242 F.3d 393 (D.C. Cir. 2001)
United States of America,  Appelleev.Thomas Fields, a/k/a Woozie, Appellant
No. 99-3138 Consolidated with  No. 99-3139
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 2, 2001Decided March 13, 2001

Appeals from the United States District Court for the District of Columbia (No. 98cr00071-01) (No. 98cr00071-06)
William Jackson Garber, appointed by the court, argued  the cause and filed the briefs for appellant Thomas Fields.
Thomas G. Corcoran, Jr. and Mary-Ellen Noone, appointed by the court, argued the cause and filed the briefs for  appellant Bernard Johnson.
Barbara J. Valliere, Assistant United States Attorney,  argued the cause for appellee.  With her on the brief were  Wilma A. Lewis, United States Attorney, John R. Fisher and  James H. Dinan, Assistant United States Attorneys.
Before:  Edwards, Chief Judge, Ginsburg and Tatel,  Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge:


1
Thomas "Woozie" Fields and Bernard "Tadpole" Johnson appeal from judgments of convictions  following a jury trial in the District Court.  We affirm the  convictions of both defendants.  However, because we find  that plain errors in sentencing affected defendants' substantial rights and undermined the fairness of the sentencing  proceedings, we vacate the sentences and remand the case to  the District Court for further proceedings consistent with this  opinion.

I. Background

2
This case involves the prosecution and conviction of two  members of a coterie known to the Government as the "L  Street Crew."  In March 1998, a Federal Grand Jury in the  District of Columbia returned a 70-count Indictment charging  Fields, Johnson, and nine other individuals with Continuing  Criminal Enterprise, Conspiracy to Participate in a Racketeer Influenced Corrupt Organization ("RICO Conspiracy"),  and various drug trafficking, firearm, and violent offenses. In October 1998, Fields, Johnson, and two other defendants  were named in a Superseding 74-count Indictment charging  virtually the same offenses.  In May 1999, a 64-count Superseding Re-typed Indictment named Fields and Johnson  alone.


3
The May 1999 Indictment charged Fields and Johnson with  narcotics conspiracy (Count 1), RICO conspiracy (Count 3),  the kidnaping, gang rape, and attempted murder of a young  woman referred to herein as K.D. (Counts 12-18), firearms  offenses in connection with that rape (Counts 37-38, and 4953), the attempted murder of an unknown individual in January 1997 (Counts 32, 33), and firearms offenses related thereto (Counts 45 and 61).  Fields was charged, in addition to the  above offenses, with continuing criminal enterprise (Count 2),  assaults with a dangerous weapon (Counts 4 and 5), assaults  with intent to kill, kidnaping, and attempted murder in aid of  racketeering activity (Counts 6-11, 19-31), related firearms  offenses (Counts 34-36, 39-44, 46-48, 54-60), and money  laundering (Counts 62-64).


4
During the trial, the Government presented evidence of  attempted murders, assaults, a kidnaping, and a gang rape. According to the Government's theory of the case, these  alleged crimes were motivated by the L Street Crew's desire  to protect or expand the area in which the group sold and  distributed drugs.  Fields took the stand during the trial and  admitted to selling drugs to certain individuals, but denied  that he held any leadership role with respect to the L Street  Crew.  Johnson did not testify.


5
The jury convicted Fields on 40 counts and Johnson on 16  counts.  Both Fields' and Johnson's convictions included  those for the rape and attempted murder of K.D.  At the  sentencing hearing, the trial judge adopted the calculations in  the Presentence Investigation Report ("PIR"), as well as the  Government's proposed findings of fact and conclusions of  law, and sentenced Fields to life plus 120 years, and Johnson  to life plus 25 years.

II. Analysis

6
In this appeal, Fields and Johnson seek review of myriad  issues relating to their convictions and sentencing.  They  assert challenges to venue, sufficiency of the evidence, admission of evidence, joinder of defendants, failure to sever certain  counts, the firearms and other sentence enhancements, and  calculation of their sentences in light of the Supreme Court's  holding in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). We have considered carefully all of appellants' arguments; most of appellants' claims require no discussion, because they  are meritless.  There are two challenges, however, that have  merit.  We address these claims below.

