b)(1)(A) or
841(b)(1)(B), as long as the sentence does not exceed the statutory maximum sentence under
§ 841(b)(1)(C). See United States v. Rodgers, 245 F.3d 961, 965-68 (7th Cir. 2001); United
States v. Harris, 243 F.3d 806, 809 (4th Cir. 2001); United States v. Robinson, 241 F.3d 115, 122
(1st Cir. 2001), cert. denied, ___ S. Ct. ___, No. 00-10411 (Oct. 1, 2001); United States v.
Garcia-Sanchez, 238 F.3d 1200, 1201 (9th Cir. 2001); United States v. Keith, 230 F.3d 784, 787
(5th Cir. 2000), cert. denied, 121 S. Ct. 1163 (2001); United States v. Aguayo-Delgado, 220 F.3d
926, 933-34 (8th Cir.), cert. denied, 531 U.S. 1026 (2000). But see United States v. Ramirez,
242 F.3d 348, 351-52 (6th Cir. 2001); United States v. Flowal, 234 F.3d 932, 936-38 (6th Cir.
2000).

                                               39
submitted to a jury and proven beyond a reasonable doubt. Moreover, judge-made

findings of drug quantity may be used to sentence a defendant anywhere within the

applicable statutory range and, as outlined above, may be used in all guidelines

calculations. All of these rules on the effect of Apprendi on § 841 have the

additional benefit of being consistent with the views adopted in virtually every

other circuit to address these matters to date.39

                                III. THE SANCHEZES’ CLAIMS

      Having described Apprendi and its effect on § 841 and our precedent, we

turn to the Sanchezes’ challenges to their indictment, plea colloquies, convictions,

and sentences. The Sanchezes seek to stretch Apprendi’s constitutional rule and

Jones’s dicta to apply to the beginning, middle, and end of the criminal procedures

in their cases. Specifically, they emphasize that from the outset of their cases, the

government sought enhanced penalties under § 841(b)(1)(B) based on the quantity

of the methamphetamine and amphetamine involved in their offense. As a result,

they contend that their cases were “§ 841(b)(1)(B) cases” and thus that drug

quantity was an element of their offense that not only had to be submitted to the

jury and proven beyond a reasonable doubt but that also had to be charged in their

indictment. Consistent with these views, the Sanchezes timely moved in the


      39
           See infra note 50.

                                            40
district court to dismiss the indictment for failure to allege the required element of

drug quantity, specifically citing Jones. Upon denial of that motion, they entered

conditional plea agreements preserving that issue for appeal.

      On appeal, the Sanchezes also contend that because their cases are “§

841(b)(1)(B) cases,” the failure to comply with this trio of procedural requirements

– indictment, jury submission, and proof beyond a reasonable doubt – was

constitutional error under Apprendi or at least under United States v. Rogers, 228

F.3d 1318 (11th Cir. 2000), which the Sanchezes assert expanded Apprendi to all

“§ 841(b)(1)(A) and § 841(b)(1)(B) cases.” They further argue that the failure to

comply with this procedural triumvirate constituted constitutional error that is so

fundamental as to be structural error and reversible per se. They also assert that the

omission of an essential element from the indictment constituted a jurisdictional

error requiring dismissal of the indictment.

      Alternatively, the Sanchezes claim that the lack of a specific drug quantity in

their indictment meant that their maximum sentence was limited to twenty years

under § 841(b)(1)(C) and that their plea colloquies thus did not comply with Rule

11. Although their indictment charged “quantities of methamphetamine and

amphetamine,” they submit that it had to charge a specific drug quantity in order to

support an enhanced sentence under § 841(b)(1)(B). They argue that the district


                                          41
court erred not only by advising them of the increased penalty ranges

corresponding to §§ 841(b)(1)(A) and 841(b)(1)(B) in Ignasio Sanchez’s case and

§ 841(b)(1)(A) in Santiago Sanchez’s case but also by not mentioning §

841(b)(1)(C) and by not advising them that only the lower penalty range under §

841(b)(1)(C) was applicable to the charges in their indictment. In short, the

Sanchezes challenge not merely their sentences, as defendant Apprendi did, but

also their indictment, plea colloquies, and convictions stemming from that

indictment. We are not persuaded by their arguments and address each issue in

turn.

A.      Motion to Dismiss the Indictment

        Of course, the correct response to an argument that the Sanchezes make

about the lack of a specific drug quantity in a § 841 indictment is usually that by

entering a guilty plea and ultimately stipulating to or not contesting drug quantity,

defendants thereby waive the right to appeal on the basis of Apprendi.40 The

        40
          This Court has indicated that when a defendant pleads guilty and accepts the drug
quantity determination contained in the pre-sentence report or agrees to drug quantity at
sentencing or in his plea colloquy, he waives any right to appeal his sentence on the basis of
Apprendi, regardless of what sentence is ultimately imposed. See United States v. Walker, 228
F.3d 1276, 1278 n.1 (11th Cir. 2000) (affirming the defendant’s life sentence, noting that “[i]n
Apprendi, the Supreme Court required that during a jury trial, the government must be made to
prove and the jury convict on the factual evidence necessary for a sentence enhancement beyond
the statutory maximum” and concluding that since the defendant “pled guilty in this case and
accepted the contents of the PSI, he lost any right to appeal on the basis of this argument”), cert.
denied, 121 S. Ct. 1408 (2001). This is so because a defendant’s stipulation as to drug quantity
serves to waive the right to a jury trial on that issue, even when that drug quantity results in a

                                                 42
Sanchezes’ plea agreements, however, were conditional on their right to appeal the

sufficiency of the indictment. Because the Sanchezes’ conditional plea agreements




sentence in excess of the otherwise applicable statutory maximum. Indeed, just as the
defendant’s guilty plea to a substantive offense serves as the equivalent to a jury’s finding
beyond a reasonable doubt of that defendant’s guilt, so does a stipulation to a specific drug
quantity – whether as part of a written plea agreement, part of a jury trial, or at sentencing –
serve as the equivalent of a jury finding on that issue, since the stipulation takes the issue away
from the jury.
        Accordingly, in prior cases in which defendants pled guilty to violating § 841, we have
affirmed sentences that violated Apprendi when there was agreement about the drug quantity.
See United States v. Pease, 240 F.3d 938, 944 (11th Cir. 2001) (affirming the defendant’s thirty-
year sentence where he admitted in both his plea agreement and plea colloquy that he had
accepted delivery of three kilograms of cocaine); United States v. Gallego, 247 F.3d 1191, 1200
(11th Cir. 2001) (affirming the defendant’s life sentence when his counsel stated “there is no
question but that [the defendant] had the ten kilograms of cocaine, he pled guilty to possessing
the ten kilograms of cocaine”). Similarly, we have affirmed sentences that violated Apprendi
when the defendant elected to go to trial but where evidence of drug quantity was uncontested.
See United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000) (holding that a preserved
Apprendi error was harmless where the evidence of drug quantity was “undisputed” such that
“no reasonable jury could have rationally concluded that Defendant was guilty of the substantive
offense . . . but that the amount of [crack] cocaine possessed was less than” the five grams
necessary for sentencing him to the penalty range in § 841(b)(1)(B), and thus affirming the
defendant’s thirty-two-year sentence); Gallego, 247 F.3d at 1198-99 (affirming a defendant’s life
sentence when he admitted in an objection to the pre-sentence report and at sentencing that he
personally possessed four kilograms of cocaine during the offense, and affirming another
defendant’s life sentence when there was “undisputed testimony” that 326 kilograms of cocaine
were involved in the offense); United States v. Wims, 245 F.3d 1269, 1272-74 (11th Cir. 2001)
(affirming the defendant’s concurrent sentences of forty years and life imprisonment when he did
not contest drug quantity); United States v. Candelario, 240 F.3d 1300, 1311-12 (11th Cir.)
(affirming the defendant’s sentence where, based on the testimony of the sole witness, “no
reasonable jury could have concluded that Candelario was guilty of the substantive offense . . . ,
but that the amount was less than five grams”), cert. denied, 121 S. Ct. 2535 (2001); United
States v. Swatzie, 228 F.3d 1278, 1283 (11th Cir. 2000) (affirming the defendant’s life sentence
because there was “no serious dispute that [he] possessed at least 5 gm of cocaine base, enough
for the increased statutory maximum, and no evidentiary basis existed for the jury reasonably to
have found that [the defendant] possessed drugs with intent to distribute, but did not possess both
cocaine base and powder at least in the amounts the authorities bagged at [the defendant]’s
house”), cert. denied, 121 S. Ct. 2600 (2001). We reaffirm all of the actual holdings in those
decisions.

                                                43
preserved the indictment issue for appellate review, their guilty pleas do not

resolve the matter as would normally be the case. Thus, in light of Jones and

Apprendi, we address whether the district court erred in denying the Sanchezes’

motion to dismiss their indictment. In other words, we consider whether the

Sanchezes correctly claimed in that motion that drug quantity is an essential

element that now must always be charged in an indictment for a § 841 offense. We

first address the standard of review and then why we conclude that the district

court did not err in denying the Sanchezes’ motion to dismiss the indictment.

      1.     Standard of Review

      Because the Sanchezes timely raised and thus preserved for appeal the issue

of error in their indictment under Apprendi, we review it de novo, but we will

reverse only for harmful error. See United States v. Mills, 138 F.3d 928, 938-39

(11th Cir. 1998). As we have held, Apprendi error is constitutional error, subject

to harmless or plain error review depending on the timing of the constitutional

objection. See, e.g., United States v. Smith, 240 F.3d 927, 929 (11th Cir. 2001)

(affirming thirty-year sentence); United States v. Candelario, 240 F.3d 1300, 1308

(11th Cir.) (same), cert. denied, 121 S. Ct. 2535 (2001); United States v. Nealy,

232 F.3d 825, 829-30 & n.4 (11th Cir. 2000) (affirming thirty-two-year sentence).

      Given our precedent, we reject the Sanchezes’ claims that Apprendi error is


                                         44
either structural or jurisdictional. In Smith, Candelario, and Nealy, we correctly

outlined why an Apprendi error did not create a structural error. In Nealy, we

explained, “Structural error occurs only in the rare instance involving a ‘structural

defect affecting the framework within [which] the trial proceeds, rather than simply

an error in the trial process itself.’” Nealy, 232 F.3d at 829 n.4 (quoting Arizona v.

Fulminante, 499 U.S. 279, 310 (1991)).41 “Failure to submit the issue of drug

quantity to the jury is just an element of the trial process and does not rise to the

level of structural error. . . .” Id. It “is not structural error because it ‘does not

necessarily render a criminal trial fundamentally unfair or [an] unreliable vehicle

for determining guilt or innocence.’” Id. (quoting Neder v. United States, 527 U.S.

1, 9 (1999)). Harmless error review is “appropriate” in the Apprendi context

“because it ‘block[s] setting aside [sentences] for small errors or defects that have

little, if any, likelihood of having changed the result of the trial.’” Id. at 829-30

(quoting Chapman v. California, 386 U.S. 18, 22 (1967)).

       Our precedent follows Neder v. United States, 527 U.S. 1 (1999), where the

Supreme Court held that “the omission of an element [in a jury instruction] is an


       41
         There is no separate category of structural error apart from constitutional error. The
only question is whether any constitutional errors under Apprendi rise to the level of structural
error. Structural error occurs only in “a very limited class of cases,” Johnson v. United States,
520 U.S. 461, 468 (1997), and “necessarily render[s] a trial fundamentally unfair.” Rose v.
Clark, 478 U.S. 570, 577 (1986).

                                                45
error that is subject to harmless-error analysis.” Id. at 15. Any Apprendi error

arising from the omission of a specific drug quantity in a § 841 indictment is

analogous to the jury-instruction error in Neder.42 Indeed, part of the Sanchezes’

argument is precisely that a specific drug quantity must be charged in the

indictment so that it will then be submitted to the jury and proven beyond a

reasonable doubt. A defendant’s right to have a petit jury find each element of the

offense is no less important than his right to have that same element presented to

the grand jury.43

       Likewise, we have rejected the claim, which the Sanchezes also make, that

an Apprendi error creates a jurisdictional error. See United States v. Cromartie,

___ F.3d ___, No. 00-13957 (11th Cir. Oct. 3, 2001); McCoy v. United States, ___



       42
          Ultimately, Nealy determined that the jury-instruction error was harmless but that the
defendant abandoned the indictment issue by not raising it in his initial brief. Because the
Sanchezes timely raised the indictment issue and their conditional plea agreements preserved the
issue for appellate review, we address the standard of review applicable to that issue in the
Apprendi context. In United States v. Swatzie, 228 F.3d 1278 (11th Cir. 2000), cert. denied, 121
S. Ct. 2600 (2001), we emphasized that the error at issue in Neder was “in material respects
indistinguishable from error under Apprendi.” Id. at 1283.
       43
         Neder explained that “‘most constitutional errors can be harmless.’” 527 U.S. at 8
(quoting Fulminante, 499 U.S. at 306). “[I]f the defendant had counsel and was tried by an
impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may
have occurred are subject to harmless-error analysis.” Id. (quoting Rose v. Clark, 478 U.S. 570,
579 (1986)). The list in Neder of structural errors not subject to harmless-error review is a short
one. See id. (mentioning complete denial of counsel, biased trial judge, racial discrimination in
grand jury selection, denial of self-representation at trial, denial of public trial, and defective
reasonable doubt instruction as structural errors).

                                                46
F.3d ___, No. 00-16434 (11th Cir. Sept. 25, 2001).44 A jurisdictional defect occurs

only where a federal court lacks power to adjudicate at all. Id.45 The constitutional

rights to be charged by a grand jury, be informed of an accusation, and to have a

jury trial are the personal rights of the defendant and do not go to the district

court’s subject matter jurisdiction. Indeed, Federal Rule of Criminal Procedure

7(b) provides that certain offenses “may be prosecuted by information” if the

defendant “waives in open court prosecution by indictment.” Fed. R. Crim. P.

7(b). Such waiver would not be possible if the indictment-related right were

jurisdictional, as parties cannot confer subject-matter jurisdiction on federal courts

by consent. See United States v. Griffin, 303 U.S. 226, 229 (1938).

       The notion that any Apprendi-based challenge has a jurisdictional dimension

is also implicitly rejected by our precedent’s consistent application of plain or

harmless error review. See, e.g., United States v. Pease, 240 F.3d 938, 943-44

(11th Cir. 2001) (finding plain error under Apprendi in a thirty-year sentence

       44
          For the reasons outlined in more detail in McCoy and Cromartie, we disagree with the
position in Judge Barkett’s concurring opinion and conclude that Apprendi error based on failure
to allege a specific drug quantity does not constitute a jurisdictional defect in a § 841 indictment
even if the defendant has been sentenced in excess of twenty years under § 841(b)(1)(A) or §
841(b)(1)(B).
       45
          See also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (describing
subject matter jurisdiction as “the courts’ statutory or constitutional power to adjudicate the
case”); Escareno v. Carl Nolte Sohne GmbH & Co., 77 F.3d 407, 412 (11th Cir. 1996) (noting
that a jurisdictional defect is one that “strip[s] the court of its power to act and make[s] its
judgment void”).

                                                47
where the indictment did not allege drug quantity but finding no effect on

defendant’s substantial rights); United States v. Swatzie, 228 F.3d 1278, 1282-84

(11th Cir. 2000) (assuming arguendo a life sentence was plain error under

Apprendi where indictment did not allege drug quantity but finding no effect on

defendant’s substantial rights), cert. denied, 121 S. Ct. 2600 (2001).46

       The Tenth Circuit, sitting en banc, explicitly endorsed this approach. See

United States v. Prentiss, 256 F.3d 971 (10th Cir. 2001) (en banc) (concluding that

“the failure of an indictment to allege an essential element of a crime does not

deprive a district court of subject matter jurisdiction; rather, such failure is subject

to harmless error review”). Two other circuits have handled omissions of an

element from an indictment in a similar manner.47 See United States v. Nance, 236

       46
          Our application of plain error review in the indictment context is consistent with our
practice in other Apprendi cases, centering on the failure to submit an element to the jury, where
we also applied harmless or plain error analysis based on the timing of the objection. See United
States v. Gallego, 247 F.3d 1191, 1198-2001 (11th Cir. 2001) (affirming life sentences); United
States v. Wims, 245 F.3d 1269, 1272 (11th Cir. 2001) (affirming life sentence); United States v.
Candelario, 240 F.3d 1300, 1311 (11th Cir.) (affirming 360-month sentence), cert. denied, 121 S.
Ct. 2535 (2001); United States v. Pease, 240 F.3d 938, 943 (11th Cir. 2001) (affirming thirty-
year sentence); United States v. Smith, 240 F.3d 927, 930 (11th Cir. 2001) (affirming thirty-year
sentence); United States v. Swatzie, 228 F.3d 1278, 1282-83 (11th Cir. 2000) (affirming life
sentence), cert. denied, 121 S. Ct. 2600 (2001). Our approach is consistent with decisions from
other circuits. See, e.g., United States v. Vazquez, ___ F.3d ___, No. 99-3845 (3d Cir. Oct. 9,
2001) (stating that “Apprendi violations do not constitute structural defects,” affirming the
defendant’s 292-month sentence under plain error review, and listing in footnotes 5-10 other
circuits’ decisions also applying plain error review).
       47
        But see United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999) (concluding in a
Hobbs Act case where the indictment failed to state the required mens rea that “if properly
challenged prior to trial, an indictment’s complete failure to recite an essential element of the

                                                48
F.3d 820, 825-26 (7th Cir. 2000) (stating in a § 841 case involving an Apprendi

challenge that indictment and jury-instruction errors are “analogous to the

instructional error the Court considered in Neder” and did not constitute structural

error, and affirming the defendant’s 262-month sentence under plain-error review);

United States v. Mojica-Baez, 229 F.3d 292, 310-12 (1st Cir. 2000) (stating in a 18

U.S.C. § 924(c)(1) case where the indictment did not charge a type of firearm that

the court was “compelled by the Supreme Court’s decision in Neder to subject the

indictment error in this case to plain error review,” and thus finding error was not

structural and affirming the defendants’ ten-year sentences under 18 U.S.C. §

924(c)(1)(B)), cert. denied, 121 S. Ct. 2215 (2001).48 We now turn to the



charged offense is not a minor or technical flaw subject to harmless error analysis, but a fatal
flaw requiring dismissal of the indictment”); United States v. Spinner, 180 F.3d 514, 516 (3d Cir.
1999) (interstate commerce element). While the Second Circuit has held that the failure to
include the type of firearm in a 18 U.S.C. § 924(c) indictment is jurisdictional error not subject
to plain error review, see United States v. Tran, 234 F.3d 798, 806-09 (2d Cir. 2000), that issue
is being addressed en banc. See United States v. Thomas, 248 F.3d 76, 78 (2d Cir. 2001) (en
banc) (order asking the parties to brief whether Tran’s reasoning was “sound”).
       48
          For the reasons set forth in detail in these opinions, we do not believe that the Supreme
Court’s decision in Stirone v. United States, 361 U.S. 212 (1960), which discussed the interstate
commerce requirement under the Hobbs Act, dictates a contrary result. See Prentiss, 256 F.3d at
984 n.11; Mojica-Baez, 229 F.3d at 310. Furthermore, Stirone was decided before Chapman v.
California, 386 U.S. 18, 22 (1967), in which the Supreme Court first stated that some
constitutional errors could be deemed harmless.
        Additionally, the Sanchezes rely on United States v. Tomeny, 144 F.3d 749 (11th Cir.
1998), but that decision is inapposite. The issue there was whether the statute under which the
defendants were indicted was preempted by another statute, not whether the indictment failed to
allege an element of the charged offense. Also, this Court ultimately affirmed the defendants’
convictions based on the indictment.

                                                49
Sanchezes’ Apprendi-based challenge to their indictment.

      2.     The Sanchezes’ Indictment

      By sparing no expense in the foundational discussion above, the case-

specific application of Apprendi that follows will enjoy the luxury of brevity. The

correct response to the Sanchezes’ argument is that they ultimately were sentenced

below the otherwise applicable statutory maximum in § 841(b)(1)(C), and thus,

drug quantity never was an element of their offense under § 841 and never became

an element under Apprendi. Therefore, there is no Apprendi error in their

indictment or in their convictions and sentences stemming from that indictment.

