                                                                      [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                   FILED
                                                          U.S. COURT OF APPEALS
                         ________________________           ELEVENTH CIRCUIT
                                                                 APR 23, 2001
                               No. 99-14833                  THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                     D.C. Docket No. 99-00428-CR-DMM


UNITED STATES OF AMERICA,

                                                                Plaintiff-
Appellee,

      versus



MIGUEL CAMACHO,


                                                            Defendant-Appellant.

                        __________________________

               Appeal from the United States District Court for the
                          Southern District of Florida
                         _________________________
                               (April 23, 2001)

                       ON PETITION FOR REHEARING
Before TJOFLAT, BARKETT and HILL, Circuit Judges.

TJOFLAT, Circuit Judge:

      Appellant Miguel Camacho filed a petition for rehearing in this case,

arguing that under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.

Ed. 2d 435 (2000), this court should reconsider its opinion affirming his conviction

and either grant him a new trial or vacate his sentence and remand his case for re-

sentencing. Both Camacho and the Government were instructed to file

supplemental briefings on the Apprendi issue. We have reheard the case insofar as

that issue is involved.

      Camacho was convicted of possession with the intent to distribute cocaine,

in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. At trial, Camacho

stipulated that the seized cocaine was 89% pure and in total weighed 39.77

kilograms. Camacho objected at sentencing (and in supplemental objections to the

Pre-Sentence Investigation Report (“PSI”)) that the quantity of drugs attributable

to him was an element of the offense, relying upon Jones v. United States 526 U.S.

227, 243 n.6, 119 S. Ct. 1215, 1224 n.6, 143 L. Ed. 2d 311 (1999). The district

court found Jones to be inapplicable and sentenced Camacho under the mandatory




                                         2
minimum sentence provisions of 21 U.S.C. § 841(b)(1)(A)1 to 120 months’

imprisonment. Because Camacho raised a constitutional objection in a timely

fashion, he preserved the Apprendi issue for appeal and thus receives the benefit of

preserved error review. See United States v. Candelario, 240 F.3d 1300, 1306

(11th Cir. 2001). Preserved error review under Apprendi looks first to whether

there was error and, if so, undertakes a harmless error analysis. Id. at 1307.

        In his petition for rehearing, Camacho argues that, under Apprendi, because

there was no jury determination of drug quantity and because the indictment

simply charged him with possession of a “detectable amount” of cocaine, he could

not be convicted and sentenced pursuant to the provisions of section 841(b)(1)(A)

– which was applied by the district court. Rather, Camacho contends that 21

U.S.C. § 841(b)(1)(C),2 which provides the maximum sentence established for

possession with intent to distribute any discernable amount of cocaine, regardless

of quantity, is the only possible section under which he could be sentenced.3

        1
         Section 841(b)(1)(A) provides, in pertinent part: “In the case of a violation of [section
841(a)] involving . . . 5 kilograms or more of a mixture or substance containing a detectable
amount of . . . cocaine . . . such person shall be sentenced to a term of imprisonment which may
not be less than 10 years or more than life . . . .”

        2
        21 U.S.C. § 841(b)(1)(C) provides, in pertinent part: “In the case of a controlled
substance in schedule I or II . . . such person shall be sentenced to a term of imprisonment of not
more than 20 years.” Cocaine is a schedule II drug. 21 U.S.C. § 812, Schedule II.
        3
        Camacho also claims that Apprendi requires that his sentencing range should have been
37-46 months – the low end of the Sentencing Guidelines. We reject this claim because we have

                                                       3
       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 proved beyond a reasonable

doubt.” 530 U.S. at ___, 120 S. Ct. at 2362-63. As the indictment in this case

failed to allege drug quantity, Camacho’s sentence would be proper only if it met

the requirements of section 841(b)(1)(C). Normally, 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. 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.”). The reason that Gerrow states that there is “no error . . . under

Apprendi” for sentences less than twenty years’ imprisonment is because we

construe the sentence as a section 841(b)(1)(C) sentence (notwithstanding what the

district court may have called it). Because Camacho’s sentence of 120 months’

imprisonment was less than the twenty year maximum prescribed by section




held that Apprendi does not affect determinations under the Sentencing Guidelines. See United
States v. Gallego, ___ F.3d ___, No. 97-5293 (11th Cir. 2001).