A. Determinations of drug quantity

7
Appellants contend that the sentences they received on  Counts 1 (Narcotics Conspiracy) and 3 (RICO Conspiracy)  were improperly enhanced beyond the statutory maximum,  because the finding as to drug quantity was not made by a  jury.  The PIR, prepared after the jury trial, divided Fields'  40 counts of conviction into six groups involving substantially  the same harm, and Johnson's 16 counts of conviction into two  such groups.  See U.S. Sentencing Guidelines Manual   3D1.2 (1998) (rules for grouping closely related counts). Counts 1 and 3 were included in Group 1, along with Counts  62-64 (Money Laundering).  The PIR listed the base offense  level for both defendants at 38;  this determination was  derived from an assumption that the offenses involved more  than the equivalent of 30,000 kilograms of marijuana.  The  PIR attributed 173,570 kilograms to Fields and 148,862 kilograms to Johnson.  In reaching these estimates, the PIR  purported to rely on testimony provided by members of the L  Street Crew at the trial.


8
In Apprendi, the Court held that, "[o]ther than the fact of a  prior conviction, any fact that increases the penalty for a  crime beyond the prescribed statutory maximum must be  submitted to a jury, and proved beyond a reasonable doubt." 120 S. Ct. at 2362-63.  It therefore follows that drug quantity  is an element of the offense where a factual determination of  the amount of drugs at issue may result in a sentence that  exceeds a maximum sentence prescribed in the applicable  statute.  See, e.g., United States v. Pratt, 239 F.3d 640, 646-47 (4th Cir.2001);  United States v.  Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.), cert. denied,  121 S. Ct. 600 (2000);  United States v. Doggett, 230 F.3d 160,  164-65 (5th Cir. 2000), cert. denied, 69 U.S.L.W. 3555 (U.S.  Feb. 20, 2001) (No. 00-7819).  This court's ruling to the  contrary in United States v. Lam Kwong-Wah, 966 F.2d 682,  685-86 (D.C. Cir.), cert. denied, 506 U.S. 901 (1992), is no  longer good law.  In light of Apprendi, it 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 that are based on progressively higher  quantities of drugs specified 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.


9
In the instant case, the Government did not come close to  satisfying the requirements of Apprendi.  The Indictment  specified quantities of drugs alleged to be involved in Counts  1 and 3, but the verdict form asked only that the jury find  "detectable amount[s]" of marijuana, crack cocaine, and phencyclidine ("PCP") in order to find the defendants guilty. Therefore, it cannot be found that the jury's convictions on  those counts were based on any specific factual findings as to  drug quantity.  It was only in connection with Count 2  (Continuing Criminal Enterprise) that the verdict form required specific findings that defendants distributed 1.5 kilograms or more of crack cocaine and 3,000 kilograms or more  of marijuana, and the jury deadlocked on these issues.


10
It is undisputed that the quantity of controlled substances  involved was a decisive factor in the defendants' sentences. The sentencing range for violations of 21 U.S.C. § 841 (1994  & Supp. IV 1998) is determined by drug quantities.  Section  841(b)(1)(A) of Title 21 provides for a maximum penalty of life  where the offense involves 1,000 kilograms or more of a  mixture or substance containing a detectable amount of marijuana, and 21 U.S.C. § 841(b)(1)(B) provides for a maximum  sentence of 40 years where the offense involves 100 kilograms  or more of a mixture or substance containing a detectable  amount of marijuana.  Default statutory maximums of five to  30 years are provided in §§ 841(b)(1)(C) and (D).


11
In this case, there were no substantive controlled substance  act offenses charged under 21 U.S.C. § 841.  However, the  Narcotics Conspiracy Count was charged under 21 U.S.C.  § 846, and alleged a conspiracy to unlawfully possess with  intent to distribute and to distribute controlled substances in excess of 1,000 kilograms or more of marijuana, 50 grams or  more of cocaine base, and 100 grams or more of PCP, in  violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(A)(ii)-(iv), (vii). The RICO Conspiracy charged under Count 3 also alleged 21  U.S.C. § 841(a) violations.