      Both before and after Apprendi, in any § 841 case, an indictment charging

that a defendant violated § 841 properly charges a complete federal crime without

any reference to either drug type or quantity. While under Apprendi the allowable

maximum sentence for a § 841 violation may differ depending on how drug

quantity was handled at the plea, trial, or sentencing phases, and on the timeliness

of an Apprendi-based objection, Apprendi has no effect whatsoever on whether a

complete federal crime under § 841 is charged in an indictment that does not

specify drug quantity. Therefore, even if an indictment for a § 841 offense does

not allege a specific drug quantity, it is legally and constitutionally sufficient both

before and after Apprendi, and a district court may still accept the defendant’s


                                           50
guilty plea to, or try a defendant on, a § 841 charge and then sentence the

defendant for that charge. Thus, the district court did not err in denying the

Sanchezes’ motion to dismiss their indictment.49

       We fully recognize that from the outset of the Sanchezes’ cases the

government sought enhanced sentences, particularly under § 841(b)(1)(B), and that

the district court made drug quantity findings and purported to sentence both

Sanchezes under that section. Accordingly, the Sanchezes argue that their cases

were “§ 841(b)(1)(B) cases” and thus that there is not only Apprendi error in their

cases but also “Rogers error” as coined in United States v. Camacho, 248 F.3d

1286, 1289-90 (11th Cir. 2001) (citing United States v. Rogers, 228 F.3d 1318,

1327 (11th Cir. 2000)).

       As explained above, being sentenced under § 841(b)(1)(A) or § 841(b)(1)(B)

and being potentially exposed to a higher sentence under either section do not

create Apprendi error. Indeed, the condition that the Sanchezes describe – that of



       49
         Although the Sanchezes preserved the indictment issue for appellate review, many
defendants making a similar argument have not. Under our precedent, “[a] contention that the
indictment lacked sufficient specificity is waived . . . if the defendant fails to raise it before
entering a guilty plea.” United States v. Pease, 240 F.3d 938, 942 (11th Cir. 2001) (citing Fed.
R. Crim. P. 12(b)(2)). While entry of a guilty plea does not act as a waiver of the objection that
the indictment failed to charge any offense at all, id. at 942-43, such a scenario is usually not
presented by an indictment charging a § 841 drug offense. This is so because an indictment
charging a drug offense under § 841 but failing to state a specific drug quantity does charge a
complete federal offense under § 841.

                                                51
facing theoretical or potential exposure to a particular fate under § 841(b)(1)(B)

but actually being consigned to one of less severity under § 841(b)(1)(C) – borders

on the metaphysical. Contrary to the Sanchezes’ suggestion, Apprendi did not

hold that judge-made factual findings that merely expose a defendant to a higher

statutory maximum penalty, without actually resulting in a sentence beyond the

applicable maximum, must be proven to a jury beyond a reasonable doubt. We

thus agree with those circuits that have concluded that theoretical exposure to a

higher sentence does not constitute error under Apprendi. See, e.g., United States

v. Robinson, 241 F.3d 115, 121-22 (1st Cir. 2001) (“[T]heoretical exposure to a

higher sentence, unaccompanied by the imposition of a sentence that in fact

exceeds the otherwise-applicable statutory maximum, is of no consequence. . . . In

fine, the Apprendi rule applies only in situations in which a judge-made factual

determination actually boosts the defendant’s sentence beyond the basic statutory

maximum. Theoretical exposure to a higher maximum punishment, in and of

itself, is not enough.”) (emphasis added) (citation omitted), cert. denied, ___ S. Ct.

___, No. 00-10411 (Oct. 1, 2001). As stated above, there is no error at all under

Apprendi unless a judge-made factual finding actually increases the defendant’s




                                          52
sentence beyond the statutory maximum in § 841(b)(1)(C).50


       50
          Other circuits have adopted a similar approach. See, e.g., United States v. Robinson,
241 F.3d 115, 119 (1st Cir. 2001) (“No Apprendi violation occurs when the district court
sentences a defendant below the default statutory maximum, even though drug quantity,
determined by the court under a preponderance-of-the-evidence standard, influences the length
of the sentence imposed.”), cert. denied, ___ S. Ct. ___, No. 00-10411 (Oct. 1, 2001); United
States v. Williams, 235 F.3d 858, 863 (3d Cir. 2000) (“First and foremost, though the District
Court’s finding regarding the amount of drugs substantially increased the possible statutory
maximum sentence under 21 U.S.C. § 841(b)(1), we hold that Apprendi is not applicable to [the
defendant’s] sentence, because the sentence actually imposed (seven years and one month) was
well under the original statutory maximum of 20 years.”), cert. denied, ___ S. Ct. ___, No. 00-
1771 (Oct. 1, 2001); United States v. Obi, 239 F.3d 662, 667 (4th Cir. 2001) (concluding that a
sentence of 200 months’ imprisonment “does not offend the standards set forth in Apprendi,
despite the fact that [the defendant’s] sentence is based, in part, on factual findings of drug
quantity made by the sentencing judge by a preponderance of the evidence”), cert denied, ___ S.
Ct. ___, No. 00-9843 (Oct. 1, 2001); United States v. Doggett, 230 F.3d 160, 165-66 (5th Cir.
2000) (“As [the defendant’s] sentence of 235 months falls short of this statutory maximum [of
240 months as provided in § 841(b)(1)(C)], his claim fails. [The defendant’s] sentence was not
enhanced beyond the statutory maximum by a factor not contained in the indictment or
submitted to the jury. . . . The decision in Apprendi was specifically limited to facts which
increase the penalty beyond the statutory maximum, and does not invalidate a court's factual
finding for the purposes of determining the applicable Sentencing Guidelines.”), cert. denied,
121 S. Ct. 1152 (2001); United States v. Jones, 245 F.3d 645, 649 (7th Cir. 2001) (“[B]ecause
[the defendant’s] sentence was forty-eight months below the statutory maximum for a defendant
who has a prior felony drug conviction, Apprendi is inapplicable . . . .”); United States v.
Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.) (“If the non-jury factual determination only
narrows the sentencing judge’s discretion within the range already authorized by the offense of
conviction, such as with the mandatory minimums applied to [the defendant], then the governing
constitutional standard is provided by McMillan . . . . [B]ecause [the defendant’s sentences] are
within the statutory range authorized by § 841(b)(1)(C) without reference to drug quantity, [they
are] permissible under Apprendi . . . even where the drug quantity was not charged in the
indictment or found by the jury to have been beyond a reasonable doubt.”), cert. denied, 121 S.
Ct. 600 (2000); United States v. Garcia-Sanchez, 238 F.3d 1200, 1201 (9th Cir. 2001) (noting in
a case involving a sentence of 121 months, “Apprendi has no application here. Apprendi dealt
with the consideration of facts in sentencing enhancement beyond the statutory maximum. In the
instant case, the sentence imposed was nine years and eleven months below the statutory
maximum.”); United States v. Thompson, 237 F.3d 1258, 1262 (10th Cir.) (noting in a case
involving a 121-month sentence, “[B]ecause the indictment set forth all the necessary elements
of a crime as defined by 21 U.S.C. § 841(a) and 21 U.S.C. § 846, and because the minimum
statutory range (within which [the defendant] was sentenced) does not specify a drug amount,
neither the indictment nor the conviction was defective. . . . [W]here the sentence is fully
supported, as it is in this case, by allegations in the indictment which are subsequently proven

                                               53
       We also recognize that, prior to this en banc decision, our circuit precedent

regarding the impact of Apprendi on § 841 cases stemmed largely from United

States v. Rogers, 228 F.3d 1318 (11th Cir. 2000) and its progeny. See, e.g., United

States v. Camacho, 248 F.3d 1286 (11th Cir. 2001); United States v. Candelario,

240 F.3d 1300 (11th Cir.), cert. denied, 121 S. Ct. 2535 (2001); United States v.

Shepard, 235 F.3d 1295 (11th Cir. 2000), cert. denied, ___ S. Ct. ___, No. 00-

10410 (Oct. 1, 2001). Rogers was correct in some aspects of its analysis but wrong

in others. Rogers properly recognized, “Applying Apprendi’s constitutional

principle to § 841 cases, it is clear that the principle is violated if a defendant is

sentenced to a greater sentence than the statutory maximum based upon the

quantity of drugs, if such quantity is determined by the sentencing judge rather

than the trial jury.” Rogers, 228 F.3d at 1327 (emphasis added). Rogers continued

that such a sentence – that is, one greater than the statutory maximum – violates

Apprendi unless drug quantity was charged in the indictment, submitted to a jury,

and proven beyond a reasonable doubt. See id.51 To this extent, Rogers correctly

beyond a reasonable doubt, there can be no violation of Apprendi.”), cert. denied, 121 S. Ct.
1637 (2001); see also United States v. Fields, 251 F.3d 1041, 1043-44 (D.C. Cir. 2001)
(“Apprendi does not apply to sentencing findings that elevate a defendant’s sentence within the
applicable statutory limits. In other words, Apprendi does not apply to enhancements under the
Sentencing Guidelines when the resulting sentence remains within the statutory maximum.”)
(citation omitted).
       51
         Rogers appears to have assumed that compliance with Apprendi requires that drug
quantity be subjected to this full procedural triumvirate, including being charged in the

                                               54
analyzed Apprendi’s effect on § 841.52


indictment. Indeed, we stated in a case involving concurrent sentences of forty years and life
imprisonment that Rogers “required” that the indictment specify drug quantity. United States v.
Wims, 245 F.3d 1269, 1272 n.6 (11th Cir. 2001) (citing Rogers, 228 F.3d at 1327). Other cases
in this circuit echoed this sentiment, generally attributing it to Rogers. See United States v.
Gallego, 247 F.3d 1191, 1196-97 (11th Cir. 2001); United States v. Candelario, 240 F.3d 1300,
1306 (11th Cir.), cert. denied, 121 S. Ct. 2535 (2001); United States v. Pease, 240 F.3d 938, 943
(11th Cir. 2001); United States v. Shepard, 235 F.3d 1295, 1297 (11th Cir. 2000), cert. denied,
___ S. Ct. ___, No. 00-10410 (Oct. 1, 2001); United States v. Gerrow, 232 F.3d 831, 834 (11th
Cir. 2000), cert. denied, ___ S. Ct. ___, No. 00-9373 (Oct. 1, 2001); cf. United States v. Swatzie,
228 F.3d 1278, 1282 (11th Cir. 2000) (assuming arguendo that a failure to charge drug quantity
in the indictment and submit it to a jury constituted Apprendi error, in part because the
indictment issue was not adequately briefed), cert. denied, 121 S. Ct. 2600 (2001).
         Rogers expanded Apprendi in this regard, because neither Jones nor Apprendi held that a
congressionally enacted sentencing factor must also be alleged in the indictment. The
government argues that this expansion is not inevitable. Under the government’s view, a fact
such as drug quantity that increases a sentence beyond a default maximum does not in all
respects equate to a “traditional element”; it is, rather, “the functional equivalent of an element
of a greater offense than the one covered by the jury’s guilty verdict.” Apprendi, 530 U.S. at 494
n.19. Drug quantity in § 841 thus may occupy an ambiguous place somewhere in the middle of a
hazy spectrum marked by traditional “elements” on one end and “sentencing factors” on the
other, two endpoints that themselves represent a “constitutionally novel and elusive distinction.”
Id. at 494. The government can find comfort in at least one of our cases, which suggested that if
an indictment did not charge a specific drug quantity but “the evidence established a drug
quantity that would authorize a sentence under section 841(b)(1)(A) or (B), the Government
would be entitled to a special jury verdict specifying the quantity of drugs.” United States v.
Candelario, 240 F.3d 1300, 1305 n.7 (11th Cir.), cert. denied, 121 S. Ct. 2535 (2001).
According to the government, in sum, drug quantity is an “element lite” that is not subject to the
indictment requirement, but still must be submitted to the jury and proven beyond a reasonable
doubt.
         We are not persuaded, and we thus preserve our precedent in Rogers and its progeny to
this limited effect. Of course, our holding with respect to the Sanchezes’ motion to dismiss the
indictment shows that drug quantity, even in Rogers-like cases, is not a “traditional element” in
the sense that a failure to allege it could entitle the defendant to dismissal of a § 841 indictment.
Instead, as outlined in this opinion, the omission of that element would first have to be
established and then, if shown, would be reviewed for harmless or plain error, depending on the
timing of the objection. See supra section III.A.1.
       52
        Although Rogers added a third procedural protection of charging drug quantity in the
indictment, we hasten to specify that drug quantity need be alleged only in the narrow
circumstances described above in which Apprendi’s jury-submission and reasonable-doubt
requirements apply – that is, when the sentence imposed exceeds the maximum in

                                                 55
       Rogers, however, extended Apprendi substantially beyond its holding, and

we are not prepared to go that far. Rogers suggested that the mere fact that a

sentence arose in “section 841(b)(1)(A) and section 841(b)(1)(B) cases” meant that

drug quantity must be charged in the indictment and proven to a jury beyond a

reasonable doubt even if the sentence did not exceed the statutory maximum in §

841(b)(1)(C). See id. at 1327. As we have explained, this is not so unless the

factual finding of drug quantity boosts the actual sentence imposed under §§

841(b)(1)(A) or 841(b)(1)(B) beyond the statutory maximum otherwise

permissible under § 841(b)(1)(C) absent drug quantity.

       Specifically, Rogers also stated: (1) that “sections 841(b)(1)(A) and

841(b)(1)(B) may not be utilized for sentencing without a finding of drug quantity

by the jury,” Rogers, 228 F.3d at 1327 (emphasis added); (2) “that drug quantity in

section 841(b)(1)(A) and section 841(b)(1)(B) cases must be charged in the

indictment and proven to a jury beyond a reasonable doubt in light of Apprendi,”

id. (emphasis added); (3) that when a defendant is sentenced under the wrong

subsection of § 841(b), “this alone is reason for us to vacate and remand the

sentence,” id. at 1321; and (4) that “[a]pplying the rule [of Apprendi] to the facts at



§ 841(b)(1)(C). Drug quantity need not be alleged when it has effects that Apprendi’s doctrine
does not reach, such as mandatory minimum sentences, guideline sentencing calculations, and
sentences at or below the otherwise applicable maximum in § 841(b)(1)(C).

                                              56
hand, it is clear that Rogers must be sentenced under section 841 without reference

to drug quantity,” id. at 1328; and decided (5) to “overrule Hester to the extent it is

inconsistent with this holding,” id.

       As we have explained, however, a district court’s drug quantity findings and

utilization of the § 841(b)(1)(A) and § 841(b)(1)(B) sentencing schemes in § 841

cases in no manner violate Apprendi unless the actual sentence ultimately imposed

exceeds the catchall maximum penalty in § 841(b)(1)(C). Thus, for example,

mandatory minimum sentences do not violate Apprendi’s constitutional rule

because they do not exceed the catchall statutory maximum penalty in

§ 841(b)(1)(C) that is otherwise applicable when no specific drug quantity is

charged or found by the jury.53 We therefore expressly disavow these five

       53
          This Court previously suggested that the imposition of a mandatory minimum sentence
based on a judge-made factual determination does not violate Apprendi. See United States v.
Pounds, 230 F.3d 1317, 1319-20 (11th Cir. 2000), cert. denied, 121 S. Ct. 1631 (2001). In
Pounds, the defendant was sentenced to the mandatory minimum sentence of ten years under 18
U.S.C. § 924(c)(1)(A)(iii), based on the sentencing court’s finding that his co-defendant had
discharged a firearm. Pounds, 230 F.3d at 1318. This Court affirmed the sentence, holding on
the basis of the statutory text that the discharge of a firearm was a sentencing factor and not an
element of the offense. Id. at 1319. Furthermore, this Court noted that Apprendi did not alter
this result, stating, “The discharge of a firearm does not increase the maximum possible penalty
of life under § 924(c)(1)(A); rather, it increases only the mandatory minimum penalty.” Id.
         Thus, consistent with the analysis in this en banc opinion, our decision in Pounds, and the
holdings of the majority of circuits, we hereby overrule the holding about mandatory minimum
sentences in United States v. Camacho, 248 F.3d 1286, 1289 (11th Cir. 2001) (concluding that,
because the district court sentenced the defendant to the mandatory minimum of ten years’
imprisonment under § 841(b)(1)(A), it “necessarily used section 841(b)(1)(A) for sentencing,”
and concluding that this constituted error). We also reject Camacho’s adoption of “Rogers
error,” a concept that Camacho conceded “went beyond Apprendi” and would hold as error any
sentence obtained when the court utilized drug quantities in §§ 841(b)(1)(A) and 841(b)(1)(B)

                                                57
propositions in Rogers and any repetition of them in Rogers’s progeny.

       Apprendi does not prohibit all uses of drug quantity in sentencing under

§ 841, or any use of drug quantity in guideline calculations under the Sentencing

Guidelines for that matter. Rather, it prohibits such use only to the extent that a

factual finding of drug quantity increases a defendant’s sentence beyond the

otherwise applicable statutory maximum penalty under § 841(b)(1)(C) absent drug

quantity. We limit Rogers’s analysis and conclusion about Apprendi to those §

841 cases where the defendant’s sentence is both (1) directly affected by a judge-

made finding of drug quantity under either § 841(b)(1)(A) or § 841(b)(1)(B), and

(2) as a direct result of that drug quantity finding actually exceeds the statutory

maximum otherwise permissible under § 841(b)(1)(C).54 As explained above, in


that were not charged in the indictment and proven to a jury beyond a reasonable doubt,
regardless of the actual sentence imposed.
         We preserve, however, that portion of Camacho which reaffirmed the principle that “a
defendant may obtain re-sentencing under Apprendi only if the sentence he actually receives
exceeds the maximum allowable sentence he should have received under section 841(b)(1)(C),
i.e., twenty years’ imprisonment, without regard to quantity.” Camacho, 248 F.3d at 1288 (citing
Gerrow, 232 F.3d at 834). Applying this rule, the Camacho Court stated that “[b]ecause
Camacho’s sentence of 120 months’ imprisonment was less than the twenty year maximum
prescribed by section 841(b)(1)(C), there is arguably no Apprendi error, even though the court
utilized a mandatory minimum when sentencing Camacho,” id. at 1289 (emphasis added)
(footnote omitted), but concluded that “[r]egardless of whether there is Apprendi error, there is
error in Camacho’s sentence under” Rogers. Id. We now clarify that nothing was “arguabl[e]”
about the lack of Apprendi error in Camacho’s sentence. Because Camacho was sentenced
below twenty years, Apprendi did not apply to his case.
       54
         In Rogers, the defendant actually received a thirty-year prison sentence, and this Court
found, under the particular circumstances of that case, that the defendant’s prescribed statutory
maximum sentence was twenty years under § 841(b)(1)(C). We observe, however, that a thirty-

                                               58
all circumstances other than this, there is no Apprendi error.

       In sum, a defendant is not entitled to dismissal of a § 841 indictment that

does not allege a specific drug quantity, whether that indictment was issued before

or after Apprendi. Instead, whether a specific drug quantity is charged affects only

the permissible statutory maximum sentence and not the sufficiency of a § 841

indictment. In the context of § 841, Apprendi involves error in sentencing and

necessarily looks retrospectively, rather than prospectively, at whether the criminal

procedures that culminated in the actual sentence pass constitutional muster.55

Thus, for all of these reasons, the Sanchezes have not shown that the district court

erred in denying their motion to dismiss the indictment.

B.     Plea Colloquies

       The Sanchezes next attempt to make use of Apprendi by arguing – for the

first time on appeal – that their convictions must be reversed because their guilty

pleas were unintelligent and involuntary under Apprendi. The Sanchezes’

challenge to their guilty pleas rests on two branches of the Apprendi tree.

       First, the Sanchezes assert that the district court failed to comply with Rule


year sentence is permitted under § 841(b)(1)(C) when a defendant’s prior felony drug conviction
is properly shown.
       55
          Accordingly, in United States v. Candelario, 240 F.3d 1300 (11th Cir.), cert. denied,
121 S. Ct. 2535 (2001), we stated that a “constitutional objection for Apprendi purposes is timely
if a defendant makes the objection at sentencing.” Id. at 1304 (citations omitted).

                                               59
11 before accepting their guilty pleas because it did not address drug quantity,

which they believe Apprendi converted into an element of their offense. The

second aspect of their argument is that Apprendi vitiated the voluntariness of their

guilty pleas by reducing the legally permissible maximum penalty they faced for

their drug offense. More specifically, they aver that their guilty pleas were induced

by the threat of a harsher punishment – up to forty years or life imprisonment –

than was possible given Apprendi, under which they faced a maximum penalty of

only twenty years’ imprisonment under § 841(b)(1)(C).

       1.     Standard of Review

       The Sanchezes raise the Apprendi issues concerning their guilty pleas for the

first time on appeal. This Court has held “that a defendant who has not presented

his objection to the district court – for example, through a motion to withdraw the

plea – must show plain error on direct appeal.” United States v. Quinones, 97 F.3d

473, 475 (11th Cir. 1996).56 Thus, the Sanchezes must show that there is (1)

“error,” (2) “that is ‘plain,’” and (3) “that ‘affect[s] substantial rights.’” Johnson v.