                                              4
841(b)(1)(C),4 there is arguably no Apprendi error, even though the court utilized a

mandatory minimum when sentencing Camacho.5

       Regardless of whether there is Apprendi error, there is error in Camacho’s

sentence under United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir. 2000).

Rogers, decided prior to Gerrow, went beyond Apprendi to hold 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.” This principle of

Rogers is violated by Camacho’s sentence in a way that Gerrow does not



       4
         Camacho’s sentence fell below the statutory maximum under any of the subsections of
section 841(b) [ten years to life; five to forty years; or zero to twenty years], regardless of the
quantity of drugs for which he was held responsible.
       5
          The reason that there may not be error under Apprendi is that Apprendi expressly
retained McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986), which
lends approval to mandatory minimum sentences. 530 U.S. at ___ n. 13, 120 S. Ct. at 2361 n.13
(“We do not overrule McMillan.”). Other circuits have split on whether imposition of a
mandatory minimum sentence violates Apprendi. Compare United States v. Ramirez, 242 F.3d
348, 351-52 (6th Cir. 2001) (holding in a section 841 case that, in light of Apprendi,
“[a]ggravating factors . . . that increase the penalty from a nonmandatory minimum sentence to a
mandatory minimum sentence, or from a lesser to a greater minimum sentence, are now elements
of the crime to be charged and proved”) with United States v. Rodgers, ___ F.3d ___, No. 00-
1030 (7th Cir. 2001) (holding in a section 841 case that Apprendi does not apply to mandatory
minimum sentences because McMillan is still good law), United States v. Harris, ___ F.3d ___,
No. 00-4154 (4th Cir. 2001) (holding that mandatory minimums do not violate Apprendi),
United States v. Robinson, 241 F.3d 115, 122 (1st Cir. 2001) (same), United States v. Keith, 230
F.3d 784, 787 (5th Cir. 2000) (per curiam) (same), and United States v. Aguayo-Delgado, 220
F.3d 926, 934 (8th Cir. 2000) (same). While this circuit has intimated that mandatory minimums
are not violative of Apprendi, see United States v. Pounds, 230 F.3d 1317, 1319 (11th Cir.
2000), we have not explicitly ruled on the issue. We decline to do so now based on the fact that
Camacho’s sentence runs afoul of United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir.
2000).

                                                 5
contemplate. By sentencing Camacho to the mandatory minimum sentence

(through narrowing the Guideline range),6 the district court necessarily used

section 841(b)(1)(A) for sentencing; we cannot employ any legal fiction to think

otherwise. Rather, we must say that there is no doubt that the district court applied

the regime of section 841(b)(1)(A) when sentencing Camacho. This is error under

this circuit’s precedent in Rogers, because quantity was not charged in the

indictment and proven to the jury.

       Because Camacho objected to the imposition of a sentence based upon

section 841(b)(1)(A), he preserved the error for our review. See Candelario, 240

F.3d at 1306. This means that, under Candelario and Fed. R. Crim. P. 52(a), we

must determine whether the error was harmless. An error is harmless unless the

record “contains evidence that could rationally lead to a contrary finding.”

Candelario, 240 F.3d at 1308 (quoting United States v. Neder, 527 U.S. 1, 18-19,

119 S. Ct. 1827, 1838-39, 144 L. Ed. 2d 35 (1999)). For example, in United States

v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000), we held that a preserved Apprendi

error was harmless where the evidence about drug quantity was “undisputed,” such

       6
         Camacho was sentenced according to a base offense level of 30 and a criminal history
category of II. Had Camacho been sentenced under section 841(b)(1)(C), the applicable
Guideline range would have been 108-135 months. However, because the district court
employed the mandatory minimum of section 841(b)(1)(A), the court reduced Camacho’s
Guideline range to 120-135 months. The district court then sentenced Camacho to the bottom
end of that reduced range.

                                              6
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 under section 841(b)(1)(B).

See also United States v. Gallego, ___ F.3d ___, No. 97-5293 (11th Cir. 2001)

(finding, on plain error review, no effect on substantial rights because of

overwhelming evidence about drug quantity); United States v. Wims, ___ F.3d

___, No. 98-3684 (11th Cir. 2001) (same); Candelario, 240 F.3d at 1311-1312

(same); United States v. Pease, 240 F.3d 938 (11th Cir. 2001) (same); United

States v. Swatzie, 228 F.3d 1278 (11th Cir. 2000) (same).