12
At the sentencing hearing, the District Court adopted the  calculations in the PIR, as well as the Government's proposed  findings of fact and conclusions of law, and found "well above"  the preponderance standard that 1,670 grams of crack cocaine, 11,388 grams of PCP, and 3,490 kilograms of marijuana  were "directly attributable to defendant Thomas Fields" during the course of the charged conspiracy.  With respect to  Johnson, the District Court found that 1,670 grams of crack,  11,328 grams of PCP, and 2,182 kilograms of marijuana were  "reasonably foreseeable and part of jointly undertaken activity by defendant Johnson, and therefore are appropriately  attributable to him."  The life sentences imposed on appellants were predicated in part on these calculations.


13
The District Court's sentence enhancements contravene  Apprendi.  However, neither defendant objected at trial to  the District Court's determination of drug quantities, so our  review is for plain error.  See United States v. Wolff, 195  F.3d 37, 40 (D.C. Cir. 1999);  Fed. R. Crim. P. 52(b).  And we  may exercise our discretion to correct an error pursuant to  Rule 52(b) only when an "error" is "plain" or "obvious" under current law, affects substantial rights, and seriously affects  the fairness, integrity, or public reputation of judicial proceedings.  Johnson v. United States, 520 U.S. 461, 466-67  (1997).


14
The Government concedes that the imposition of life sentences based on drug quantities determined by the trial judge  at sentencing was plain error.  The Government argues,  however, that appellants are not entitled to relief, because  they cannot show that the error affected their substantial  rights.  We disagree.


15
The Government first asserts that substantial rights were  not affected, because the District Court correctly determined  that the quantity of drugs far exceeded the amount required under the applicable provision of § 841(b)(1).  However, in  calculating the quantities at issue, the PIR relied heavily on  the imprecise testimony of various cooperating witnesses, and  the District Court simply adopted the PIR estimates.  The  only concrete evidence of drug quantity offered at the trial  was from the seizures in this case and the testimony of Mr.  Joseph Bono, a forensic chemist with the Drug Enforcement  Administration.  Government counsel acknowledged that this  evidence did not establish that either defendant possessed  more than 30,000 kilograms of marijuana.  The Government  nevertheless urges us to extrapolate from the concrete evidence and attribute a higher quantity of drugs to each  defendant.  Obviously, under Apprendi, we have no authority  to do this.  The Government was required to convince the  jury, beyond a reasonable doubt, that the defendants possessed enough of a controlled substance for the District Court  to adjust the base offense level to 38.  They failed to do that  in this case.


16
The Government next suggests that we should ignore drug  quantity altogether and rely instead on the § 1963(a) RICO  penalty provision.  Section 1963 states that "[w]hoever violates any provision of section 1962 of this chapter shall be ...  imprisoned not more than 20 years (or for life if the violation  is based on a racketeering activity for which the maximum  penalty includes life imprisonment)."  18 U.S.C. § 1963  (1994).  The Government maintains that appellants were  charged with, and convicted of, Racketeering Act 21, the  kidnaping of K.D.  Kidnaping, under the D.C. Code, carries a  maximum sentence of life imprisonment.  D.C. Code Ann.  § 22-2101 (1996).  Because the jury specifically found that  appellants committed Racketeering Act 21, the Government  asserts, the jury found facts justifying imposition of the  statutory maximum sentence of life totally apart from drug  quantity.  The error in this reasoning is that neither the PIR  nor the trial judge relied on this rationale in imposing the life  sentences.  Rather, the District Court, in raising the base  offense level to 38 for the Group 1 offenses, relied on the  PIR's findings on the marijuana equivalency amounts.  We  therefore reject the Government's arguments.


17
The District Court's failure to rely on concrete evidence to  determine the base offense level for the Group 1 Counts  undermined the fairness of the sentencing proceedings, because the error clearly affected the outcome of the case by  substantially increasing defendants' sentences.  We cannot  ignore this plain error.

B. The leadership enhancement

18
Appellant Fields argues that the four-level increase that he  received for his leadership role in various offenses was improper in light of Apprendi.  He further maintains that the  testimony of the various cooperating witnesses showed that  they had their own businesses, kept their own money, and  that Fields was not their boss.  As noted above, the PIR  divided the counts of conviction into six groups.  In each of  these groups, the report recommended a four-level increase in  the guideline range based on U.S.S.G.  3B1.1(a), because  Fields was an organizer or leader of criminal activity that  involved five or more participants.