United States, 520 U.S. 461, 466-67 (1997) (quoting United States v. Olano, 507

       56
         Although Rule 11(h), entitled “Harmless Error,” provides that “[a]ny variance from the
procedures required by this rule which does not affect substantial rights shall be disregarded,”
Fed. R. Crim. P. 11(h), such review does not supercede the plain error standard of review. See
Quinones, 97 F.3d at 475 (“We see no reason why the plain error rule should not apply in the
Rule 11 context, though we recognize that many non-technical deviations from Rule 11 will
constitute plain error.”).

                                               60
U.S. 725, 732 (1993)). “If all three conditions are met, an appellate court may then

exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously

affect[s] the fairness, integrity, or public reputation of judicial proceedings.’” Id.

(quoting Olano, 507 U.S. at 732) (other internal quotation marks omitted).

      2.     Rule 11

      The Sanchezes claim that the district court failed to comply with the

requirements of Rule 11 when it accepted their guilty pleas. Rule 11 provides that

“[b]efore accepting a plea of guilty . . . the court must address the defendant

personally in open court and inform the defendant of, and determine that the

defendant understands,” certain matters. Fed. R. Crim. P. 11(c). At issue in this

case are the requirements in Rule 11 that the court properly advise the defendant of

“the nature of the charge to which the plea is offered, the mandatory minimum

penalty provided by law, if any, and the maximum possible penalty provided by

law, including the effect of any special parole or supervised release term.” Fed. R.

Crim. P. 11(c)(1). Under Rule 11, a “court shall not accept a plea of guilty . . .

without first, by addressing the defendant personally in open court, determining

that the plea is voluntary and not the result of force or threats or of promises apart

from a plea agreement.” Fed. R. Crim. P. 11(d).

      Rule 11 serves two purposes: “to assist the district judge in making the


                                            61
constitutionally required determination that a defendant’s guilty plea is truly

voluntary” and “to produce a complete record at the time the plea is entered of the

factors relevant to this voluntariness determination.” McCarthy v. United States,

394 U.S. 459, 465 (1969). “Thus, the more meticulously the Rule is adhered to,

the more it tends to discourage, or at least to enable more expeditious disposition

of, the numerous and often frivolous post-conviction attacks on the constitutional

validity of guilty pleas.” Id.

      “No simple or mechanical rule determines whether the district court

complied with Rule 11’s mandate to satisfy itself that [the defendants] understood

the nature of the charges against them.” United States v. DePace, 120 F.3d 233,

237 (11th Cir. 1997) (citing United States v. Bell, 776 F.2d 965, 968 (11th Cir.

1985)). “Rather, the inquiry varies from case to case depending on ‘the relative

difficulty of comprehension of the charges and of the defendant’s sophistication

and intelligence.’” Id. (quoting Bell, 776 F.2d at 968). This Court has described

“the spectrum of complexity of charges and the concomitant degree of required

explication” as follows:

      “For simple charges . . . a reading of the indictment, followed by an
      opportunity given the defendant to ask questions about it, will usually
      suffice. Charges of a more complex nature, incorporating esoteric terms or
      concepts unfamiliar to the lay mind, may require more explication. In the
      cases of extreme complexity, an explanation of the elements of the offense
      like that given the jury in its instructions may be required.”

                                          62
Id. (quoting United States v. Dayton, 604 F.2d 931, 937-38 (5th Cir. 1979) (en

banc)). We recently stated that “[p]ossession with intent to distribute crack and

conspiracy to do the same are not of course the most complicated of offenses.”

United States v. Telemaque, 244 F.3d 1247, 1249 (11th Cir. 2001).

      In assessing whether a district court’s failure to comply with Rule 11

constitutes plain error, this Court has identified three “core concerns” of that rule:

“(1) ensuring that the guilty plea is free of coercion; (2) ensuring that the defendant

understands the nature of the charges against him; and (3) ensuring that the

defendant is aware of the direct consequences of the guilty plea.” Quinones, 97

F.3d at 475 (citing United States v. Zickert, 955 F.2d 665, 668 (11th Cir. 1992)).

“Failure to satisfy any of the core objectives violates the defendants’s substantial

rights.” Id.

      3.       Elements of the Offense

      The Sanchezes maintain that the district court failed to comply with Rule 11

because it did not inform them of all of the elements of the offense with which they

were charged. Because both Sanchezes were sentenced below the prescribed

maximum penalty otherwise permissible under § 841(b)(1)(C), a specific drug




                                          63
quantity was not, nor did it ever become, an element of their drug offenses.57 Thus,

that the district court did not discuss any specific drug quantity in their plea

colloquies was not error, plain or otherwise, under Apprendi.

       4.      “Maximum Possible Penalty”

       Alternatively, the Sanchezes assert that if drug quantity never became an

element of their offense, their guilty pleas were nonetheless involuntary and

unknowing because they were misadvised during their plea colloquies as to the

“maximum possible penalty” they faced. See Fed. R. Crim. P. 11(c)(1). The

argument is that their guilty pleas were induced by the threat of a harsher

punishment than was legally permissible under the indictment in this case.

Specifically, the Sanchezes’ contention is that they entered their guilty pleas while

laboring under the understanding that they could face up to forty years’ or life

imprisonment, when actually they could have been sentenced only to a maximum

of twenty years’ imprisonment because their indictment did not allege a specific

drug quantity.

       The Sanchezes first must establish that they were in fact misadvised about

the “maximum possible penalty” under Rule 11. See Fed. R. Crim. P. 11(c)(1). To



       57
          The Sanchezes’ conditional plea agreements did not preserve the right to appeal any
error in their plea colloquies, nor did they ever move to withdraw their pleas in the district court.

                                                 64
do so, they argue that, in light of Apprendi, their indictment would not have

supported an enhanced sentence of forty years under § 841(b)(1)(B) because it did

not allege a drug quantity. The Sanchezes emphasize that to obtain a sentence

beyond that otherwise provided under § 841(b)(1)(C), Apprendi requires that drug

quantity be charged in the indictment, submitted to a jury, and proven beyond a

reasonable doubt. Since their indictment did not charge a specific drug quantity,

the Sanchezes argue that it was insufficient for an enhanced sentence and that their

maximum possible penalty, in light of Apprendi, was actually twenty years’

imprisonment under § 841(b)(1)(C). The issue presented by this argument,

however, is not whether drug quantity should be alleged in some form in the

indictment when it increases a sentence beyond the maximum in § 841(b)(1)(C) – a

question already answered by Rogers – but whether the wording of the Sanchezes’

indictment is sufficient to satisfy that indictment requirement.58

       58
         Our precedent strongly implies that naming a number is not the only way of alleging
drug quantity in the indictment. See United States v. Nealy, 232 F.3d 825, 830 & n.5 (11th Cir.
2000) (stating “that the indictment likely only needs to reference the statute” but finding that the
defendant abandoned the indictment issue and affirming his thirty-two-year sentence) (citing
United States v. Fern, 155 F.3d 1318, 1325 (11th Cir. 1998)); Fern, 155 F.3d at 1325 (“If an
indictment specifically refers to the statute on which the charge was based, the reference to the
statutory language adequately informs the defendant of the charge.”) (citing United States v.
Stefan, 784 F.2d 1093, 1101-02 (11th Cir. 1986)); see also United States v. Wims, 245 F.3d
1269, 1272 n.6 (11th Cir. 2001) (affirming concurrent sentences of forty years and life
imprisonment and stating that “by alleging violations of section 841(b)(1)(A), the indictment
served [the defendant] with notice that the Government was charging him with possessing (or
conspiring to possess) at least five kilograms of a mixture containing a detectable amount of
cocaine or at least fifty grams of a mixture containing cocaine base”). Because the Sanchezes’

                                                 65
        We need not resolve this issue, however, because even assuming arguendo

that the Sanchezes were misadvised about the “maximum possible penalty” they

faced, their challenge to their plea colloquies lacks merit due to Brady v. United

States, 397 U.S. 742 (1970). The Supreme Court in Brady expressly held that a

guilty plea was not rendered involuntary by a subsequent legal pronouncement that

reduced the statutory maximum sentence below what the defendant was advised of

at the time of his plea. In Brady, the defendant was charged with violating the

Federal Kidnaping Act, 18 U.S.C. § 1201(a), which authorized a penalty of death

or imprisonment.59 Id. at 743. Although initially pleading not guilty, he later

changed his plea to guilty.60 Id. The trial judge twice questioned the defendant as

to the voluntariness of his plea, and the defendant affirmed that the plea was




challenges to their guilty pleas lack merit even if they were misadvised, we need not imagine
here or resolve all the ways in which an indictment may adequately allege drug quantity.
        59
             At the time of the defendant’s plea colloquy in 1959, § 1201(a) provided, in pertinent
part:
       Whoever knowingly transports in interstate . . . commerce, any person who has been
       unlawfully . . . kidnaped . . . and held for ransom . . . shall be punished (1) by death if the
       kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so
       recommend, or (2) by imprisonment for any term of years or for life, if the death penalty
       is not imposed.
Brady, 397 U.S. at 743 n.1 (quoting 18 U.S.C. § 1201(a)).
        60
        The habeas court found that Brady changed his plea upon learning that his co-defendant
would plead guilty and would be available to testify against him. Id. at 745.

                                                   66
voluntary. Id. at 743 n.2 (excerpt from the defendant’s plea colloquy).61 The trial

judge then sentenced the defendant to fifty years’ imprisonment, which was later

reduced to thirty years. Id. at 744.

       After the defendant pled guilty and was sentenced, the Supreme Court

invalidated the portion of § 1201(a) that permitted the death penalty. See United

States v. Jackson, 390 U.S. 570, 572 (1968).62 The defendant filed a federal habeas

petition pursuant to 28 U.S.C. § 2255 and claimed that, after Jackson, his guilty


       61
          While the Supreme Court’s opinion indicates that Brady alleged that the district court
did not comply with Rule 11 in its plea colloquy, neither that opinion nor the circuit court
opinion under review indicate what advice the district court gave concerning the possible
penalties. The Supreme Court’s opinion does state that “Brady’s counsel advised him that
§ 1201(a) empowered the jury to impose the death penalty.” Brady, 397 U.S. at 756.
Nonetheless, its discussion centered on whether the subsequent change in the law rendered the
guilty plea invalid.
       62
          In Jackson, the Supreme Court concluded that the death penalty provision of § 1201(a)
“impose[d] an impermissible burden upon the exercise of a constitutional right.” Jackson, 390
U.S. at 572. Specifically, the Court observed that under § 1201(a), “the defendant who abandons
the right to contest his guilt before a jury [i.e., by pleading guilty] is assured that he cannot be
executed; the defendant ingenuous enough to seek a jury acquittal stands forewarned that, if the
jury finds him guilty and does not wish to spare his life, he will die.” Id. at 581. The Court
further noted that “[t]he inevitable effect of any such provision, is of course, to discourage
assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth
Amendment right to demand a jury trial.” Id. (footnote omitted). The Supreme Court
concluded, “Whatever the power of Congress to impose a death penalty for violation of the
Federal Kidnaping Act, Congress cannot impose such a penalty in a manner that needlessly
penalizes the assertion of a constitutional right.” Id. at 583 (citing Griffin v. California, 380 U.S.
609 (1965)). The Court further decided, however, that the unconstitutionality of the death
penalty provision did not invalidate the entire statute, and it thus upheld the remainder of the
statute after excising the death penalty provision. See id. at 591 (“Thus the infirmity of the death
penalty clause does not require the total frustration of Congress’ basic purpose – that of making
interstate kidnaping a federal crime. By holding the death penalty clause of the Federal
Kidnaping Act unenforceable, we leave the statute an operative whole, free of any constitutional
objection.”).

                                                 67
plea could not be considered voluntary because § 1201(a) had operated to coerce

his plea. Brady, 397 U.S. at 744. The Supreme Court thus was faced with the

questions of whether “it violates the Fifth Amendment to influence or encourage a

guilty plea by opportunity or promise of leniency” and whether “a guilty plea is

coerced and invalid if influenced by the fear of a possibly higher penalty for the

crime charged if a conviction is obtained after the State is put to its proof.” Id. at

750-51.

      The Supreme Court answered in the negative, stating:

      A defendant is not entitled to withdraw his plea merely because he discovers
      long after the plea has been accepted that his calculus misapprehended the
      quality of the State’s case or the likely penalties attached to alternative
      courses of action. More particularly, absent misrepresentation or other
      impermissible conduct by state agents, a voluntary plea of guilty
      intelligently made in the light of the then applicable law does not become
      vulnerable because later judicial decisions indicate that the plea rested on a
      faulty premise. A plea of guilty triggered by the expectations of a
      competently counseled defendant that the State will have a strong case
      against him is not subject to later attack because the defendant’s lawyer
      correctly advised him with respect to the then existing law as to possible
      penalties but later pronouncements of the courts, as in this case, hold that the
      maximum penalty for the crime in question was less than was reasonably
      assumed at the time the plea was entered.

             The fact that [the defendant] did not anticipate [the later change in the
      law] does not impugn the truth or reliability of his plea. We find no
      requirement in the Constitution that a defendant must be permitted to disown
      his solemn admissions in open court that he committed the act with which he
      is charged simply because it later develops that the State would have had a
      weaker case than the defendant had thought or that the maximum penalty
      then assumed applicable has been held inapplicable in subsequent judicial

                                           68
       decisions.

Id. at 757 (citation omitted) (emphasis added). The Supreme Court concluded that

the defendant’s guilty plea was voluntary at the time it was made:

       [The defendant] first pleaded not guilty; prior to changing his plea to guilty
       he was subjected to no threats or promises in face-to-face encounters with
       the authorities. He had competent counsel and full opportunity to assess the
       advantages and disadvantages of a trial as compared with those attending a
       plea of guilty; there was no hazard of an impulsive and improvident
       response to a seeming but unreal advantage. His plea of guilty was entered
       in open court and before a judge obviously sensitive to the requirements of
       the law with respect to guilty pleas. [The defendant’s] plea . . . was
       voluntary.

Id. at 754-55.63

       The Supreme Court further concluded that even if the fear of the death

penalty in fact caused the defendant to enter a guilty plea rather than go to trial,

that did not render the plea involuntary, explaining, “But even if we assume that

[the defendant] would not have pleaded guilty except for the death penalty

provision of [the statute at issue], this assumption merely identifies the penalty

provision as a ‘but for’ cause of his plea. That the statute caused the plea in this

sense does not necessarily prove that the plea was coerced and invalid as an

       63
          The Supreme Court in Brady found support for this conclusion in Jackson itself, stating,
“The Court made it clear in Jackson that it was not holding § 1201(a) inherently coercive of
guilty pleas: ‘the fact that the Federal Kidnaping Act tends to discourage defendants from
insisting upon their innocence and demanding trial by jury hardly implies that every defendant
who enters a guilty plea to a charge under the Act does so involuntarily.’” Brady, 397 U.S. at
746-47 (quoting Jackson, 390 U.S. at 583).

                                               69
involuntary act.” Id. at 750-51.

       When distilled to its essence, the Sanchezes’ argument here is no different

from that rejected by the Supreme Court in Brady. The Sanchezes claim, as did the

defendant in Brady, that a subsequent judicial pronouncement – namely, Apprendi

– reduced the maximum possible penalty they faced for their offense and that this

new knowledge, of which they did not have the benefit during their plea

colloquies, retroactively invalidated their guilty pleas. We agree with the Supreme

Court, however, that there is “no requirement in the Constitution that a defendant

must be permitted to disown his solemn admissions in open court that he

committed the act with which he is charged simply because it later develops that . .

. the maximum penalty then assumed applicable has been held inapplicable in

subsequent judicial decisions.” Id. at 757. Thus, we reject the Sanchezes’ claim

that Apprendi invalidated their guilty pleas.64

       64
          Indeed, even if the Sanchezes had been misadvised about the maximum possibly
penalty under the law as it existed at the time of their plea colloquy, their guilty pleas would not
be invalid. In United States v. Woodall, 438 F.2d 1317 (5th Cir. 1971) (en banc), the defendant
challenged his guilty pleas to two related indictments on the ground that he had been incorrectly
advised that the trial judge would pyramid the sentences rather than consider them as graduated
penalties for a single offense. Id. at 1327. We upheld the pleas, stating:
        Isolating all other facts that could influence a defendant in determining to enter a
        plea of guilty, the court is of the opinion that even if [the defendant] had been told
        that the district judge could pyramid the maximum sentences under each of the
        separate counts of the two indictments to which he pled, this factor would not
        invalidate his plea. The probability such information would have influenced [the
        defendant] not to change his plea so far outweighs the possibility that the prospect
        of stiffer punishment may have caused the change, that we refuse to consider the

                                                 70
        The Sanchezes’ plea colloquies were otherwise sufficient. Like the

defendant in Brady, both defendants here were represented by counsel. The

requirements of Rule 11 were met by the district court’s advice to the Sanchezes

before accepting their guilty pleas.65 Also like the defendant in Brady, the

Sanchezes’ argument is based on a speculative “but-for” argument – that is, they

appear to suggest that but for the district court’s statement that they faced a

possible life sentence, they would not have pled guilty. The Sanchezes were

ultimately sentenced well below the maximum penalties of which they had been

advised.66 Under these circumstances, the Sanchezes cannot correctly claim that


        latter as relevant.
Id. at 1329.
        65
          The Sanchezes’ reliance on United States v. Brown, 117 F.3d 471 (11th Cir. 1997),
does not help them. The defendant Brown was informed that willfulness was not an element of
his crime, based on the then-applicable law in our circuit. Fourteen months after Brown pled
guilty, the Supreme Court overruled our precedent in that regard. Id. at 473 (citing Ratzlaf v.
United States, 510 U.S. 135 (1994)). The defendant moved to vacate his conviction and sentence
on the ground that he had been misinformed of a critical element of his offense. Id. at 474. The
district court denied the motion, id., but this Court reversed and remanded. Id. at 480. We
stated, “Because the misinformation [the defendant] was given about one of the critical elements
of the charge against him caused him to plead guilty, it necessarily follows that his guilty plea
was not voluntary in a constitutional sense.” Id. at 477. We decided that Brady did not require a
different result, noting that the defendant in Brown misapprehended the elements of his offense,
while the defendant in Brady misapprehended the possible penalties. See id. at 478 (“Unlike
Brady’s strategic miscalculations, Brown’s misapprehension concerning the critical elements of
his charged offense substantially undermines the reliability of this plea. Brown has never
admitted all the elements of the crime with which he was charged.”).
        66
         Although the Sanchezes were advised about the mandatory minimum sentences in
§ 841(b), they were not misadvised about them, as Apprendi does not affect mandatory minimum
sentences under § 841(b). See supra notes 38, 53.

                                               71
their guilty pleas were involuntary and unintelligent, and they can claim no harm or

detriment whatsoever resulting from their plea colloquies.67

C.     Sentences

       In addition to challenging their prison terms – an argument we have already

rejected – the Sanchezes, for the first time on appeal, make an Apprendi-based

attack on their terms of supervised release.68 Specifically, they contend that their

supervised release was limited by statute to three years and that the four-year terms

imposed violated Apprendi. We conclude that there was no Apprendi error in the

supervised release portion of the Sanchezes’ sentences.

       The central question presented is what statute provides the prescribed term

of supervised release applicable to the Sanchezes’ convictions.69 Section

       67
          This result is consistent with other cases in which we have decided that a district court’s
failure to inform a defendant that he faces a specified term of supervised release or to inform the
defendant of the effect of supervised release is harmless error where the sentence is well below
the sentence that the defendant was informed that he faced. See United States v. Bejarano, 249
F.3d 1304, 1306 n.1 (11th Cir. 2001).
       68
         Thus, we review their argument for plain error. See United States v. Candelario, 240
F.3d 1300, 1306 (11th Cir.) (“If the defendant either does not raise the constitutional objection or
does not raise it in a timely fashion, he is entitled only to plain error review.”), cert. denied, 121
S. Ct. 2535 (2001).
       69
         In United States v. Gerrow, 232 F.3d 831 (11th Cir. 2000), cert. denied, ___ S. Ct. ___,
No. 00-9373 (Oct. 1, 2001), we addressed a similar challenge and concluded that the district
court did not commit plain error in imposing a supervised release term of five years. That
conclusion was based primarily on the facts that there was no Supreme Court or Eleventh Circuit
precedent and that the circuits were split on the issue, under which circumstances “‘there can be
no plain error in regard to that issue.’” Id. at 835 (quoting United States v. Aguillard, 217 F.3d
1319, 1321 (11th Cir. 2000)). While Gerrow suggested that there was no error under any

                                                 72
841(b)(1)(C) requires a term of supervised release of “at least three years.” 21

U.S.C. § 841(b)(1)(C) (emphasis added). The Sanchezes rely, however, on 18

U.S.C. § 3583(b)(2), which provides that “[e]xcept as otherwise provided,” the

term of supervised release for a “Class C felony” may be “not more than three

years.” 18 U.S.C. § 3583(b)(2). A Class C felony is a felony for which the

“maximum term of imprisonment authorized” is “less than twenty-five years but

ten or more years.” 18 U.S.C. § 3559(a)(3). Thus, § 841(b)(1)(C), which provides

for a maximum prison term of twenty years, constitutes a Class C felony.