       Based on this reasoning that says that an Apprendi error is harmless (or has

no effect on substantial rights) when there is undisputed testimony about drug

quantity, it necessarily follows that a Rogers error7 is harmless in a case where the

defendant stipulated to drug quantity. At trial, Camacho stipulated to the quantity

of drugs involved in his crime – 39.77 kilograms.8 The stipulation took the issue

       7
          A “Rogers error” occurs when a defendant in a section 841 case is sentenced on the
basis of drug quantity and the sentence cannot logically be construed as a section 841(b)(1)(C)
sentence.
       8
         Camacho’s stipulation as the quantity and purity of cocaine reads as follows:
              The United States of America by and through its undersigned assistant United
       States Attorney and the defendant Miguel Camacho stipulate to the following:
              The substance admitted into evidence as government’s exhibit 3 is a mixture or
       substance containing a detectible amount of cocaine hydrochloride. The net weight of
       the substance is 39.77 kilograms, and the concentration or strength of the cocaine
       hydrochloride is 89 percent.

                                                7
away from the jury, and the jury’s guilty verdict on the substantive offense rested

upon the quantity to which Camacho stipulated. The stipulation thus acts as the

equivalent of a jury finding on drug quantity. Therefore, due to the effect of the

stipulation, the imposition of Camacho’s sentence under section 841(b)(1)(A) was

error – but harmless error. See United States v. Jackson, 240 F.3d 1245, 1249

(10th Cir. 2001) (“Having been read the stipulation . . . no reasonable jury could

have rationally concluded [the defendant] was guilty of the charged offenses . . .

but that the amount of cocaine possessed was less than [that required for an

increased sentence].”); United States v. White, 240 F.3d 127, 134 (2d Cir. 2001)

(holding that a stipulation as to drug quantity, combined with a failure to object at

trial to the court’s failure to submit quantity to the jury, is harmless error); United

States v. Champion, 234 F.3d 106, 110 (2d Cir. 2000) (“[E]ven if the district court

erred by arrogating to itself the quantity-determining function [rather than

submitting the issue to the jury], any such error was surely harmless [as,] [u]nder

the stipulation, a jury could not have found differently.”); cf. United States v.

Poulack, 236 F.3d 932, 938 (8th Cir. 2001) (holding that a stipulation waives a

right to a jury determination on drug quantity, but stating that even if it was error it

would not have affected the defendant’s substantial rights because the jury would

have found the stipulated amount).


                                            8
       Based on the foregoing, the court adheres to our original judgment.

Camacho’s conviction and sentence are

      AFFIRMED.



HILL, Circuit Judge, concurring specially:

      I concur in the judgment; the conviction and sentence are affirmed.

      As I see it, there was no error under Apprendi v. New Jersey, 530 U.S. 466

(2000), and I conclude that there is, in any case, no institutional reason for the

court to devote its time and talent to find out if there was error.

      I acknowledge that the indictment did not charge a quantity of drugs

sufficient to the provisions of 21 U. S. C. § 841(b)(1)(A). But it did not make a

contrary charge. As was the practice before Apprendi, it charged merely the

violation of § 841(a)(1), without specifying one of the subparagraphs (A), (B), or

(C), of § 841(b)(1). Therefore, at trial before the jury, Camacho could have –

successfully, I apprehend – objected to an attempt by the prosecutor to prove any

quantity beyond a “detectable amount.” Large quantity would have been

immaterial and obviously prejudicial.

      But Camacho did not object. Indeed, he assisted the government by entering

into – and consenting to the publication to the jury of – a stipulation that the


                                           9
quantity of cocaine involved was large – 39.77 kilograms. This stipulation was not

entered into at sentencing, after conviction, and presented to the judge. It was

entered into during trial, when the jury was present to determine facts. In short it

was put to the jury by agreement. When the jury convicted Camacho, they

convicted him of violating § 841(a)(1), and of unlawful conduct involving the

quantity provided for in § 841(b)(1)(A).1

       Although § 841(b)(1)(A) was not alleged in the indictment, the element of

the crime for which it provides, was, as Apprendi requires, proven beyond a

reasonable doubt to the jury. No error.

