276 F.3d 594 (D.C. Cir. 2001)
United States of America, Appelleev.Pedro Agramonte, Appellant
No. 00-3098
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 2, 2001Decided December 28, 2001

Appeal from the United States District Court  for the District of Columbia (99cr00043-06)
David B. Smith, appointed by the court, argued the cause  and filed the brief for appellant.
David B. Goodhand, Assistant U.S. Attorney, argued the  cause for appellee.  With him on the brief were Kenneth L.  Wainstein, U.S. Attorney, John R. Fisher, Mary Patrice  Brown, Thomas C. Black and John Crabb Jr., Assistant U.S.  Attorneys.
Before:  Edwards and Randolph, Circuit Judges, and  Williams, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge:


1
A jury convicted Pedro Agramonte of four narcotics-related offenses.  Count One alleged  conspiracy to distribute and possess with intent to distribute  50 grams or more of cocaine base, 5 kilograms or more of  cocaine, and 1 kilogram or more of heroin, in violation of 21  U.S.C.  846.  Count Two charged unlawful distribution of 50  grams or more of cocaine base, in contravention of 21 U.S.C.   841(a)(1).  Count Three charged possession with intent to  distribute 100 grams or more of heroin, in violation of 21  U.S.C.  841(a)(1) & (b)(1)(B)(i).  Count Four charged unlawful possession with intent to distribute heroin within 1000 feet  of a school, in violation of 21 U.S.C.  860.


2
The district court vacated Agramonte's conviction on Count  Three, considering it a lesser included offense of his school  zone possession with intent to distribute conviction.  On  Counts One, Two, and Four the court sentenced Agramonte  to concurrent terms of imprisonment of 286 months;  to terms  of supervised release on Counts One and Two of five years,  and to eight years of supervised release on Count Four, all to  run concurrently;  and a special assessment of $100 for each  of the three counts.


3
Agramonte's appeal is on the ground that the sentence for  each of these three counts contravened Apprendi v. New  Jersey, 530 U.S. 466 (2000).*  Apprendi holds that the Sixth  Amendment's guarantee of trial by jury means that any  fact--other than a prior conviction--increasing the statutory  maximum sentence must be submitted to the jury and proved  beyond a reasonable doubt.


4
Convictions under 21 U.S.C.  841(a)--Count Two of the  indictment--can trigger Apprendi.  The statutory maximums  for a violation of  841(a)(1), which prohibits possession with  intent to distribute a controlled substance, vary depending  upon the weight of the narcotics.  See 21 U.S.C.   841(b)(1)(A)-(C);  see also United States v. Webb, 255 F.3d  890, 896 (D.C. Cir. 2001).  For example, possession with  intent to distribute a detectable amount of a schedule II  narcotic (a list that includes cocaine base, see 21 U.S.C.   812), carries a maximum term of imprisonment of 20 years. See 21 U.S.C.  841(b)(1)(C).  For 5 grams or more of a  mixture containing cocaine base, the maximum is 40 years. 21 U.S.C.  841(b)(1)(B)(iii).  For 50 grams or more, the  maximum sentence authorized is life imprisonment.  See 21  U.S.C.  841(b)(1)(A)(iii).  Because the punishment for conspiracy to violate  841(a)(1)--Count One of the indictment-is the same as the punishment for violating  841(a)(1), see 21  U.S.C.  846, the sentence for conspiracy too may raise  Apprendi problems.


5
As to Count Four--possession with intent to distribute in a  school zone--21 U.S.C.  860(a) authorizes a sentence of  "twice the maximum punishment" authorized by  841(b). Agramonte's sentence on Count Four does not raise any  difficulty under Apprendi for reasons we will explain in a  moment.


6
On none of the counts did the district court instruct the  jury that it had to find beyond a reasonable doubt any specific  amount of drugs attributable to Agramonte.  The court instructed instead that the jury need find only a "detectable  amount" in order to convict.  Agramonte did not object to the  jury instructions, but did raise his Apprendi error contention  at sentencing, Apprendi having been decided in the interim. See 8/21/00 Tr. at 16.


7
At sentencing the district court calculated the 286-month  term of imprisonment as follows.  The court found, by a  preponderance of the evidence, 20 kilograms of cocaine and 5  kilograms of heroin attributable to Agramonte.  9/8/00 Tr. at  30:8-17.  This resulted in a base offense level of 34.  U.S.S.G.   2D1.1.  After adding one level for conduct within 1000 feet  of a school, id.  2D1.2, three levels for a leadership role in  the offense, id.  3B1.1, and two levels for obstruction of justice, id.  3C1.1, the guideline level totaled 40.  This  resulted in an applicable range for Agramonte's criminal  history category of 292 to 365 months.  The court chose to  apply the minimum range, and reduced it by another six  months because Agramonte faces deportation at the end of  his incarceration.


8
Because the jury was not instructed that it had to attribute  any threshold drug weights to Counts One and Two, the  government concedes that Agramonte's sentences on these  counts violated Apprendi.  The maximum sentence under 21  U.S.C.  841(b)(1)(C) for possession or distribution of detectable amounts of drugs is 20 years.  Agramonte's sentence of  imprisonment on Counts One and Two exceeded the maximum.  If he were resentenced on those counts, he could  receive no more than 20 years' imprisonment for each.