       The Sanchezes argue that, based on the facts of their cases, § 3583(b)(2)

creates a maximum term of supervised release of three years, while § 841(b)(1)(C)

authorizes a minimum term of supervised release of three years. The issue

presented, then, is whether § 841(b)(1)(C) or § 3583(b)(2) controls the length of

their terms of supervised release.

       A term of supervised release of four years, as the Sanchezes received, is

permitted under 21 U.S.C. § 841(b)(1)(C). As emphasized above, § 3583(b)(2)

limits the maximum term of supervised release for a Class C felony to three years,

“[e]xcept as otherwise provided.” 18 U.S.C. § 3583(b)(2). Section 841(b)(1)(C),



standard of review by noting that the majority of circuits resolved the issue against the
defendants, we now clarify that there is no error at all in a supervised release term of four years
for an offense where the term of imprisonment is governed by § 841(b)(1)(C).

                                                 73
in fact, expressly “otherwise provide[s]” – specifically, § 841(b)(1)(C) provides

that the term of supervised release for that particular Class C felony must be “at

least three years.” 21 U.S.C. § 841(b)(1)(C).

      To adopt the Sanchezes’ interpretation of the statute would require us to

ignore the words “at least” in § 841(b)(1)(C), thus rendering that statutory

language superfluous. Furthermore, the legislative history of both statutes

indicates that Congress did not intend for a term of supervised release ordered

pursuant to § 841(b)(1)(C) to be limited to three years. As noted by the Second

Circuit when faced with the identical question, “the supervised release terms

authorized by Congress for drug offenses, including section 841, were added in the

same statute that amended section 3583(b) by adding the introductory phrase

‘Except as otherwise provided.’” United States v. Eng, 14 F.3d 165, 172-73 (2d

Cir. 1994) (citing the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 1006,

100 Stat. 3207). As the Second Circuit concluded from this legislative history, “It

is apparent that in enacting . . . the Anti-Drug Abuse Act of 1986, Congress

intended to enhance the penalties available to combat drug offenses. That

Congress intended these penalties to override the maximums set by 18 U.S.C.

§ 3583(b) is clear from the fact that Congress simultaneously amended that section

to add the phrase ‘[e]xcept as otherwise provided.’” Id. at 173.


                                         74
       In light of its language and history, § 841(b)(1)(C) cannot be understood to

provide for a term of supervised release not greater than three years, as the

Sanchezes contend. Relying on these principles of statutory interpretation, six

other circuits have held that § 3583(b) does not limit the term of supervised release

authorized in § 841(b)(1)(C) and that a term of supervised release over the

minimum set forth in § 841(b)(1)(C) may be imposed notwithstanding the

provisions of § 3583(b). See United States v. Pratt, 239 F.3d 640, 647 (4th Cir.

2001) (holding that § 3583 “does not cap the period of supervised release that a

district court may impose under § 841(b)(1)(C)”); United States v. Shorty, 159

F.3d 312, 315-16 n.6 (7th Cir. 1998) (noting that the provision for the term of

supervised release in § 841(b)(1)(C) “sets a floor requirement, leaving the ceiling

open, closed only by a defendant’s death”); United States v. Page, 131 F.3d 1173,

1177-80 (6th Cir. 1997), abrogated on other grounds by Johnson v. United States,

529 U.S. 694 (2000); United States v. Garcia, 112 F.3d 395, 398 (9th Cir. 1997);

United States v. Orozco-Rodriguez, 60 F.3d 705, 707-08 (10th Cir. 1995); United

States v. Eng, 14 F.3d 165, 172-73 (2d Cir. 1994); United States v. LeMay, 952

F.2d 995, 998 (8th Cir. 1991).70 We therefore conclude that the Sanchezes’ four-


       70
          But see Suveges v. United States, 7 F.3d 6, 10 & n.6 (1st Cir. 1993) (indicating that a
term of supervised release imposed pursuant to § 841(b)(1)(C) is limited to three years); United
States v. Kelly, 974 F.2d 22, 25 (5th Cir. 1992) (same).

                                                75
year terms of supervised release are authorized by § 841(b)(1)(C) and not limited

by § 3583(b)(3).71 Therefore, the Sanchezes’ Apprendi-based challenges to the

supervised release portions of their sentences lack merit.

                                     IV. CONCLUSION

       In conclusion, we recognize the following principles. Apprendi is

implicated only when a judge-decided fact actually increases a defendant’s

sentence beyond the prescribed statutory maximum penalty for the crime of

conviction and has no application to, or effect on, cases where a defendant’s

sentence falls at or below that maximum penalty. This means, among other things,

that Apprendi has no application to, or effect on, either mandatory minimum

sentences or Sentencing Guidelines calculations, when in either case the ultimate

sentence imposed does not exceed the prescribed statutory maximum penalty.

Thus, in a § 841 case when a specific drug quantity triggers a mandatory minimum

sentence or is used in a Sentencing Guidelines calculation, and results in a sentence

at or below the otherwise applicable maximum penalty in § 841(b)(1)(C), there is

no Apprendi error and there is no requirement that a specific drug quantity be

alleged in the indictment, submitted to a jury, and proven beyond a reasonable

       71
          To the extent that the Sanchezes rely on the fact of their four-year terms of supervised
release to demonstrate that they were “sentenced under” § 841(b)(1)(B), that argument fails
because of our conclusion that a term of supervised release of four years is in fact authorized by
§ 841(b)(1)(C).

                                                76
doubt.

         More specifically, we conclude that: 1) the various Apprendi errors that the

Sanchezes assert are constitutional errors subject to harmless or plain error review,

depending on the timing of their constitutional objections, and are not structural or

jurisdictional errors; 2) the district court’s drug quantity findings under

§ 841(b)(1)(B) and utilization of that sentencing scheme, which exposed the

Sanchezes to enhanced sentences under that section but did not result in an actual

term of imprisonment beyond the otherwise applicable maximum penalty in §

841(b)(1)(C), did not violate Apprendi; 3) because the district court’s drug quantity

findings did not increase the Sanchezes’ ultimate sentences beyond the otherwise

applicable maximum penalty in § 841(b)(1)(C), Apprendi does not apply to their §

841 indictment, guilty pleas, convictions, and sentences, and there was no

requirement that a specific drug quantity be alleged in their indictment, covered in

their plea colloquies, submitted to a jury, or proven beyond a reasonable doubt; 4)

in this regard, we adopt the analyses of Apprendi in United States v. Gerrow, 232

F.3d 831 (11th Cir. 2000), cert. denied, ___ S. Ct. ___, No. 00-9373 (Oct. 1, 2001),

and other circuits’ decisions concluding that Apprendi does not apply to § 841

cases unless drug quantity actually increases a defendant’s sentence beyond the

otherwise applicable maximum penalty, and we reject the extension of the


                                           77
Apprendi rule contemplated by the five propositions identified above in United

States v. Rogers, 228 F.3d 1318 (11th Cir. 2000) and reflected by the subsequent

coining of the term “Rogers error” in United States v. Camacho, 248 F.3d 1286

(11th Cir. 2001); 5) the district court thus properly denied the Sanchezes’ motion

to dismiss their indictment because drug quantity was not an essential element of

their § 841 offense, and their indictment charging a violation of § 841 without

alleging a specific drug quantity properly charged a completed federal crime both

before and after Apprendi; 6) a specific drug quantity also never became an

element of the Sanchezes’ § 841 offense under Apprendi because their ultimate

sentences did not exceed the otherwise applicable maximum penalty under

§ 841(b)(1)(C); 7) Apprendi also did not render the Sanchezes’ plea colloquies

inadequate and their guilty pleas unintelligent or involuntary even assuming that

the district court misadvised them about the higher statutory maximum penalties

under §§ 841(b)(1)(A) and 841(b)(1)(B); and 8) the Sanchezes’ four-year terms of

supervised release were permitted by § 841(b)(1)(C) and thus did not implicate

Apprendi.72

       72
         In response to the statement in Judge Tjoflat’s concurring opinion that this case is not
en banc worthy because the Apprendi answer is obvious, we note that it was not obvious (1) to
the Sanchezes (or their counsel) who, notwithstanding their guilty pleas, preserved the right to
challenge the absence of drug quantity in their indictments as part of their plea agreements and
have pressed their contention that there is Apprendi error requiring reversal of their convictions
and sentences; (2) to the Sanchez panel whose opinion followed Rogers and Shepard, but

                                                78
       For the foregoing reasons, no error exists in the Sanchezes’ indictment, plea

colloquies, convictions, or sentences. Thus, we affirm both the convictions and the

sentences of defendants Ignasio Sanchez and Santiago Sanchez.

       AFFIRMED.




ultimately found no prejudice and any error was harmless; or (3) to “All Federal Public and
Community Defenders within the Eleventh Circuit Court of Appeals” and the “National
Association of Criminal Defense Lawyers and Families Against Mandatory Minimums
Foundation” who filed Amicus Curiae briefs supporting the Sanchezes’ requests for reversal of
their convictions and sentences based in part on their readings of Apprendi, Rogers, and
Camacho. For example, as noted in one Amicus Curiae brief, “[p]anels of this court have split
on the question of what effect Apprendi has on § 841’s type- and amount-base provisions.” That
brief then contrasts the approach taken in Gerrow versus that in Rogers and Camacho. We heard
this case en banc precisely (1) because of the need to clarify in our circuit the impact of
Apprendi on drug convictions, sentences, and plea colloquies, especially where a §§ 846, 841
indictment does not allege drug quantity, and (2) because it involves issues of exceptional
importance affecting a plethora of criminal cases.

                                             79
TJOFLAT, Circuit Judge, specially concurring, in which WILSON, Circuit Judge,
joins:

       It is obvious from the start that there is no Apprendi error in this case.

Because the Sanchezes’ sentences did not exceed the twenty-year maximum

sentence prescribed by 21 U.S.C. § 841(b)(1)(C), Apprendi simply does not apply.

Likewise, there is no error under this circuit’s post-Apprendi cases, United States

v. Rogers, 228 F.3d 1318 (11th Cir. 2000), and United States v. Camacho, 248

F.3d 1286 (11th Cir. 2001), because the mandatory minimums of neither section

841(b)(1)(A) nor (B) constrained the district court’s sentencing discretion provided

by the sentencing guidelines. Hence, further discussion is unnecessary.1

       Yet, the court commences to canvass every issue that could possibly arise

out of a potential Apprendi error, and, in the process, composes a treatise of dicta

that compromises this circuit’s commitment to the policies established by

Apprendi. The majority, for instance, misinterprets Rogers’ holding that drug

quantity must be charged in the indictment when a court utilizes sections

841(b)(1)(A) or (B), and then sets about overruling it. Likewise, the court

disavows Camacho after finding it inconsistent with McMillan v. Pennsylvania,

       1
          Rule 35 of the Federal Rules of Appellate Procedure advises that an en banc hearing “is
not favored . . . unless (1) [it] is necessary to secure or maintain uniformity of the court’s
decisions; or (2) the proceeding involves a question of exceptional importance.” Fed. R. Appl.
Pro. 35. This appeal satisfies neither test. Therefore, the court should vacate the order taking
this case for rehearing en banc as improvidently granted.

                                               80
477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986); yet, a closer reading of

Camacho reveals it to be entirely consistent with McMillan and a significant

decision in this circuit’s application of Apprendi to section 841(a) cases.

Overruling these two cases undermines the progress of our post-Apprendi

decisions and, because it is accomplished through dicta, creates a blurring array of

contradictions through which trial court judges and practitioners must now sift.

Not content to confine its decision to this dictum, the majority continues by

tackling the task of deciding whether an Apprendi error, when it actually occurs, is

jurisdictional and reversible per se or is, instead, subject to harmless or plain error

analyses under Rule 52(a) or (b) of the Federal Rules of Criminal Procedure.2

Again, though the question is interesting, our task as judges is to decide the issues

this appeal actually presents.

      Anxious though it may be to establish a hornbook on Apprendi errors, the

majority simply chose the wrong case as its vehicle, a decision which is both

unfortunate and counterproductive. Dicta, especially erroneous dicta, creates a

potential for mischief. “For the layperson, as well as for judges, confusion about


      2
          Federal Rule of Criminal Procedure 52 states:
               (a) Harmless Error. Any error, defect, irregularity or variance which does not
               affect substantial rights shall be disregarded.
               (b) Plain Error. Plain errors or defects affecting substantial rights may be noticed
               although they were not brought to the attention of the court. Id.

                                                 81
the state of the law most often comes about by confusing the holding of a case with

the dicta in the opinion.” Denno v. School Bd. of Volusia County, 218 F.3d 1267,

1280 (11th Cir. 2000) (Forrester, J., concurring in part, dissenting in part)

(emphasis in original). Faced with the majority’s opinion here and the earlier

decisions it seeks to disavow, a trial judge or practitioner sits in an unenviable

position in discerning our law. Our own court will face uncertainty; in analyzing

any question answered by dictum, “we are ‘free to give that question fresh

consideration.’” United States v. Hunter, 172 F.3d 1307, 1310 (11th Cir. 1999)

(Carnes, J., concurring) (quoting Great Lakes Dredge & Dock Co. v. Tanker

Robert Watt Miller, 957 F.2d 1575, 1578 (11th Cir. 1992)).

      While I agree that the Sanchezes’ convictions and sentences should be

affirmed, and therefore concur in the court’s judgment, I write separately to

eliminate the confusion our decision may cause district judges and the lawyers who

litigate drug cases. I begin in part I with a brief recitation of the facts and

procedural history leading up to this appeal. I then explain in part II why Apprendi

does not apply in this case and assert, moreover, that discussion of Rogers is

entirely irrelevant. Rogers is irrelevant because the defendant there, unlike the

Sanchezes, who pled guilty, stood on his not guilty plea and was tried by a jury.

Putting this dispositive distinction aside, to address the majority’s disavowing of


                                           82
Rogers, I also explain in part II the proper interpretation of that decision and its

importance in our caselaw. In part III, I turn to respond more fully to Judge

Barkett’s argument that Apprendi errors are jurisdictional. In short, I believe that a

closer look at Apprendi reveals the Supreme Court’s true concerns: that the

defendant receive notice of the enhanced sentence and that the enhanced sentence

be reliable. Two conclusions necessarily follow from this observation. First, when

these two concerns are not alleviated, the error is not jurisdictionally fatal; in fact,

analyzing the error under harmless or plain error analysis best fulfills the Apprendi

Court’s mantra. I set out in part IV the second conclusion: as long as the defendant

receives notice and a reliable sentence, then there is no Apprendi error. I then

describe the various scenarios in which Apprendi errors arise and the sound

approach in analyzing each one.

                                               I.

       Appellants Ignasio Sanchez and Santiago Sanchez were indicted, along with

four others, for conspiring knowingly and intentionally to possess with intent to

distribute methamphetamine and amphetamine, in violation of 21 U.S.C. §§ 841(a)

and 846.3 The indictment did not include a specific drug quantity. Ignasio

       3
        21 U.S.C. § 841(a)(1) makes it unlawful “for any person knowingly or intentionally . . .
to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance.” Id. 21 U.S.C. § 846 is the corresponding attempt and
conspiracy provision. Id.

                                               83
Sanchez subsequently moved to dismiss the indictment for “failure to allege facts

that increase the maximum penalty,” arguing that “Jones [v. United States, 526

U.S. 227, 243 n.6, 119 S. Ct. 1215, 1224 n.6, 143 L. Ed. 2d 311 (1999)], clearly

holds that the Constitution requires an indictment to allege ‘any fact (other than

prior conviction) that increases the maximum penalty for a crime.’” Santiago

Sanchez later adopted Ignasio’s motion. After the district court denied both

motions, the defendants pled guilty conditioned on the right to appeal the court’s

denial.4

        The initial pre-sentence investigation reports (“PSIs”) recommended that

the Sanchezes be found responsible for various drug quantities of

methamphetamine and amphetamine. Following objections from both the

Government and the appellants, the reports were revised and the drug quantities

were lowered. In the final PSIs, Santiago Sanchez was held accountable for

24,494.4 grams of amphetamine, 907.2 grams of methamphetamine, and 3.54

grams of cocaine, and Ignasio Sanchez was held responsible for 18,144 grams of

amphetamine, 907.2 grams of methamphetamine, and 4,536 grams of marijuana.


       4
         Ignasio Sanchez properly preserved his right to appeal under Federal Rule of Criminal
Procedure 11(a)(2). As the majority notes, Santiago Sanchez, though not complying with the
Rule 11(a)(2) “writing requirement,” should be treated as having properly preserved his right to
appeal because the Government agreed to the oral reservation and the district court granted
permission.

                                               84
As the majority notes, the PSIs then converted these drug quantities into amounts

of marijuana, according to the drug equivalency tables of the sentencing

guidelines. For Santiago, this yielded an equivalency of 6,713.99 kilograms of

marijuana; for Ignasio, the total was 5,447.74 kilograms of marijuana. Then,

without citing any penal provision in 21 U.S.C. § 841(b), the reports stated that the

“Statutory Penalty” for each defendant was “5 to 40 years.”5

       The Sanchezes were sentenced at the conclusion of the second of two

sentencing hearings. At the first hearing, after the court denied the Sanchezes’

renewed motion to dismiss the indictment (for failure to allege drug quantity), the

prosecutor streamlined the drug transactions listed in the PSIs into essentially three

categories. The first category included one significant drug transaction, one to

which Santiago Sanchez never objected, that occurred at a Stone Mountain motel

in June 1998 and involved 907.2 grams of methamphetamine.6 In the second



       5
          “Statutory Penalty” is most likely a reference to 21 U.S.C. § 841(b)(1)(B), one of the
three penalty provisions of section 841. This provision requires a finding of a particular drug
quantity and prescribes a penalty range of five to forty years’ imprisonment. As I explain more
fully infra, note 7, however, the methamphetamine quantity actually corresponds to the
methamphetamine quantity set out in section 841(b)(1)(A), which prescribes a penalty range of
10 years to life imprisonment.
       6
         The PSIs and the prosecutor reported that “two pounds” of methamphetamine were
involved in the Stone Mountain transaction; two pounds is equivalent to 907.2 grams. Unlike
the other substances described in the PSIs, “approximately 230 grams” of the drugs exchanged at
the Stone Mountain hotel were seized by the Government and tested positive for the presence of
methamphetamine.

                                               85
category, the prosecutor described several transactions between the Sanchezes and

a woman named C.J. Franks, which, according to the prosecutor, yielded

approximately 2,718 grams of amphetamine. Finally, the prosecutor reported a

third category of transactions involving the Sanchezes and a man named Kenneth

Kish Green, which totaled 2,718 grams of amphetamine. While the Sanchezes did

not withdraw their objections to the initial PSIs, they both conceded that the

prosecutor’s revision of the drug quantities had “the same effect on [their]

sentencing guidelines as if [they had] won all of [their] objections.” Then, based

on these three categories of transactions, the district court found by a

preponderance of the evidence that the Sanchezes should be held responsible for

907.2 grams of methamphetamine and 5,436 grams of amphetamine, which

together yielded a marijuana equivalency of 2,903.04 kilograms. Under the

sentencing guidelines, the district court concluded, these drug quantities resulted in

a base offense level of 32. At this first sentencing hearing, the Sanchezes made an

oral motion for a downward departure from the applicable guidelines range based

on the prison conditions at the Atlanta Pretrial Detention Center. The court

deferred ruling on the motion.

      At the second sentencing hearing, the court denied the motion for the

downward departure, finding that the conditions at the Atlanta Pretrial Detention


                                          86
Center were not “so atypical as to justify the highly infrequent exercise of a

downward departure.” The court then noted that its sentencing option in this case

was a mandatory minimum of five years and a maximum of forty years

imprisonment, thus describing, but not citing, the statutory provision of section

841(b)(1)(B).7 Using the sentencing guidelines, the drug amounts described in the

first sentencing hearing, and other adjustments, the court then announced a

guideline range of 87 to 108 months for Ignasio Sanchez and 108 to 135 months

for Santiago Sanchez.8 The court then settled on the lower end of the guideline

       7
          The PSIs, the district court, and the parties failed to recognize that 21 U.S.C. §
841(b)(1)(A)(viii), specifying a prison term of 10 years to life, actually controlled the sentences
in this case. Instead, the PSIs described the “Statutory Penalty” as being from “5 to 40 years,”
which corresponds to the penalty range set out in section 841(b)(1)(B); the district court at the
second sentencing hearing declared that its sentencing option was “a statutory minimum
mandatory sentence of five years up to forty years . . .”; and, the parties in their briefs to this
court assumed that section 841(b)(1)(B) is controlling. Yet, as the PSIs indicated and the court
found at the sentencing hearing, the Sanchezes were responsible for 5,436 grams of
amphetamine and 907.2 grams of methamphetamine, the latter of which requires the application
of section 841(b)(1)(A)(viii). Under that section, the proper sentence was 10 years to life
imprisonment, not five to forty years. After arriving at the marijuana equivalency for the drugs,
the district court nevertheless sentenced the Sanchezes to 87 and 108 months, respectively, both
sentences falling below the 10-year mandatory minimum of section 841(b)(1)(A). Because the
Government has not cross-appealed, however, this court cannot address the issue. See, e.g.,
McKinney v. Pate, 985 F.2d 1502, 1507 n.11 (11th Cir. 1993) (“The failure to cross-appeal
renders this point waived and without merit.”); Baker v. Montgomery, 811 F.2d 557, 558 n.1
(11th Cir. 1987) (“Having failed to brief and argue these issues on appeal, defendant has
abandoned these claims.”).
       8
          Under the sentencing guidelines, this final drug amount – a marijuana equivalency of
2,903.04 kilograms – resulted in a base offense level of 32 for each defendant. The court then
applied a two-level increase for firearm possession, resulting in an offense level of 34. For
Ignasio Sanchez, the court applied a two-level reduction for playing a minor role and a three-
level reduction for acceptance of responsibility, producing a final offense level of 29. With a
criminal history category of I, the guideline range for Ignasio Sanchez was 87 to 108 months.