       At the point in the trial when the stipulation was proposed to be published to

the jury, Camacho could have, but did not, object. Thus, this element of the crime

– quantity – was tried by consent before the jury.

       Without further elaboration, I feel that this implied clarification – not a

change from one charge to a different one – of the indictment would not rise to the

level of an unlawful amendment of the indictment, but was a mere variance of




       1
          If there been no stipulation, and the prosecution had presented evidence of quantity,
including chain of custody from seizure to testing, qualifications of those involved in testing,
accuracy of the scales used to determine quantity, etc., and Camacho had, without objection,
disputed credibility of these witnesses, offered evidence of little weight, etc., a special verdict by
the jury that the material was cocaine weighing 39.77 kilograms would have been no more than
the equivalent of the stipulation.

                                                 10
which we may take notice without condemnation. See generally 3 Charles Alan

Wright, Federal Practice and Procedure § 516.

        I feel that, by consent and agreement, the parties treated the indictment as

having charged the elements necessary and suffered the proof of them.

        Even so, I cannot see why we are debating whether there was error under

these circumstances. What Camacho asserts as error, two of us conclude was

harmless error and one of us opines that it was not error at all. The reason we all

agree to affirm is not dependent upon error vel non. We affirm because, whatever

label we place on the occurrence, Camacho is not entitled to any relief.2

        We assume that district judges apprehend, via Apprendi, the need of

indictment and proof to the jury, and therefore our need to investigate this sort of

        2
          Nearly two decades ago, the Supreme Court dealt with this sort of issue in Strickland v.
Washington, 466 U.S. 668 (1984), when it reversed this circuit’s en banc decision in Washington
v. Strickland, 923 F.2d 1243 (11th Cir.1982). Strickland was a death penalty habeas corpus case
in which the petitioner alleged that his trial counsel had been inadequate in certain particulars.
Our majority en banc opinion wrestled with the issue of whether counsel had been ineffective for
having failed in the stated particulars. Id. A dissent found the district judge’s approach better;
finding that the claimed defective performances by trial counsel to have had no harmful effect
upon petitioner’s trial, the district judge found no reason to “grade the paper” of the lawyer.
There was no reason to analyze adequacy or inadequacy vel non. Id. at 1288. The Supreme
Court found this approach preferable stating “[i]n particular, a court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by the defendant as
a result of the alleged deficiencies . . . If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice . . . that course should be followed.” Strickland, 466 U.S.
at 697.
        The same reasoning applies here. The panel majority and this separate concurring
opinion debate error vel non. Both agree that it makes no difference as Camacho suffered no
prejudice. Id. Then, why have I written to support my opinion that there was no error? Hard to
say.

                                                  11
claimed error will soon end. We are not undertaking to crystalize a body of law for

future guidance. We should instead just decide cases.3

       The panel majority’s finding of harmlessness brings us all together in the

correct judgment. The sentence is affirmed.




       3
          Were we to undertake a cyclopaedia analysis of Apprendi and this case, we might as an
academic exercise elaborate on the claimed error, itself. The sentence here does not exceed the
maximum available, regardless of quantity of contraband, under § 841(b)(1)(C), however §
841(b)(1)(A) provides for a mandatory minimum sentence not included in (C). So far it appears
that six circuits have held that this doesn’t implicate Apprendi at all. See United States v.
Robinson, 241 F.3d 115 (1st Cir. 2001); United States v. Harris, ___ F.3d ____, No. 00-4154,
2001 WL 273146 (4th Cir. Mar.20, 2001); United States v. Keith, 230 F.3d 784 (5th Cir. 2000);
United States v. Williams, 238 F.3d 871 (7th Cir. 2001); United States v. Rodgers, ___ F.3d ___,
No. 00-1030, 2001 WL 355620 (7th Cir. Apr. 5, 2001); United States v. Aguayo-Delgado, 220
F.3d 926 (8th Cir. 2000); United States v. Rios-Araiza, No. 00-50132, 2001 WL 232631 (9th
Cir. Feb. 15, 2001) (unpublished decision). One circuit is to the contrary. See United States v.
Ramirez, 242 F.3d 348 (6th Cir.2001); United States v. Flowal, 234 F.3d 932 (6th Cir. 2000).
        In this case the circuit split is of academic interest. Whether error or not, Camacho’s
sentence is affirmed.

                                              12