19
Count 1 (Narcotics Conspiracy) of the Indictment alleged  that the conspiracy operated as an organization controlled  and directed by Fields.  Count 3 (RICO Conspiracy) alleged  that Fields was the leader of the organization.  The issue of  leadership role, however, was not submitted to the jury with  respect to Counts 1 and 3.  Instead, it was submitted in  conjunction with Count 2 (Continuing Criminal Enterprise)  and the jury was deadlocked as to this count.


20
Because the fact of leadership role may increase a defendant's sentence beyond the prescribed statutory maximum,  Apprendi applies.  Accordingly, the issue of leadership must  be charged in an indictment, submitted to a jury, and proved  beyond a reasonable doubt.  Because Fields did not argue at  trial that leadership should have been submitted to the jury,  however, we review the record for plain error.


21
Though we have exercised our discretion to notice plain  error with regard to the issue of drug quantity, we decline to  do so with regard to leadership enhancement.  On the issue  of leadership, the record evidence overwhelmingly demonstrates that Fields managed and masterminded various offenses committed by the L Street Crew.  Fields enlisted  members of the L Street Crew to assist him in distributing  controlled substances, including marijuana, crack cocaine, and  PCP, directed, procured, and participated in acts of violence  against rival drug groups, and orchestrated the kidnaping,  sexual assault, and shooting of K.D.  Based on the sheer  volume of largely uncontested evidence offered at trial, there  is proof beyond a reasonable doubt that Fields held a leadership role in the criminal activities for which he was convicted.


22
C. The sentence enhancements for the Group 2 offenses


23
Appellants contend that the sentence enhancement for  their Group 2 offenses was improper.  We agree.  The Group  2 offenses related to the kidnaping and attempted murder of  K.D.  The applicable sentencing guideline for Count 12,  armed kidnaping, is U.S.S.G.  2A4.1(a), which provides for a  base offense level of 24.  The PIR computed an adjusted  offense level of 43, pursuant to U.S.S.G.  2A4.1(b)(7)(B) and  Application Note 5, with the rationale that the object of the  kidnaping was to commit first degree murder, and the District Court adopted the finding that the attempted murder of  K.D. would have constituted first degree murder had she  died.  The offense of first degree murder was not submitted  to the jury, however, and the jury made no finding beyond a  reasonable doubt that the object of the kidnaping was to  commit first degree murder.


24
Application Note 5 to  2A4.1 of the U.S. Sentencing  Guidelines suggests that if an offense involved conspiracy to  kidnap for the purpose of committing murder, or if an offense  involved a kidnaping during which a participant attempted to  murder the victim under circumstances that would have  constituted first degree murder, subsection (b)(7) would reference first degree murder and result in an offense level of 43. We reject this commentary, and the District Court's reliance  on it, because it is flatly at odds with the controlling Sentencing Guideline.  As the Fifth Circuit correctly noted in United  States v. Smith, 184 F.3d 415 (5th Cir. 1999), Application Note 5 "violate[s] the dictates of  2A4.1(b)(7)(B)."  Id. at  418.


25
Section 2A4.1(b)(7)(B) of the U.S. Sentencing Guidelines  explicitly directs the court to cross-reference the guideline  applicable to the crime actually committed.  In this case, that  crime was attempted murder.  In Stinson v. United States,  508 U.S. 36 (1993), the Supreme Court held that, if the  "commentary and the guideline it interprets are inconsistent  in that following one will result in violating the dictates of the other, the Sentencing Reform Act itself commands compliance with the guideline."  Id. at 43.  Because the Guideline  and not the commentary controls, we find that the District  Court erred in enhancing appellants' Group 2 offenses by  cross-referencing the guideline applicable to first degree murder.

III. Conclusion

26
In light of the above determinations, we vacate appellants'  sentences, and remand the case to the District Court.  With  respect to the drug calculations, we instruct the District  Court to re-sentence the defendants based on the amount of  drugs as to which there can be no doubt, i.e., where drug  quantity is established by proof beyond a reasonable doubt. On the kidnaping charge, we reverse and remand with instructions to sentence with reference to the Guideline, not  Application Note 5.