                                                87
range for each defendant, taking into account the offensive conditions at the

Atlanta Pretrial Detention Center, and sentenced Ignasio Sanchez to 87 months’

imprisonment and Santiago Sanchez to 108 months’ imprisonment.9 This appeal

followed.

                                               II.

       The Sanchezes contend that the district court should have dismissed their

indictment for failing to allege drug quantity. As I see it, they appear to advance

two arguments. First, the Sanchezes assert that because drug quantity determines

the range of punishment in a case prosecuted under 21 U.S.C. §§ 841(a) and 846,

the Supreme Court’s decision in Apprendi requires quantity to be treated as an

element. Second, noting that the district court believed that 21 U.S.C. §

841(b)(1)(B) prescribed their maximum and minimum sentences, the Sanchezes

argue that drug quantity should have been alleged in the indictment and proven

beyond a reasonable doubt under both Apprendi and Rogers.

       Because the Sanchezes properly preserved this issue for appeal, the majority



For Santiago Sanchez, the court reduced the offense level of 34 by only three for acceptance of
responsibility. This produced an offense level of 31, which, with a criminal history of Category
I, resulted in a guideline range for Santiago Sanchez of 108 to 135 months.
       9
        After the court imposed the sentences, the Sanchezes renewed for a second time their
motion to dismiss the indictment for failure to allege a drug quantity. The court denied their
motion.

                                               88
is correct in applying a de novo standard of review to their arguments. United

States v. Candelario, 240 F.3d 1300, 1306-07 (11th Cir. 2001).10

                                                1.

       The Sanchezes’ first argument, that the Supreme Court’s decision in

Apprendi requires quantity to be treated as an element of any 21 U.S.C. § 841(a)

offense, may be disposed of quickly. In Apprendi, the Supreme 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

proven beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S. Ct. at

2362-63. As the majority correctly notes, in applying the rule of Apprendi to 21

U.S.C. § 841, this circuit has held in case after case that the rule of Apprendi does

not apply to cases in which the ultimate sentence is no greater than the twenty-year

maximum set out in section 841(b)(1)(C).11 See, e.g., Rogers, 228 F.3d at 1327;


       10
          Because I believe that Apprendi does not apply to this case, in part III I discuss
whether an Apprendi error, when it occurs, is jurisdictional or merely subject to harmless or
plain error analysis under Rule 52.
       11
           At this point, a review of the statutory framework of 21 U.S.C. § 841 is helpful. The
first section of the statute, section 841(a), sets out the offense without regard to drug quantity.
See supra, note 3. The second section, section 841(b), then describes the various penalty
provisions to which the defendant may be subject after being found guilty of section 841(a).
Section 841(b)(1)(A) applies a mandatory minimum sentence of 10 years up to life imprisonment
for certain drug quantities, while section 841(b)(1)(B) applies a mandatory minimum of five
years up to forty years imprisonment for lesser drug quantities. It is under section 841(b)(1)(C),
however, that a defendant may be sentenced without a finding of any drug quantity. Section
841(b)(1)(C) states, “In the case of a controlled substance in schedule I or II . . . such person

                                                89
see also United States v. Gallego, 247 F.3d 1191, 1197 (11th Cir. 2001); United

States v. Gerrow, 232 F.3d 831, 834 (11th Cir. 2000); United States v. Nealy, 232

F.3d 825, 829 (11th Cir. 2000); United States v. Shepard, 235 F.3d 1295, 1296-97

(11th Cir. 2000). That is to say, we have treated section 841(b)(1)(C) as the

“catch-all [penalty] provision” of section 841(b) because under that section, a

defendant may be sentenced up to a maximum of twenty years without regard to

any drug quantity. Rogers, 228 F.3d at 1327, n.15. Hence, if a defendant is

sentenced under section 841(b)(1)(C) to a term no greater than twenty years, there

is no Apprendi error. See, e.g., Rogers, 228 F.3d at 1327; see also Gallego, 247

F.3d at 1197; United States v. Pease, 240 F.3d 938, 943-44 (11th Cir. 2001);

Gerrow, 232 F.3d at 834; Nealy, 232 F.3d at 829; Shepard, 235 F.3d at 1296-97;.

       Therefore, I contend that the rule of Apprendi does not apply here, because

the Sanchezes’ ultimate sentences did not exceed the twenty-year maximum of

section 841(b)(1)(C).

                                                2.

       The Sanchezes persist, however, arguing that even though their sentences

did not exceed section 841(b)(1)(C)’s maximum, they were imposed under section

841(b)(1)(B) because the district court, at the second sentencing hearing, referred


shall be sentenced to a term of imprisonment of not more than 20 years . . .” Id.

                                                90
to and felt limited by that section. Specifically, the Sanchezes argue that by

mentioning section 841(b)(1)(B), the district court exposed the defendants to a

possible prison term higher than the maximum penalty set out in section

841(b)(1)(C). Therefore, the Sanchezes assert, Apprendi requires that drug

quantity be treated as an essential element of their offense and that, under Rogers,

the quantity be charged in the indictment. It is this latter argument that most

confuses the majority and leads unnecessarily to the dicta regarding Rogers and

United States v. Camacho, 248 F.3d 1286 (11th Cir. 2001). Before addressing the

Sanchezes’ alleged Rogers’ error, however, I review briefly the decisions disposing

of the Sanchezes’ supposed Apprendi error.

       Bared to their essentials, these cases hold that there is no Apprendi error as

long as the defendant’s sentence does not exceed the twenty-year maximum of

section 841(b)(1)(C), no matter what the district court said or found during

sentencing. Although I concur with the majority in its treatment of the alleged

Apprendi error, I believe it is important to show that our precedents, standing

independent of Rogers, have long held that mere references to or reliance on

sections 841(b)(1)(A) or 841(b)(1)(B) do not create error under Apprendi.12 In

       12
          It is unclear from the majority’s response to this particular Apprendi argument on what
basis the majority rejects it. The majority first implies that the Sanchezes’ argument derived
from Rogers and, rather than laying out this circuit’s well-established precedents, it then cites to
nine other circuits’ decisions to dispose of both the argument and Rogers. I believe that our own

                                                 91
United States v. Gerrow, 232 F.3d 831 (11th Cir. 2000), for example, two

defendants were tried and convicted under sections 841(a)(1) and 846 without

regard to drug quantity. See id., 232 F.3d at 833. At their sentencing hearing, the

district court determined drug quantities for each and then sentenced them under

the sentencing guidelines to terms well under the twenty-year maximum of section

841(b)(1)(C). See id. at 834. We found no error, plain or otherwise, under

Apprendi because the terms of imprisonment did not exceed the statutory

maximum set forth in section 841(b)(1)(C). See id. Moreover, in United States v.

Gallego, 247 F.3d 1191 (11th Cir. 2001), one of the defendants was charged in an

indictment that did not include drug quantity and was tried and convicted under

section 841(a)(1). See id., 247 F.3d at 1194 n.3. The district court sentenced this

defendant under the sentencing guidelines to 168 months imprisonment, and we

held that there was no Apprendi error because the sentence fell within the statutory

maximum of section 841(b)(1)(C). See id. at 1197. Likewise, in Rogers, Nealy,

Pease, Candelario, and Wims, this court found sentencing errors under Apprendi

only because the lower courts had sentenced defendants to terms over the twenty-

year maximum of section 841(b)(1)(C), meaning that the district courts had




cases, including Rogers, however, have long held that there can be no Apprendi error when the
sentence does not exceed the statutory maximum of section 841(b)(1)(C).

                                              92
necessarily employed either section 841(b)(1)(A) or section 841(b)(1)(B) without

properly treating drug quantity as an element.

       In only one case has this court intimated that there could be an Apprendi

error for not treating drug quantity as an element even when the defendant’s

sentence did not exceed the twenty-year maximum of section 841(b)(1)(C). In

United States v. Shepard, 235 F.3d 1295 (11th Cir. 2000), although no drug

quantity was alleged in the indictment, the district court “sentenc[ed] [the

defendant] under section 841(b)(1)(B)” for possessing the requisite drug quantity13

to 188 months imprisonment. Id. at 1296. On appeal, we found this to be an error

under Apprendi because the “[defendant’s] sentence was controlled by section

841(b)(1)(C)” but the district court had applied section 841(b)(1)(B). Id. at 1297.

Nevertheless, we affirmed the sentence because it fell “within the range

authorized” by section 841(b)(1)(C); the error, we held, was not prejudicial. Id.

As the majority correctly notes, however, we effectively limited Shepard in United

States v. Candelario, 240 F.3d 1300 (11th Cir. 2001). In Candelario, we explained

that “Shepard’s holding was merely that a sentence that falls below the twenty year

maximum, as set forth in 21 U.S.C. § 841(b)(1)(C), is not subject to reversal due to

       13
           In Shepard, the defendant was indicted for violating 21 U.S.C. § 841(a)(1) without
regard to drug quantity. See Shepard, 235 F.3d at 1296. After the defendant pled guilty, the
district court, relying on the PSI report, found him responsible for 50 grams of cocaine base and
then “considered and sentenced [him] under section 841(b)(1)(B).” Id.

                                               93
Apprendi” and therefore “‘there is no error, plain or otherwise, under Apprendi

where the term of imprisonment is within the statutory maximum set forth in

section 841(b)(1)(C).’” Id. at 1308 n.11 (quoting in part Gerrow, 232 F.3d at 834).

      The proper response, then, to the Sanchezes’ second argument – that the

district court committed an Apprendi error because it effectively sentenced them

under section 841(b)(1)(B) – is straightforward. There is no Apprendi error

because the defendants’ sentences do not exceed the twenty-year maximum of

section 841(b)(1)(C). The district court’s reference to the penalty range of section

841(b)(1)(B) in sentencing the Sanchezes does not violate Apprendi, according to

this circuit’s well-established law.

      The Sanchezes are correct that there may be another kind of error, however,

even when the sentence falls under the twenty-year maximum of section

841(b)(1)(C). Termed the “Rogers’ error” after our decision in United States v.

Rogers, 228 F.3d 1318 (11th Cir. 2000), this mistake occurs when the indictment

fails to allege a drug quantity, none is proven at trial, and yet the district court

utilizes section 841(b)(1)(A) or 841(b)(1)(B) in sentencing. See id. at 1327;

Camacho, 248 F.3d at 1290 n.7. It is in addressing this argument that the majority

errs. Rather than determining whether Rogers even applies to the case at hand, the

majority incorrectly assumes that it does and then attempts to overrule parts of


                                           94
Rogers and the cases which apply it. To respond, I first explain that Rogers has no

application in a case like the one before us because, unlike the defendant in Rogers,

the Sanchezes pled guilty. I then demonstrate how exactly a sentencing court

commits a Rogers’ error, show why no such error was ever committed here (even

assuming Rogers’ application), and, finally, assert that the majority’s overruling of

Rogers and its progeny is both wrong and pure dictum.

      The holding in Rogers is inapplicable in the case before us. In Rogers, we

held that “drug quantity in section 841(b)(1)(A) and section 841(b)(1)(B) cases

must be charged in the indictment and proven to a jury beyond a reasonable doubt

in light of Apprendi.” Rogers, 228 F.3d at 1327. Unlike the Sanchezes, however,

the defendant in Rogers chose to stand on his not-guilty plea and was tried before a

jury. See id. at 1319. If the mantra of Apprendi is to provide the defendant with

notice (and a reliable sentence), as I have already stated and explain more fully in

part III, then the only way to satisfy that imperative in a case to be tried to a jury is

to allege the sentence-enhancing fact in the indictment. Thus, we held in Rogers

that in light of Apprendi, a fact like drug quantity, which enhances the sentence of

a section 841(a) offense, must be charged in the indictment.

      Clarifying our holding in Rogers in this way illustrates its inapplicability in

the case before us. Here, the Sanchezes pled guilty, waiving their right to a jury


                                           95
trial. Moreover, because, as I point out in part III, the failure to allege drug

quantity did not deprive the court of subject matter jurisdiction, the guilty pleas

also waived notice of the drug quantity the Government would rely upon at

sentencing. The Sanchezes, however, actually did receive notice of the drug

quantity involved in the charged offense. Federal Rule of Criminal Procedure

11(c), “Advice to Defendant,” required the court to inform the defendants of “the

mandatory minimum penalty provided by law, if any, and the maximum possible

penalty provided by law.” Fed. R. of Crim. Pro. 11(c). In order to inform the

defendants of such penalties, the court had to know the quantity of drugs the

Government would establish at sentencing. In fact, after summarizing the various

drug transactions later included in the PSIs, the prosecutor stated, “[O]ur evidence

would indicate the distributions were probably more than one kilogram of

methamphetamine.” Likewise, the court informed the Sanchezes that if their

offense involved one kilogram or more of methamphetamine, they would be facing

a maximum penalty of life imprisonment and a mandatory minimum penalty of ten

years imprisonment. If their offense involved “more than 100 grams but less than

1,000 grams of methamphetamine and amphetamine,” the maximum penalty would

be forty years imprisonment and a mandatory minimum penalty of five years

imprisonment. Our command in Rogers, that all sentence-enhancing facts be


                                           96
included in the indictment, simply does not apply to cases such as this, in which

the defendants were put on notice of drug quantity well in advance of the

sentencing hearing.

      Despite Rogers’ inapplicability to the case before us, the majority assumes

that it applies and then sets about overruling it and Camacho. The source of the

majority’s confusion is its acceptance of the Sanchezes’ argument that because the

district court cited section 841(b)(1)(B) they were sentenced as if their case was “a

section 841(b)(1)(B) case.” It is true that, in Rogers, we stated that “sections

841(b)(1)(A) and 841(b)(1)(B) may not be utilized for sentencing without a finding

of drug quantity by the jury.” Rogers, 228 F.3d at 1327. Both the Sanchezes and

the majority, however, misinterpret and misapply the phrase “utilizing sections

841(b)(1)(A) or 841(b)(1)(B).” Essentially, a district court utilizes those sections

when its sentencing discretion dictated by the sentencing guidelines is eliminated

or cut short by the sections’ mandatory minimums. If, for example, the defendant

requests a downward departure from the applicable guideline range, and the court’s

compliance with section 841(b)(1)(A) or 841(b)(1)(B) is the only reason it refuses

the departure, then that court would be “utilizing section 841(b)(1)(A) or

841(b)(1)(B).” Though this would not result in an Apprendi error, we have held

that it constitutes a “Rogers’ error.” See United States v. Camacho, 248 F.3d 1286,


                                          97
1289 (11th Cir. 2001). If a Rogers’ error occurs in a case tried before a jury, then

drug quantity would need to be alleged in the indictment and proven to the jury

beyond a reasonable doubt. We have never held, however, that a sentencing judge

utilizes section 841(a)(1)(A) or 841(b)(1)(B) simply by referring to it during the

imposition of a sentence.

      The prototypical Rogers’ error occurred in Camacho. In Camacho, the

defendant was indicted and convicted at trial under section 841(a)(1) without

regard to drug quantity. See id. at 1288. At the sentencing hearing, the defendant

stipulated to a drug quantity sufficient for a sentence under section 841(b)(1)(A),

which prescribes a mandatory minimum sentence of ten years. See id. When the

district court determined the defendant’s sentence range under the sentencing

guidelines, it arrived at a range of 108 to 135 months. Id. at 1289 n.6. The court

applied the mandatory minimum of section 841(b)(1)(A), however, which

narrowed the range to 120 to 135 months and effectively limited the district court’s

sentencing discretion. See Camacho, 248 F.3d at 1289 n.6. The court then

sentenced the defendant to 120 months. Id. at 1289. On appeal, this court found

no Apprendi error because the sentence was less than the statutory maximum of

section 841(b)(1)(C). Id. We nevertheless found an error under Rogers because

“Rogers . . . went beyond Apprendi to hold that ‘drug quantity in section


                                         98
841(b)(1)(A) and section 841(b)(1)(B) cases must be charged in the indictment and

proven to a jury beyond a reasonable doubt.’” Camacho, 248 F.3d at 1289.

Because the district court had used the ten-year mandatory minimum of section

841(b)(1)(A), narrowing the applicable guidelines range, we found that there was

“no doubt that the district court applied the regime of section 841(b)(1)(A) when

sentencing Camacho . . . [which] is error under this circuit’s precedent in Rogers.”

Id.

      Even assuming that Rogers’ command to charge quantity in the indictment

applies to the case before us, I maintain that the district court never “utilized

sections 841(b)(1)(A) or 841(b)(1)(B)” because it never relied on the mandatory

minimum of either section. Thus, unlike Camacho, the statutory provisions of

section 841(b)(1)(A) and 841(b)(1)(B) did not constrain the district court or narrow

the guidelines sentence range of either defendant. Rather, in sentencing the

Sanchezes, the district court determined and applied the sentencing guidelines

without any interference from section 841(b) at all. Even after they moved for a

downward departure, the district court denied the motion because the motion

lacked merit – not because any provision in section 841(b) prevented it from doing

so. Because the district court did not “utilize section 841(b)(1)(A) or (B),” the

Sanchezes’ cases were not “section 841(b)(1)(B) cases.” Rogers and Camacho,


                                           99
therefore, are simply inapplicable.14

                                               III.

       I now turn to the discussion of whether hypothetical Apprendi errors are

jurisdictional. I reiterate here that, like its treatment of Rogers and Camacho, the

court’s discourse about Apprendi error is unnecessary because there was no such

error in this case. While I join the court’s conclusion that an Apprendi error, when

it occurs, should be subject to harmless or plain error analysis under Rule 52(a) or

(b), I write separately to respond more fully to Judge Barkett’s argument that




       14
           In overruling Rogers and Camacho, the majority opinion appears to rest its reasoning
on two pillars: first, that under Apprendi there can be no error when the ultimate sentence does
not exceed the twenty-year maximum of 841(b)(1)(C); and, second, that Apprendi preserved
McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986), and the use of
mandatory minimum sentences. The opinion’s first reason that Apprendi is not violated unless
the sentence surpasses the twenty-year maximum, does nothing to advance the majority’s
argument because the Rogers’ error is one independent of Apprendi. As the majority concedes,
in cases tried to a jury Rogers requires drug quantity to be alleged in the indictment and proven
to a jury beyond a reasonable doubt if the district court utilizes either section 841(b)(1)(A) or
841(b)(1)(B) in sentencing. I assert, then, that Camacho simply holds that a district court
necessarily used section 841(b)(1)(A) or 841(b)(1)(B) in sentencing if the court allowed the
mandatory minimum to constrain its sentencing discretion under the guidelines. This reasoning,
moreover, is completely consistent with Apprendi’s preservation of McMillan, in which the
Supreme Court held that mandatory minimums may be imposed based on facts found by a judge
by a preponderance of the evidence. See Apprendi v. New Jersey, 530 U.S. 466, 487 n.13, 120
S. Ct. 2348, 2361 n.13, 147 L. Ed. 2d 435 (2000). Camacho itself recognized that the district
court’s use of the mandatory minimum of section 841(b)(1)(A) did not violate Apprendi or
McMillan. See Camacho, 248 F.3d at 1289 n.5. Camacho went on to explain, however, that
sentencing the defendant to the mandatory minimum of that section necessarily meant that it was
utilizing that section for sentencing. See id. at 1289. This, we held, violated Rogers’ mantra that
when section 841(b)(1)(A) or (B) is used, drug quantity must be alleged in the indictment and
proven to a jury beyond a reasonable doubt.