9
Count Four is another matter.  Even for only detectable  amounts of drugs, the school-zone doubling provision of 21  U.S.C.  860 set his maximum sentence at twice 20 years, or  40 years.  His sentence on Count Four was less than the  statutory maximum and therefore does not give rise to an  Apprendi error.  Agramonte has two counter arguments  relating to Count Four, neither of which amount to anything. The first is that the district court violated Apprendi by  increasing his base offense level under the Sentencing Guidelines three levels for his leadership role.  Although we initially decided in United States v. Fields ("Fields I"), 242 F.3d  393 (D.C. Cir. 2001);  but see In re Sealed Case, 246 F.3d 696,  698 (D.C. Cir. 2001), that Apprendi applied to enhancements  for a defendant's role in the offense, we corrected that  misapprehension on the government's petition for rehearing. United States v. Fields ("Fields II"), 251 F.3d 1041, 1046  (D.C. Cir. 2001), holds that "Apprendi does not apply to  enhancements under the Sentencing Guidelines when the  resulting sentence remains within the statutory maximum,"  as it did here and as it always will for leadership role  enhancements, see U.S.S.G.  5G1.1.  Agramonte asks us to  adhere to Fields I. But Fields II represents the law of the  circuit.  See LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C.  Cir. 1996) (en banc).


10
Agramonte's second point is that Apprendi should be extended to cover situations in which district court findings at  sentencing trigger a mandatory minimum sentence.  Although the Second Circuit hinted that it might take this step,  see United States v. Garcia, 240 F.3d 180, 184 (2d Cir. 2001),  the Supreme Court's decision in McMillan v. Pennsylvania,  477 U.S. 79 (1986), is against it, see Apprendi, 530 U.S. at  485-87 & n.13, as is our decision in In re Sealed Case, 246  F.3d at 699, in which we refused to disregard the Court's line  in Apprendi between factors that increase the maximum  punishment and those that do not.  The Supreme Court may  be set to reconsider McMillan.  See United States v. Harris,  243 F.3d 806 (4th Cir. 2001), cert. granted, 2001 WL 716327  (Dec. 10, 2001).  But even if McMillan were overruled, this  could not assist Agramonte.  Nothing the district court (rather than the jury) found resulted in a mandatory minimum  with respect to Count Four.  The minimum sentence for the  Count Four offense of one year's imprisonment depended, not  on the weight of the drugs, but on the defendant's having  been within 1000 feet of a school while possessing a detectable quantity of drugs with intent to distribute them--a fact  submitted to the jury.  See 21 U.S.C.  860(a).


11
Although the usual remedy for an Apprendi violation is to  remand for resentencing, it would be senseless to have the  district court resentence Agramonte on Counts One and Two. We are affirming his concurrent sentence of 286 months'  imprisonment and eight years of supervised release on Count  Four.  He therefore cannot benefit from a shorter term of  imprisonment or supervised release on the other two counts. This case does not case present a situation in which a court  imposed a mandatory minimum sentence on an Apprendiinfected count, and then imposed an equivalent concurrent  sentence on an error-free count within a guidelines range, but  above the guidelines minimum.  In such a case, we might not  be able to say for certain that the error on the first count had  no effect on the sentence imposed on the second.  But  nothing of the sort happened here.  The sentence of 286  months was well above the ten-year mandatory minimum  sentence that would have been applicable for Counts One and Two had a jury, rather than the court, determined the  attributable drug weights.  See 21 U.S.C.  841(b)(1)(A)(i). There is no indication in the record that the court's sentences  for Counts One and Two were in any wise based on a  mandatory minimum.


12
As to the special assessments levied against Agramonte on  each of the three counts, these were not concurrent.  But the  fines would be the same no matter what term of imprisonment he received on remand.  Special assessments of $100  are mandatory for all felony convictions.  See 18 U.S.C.   3013(a)(2)(A).  The Apprendi errors on Counts One and  Two are therefore irrelevant to the special assessments.  The  case is unlike United States v. Ray, 481 U.S. 736 (1987) (per  curiam), which spelled the death knell for the concurrent  sentence doctrine as applied to review of convictions.  The  defendant there had been given concurrent sentences on  three counts.  The court of appeals, having affirmed Ray's  conviction on two counts, declined to review his conviction on  the third, thinking this could have no effect on the amount of  time he would serve.  The Supreme Court reversed on the  ground that Ray was "not in fact serving concurrent sentences," id. at 738, because a separate $50 special assessment  had been imposed on each count.


13
Agramonte's sentence on Count Four is affirmed.  The  Apprendi error with respect to Counts One and Two is  harmless, see Fed. R. Crim. P. 52(a), and entitles him to no  relief.


14
So ordered.



Notes:


*
 In a separate judgment, we affirm the conviction co-defendant  Jose Diplan.  Agramonte withdrew his brief challenging his conviction and now only contests the sentence he received.