                                               100
Apprendi errors are jurisdictional.15

       The argument that any fact which enhances a defendant’s sentence becomes

an element of the offense and must be included in the indictment in order to sustain

a court’s jurisdiction derives from a simple misunderstanding of the Court’s

opinion in Apprendi. The Court did not hold that such facts become elements;

rather, Apprendi commands courts to treat a sentence-enhancing fact as the

“functional equivalent of an element.” Apprendi, 530 U.S. 466, 494 n.19. In this

part, I show that the Court’s concern was twofold: first, that a defendant have

notice that the Government seeks to use a fact to enhance his sentence; and,

second, that the enhanced sentence itself be reliable. As long as these two

concerns are satisfied, then the district court has properly treated a sentence-

enhancing fact as the functional equivalent of an element under Apprendi. I

contend, therefore, that because a section 841(a) indictment would still state an

offense even without including the drug quantity, a court would have subject

matter jurisdiction under federal law. Hence, failing to allege drug quantity in the



       15
          I also join the court’s conclusion that Apprendi error is not structural, and our cases
have already held as much. See United States v. Nealy, 232 F.3d 825, 829 & n.4 (2000) (holding
that “Apprendi did not recognize or create a structural error that would require per se reversal.”
and further noting that “Structural error occurs only in the rare instance involving a ‘structural
defect affecting the framework within the trial proceeds, rather than simply an error in the trial
process itself.’”) (quoting Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 1265, 113 L.
Ed. 2d 302 (1991)).

                                               101
indictment is not jursidictionally fatal.

      In understanding Apprendi’s holding that sentence-enhancing facts are to be

treated like elements, rather than made elements, it is useful to compare Apprendi

with the Supreme Court’s earlier opinion in Jones v. United States, 526 U.S. 227,

119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999). In Apprendi, the Court’s task was

determining whether and to what extent the Constitution protects a defendant from

a penalty exceeding the statutory maximum based on a fact found by a judge by a

preponderance of the evidence. See Apprendi, 530 U.S. at 476, 120 S. Ct. at 2355.

The engines propelling the Court’s decision were the due process clause of the

Fourteenth Amendment and the Sixth Amendment right to trial by jury, which,

taken together, the Court held, “entitle a criminal defendant to a jury

determination” of any fact which enhances his sentence beyond the statutory

maximum. Id. at 476-77, 120 S. Ct. at 2356. In order that courts honor these

constitutional protections, Apprendi declared that such sentence-enhancing facts

are to be treated as “the functional equivalent of an element” and are “‘elemental’

[in] nature.” Id. at 494 & n.19, 120 S. Ct. at 2365 & n.19 (emphasis mine). The

Court’s focus in Jones, on the other hand, was determining whether Congress

intended that a sentence-enhancing fact be an element or a sentencing factor of an

offense set out in the federal carjacking statute, 18 U.S.C. § 2119. See Jones, 526


                                            102
U.S. at 229, 119 S. Ct. at 1217. The Jones Court, then, was not driven by any

constitutional provision but by the federal statute. Based on its interpretation of

that statute, the Court held that Congress had intended that serious bodily injury or

death, a fact which resulted in higher penalties, be an element of the offense. See

id. at 233-39, 119 S. Ct. at 1219-1223. In Apprendi, the Court brought the

distinction to light, noting that while Jones discussed the “constitutionality of

allowing penalty-enhancing findings to be determined by a judge by a

preponderance of the evidence . . ., the [Jones] court concluded that those doubts

were not essential to our holding.” Apprendi, 530 U.S. at 472-73, 120 S. Ct. at

2353. Not only were the sources of the two opinions different, but their

conclusions were dissimilar as well: in Jones, the Court found the sentence-

enhancing fact to be an element; in Apprendi, on the other hand, the Court found

that the fact was to be treated like an element.16

       The focus of the Apprendi Court was not on legislative intent, but, rather, on

the constitutional protections to which a defendant is entitled when a prosecutor



       16
          It is also beneficial to consider the language of Almendarez-Torres v. United States,
523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), in which the Court discussed whether
the due process clause required a prior conviction to be treated as an element. There, the Court
described its purpose as determining “whether, or when, the Constitution requires the
Government to treat a particular fact as an element, i.e., as a ‘fact necessary to constitute the
crime,’ even where the crime-defining statute does not do so.” Almendarez-Torres, 523 U.S. at
239-40, 118 S. Ct. at 1229.

                                               103
seeks to enhance his sentence beyond the offense’s maximum penalty. In focusing

on these constitutional protections, I contend that the Court in Apprendi was

fundamentally concerned with giving the defendant notice of the sentence

enhancement and ensuring that any increased sentence be reliable. The Court

began with the historical foundations of due process, noting that criminal

proceedings have traditionally been initiated by an indictment that includes all

facts in order “that the defendant . . . may be enabled to determine the species of

offence they constitute, in order that he may prepare his defence accordingly . . .

and that there may be no doubt as to the judgment which should be given, if the

defendant be convicted.” Id. at 478, 120 S. Ct. at 2356 (quoting J. Archbold,

Pleading and Evidence in Criminal Cases 44 (15th ed. 1862) (emphasis mine).

Honing in on the concern for reliability, the Court submitted that one way to ensure

the fairness and accuracy of the sentence is to require the prosecutor to prove all

the facts of the offense to a jury beyond a reasonable doubt. See id. at 483-84, 120

S. Ct. at 2359. “The ‘reasonable doubt’ requirement ‘has a vital role in our

criminal procedure for cogent reasons,’” not the least of which is to “reduce the

risk of imposing [due process] deprivations erroneously.” Id. at 484, 120 S. Ct. at

2360 (quoting In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368

(1970)).


                                         104
      The Court’s two-part concern for fair notice and sentence reliability are

highlighted in its discussion in Jones and Apprendi of Almendarez-Torres v.

United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), in which

the Court found that recidivism is a sentencing factor that does not need to be

treated as an element. Although the Court pointed out that its conclusion in

Almendarez-Torres relied partly on the tradition of treating recidivism as a

sentencing factor and not an element, the Court in Jones and Apprendi illuminated

other reasons. Unlike most sentence-enhancing facts, the Court observed, a prior

conviction has already “been established through procedures satisfying fair notice,

reasonable doubt, and jury trial guarantees.” Jones, 526 U.S. at 249, 119 S. Ct. at

1227. In Apprendi the Court further explained that the defendant in Almendarez-

Torres had admitted his earlier convictions, all three of which “had been entered

pursuant to proceedings with substantial procedural safeguards of their own,” and

thus there was “no question [before the Court] concerning the right to a jury trial or

the standard of proof that would apply to a contested issue of fact.” Apprendi, 530

U.S. at 488, 120 S. Ct. at 2361.

      The command of Apprendi, therefore, is not to transform sentence-

enhancing facts into elements, the allegation of which is necessary in the

indictment in order to state an offense, but, rather, to treat sentence-enhancing facts


                                         105
like elements in order to provide the defendant with notice of the sentence

enhancement and to make certain the resulting sentence is reliable. Even though a

sentence-enhancing fact like drug quantity should be included in the indictment in

order to provide the defendant with notice,17 its absence is not a jurisdictionally

fatal error. On the contrary, a court’s power to adjudicate a federal criminal

prosecution comes from 18 U.S.C. § 3231, which gives federal courts original

jurisdiction of “all offenses against the laws of the United States.” 18 U.S.C. §

3231. In many instances, an indictment may sufficiently charge a federal offense,

and thus sustain the court’s jurisdiction, without including the sentence-enhancing

fact. In a section 841(a)(1) case, for example, an indictment charging the

defendant with possessing or distributing a controlled substance properly states an

offense against the United States without alleging a specific drug quantity. 18

U.S.C. § 841(a)(1). See also Prou v. United States, 199 F.3d 37, 45 (1st Cir. 1999)

(“Whether or not the prosecution files a timely section 851(a)(1) information, a


       17
          The Court in Apprendi avoided the issue of whether such facts should be charged in the
indictment because the appellant there had not asserted a claim “based on the omission of any
reference to sentence enhancement or racial bias in the indictment.” Apprendi, 530 U.S. at 477
n.3, 120 S. Ct. at 2356 n.3. We nevertheless held in Rogers, a case in which the defendant pled
not guilty and chose to be tried before a jury, that drug quantity in section 841(b)(1)(A) or
841(b)(1)(B) cases must be charged in the indictment and proven to a jury beyond a reasonable
doubt. See United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir. 2000). In cases in which the
defendant pleads guilty, however, the defendant is informed of drug quantity, the maximum
penalty, and the mandatory minimum penalty, if any, when the court entertains his plea under
Rule 11. Such a defendant, therefore, receives the notice Apprendi requires.

                                              106
federal district court plainly possesses subject-matter jurisdiction over drug cases.

See 18 U.S.C. § 3231 (conferring original jurisdiction of ‘all offenses against the

laws of the United States’).”); United States v. Prentiss, 256 F.3d 971, 982 (10th

Cir. 2001) (finding that the elements of the crime of arson (in Indian country) are

“jurisdictional only in the sense that in the absence of those elements, no federal

crime exists”). Failing to include drug quantity in a section 841(a) offense,

therefore, is not jurisdictional.

       Furthermore, it is well-established that failing to include an element in a jury

instruction (or wrongly putting the burden on the defendant to prove an element) is

not jurisdictional error but is subject to harmless error analysis. In Franklin v.

Francis, 720 F.2d 1206 (11th Cir. 1983), for example, this court, after finding that

the jury instructions had improperly shifted the burden of proving an essential

element of the offense to the defendant, evaluated the error under the harmless

error standard. See Franklin, 720 F.2d at 1212.18 We upheld this analysis in

Collins v. Zant, 892 F.2d 1502 (11th Cir. 1990), stating that impermissibly shifting

the burden of proof of an essential element to the defendant “does not

       18
          Although the opinion in Franklin does not cite the “harmless beyond a reasonable
doubt” standard of Chapman v. California, 386 U.S. 18, 24, 97 S. Ct. 824, 827, 17 L. Ed. 2d 705
(1967), as the harmless error standard it employed, the opinion cites the harmless error standard
used by the court in Lamb v. Jernigan, 683 F.2d 1332 (11th Cir. 1982). Lamb, in turn, relied on
the standard the court used in Mason v. Balkcom, 669 F.2d 222, 226 (11th Cir. 1982), which was
Chapman’s “harmless beyond a reasonable doubt” standard.

                                              107
automatically require reversal of an otherwise valid conviction; it is subject to the

harmless error analysis under Chapman v. California, 386 U.S. 18, 87 S. Ct. 824,

17 L. Ed. 2d 705 (1967).” Collins, 892 F.2d at 1506. This approach was explicitly

adopted by the Supreme Court in Neder v. United States, 527 U.S. 1, 119 S. Ct.

1827, 144 L. Ed. 2d 35 (1999), in which the Court held outright that omitting an

element from the judge’s charge to the jury can be harmless error under Rule 52(a).

See Neder, 527 U.S. at 7-8, 119 S. Ct. at 1833. Such an error, the Court held,

“differs markedly from the constitutional violations we have found to defy

harmless-error review.” Id. at 8, 119 S. Ct. at 1833.

       I contend, as the majority of this court does, that jury instruction errors, like

the one that occurred in Neder, are no different from Apprendi errors occurring

when an indictment fails to charge a sentence-enhancing fact (and the jury is not

instructed to find such fact beyond a reasonable doubt).19 Indeed, we have already

held as much, finding in United States v. Swatzie, 228 F.3d 1278 (11th Cir. 2000),

cert. denied, 121 S. Ct. 2600 (2001), that “the error in Neder is in material respects

indistinguishable from error under Apprendi” because both Neder and Apprendi


       19
          We are not alone in this conclusion. See, e.g., United States v. Mojica-Baez, 229 F.3d
292, 311 (1st Cir. 2000) (holding that failure to include an element in the indictment is no
different from the failure to submit an element to the jury, and under Neder, harmless error
review applies); United States v. Nance, 236 F.3d 820, 825 (7th Cir. 2001) (same); United States
v. Prentiss, 256 F.3d 971 (10th Cir. 2001) (same).

                                              108
involve facts that were to be resolved by a jury under a reasonable-doubt standard

but, instead, were resolved by the judge using a less-exacting standard. Swatzie,

228 F.3d at 1283. Under Neder, therefore, failing to include a sentence-enhancing

fact in the indictment is not jurisdictional error but is, instead, subject to harmless

or plain error analysis under Rule 52(a) or (b).

      Though failing to include a sentence-enhancing fact could create an error

under Apprendi and Rogers, it is not a “structural error,” but a constitutional error,

which is subject to harmless or plain error review. We review section 841(a) cases

on direct appeal under Rule 52. If an Apprendi error occurs and is properly

preserved, then Rule 52(a) applies, and we “must disregard [the] error[] [if it is]

harmless ‘beyond a reasonable doubt.’” Neder, 527 U.S. at 7, 119 S. Ct. at 1833

(1999) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 827, 17 L.

Ed. 2d 705 (1967)); see also United States v. Nealy, 232 F.3d 825, 829 (11th Cir.

2000) (applying Rule 52(a)’s harmless error analysis and using Chapman’s

standard to section 841(a) cases). In other words, Apprendi errors that are not

harmless beyond a reasonable doubt “affect [the defendant’s] substantial rights”

within the meaning of Rule 52(a). When a defendant fails to preserve an Apprendi

error, then we may reverse under Rule 52(b) only if the error is plain, affects

substantial rights, and “seriously affects the fairness, integrity, or public reputation


                                          109
of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct.

1544, 1549, 137 L. Ed. 2d 718 (1997).20

                                               IV.

       In my view, focusing on Apprendi’s two-part concern – notice of the drug

quantity and reliability of sentence – better illuminates our task in resolving the

cases that come before us. In this part, I divide those cases into two groups: those

arising after Apprendi and those arising before. My comments on the first group



       20
          The Supreme Court has made clear that, before an appellate court may reverse, both
Rule 52(a) and (b) require a showing that the error, whether preserved under (a) or not preserved
under (b), “affect[ed the defendant’s] substantial rights.” United States v. Olano, 507 U.S. 725,
734, 113 S. Ct. 1770, 1777-78, 123 L. Ed. 2d 508 (1993). Indeed, in comparing Rule 52(a) with
Rule 52(b), the Court stated, “[The language of Rule 52(b)] is the same language employed in
Rule 52(a), and in most cases it means that the error must have been prejudicial: It must have
affected the outcome of the district court proceedings.” Id. There is, however, one important
difference: Under Rule 52(b), “[i]t is the defendant rather than the Government who bears the
burden of persuasion with respect to prejudice.” Id. (emphasis mine). I contend that when
analyzing whether the defendant has met this burden under Rule 52(b), Neder’s command to
reverse only if the error is prejudicial “beyond a reasonable doubt” likewise controls. Although
Olano and Johnson are silent on the applicable standard in assessing Rule 52(b) errors, I believe
that Neder incorporates the beyond a reasonable doubt standard from Chapman into Rule 52.
See Neder, 527 U.S. at 15, 119 S. Ct. at 1837 (“In Chapman . . . we set forth the test for
determining whether a constitutional error is harmless. That test, we said, is whether it appears
‘beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained.’” (quoting Chapman, 386 U.S. at 24)). Because Olano makes clear that Rule 52(a) and
(b) employ the same language and mean essentially the same, it follows that the beyond a
reasonable doubt standard of Rule 52(a) applies in the Rule 52(b) context. That is to say, under
Rule 52(b), a defendant bears the burden of proving beyond a reasonable doubt that the error
affected his substantial rights, i.e., that he was prejudiced. But see United States v. Hastings,
134 F.3d 235, 243 (4th Cir. 1998) (requiring the defendant to show, under Rule 52(b) that the
error actually affected his substantial rights). A question I find unanswered in the Rule 52(b)
cases, and one which this appeal does not present, is whether a constitutional error that is not
harmless beyond a reasonable doubt “seriously affects the fairness, integrity, or public reputation
of judicial proceedings” as a matter of law.

                                               110
are short. It is apparent that, in section 841(a) cases, the indictments returned in

this circuit (and elsewhere) are alleging drug quantity when the government’s

proof will trigger the application of section 841(b)(1)(A) or (b)(1)(B). Thus,

whether the defendant pleads guilty or goes to trial, the defendant will be on notice

of the quantity of drugs the prosecution contends is involved in the offense.21 In

both cases, the drug quantity involved in the offense of conviction will be found by

the trier of fact – whether jury or judge – beyond a reasonable doubt as Apprendi

requires.

       I turn now to those cases arising before Apprendi and further divide them

into two groups: those in which the defendant was tried before a jury and those in

which the defendant pled guilty. In cases tried before a jury, if the drug quantity

involved in the offense was not found by the jury beyond a reasonable doubt and

the court used section 841(b)(1)(A) or 841(b)(1)(B) in imposing the sentence, we

review the defendant’s sentence under Rule 52(a) or (b), depending on whether the

       21
           In using the term “involve,” I am referring specifically to section 841(b), which
establishes maximum sentences and, in sections 841(b)(1)(A) and (B), mandatory minimum
sentences for violations of section 841(a) “involving” particular drug quantities. See 21 U.S.C. §
841(b). For example, in determining which provision of section 841(b) applies when the
defendant has been convicted of the substantive section 841(a) offense of heroin distribution, the
district court decides the quantity of heroin the defendant distributed, or aided or abetted the
distribution of, on the date alleged in the indictment. If, in determining the appropriate sentence
range under the guidelines, the court holds the defendant accountable for additional heroin as
“relevant conduct” under U.S.S.G. § 1B1.2, the court cannot also use such additional amount in
determining the applicable section 841(b) provision, since the offense of conviction did not
involve such additional heroin.

                                               111
defendant objected to the court’s failure to instruct the jury to find the drug

quantity or the court’s failure to find such quantity beyond a reasonable doubt.

In cases adjudicated on a plea of guilty, the defendant would have been informed at

the Rule 11 plea hearing of the quantity of drugs involved in the offense to which

he tendered his plea.22 The Apprendi error – the failure of the court to determine

the quantity of drugs involved in the offense of conviction beyond a reasonable

doubt – will have arisen at sentencing. If the defendant objected to the court’s

finding such quantity by a preponderance of the evidence, we consider whether the

error was harmless beyond a reasonable doubt under Rule 52(a). Absent a defense

objection, we conduct this harmless error analysis under Rule 52(b).

                                                V.

       22
           As explained supra, in pleading guilty, the defendant waives all non-jurisdictional
defects in the indictment, including that the indictment fails to charge the quantity of drugs
involved in the offense. Rule 11(c), however, in its application in a case brought under section
841(a) (and, as here, section 846), indirectly informs the defendant of drug quantity. It does so
because the Rule requires the district court to inform the defendant, in entertaining his plea of
guilty, of “the mandatory minimum penalty provided by law, if any, and the maximum possible
penalty by law,” that is, of the penalties specified in section 841(b). If the court fails to do so,
the plea is subject to vacation. United States v. Siegel, 102 F.3d 477, 481 (11th Cir. 1996). For
this reason, if the prosecution is going to contend at sentencing that 21 U.S.C. §§ 841(b)(1)(A) or
841(b)(1)(B) applies, it must inform the court so that the court can discharge its Rule 11(c)
responsibility. In taking the Sanchezes pleas (without a plea agreement), the court discharged
such responsibility by having the prosecutor state for the record the quantity of
methamphetamine involved in the offense and then informing the defendants that they faced
sentencing under subsections (A) or (B) depending on the quantity of drugs involved in the
offense. We can take judicial notice of the fact plea agreements always indicate the maximum
penalty and the mandatory minimum, if any, the defendant faces in pleading guilty. More often
than not the plea agreement also specifies the quantity of drugs involved in the offense. Not
infrequently, the parties agree to the appropriate offense level under the guidelines.

                                                112
      In sum, Apprendi does not apply in this case because the Sanchezes’

sentences did not exceed the twenty-year maximum of section 841(b)(1)(C). Nor

does Rogers apply: (1) unlike the instant case, Rogers involved a case tried to a

jury, and (2) the five-year mandatory minimum provision of section 841(b)(1)(B)

played no role in the court’s decision making. For these reasons, much of which

the majority and I have written is pure dicta. My concern is that it causes the

district courts no mischief.




                                         113
BARKETT, Circuit Judge, concurring in result only:

       I agree that the sentences in this case should be affirmed because a sentence

below the 20-year statutory maximum established by 21 U.S.C. § 841(b)(1)(C) for

the violation of § 841(a) does not violate Apprendi v. New Jersey, 530 U.S. 466

(2000),1 and both Ignasio and Santiago Sanchez were sentenced to terms below 20

years. However, although the majority acknowledges that Apprendi error occurs

when an indictment charging a violation of § 841(a) fails to allege drug quantity

and a sentence in excess of 20 years pursuant to § 841(b)(1)(A) or (b)(1)(B) is

nonetheless imposed, the majority proceeds to argue—hypothetically, because no

Apprendi error occurred in the case before us—that such an error would be a “trial

type” error subject to harmless or plain error review. While I do not believe the

majority’s discussion of this question is warranted by the instant case, I write

separately because I believe its analysis is mistaken.

       1
        Although I initially believed that imposing a mandatory minimum pursuant to
§ 841(b)(1)(A) or (b)(1)(B) where no amount of drugs was alleged in the indictment would
violate Apprendi, I have reconsidered that view. Apprendi held that any fact, other than a prior
conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury and proved beyond a reasonable doubt. See Apprendi, 530 U.S. at 490.
But the Apprendi Court expressly limited its holding so as not to overrule McMillan v.
Pennsylvania, 477 U.S. 79 (1986), in which the Court upheld a state statute that required a
sentencing judge to impose a mandatory minimum sentence if the judge found, by a
preponderance of the evidence, that the defendant possessed a firearm during the commission of
the offense of conviction. See Apprendi, 530 U.S. at 487 n.13. Reading McMillan and
Apprendi together, until the Supreme Court says otherwise, it appears that a sentence is not
constitutionally defective unless the sentence exceeds the statutory maximum authorized by the
indictment and the jury’s ultimate verdict.

                                              114
I     Does Apprendi Require That Drug Quantity Be Treated As An Essential
      Element Of The Crimes Set Forth In 21 U.S.C. §§ 841 And 846?

      No one disputes that prior to Apprendi certain basic principles were clearly

and unambiguously established: (1) A defendant has the constitutional right under

the Fifth Amendment to be charged by an indictment returned by a grand jury; (2)

The court has the power to act only within the parameters of the specific crime

charged in the indictment or information; (3) A sentence imposed outside of the

parameters of the crime charged in the indictment or information is per se

reversible; (4) A defendant has the constitutional right under the Fifth and Sixth

Amendments to an information or indictment that gives notice of all of the

essential elements of the crime charged and the factual bases therefor; (5) A

defendant has the constitutional right to a jury determination of guilt beyond a

reasonable doubt as to each essential element of the crime charged; (6) Any

waiver, by plea or otherwise, of the right to notice by indictment or information, or

of the right to a jury determination of guilt beyond a reasonable doubt, must be

voluntary and intelligent.

      In Apprendi, the Court stated that a fact that increases the penalty for a crime

beyond the otherwise-applicable statutory maximum “fits squarely within the usual

definition of an ‘element’ of the offense.” Apprendi, 530 U.S. at 494 n.19. The

Court held that “other than the fact of a prior conviction, any fact that increases the

                                          115
penalty for a crime beyond the prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt.” Id. at 490.

       The fundamental question posed after Apprendi is whether these statements

mean that drug quantity must be treated as an element of the offenses set forth in

21 U.S.C. §§ 841 and 846 in order to impose the enhanced penalties provided by §

841(b)(1)(A) and (b)(1)(B) for the increased amount of drugs involved in the

offense.2 I see only three ways to answer this question. The first is that drug

quantity is an essential element of the offenses punishable under § 841(b)(1)(A)

and (b)(1)(B), and that, therefore, all of the basic principles established by long

standing precedent that apply to traditional offense elements—involving the

defendants’ rights under the Fifth and Sixth Amendments, as well as the

boundaries of the court’s power to act—apply to the element of drug quantity in

§ 841(b)(1)(A) and (b)(1)(B). Application of these principles to 21 U.S.C.

       2
          21 U.S.C. § 841(a) provides that it is “unlawful for any person knowingly or
intentionally” to “manufacture, distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance.” This section does not set forth any specific drug
quantity that must be involved in the crime. 21 U.S.C. § 841(b)(1)(C) sets forth a maximum
penalty of 20 years imprisonment for a violation of § 841(a).
         21 U.S.C. § 841(b)(1)(A) and (b)(1)(B) criminalize the same conduct as
§ 841(a) but establish specific threshold drug quantities that must be involved in the crime.
These sections provide for correspondingly more severe penalties than that set forth in
§ 841(b)(1)(C) for a violation of § 841(a). Specifically, § 841(b)(1)(A) establishes a penalty of
10 years to life imprisonment or, if death or serious bodily injury results from use of the drug
involved in the crime, a penalty of 20 years to life. Section 841(b)(1)(B) establishes a penalty of
5 to 40 years imprisonment, or, if death or serious bodily injury result from use of the drug
involved in the crime, a penalty of 20 years to life.

                                               116
§ 841 leads to the conclusion that when an indictment charging a violation of

§ 841(a) fails to allege drug quantity, any sentence in excess of 20 years is

reversible per se for resentencing within the 20 year statutory maximum prescribed

by § 841(b)(1)(C).

      The second option is that drug quantity is not an essential element of the

crimes set forth in § 841(b)(1)(A) and (b)(1)(B), but remains a mere “sentencing

factor.” If this is so, drug quantity need not be charged in the indictment or proved

to a jury beyond a reasonable doubt, but may be found by the sentencing judge by

a preponderance of the evidence.

      The third possibility is that although drug quantity is an element necessary to

be charged and proven to a jury beyond a reasonable doubt, it constitutes a new

kind of element, a constitutionally novel creature that is an element for some

purposes but not for others. On this unprecedented theory, which the majority

appears to endorse, the “element” must be alleged in the indictment, but if it is not,

that failure does not have the same effect as a failure to allege a “real” element.

Whereas precedent teaches that the failure to allege an element essential to the

crime charged is a fatal defect requiring reversal of the excess sentence for

resentencing within the proper bounds of the offense charged, the failure to allege

this new “quasi-element” may be excused by an appellate court if it thinks it


                                          117
harmless.

       Our own circuit, and every other circuit to have spoken on the question, has

determined that the only plausible interpretation of Apprendi, especially as read

together with Jones v. United States, 526 U.S. 227 (1999), is that drug quantity is

an offense element of the crimes punishable by § 841(b)(1)(A) and (b)(1)(B) that

must be alleged in the indictment as a prerequisite to the imposition of the

sentences under those provisions.3 I believe this conclusion derives from both the


       3
         Our circuit reached this conclusion in United States v. Rogers, 228 F.3d 1318, 1327
(11th Cir.2000), as has every other circuit to address the question. See United States v. Promise,
255 F.3d 150, 156-57 (4th Cir., 2001) (“Accordingly, Apprendi dictates that in order to authorize
the imposition of a sentence exceeding the maximum allowable without a jury finding of a
specific threshold drug quantity, the specific threshold quantity must be treated as an element of
an aggravated drug trafficking offense, i.e., charged in the indictment and proved to the jury
beyond a reasonable doubt.”); United States v. Fields, 242 F.3d 393, 395 (D.C. Cir. 2001) (“[I]t
is now clear that, in drug cases under 21 U.S.C. §§ 841 and 846, before a defendant can be
sentenced to any of the progressively higher statutory maximums . . . in subsections
841(b)(1)(A) or (B), the Government must state the drug type and quantity in the indictment,
submit the required evidence to the jury, and prove the relevant drug quantity beyond a
reasonable doubt.”) (emphasis added); United States v. Nance, 236 F.3d 820, 826 (7th Cir.
2001) (“Under Apprendi, before the defendant could receive a sentence greater than 20 years but
no more than 40 years, the indictment should have charged that he had conspired to distribute 5
grams or more of the cocaine base mixture and that issue should have been submitted to the jury
and proven beyond a reasonable doubt by the government.”) (emphasis added); United States v.
Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000) (“[W]e hold that if the government seeks enhanced
penalties based on the amount of drugs under 21 U.S.C. § 841(b)(1)(A) or (B), the quantity must
be stated in the indictment and submitted to a jury for a finding of proof beyond a reasonable
doubt.”) (emphasis added); United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000)
(“[I]f the government wishes to seek penalties in excess of those applicable by virtue of the
elements of the offense alone, then the government must charge the facts giving rise to the
increased sentence in the indictment, and must prove those facts to the jury beyond a reasonable
doubt.”) (emphasis added); cf. United States v. Tran, 234 F.3d 798, 808 (2d Cir. 2000)
(aggravating firearm enhancement must be charged in the indictment and proved to the jury
beyond a reasonable doubt because “[a] prosecutor cannot make an end run around the
jurisdictional prerequisite of an indictment by charging any federal offense, and then proceeding

                                               118
language and holding of Apprendi.

       In Apprendi, the Supreme Court reiterated that the Sixth and Fourteenth

Amendments “indisputably entitle a criminal defendant to ‘a jury determination

that [he] is guilty of every element of the crime with which he is charged, beyond a

reasonable doubt.’” Apprendi, 530 U.S. at 477 (quoting United States v. Gaudin,

515 U.S. 506, 510 (1995)). The Court characterized any “fact that increases the

penalty for a crime” as “the functional equivalent of an element of a greater offense

than the one covered by the jury’s guilty verdict,” indeed, as noted above, as one

that “fits squarely within the usual definition of an ‘element’ of the offense.”

Apprendi, 530 U.S. at 494 n.19. As Justice Thomas wrote in his concurring

opinion, joined by Justice Scalia, “[o]ne need only look to the kind, degree, or

range of punishment to which the prosecution is by law entitled for a given set of

facts. Each fact necessary for that entitlement is an element.” Id. at 501 (Thomas,

J., concurring). Drug quantity, in 21 U.S.C. § 841 is precisely such a fact—that is,

a fact that legally entitles the prosecution to increased ranges of punishment under

§ 841(b)(1)(A) and (b)(1)(B) that exceed the statutory maximum for drug crimes of



to prosecute a defendant for a different, albeit related, federal offense. Likewise, a prosecutor
cannot make this jurisdictional end run, and then urge the court to sentence the defendant for an
offense for which the defendant was neither charged nor convicted.”).



                                               119
indeterminate quantity set forth in §§ 841(a) and 841(b)(1)(C).4 Thus, as a result

of Apprendi, it is clear that drug quantity must be treated as an element of the

offenses described by these sections.

       Accordingly, I agree with the majority that if a sentence under

§ 841(b)(1)(A) or (b)(1)(B) is to be imposed, the necessary elements of the crimes

charged therein, including the threshold drug amount prerequisite to the application

of these subsections of the statute,5 must be “charged in the indictment and proven

to a jury beyond a reasonable doubt . . . .” United States v. Rogers, 228 F.3d 1318,

1327; see also, e.g., United States v. Cotton, 261 F.3d 397 (4th Cir. 2001). My

disagreement with the majority and with Judge Tjoflat’s special concurrence is that

I can find no reason in logic or law for failing to apply the consequences that flow

from that determination.

       The majority suggests that, on appeal, an Apprendi error in the indictment is

susceptible to harmless error review if it has been preserved, and plain error review

if it has not. The problem with this view is, first, that it fails to account for the

       4
        See supra, n.3.
       5
         Although the Government does not need to allege the precise amount of drugs involved,
the Government must allege drug quantity with sufficient specificity to apprise the defendant
under which subsections of § 841 the Government is proceeding. See Jones, 526 U.S. at 230-37
(failure of indictment to refer to either of federal carjacking statute’s two subsections
criminalizing activity involving certain aggravating facts, coupled with indictment’s failure to
allege any of the specific facts set forth by those subsections, amounted to a failure to charge
either of the aggravated crimes).

                                              120
court’s responsibility, in every criminal case, to ascertain precisely the bounds of

its own jurisdiction as delineated by the offenses charged in the indictment or

information. If, as the majority agrees, drug quantity constitutes an element of the

offenses in § 841)b)(1)(A) and (b)(1)(B), then failure to plead quantity in the

indictment must, under all existing precedent, constitute jurisdictional error that

requires any sentence in excess of 20 years to be reversed for resentencing within

the limit of § 841(b)(1)(C). The majority, in its effort to sidestep this result,

impermissibly creates a new class of “quasi-elements” not subject to this rule.6 At

       6
         In his special concurrence, Judge Tjoflat explains why, in his view, Apprendi does not
require that drug quantity be deemed an “element” of the crimes laid out in
§ 841(b)(1)(A) and (b)(1)(B). Judge Tjoflat points out that the question before the Apprendi
Court, properly conceived, was: ‘What protection does the Constitution afford criminal
defendants against being sentenced based on facts not proved to a jury beyond a reasonable
doubt?’ In characterizing the responsive holding of Apprendi, Judge Tjoflat concludes that the
Supreme Court was concerned only with the twin requirements that: (a) a defendant be given
notice that the government seeks to use a particular fact to enhance his sentence, and (b) that the
resulting enhanced sentence be “reliable.” Problems regarding the constitutional rights to notice
and “reliability,” Judge Tjoflat argues, are reviewed under the rubrics of harmless or plain error.
Thus, Judge Tjoflat concludes, the absence of drug quantity from an indictment cannot constitute
jurisdictional error, reversible per se.
        However, this analysis begs the question of Apprendi’s applicability. If notice is
required (and I believe it is), that notice must come when the government first charges the
offense so that the defendant can effectively respond to the charge; if “reliability” is
constitutionally required, the reliability of a sentence based on an enhancing fact is to be derived,
according to Apprendi, by a jury determination of that fact beyond a reasonable doubt. Apprendi
clearly dictates that sentence-enhancing facts be treated as the functional equivalents of an
element. If we are required to treat drug quantity as an element, then we ought to consider cases
in which an element, properly-so-called, was omitted from an indictment, and act accordingly,
treating drug quantity the same way. Constructive amendment of the indictment cases like Bain
and Stirone provide the best guide. In these cases, the Supreme Court has spoken precisely on
the functions of “elements”, and on the consequences of omitting an element from the
indictment. Specifically, the Court has recognized that only the grand jury has the power to
charge, or refuse to charge, a defendant with a fact that results in a more serious crime and

                                                121
the same time, the majority fails to consider the constitutional principles that

govern the validity of any waiver of constitutional rights—in this instance, the

waiver of the right to a grand jury’s consideration of the charges, and the

requirement that any guilty plea, and corresponding waiver of the right to a jury

trial, be voluntary and intelligent. Again, if drug quantity is an element of

§ 841(b)(1)(A) and(b)(1)(B), then failure to plead it in the indictment deprives the

defendant of the meaningful notice to which he is due, under the Fifth and Sixth

Amendments, of each of the elements of the crime charged, rendering his plea

unintelligent and hence invalid.



II     Failure To Plead Drug Quantity In The Indictment Is A Fatal Jurisdictional
       Defect To Any Sentence In Excess of 20 Years

       A.      The Court’s Jurisdiction To Impose A Sentence Is Limited To the


accordingly, where an indictment fails to charge an element of the offense, any sentence for the
enhanced offense is per se invalid.
         Judge Tjoflat states in his special concurrence that “a court’s power to adjudicate a
federal criminal prosecution comes from 18 U.S.C. § 3231, which gives federal courts original
jurisdiction of ‘all offenses against the laws of the United States.’” Tjoflat Concurrence at 27.
As explained infra, in note 15, § 3231 cannot function to give the district court the power to try
and sentence a defendant for a crime with which he is not charged. Section 3231 indeed gives
the district courts original jurisdiction over crimes against the United States, but it does not give
a district court the power to sentence a defendant for a crime of its own choosing. Such a rule
would leave the district court with the functional power to define its sentencing jurisdiction
subject only to the limits of its own imagination. As the Second Circuit explained in Tran, such
a rule would allow prosecutors to avoid the jurisdictional prerequisite of a grand jury indictment
by charging any federal offense at all, and then proceeding to prosecute the defendant for a
different offense. See supra, n. 3.

                                                 122
               Offense Charged In The Indictment

       When an indictment is not brought by the grand jury or does not contain all

the essential elements of the crime charged and the necessary factual bases

therefor, there is error in the subsequent criminal proceedings. When challenged, a

conviction or sentence based on charges not initially brought by the grand jury

must be per se reversed because, unlike most ordinary trial errors, “an indictment

found by a grand jury [i]s indispensable to the power of the court to try [the

defendant] for the crime with which he was charged.” Ex Parte Bain, 121 U.S. 1,

12-13 (1887). Likewise, a “court cannot permit a defendant to be tried on charges

that are not made in the indictment against him.” Stirone v. United States, 361

U.S. 212, 217 (1960). The power, or lack thereof, to try defendants on the specific

charges made in an indictment is the essence of the court’s criminal jurisdiction.7


       7
         The majority refers to three recent circuit cases that have held that failure to charge an
essential element of an offense in the indictment does not constitute a “jurisdictional” defect, but
is subject only to review for harmless or plain error. Maj. at 42-3, citing United States v.
Prentiss, 256 F.3d 971 (10th Cir. 2001) (en benc), United States v. Mojica-Baez, 229 F.3d 292,
310-12 (1st Cir. 2000), and United States v. Nance, 236 F.3d 820, 825-26 (7th Cir. 2000).
Although, like the majority here, these cases utilized harmless or plain error review, none of
them explains why, if drug quantity is an essential element of the crime charged, the ordinary
consequences established by precedent for the indictment’s failure to allege such an element
should not be applied.
        While Nance reviewed the failure of an § 841 indictment to charge drug quantity for
plain error, it simply did not address the question whether the error was jurisdictional in nature.
The Nance Court merely assumed, without discussion, that since the defendant had not
challenged his sentence on Apprendi grounds in the trial court, review on appeal was for plain
error. See Nance, 236 F.3d at 824.
        Nor, as the Second Circuit recently pointed out in United States v. Tran, 234 F.3d 798,

                                                123
       The remedy required by the Supreme Court for a sentence imposed beyond

the trial court’s jurisdiction is a remand for resentencing within the proper confines

of its jurisdiction: “[T]he imposition of a sentence in excess of what the law

permits does not render the legal or authorized section of the sentence void, but

only leaves such portion of the sentence as may be in excess open to attack

. . . . [T]he sound rule is that a sentence is legal so far as it is within the provisions

of law . . . and only void as to the excess . . . .” United States v. Pridgeon, 153 U.S.




809 (2d Cir. 2000), did the Mojica-Baez case directly address this issue. Indeed, Mojica-Baez
expressly noted that an indictment’s failure to charge an essential element of an offense must be
recognized by the court at any time during the proceedings, either sua sponte or on motion of the
parties, (which, if anything, suggests that the error is jurisdictional in nature). See id. at 308-09
(“We accept as true two general propositions . . . . The first proposition is that an objection that
an indictment fails to state an essential element of an offense ‘shall be noticed by the court at any
time during the pendency of the proceedings.’ Fed. R. Crim. Proc. 12(b)(2) . . . . The second
proposition is that a statutory citation standing alone in an indictment does not excuse the
government's failure to set forth each of the elements of an offense.”) (internal citations omitted).
Notwithstanding its recognition of these propositions, the court did not address the question
whether the alleged indictment error in the case before it was jurisdictional, instead simply
holding that any error in the indictment was harmless. Presumably, because of this deficiency in
reasoning, the Second Circuit stated, “to the extent that Mojica-Baez can be read to conclude that
this type of error is not jurisdictional, we reject that conclusion here.” Tran, 234 F.3d at 809.
        Although Prentiss did squarely hold that the failure to charge an essential element of an
offense in the indictment does not constitute jurisdictional error, it, like the majority, in large
part, based its reasoning on Neder v. United States, 527 U.S. 1 (1999). See Prentiss, 256 F.3d at
984 (“To us, a defendant's right to have a petit jury find each element of the charged offense
beyond a reasonable doubt is no less important than a defendant's right to have each element of
the same offense presented to the grand jury. If denial of the former right is subject to harmless
error analysis, we believe denial of the latter right must be as well.”). As detailed below, I do
not believe that Neder is applicable to the issue of whether the omission of an essential element
from an indictment is a fatal deficiency precluding the imposition of a sentence beyond that
prescribed for the crime which has been charged.

                                                124
48, 62 (1894).8 Therefore, any sentence imposed under § 841(b)(1)(A) or

841(b)(1)B) in excess of 20 years, where the indictment alleges only a violation of

§ 841(a), is “void as to the excess” sentence imposed beyond the court’s

jurisdiction. Id.

       The majority takes no account of this jurisdictional error that occurs when a

court acts in excess of its authority. Indeed, even guilty pleas can not excuse such

jurisdictional errors, for the court simply does not have authority to accept a plea to

an offense greater than that charged in the indictment.

               The objection that the indictment fails to charge an offense is not
               waived by a guilty plea. The violation of [the defendant’s] right to be
               free of prosecution for a nonoffense would bar his conviction even if
               his “factual guilt” had been established validly. The entry of a guilty
               plea does not act as a waiver of jurisdictional defects such as an
               indictment's failure to charge an offense.

 United States v. Meacham, 626 F.2d 503, 510 (5th Cir. 1980).9


       8
         In Pridgeon, the defendant was sentenced to a 5 year term of imprisonment at a
penitentiary that subjected inmates to “hard labor.” See Pridgeon, 153 U.S. at 50. The
defendant sought a writ of habeas corpus on the grounds that the statute under which he was
charged and convicted authorized only “imprisonment,” and the requirement of hard labor was
therefore in excess of the court’s power rendering his entire conviction void. See id. As an
initial matter, the Court held that the defendant’s subjection to “hard labor” was not beyond the
power of the Court because hard labor was merely one of the rules of the penitentiary to which
defendant was duly committed. Nevertheless, the Court held, even if the hard labor were in
excess of the Court’s authority, the appropriate remedy would be invalidation of the excess
sentence rather than reversal of the entire conviction. See id. at 62.
       9
         In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of
business on September 30, 1981.

                                               125
       The majority argues that a sentence in excess of 20 years under an

indictment alleging only a violation of § 841(a) can be affirmed because it is not a

structural error but simply a trial type error “analogous to the jury-instruction

error” in Neder v. United States, 527 U.S. 1 (1999). Although, prior to Apprendi,

no court had held that the omission of an essential element from an indictment was

reviewable for harmless error, the majority, in applying this principle to Apprendi

cases, would do just that.10 To categorize the error in this way ignores the initial

question that must be asked when an essential element has not been alleged in the

indictment: What is the extent of the court’s power to act or, put in the traditional

way, the extent of its jurisdiction?11 Neder is not applicable to this threshold issue.


       10
          See also United States v. Moss, 252 F.3d 993, 1004 (8th Cir. 2001) (Arnold, J.,
dissenting) (“As far as I am aware, no case has ever held that the omission of an element of a
crime from an indictment can be harmless error.”).
       11
          The majority states that “the notion that any Apprendi-based challenge has a
jurisdictional dimension is implicitly rejected by our precedent’s consistent application of plain
or harmless error review” Maj. at 41, citing United States v. Pease, 240 F.3d 938, 943 (11th Cir.
2001), and United States v. Swatzie, 228 F.3d 1278, 1282-83 (11th Cir. 2000). However, in
Swatzie, the Court found no indictment error, explaining that the indictment cited § 841(b)(1)(B)
in the indictment and that “Swatzie does not even argue that he did not know before trial that the
quantity or type of drugs could affect his sentence . . . .” Swatzie, 228 F.3d at 1283. In Pease, we
found that the failure to allege drug quantity constituted plain error but did not substantially
affect the defendant’s rights because he did not contend that he distributed a lesser amount of
drugs than that necessary to support his sentence. Although I believe Pease was wrongly
decided, I also note that the jurisdictional aspect of the indictment error does not appear to have
been raised by the defendant, nor did the Court address the question whether a sentence in excess
of 20 years constituted a constructive amendment of the indictment. In any event, this Circuit’s
own precedent is subject to analysis and reconsideration on en banc review, and, in light of the
reconsideration of some of our Apprendi precedent, should be analyzed and reconsidered as
well.

                                                126
      First, as Neder recognizes, an error in a petit jury instruction is “simply an

error in the trial process itself.” Id. at 1833. Such errors can be assessed within the

context of the trial and may consequently be deemed harmless. In contrast, the

grand jury indictment confers initial jurisdiction upon the court and defines its

scope. See, e.g., Gaither v. United States, 413 F.2d 1061 (D.C. Cir. 1969). Thus,

an error by which the scope of the indictment is expanded cannot be analyzed in

the context of the trial, for such errors precede any consideration of trial process

errors and challenge either the court’s initial jurisdiction or its reach.

      As illustrated by Stirone, not every error in jury instructions is susceptible to

harmless error review. Unlike the non-jurisdictional jury instruction error in

Neder—to wit, failure to submit the issue of materiality to the jury when it was

implicit in the jury instructions as a whole—the jury instructions given in Stirone

varied from the indictment to such an extent that the substantial right to be tried

only on charges presented in the indictment returned by a grand jury was

abrogated. The defendant’s sentence was therefore vacated because the court had

exceeded its jurisdiction. See also United States v. Tran, 234 F.3d 798, 809 (2d

Cir. 2000) (“If the district court acts beyond its jurisdiction by trying, accepting a

guilty plea from, convicting, or sentencing a defendant for an offense not charged

in the indictment, this Court must notice such error and act accordingly to correct


                                           127
it, regardless of whether the defendant has raised the issue.”).12

       B.      A Defendant Has A Right To Have A Grand Jury Consider The Crime
               For Which He or She Will be Punished And Can Only Waive This
               Right If The Waiver Is Voluntary

       The conclusion that the failure to allege an element in the indictment is not

susceptible to harmless error review flows from a recognition of the pivotal role

played by the grand jury in the process of a criminal case. Under the Fifth

Amendment the Constitution gives the grand jury complete discretion to provide

the parameters of a criminal proceeding, vesting it with the power to indict based

on the evidence presented to it and the absolute choice not to indict,

notwithstanding any evidence presented:

               In the hands of the grand jury lies the power to charge a greater
               offense or a lesser offense; numerous counts or a single count; and
               perhaps most significant of all, a capital offense or a noncapital
               offense—all on the basis of the same facts. Moreover, “[t]he grand
               jury is not bound to indict in every case where a conviction can be
               obtained.” Thus, even if a grand jury’s determination of probable
               cause is confirmed in hindsight by a conviction on the indicted
               offense, that confirmation in no way suggests that the discrimination

       12
          The majority’s position also leads to the highly anomalous result of requiring greater
specificity from a civil complaint than from a criminal indictment or information. Rule 8(a) of
the Federal Rules of Civil Procedure requires that a civil complaint include “a short and plain
statement of the grounds upon which the court’s jurisdiction depends,” and “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Proc. 8(a).
The pleading must “give the defendant fair notice of what the plaintiff's claim is and the grounds
upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). By holding that a sentence
under § 841(b)(1)(A) or 841(b)(1)(B) could be upheld even where the indictment failed to allege
drug quantity, the majority would functionally exempt the criminal indictment or information
from even these minimal requirements.

                                               128
             did not impermissibly infect the framing of the indictment and,
             consequently, the nature or very existence of the proceedings to come.

Vasquez v. Hillery, 474 U.S. 254, 263 (1986) (quoting United States v.

Ciambrone, 601 F.2d 616, 629 (2d Cir. 1979) (Friendly, J., dissenting)).

      Thus, even when there is overwhelming evidence of drug amounts to

support conviction and sentence under § 841(b)(1)(A) or (b)(1)(B), the grand jury

has the right to refuse to charge the defendant with those amounts. Whatever

decision is made by the grand jury for whatever reason, it cannot be reversed by a

later petit jury, or worse, by the decision of the sentencing judge.

             The content of the charge, as well as the decision to
             charge at all, is entirely up to the grand jury–subject to its
             popular veto, as it were. The grand jury’s decision not
             to indict at all, or not to charge the facts alleged by the
             prosecutorial officials, is not subject to review by any
             other body.

Gaither v. United States, 413 F.2d 1061, 1066 (D.C. Cir. 1969) (internal citations

omitted); Russell, 369 U.S. at 770 (1962) (harmless error analysis would allow a

defendant to “be convicted on the basis of facts not found by, and perhaps not even

presented to, the grand jury which indicted him.”).

      Moreover, just as the grand jury alone has the power to return an indictment,

any amendments to the indictment must be made by the grand jury as well. See

Stirone, 361 U.S. at 215-16; Bain, 121 U.S. 1. If, in subsequent proceedings, “the


                                          129
charging terms of the indictment are altered, either literally or in effect, by

prosecutor or court after the grand jury has last passed upon them,” United States

v. Bursten, 453 F.2d 605, 607 (5th Cir. 1971), the alteration is deemed a

“constructive” or “effective” amendment. Id. Such substantial “broaden[ing],” see

Stirone, 360 U.S. at 216, constitutes per se reversible error because it violates the

defendant’s constitutional right to be tried solely within the parameters of the

charges returned by the grand jury.13 See id.; Bursten, 453 F.2d at 607. In

reviewing instructions to a jury which differed from the charges in the indictment,

the Court in Stirone held:

              While there was a variance in the sense of a variation
              between pleading and proof, that variation here destroyed
              the defendant's substantial right to be tried only on
              charges presented in an indictment returned by a grand
              jury. Deprivation of such a basic right is far too serious
              to be treated as nothing more than a variance and then
              dismissed as harmless error.

Id. at 217. In United States v. Peel, 837 F.2d 975, 979 (11th Cir. 1988), this court

reiterated that “a constructive amendment of a grand jury indictment is reversible




       13
          Minor and insubstantial errors in the indictment that do not broaden its scope are
obviously not construed as such amendments. However, as explained above, sentencing for
more than the offense charged constructively amends the indictment, and no one but the grand
jury has the power do this.

                                             130
error per se.” Id. (emphasis in original).14

       Because it is necessary to allege the requisite drug quantity in the indictment

to sentence a defendant under § 841(b)(1)(A) or 841(b)(1)(B), it is clearly error to

sentence the defendant in excess of 20 years under those provisions in the absence

of such an allegation. By such a sentence, the court, in place of the grand jury,

supplies the missing allegation in the indictment, and, in place of the petit jury,

“finds” it as a “fact.” This “fact” is “legally essential to the punishment to be

inflicted,” thereby increasing the penalty under § 841(b)(1)(A) or 841(b)(1)(B).

Thus, by such a sentence the court is constructively amending the indictment in

just as substantial a manner as that prohibited in Stirone, and thus, like in Stirone,

the error is per se reversible. Because the court’s sentence exceeds the jurisdiction

established by the indictment, the erroneous sentence is not susceptible to harmless

or plain error review on direct appeal, or procedural default on collateral review.

       If the indictment has charged a violation of 21 U.S.C. § 841(a), alleging


       14
          The majority, in footnote 50, appears to suggest that the authority of Stirone has
somehow been diminished by the Supreme Court’s decision in Chapman v. California, 386 U.S.
18 (1967). Chapman held that some constitutional errors could be deemed harmless; it did not
state that constitutional errors already deemed harmful by the Supreme Court could henceforth
be regarded as harmless. Put differently, Chapman did not give appellate courts license to
survey the landscape of constitutional errors and recategorize them as they wish. Until the
Supreme Court holds that Stirone errors are harmless, its statement that some constitutional
errors may be harmless has no effect whatsoever on the precedential force of its holding in
Stirone. Our own court in Peel, decided long after Chapman, recognized that the law deems
constructive amendments of a grand jury indictment to be reversible per se.

                                             131
only some indeterminate drug quantity, the sentence for that crime is set out in

§ 841(b)(1)(C). Clearly the court has the jurisdiction or the power to sentence a

convicted defendant under these allegations pursuant to this provision. However,

any sentence “beyond the prescribed statutory maximum” of § 841(b)(1)(C) must

necessarily be based on a “fact” not alleged in the indictment, namely drug

quantity, that has “increas[ed] the penalty beyond the prescribed statutory

maximum” and that is “legally essential to the punishment to be inflicted.” See

Apprendi, 560 U.S. at 490 n. 15. When drug quantity is not alleged in the

indictment, such a sentence is invalid.15


       15
            Obviously, as the majority points out, the defendant has the right to waive indictment
by grand jury. In such a case, a court would, of course, undertake the usual constitutional
inquiry as to whether the waiver was voluntary and intelligent and whether the substituting
information complied with other constitutional protections. See United States v. Moore, 37 F.3d
169, 173 (5th Cir. 1994) (waiver of right to indictment by grand jury requires that the “court
must be satisfied that the waiver was knowingly, understandingly, and voluntarily made.”). The
majority seems to argue that the fact that Fed. R. Crim. Proc. 7(b) allows a defendant to waive
his Fifth Amendment right to be prosecuted by indictment and proceed instead on a criminal
information somehow proves that failure to allege an essential element in an indictment is not a
jurisdictional error but rather a trial type error that is subject to harmless or plain error review.
It is difficult to discern the logic in this view. Rule 7(b) simply recognizes that a defendant can
waive the grand jury’s involvement in initiating the charges against him. The ability to waive
the right to prosecution by indictment has nothing to do with whether errors at the charging
phase are jurisdictional. If anything, the fact that the prosecution must alternatively proceed by
information confirms that there is a vital jurisdictional step that cannot be waived: some charging
document is essential to confer jurisdiction on the court and to define its scope. Waiving the
right to a grand jury indictment does not mean a defendant waives either his own right, or the
court’s obligation, to assure subject matter jurisdiction over the relevant crime and punishment.
         To use an admittedly extreme example to make the point, a defendant waiving indictment
by the grand jury cannot be permitted to be sentenced for manslaughter under an information that
only charges theft, even should he want to. The bottom line is that in every case, the court has
an independent obligation to ensure that the charging document—whether indictment or

                                                132
III    The Defendant’s Fifth and Sixth Amendment Rights To Notice Also Require
       That, Where The Indictment Does Not Allege Drug Quantity, Sentences In
       Excess Of 20 Years Be Per Se Reversed

       A.      The Indictment Or Information Must Give The Defendant Notice Of
               All The Essential Elements Of The Crime Charged

       When the grand jury does return an indictment, due process requires that the

indictment must provide a defendant with adequate notice of the crime with which

he or she has been charged:

               The criteria [for a valid indictment] are, first, whether the
               indictment contains the elements of the offense intended to be
               charged, and sufficiently apprises the defendant of what he
               must be prepared to meet, and, secondly, in case any other
               proceedings are taken against him for a similar offense whether
               the record shows with accuracy to what extent he may plead a
               former acquittal or conviction.

Russell, 369 U.S. at 763-764 (collecting cases) (internal quotations omitted). As

our own Circuit has emphasized,


information—outlines the elements of the crime. See DeBenedictis v. Wainwright, 674 F.2d 841
(11th Cir. 1982). Failure to allege an element constitutes jurisdictional error that renders any
sentence relying on the unalleged element invalid. See id.
         Moreover, the discussion of the right to waive a grand jury’s indictment seems almost
irrelevant in the Apprendi context. In future cases, one assumes that the Government would, at
least in an abundance of caution, present the indictment to the grand jury in a way that includes
the requisite drug quantity for the conviction and sentence it seeks. In reviewing those cases that
arose before Apprendi, courts must analyze whether any waiver of the right to have the grand
jury pass on the crime it wants to charge, i.e., have the ability to choose from among the crimes
delineated by §§ 841(a), 841(b)(1)(A), and 841(b)(1)(B), has been made knowingly, intelligently
and voluntarily. In all fairness, how can a waiver possibly be made knowingly, intelligently, and
voluntarily if the defendant did not know that the grand jury should have had that opportunity?



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               A grand jury indictment must set forth each essential element of
               the offense in order for the conviction to stand . . . . [T]he Sixth
               Amendment to the Constitution requires that every criminal
               defendant ‘be informed of the nature and cause of the
               accusation.’ Inclusion of the essential elements of an offense in
               an indictment provides the accused with the bare minimum of
               information necessary to meet this requirement . . . . [T]he Fifth
               Amendment guarantees the right of a grand jury indictment to
               each defendant to be prosecuted for an ‘infamous,’ or serious,
               crime. A grand jury can perform its function of determining
               probable cause and returning a true bill only if all elements of
               the offense are contained in the indictment.

United States v. Outler, 659 F.2d 1306, 1310 (5th Cir. Unit B 1981)16; see also

United States v. Ramos, 666 F.2d 469, 474 (11th Cir. 1982) (an indictment is valid

only “as long as those words of themselves fully, directly, and expressly, without

any uncertainty or ambiguity, set forth all the elements necessary to constitute an

offense under the laws of the United States”).17 “[T]he language of the statute may

       16
         In Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982), the Eleventh Circuit
adopted as binding precedent all decisions of Unit B of the former Fifth Circuit handed down
after September 30, 1981.
       17
          Although a defendant may waive his right to be charged by the grand jury through
indictment, and plead or be tried under a criminal information, Fed. R. Crim. Proc. 7(b), the
criminal information, which substitutes for the indictment, must likewise comply with
constitutional guarantees. Specifically, the information must satisfy the defendant’s Sixth
Amendment right to have notice of the specific offense that he has allegedly committed so that
he may defend against the case or make a fully informed plea to the charge. See, e.g., United
States v. Morales-Rosales, 838 F.2d 1359, 1361 (5th Cir. 1988) (citing United States v.
London, 550 F.2d 206, 211 (5th Cir. 1977)); DeBenedictis v. Wainwright, 674 F.2d 841, 842-
843 (11th Cir. 1982). In accordance with the defendant’s Fifth Amendment right to be free from
double jeopardy, the information must likewise provide him with a basis for determining
whether a subsequent charge punishes him for the same illegal conduct charged in the
information. Equally important, the information provides the court with the means to ascertain
the scope of its own jurisdiction when a defendant enters a plea, and to be aware of the range of

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be used . . . but it must be accompanied with such a statement of the facts and

circumstances as will inform the accused of the specific offence, coming under the

general description, with which he is charged.” Hamling v. United States, 418

U.S. 87, 117-18 (1984).

       Defects in the charging document compromise the defendant’s Sixth

Amendment guarantee requiring that any guilty plea be made with full and

meaningful notice of the criminal charges lodged against him. How a defendant

prepares to answer the charges brought against him and whether or not he will

choose to enter a guilty plea is dictated by the contours of the charging document.

Consider the example of a defendant charged with a drug crime of indeterminate

quantity, who pleads guilty, and in his guilty plea, does not contest the

government’s allegations of a drug quantity which bring him within the increased

range of § 841(b)(1)(A). Laboring under the justifiable but erroneous belief that

the Government was not required to charge that quantity in the indictment, or

prove it beyond a reasonable doubt to the jury in the first place, the defendant

forewent his right to take the quantity issue to the jury. Such a waiver obviously

cannot be deemed voluntary and intelligent, because the defendant’s erroneous

belief caused him to forego a fundamental constitutional right which he might


penalties it is authorized to impose at sentencing. See Smith v. United States, 360 U.S. 1 (1959).

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otherwise have chosen to exercise. The exacting standard for guilty pleas, See

Brady v. United States, 397 U.S. 742, 747-48 (1970) (“That a guilty plea is a grave

and solemn act to be accepted only with care and discernment has long been

recognized”), mandates that any such waiver must not be deemed voluntary and

intelligent. Thus, any sentence based on such a waiver violates a defendant’s Sixth

Amendment right to adequate notice of the charges against him upon which he can

reasonably and knowledgeably base a defense or a plea.18

                                       CONCLUSION

       In sum, if this court were presented with a case in which a defendant

received a sentence in excess of 20 years pursuant to § 841(b)(1)(A) or


       18
          The majority states that even if the trial judge misadvised the Sanchezes of their
maximum potential sentence pursuant to § 841(b)(1)(A) or 841(b)(1)(B), the Sanchezes’ guilty
pleas were valid under Brady v. United States, 397 U.S. 742 (1970). The majority cites Brady
for the proposition that misinformation provided to the Sanchezes’ by the court could not
possibly have sufficed to render their guilty pleas involuntary or unintelligent. But Brady does
not stand for any such broad proposition.
        In Brady, the Supreme Court held that the federal kidnaping statute could not condition a
defendant’s right to opt for a jury trial on his willingness to risk the death penalty (which, under
the statute, could be imposed only by a jury). Nevertheless, the Court rejected the defendant’s
challenge to the voluntariness of his guilty plea, but not, as the majority suggests, because the
defendant’s misunderstanding of his sentencing exposure could not possibly have shown his plea
to be involuntary. Instead, the court rejected defendant’s argument because the trial court and
the Tenth Circuit explicitly found that the defendant voluntarily chose to plead guilty when he
learned that his co-defendant was cooperating with the prosecution and was available to testify
against him. Indeed, contrary to the majority’s suggestion, the Brady Court reaffirmed the
existing standards for analyzing guilty pleas holding that they must always be both voluntary and
intelligent. See id. at 747 n.4. The Court wrote: “Waivers of constitutional rights not only must
be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant
circumstances and likely consequences.” Id. at 748.

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§ 841(b)(1)(B) and the indictment did not allege the requisite drug quantity, I

believe we would be required to vacate the sentence and remand for resentencing

under § 841(b)(1)(C). Apprendi’s requirement that drug quantity be alleged in the

charging document establishes that the error would be jurisdictional to the extent

that the court imposed a sentence in excess of that provided by § 841(b)(1)(C) and

therefore reversible per se. The defendant would have to be resentenced within the

20 year maximum of § 841(b)(1)(C) . As a jurisdictional error, it cannot be waived

by the defendant; it is not subject to harmless or plain error analysis on direct

appeal; and it cannot be procedurally defaulted on collateral review. But because

Ignasio and Santiago Sanchez received sentences below the statutory maximum of

20 years, I do not believe this court needed to reach any of these questions.19 I

agree that their sentences created no Apprendi error and should be affirmed.




       19
         As we have previously stated, “appellate courts best serve the law in deciding ‘each
case on the narrow ground that leads to a decision.’” Clay v. Riverwood Intern. Corp., 157 F.3d
1259, 1264 (11th Cir. 1998) (summarizing and quoting Blackston v. Shook & Fletcher Insulation
Co., 764 F.2d 1480, 1481 (11th Cir.1985)).

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