240 F.3d 1300 (11th Cir. 2001)
UNITED STATES of America, Plaintiff-Appellee,v.Jose Manuel CANDELARIO, Defendant-Appellant.
No. 99-11443Non-Argument Calendar.
United States Court of Appeals,Eleventh Circuit.
Feb. 5, 2001.Feb. 15, 2001.

[Copyrighted Material Omitted]
Appeal from the United States District Court for the Southern District of  Alabama. (No. 98-00190-CR-1), Charles R. Butler, Jr., Chief Judge.
ON PETITION FOR REHEARING
Before ANDERSON, Chief Judge, and TJOFLAT and DUBINA, Circuit Judges.
TJOFLAT, Circuit Judge:


1
The issue we must resolve on rehearing1 is whether Apprendi v. New Jersey, 530  U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), requires the vacation of  appellant's sentences and a remand for re-sentencing. Applying the plain error  standard of review, we affirm.

I.

2
From 1992 to mid-1993, defendant Jose Manuel Candelario was a partner in a  conspiracy to sell cocaine with Theodore Cochran, Jr. Cochran and Candelario  obtained powder cocaine from Miami and other locations and brought it to Mobile,  Alabama. They usually converted the powder cocaine into crack cocaine in Mobile,  although the conversion sometimes occurred elsewhere. The crack cocaine was then  distributed from the Equalizer Club in Prichard, Alabama (in the Mobile area).  Candelario and Cochran shared the proceeds from the sale of the crack cocaine,  usually on an equal basis. They did not sell the cocaine themselves, choosing  instead to make arrangements for others to sell it.


3
On August 20, 1993, a Southern District of Alabama grand jury returned an eleven  count indictment against Candelario, Cochran, and fourteen others. Candelario  was charged in the first two counts. Count One alleged a conspiracy to traffic  four kilograms of a mixture containing crack cocaine. Count Two charged  Candelario, Cochran, and another person with possession of, with intent to  distribute, nine ounces of crack cocaine. Cochran and some other defendants  plead guilty, and Candelario stood trial. Cochran and two other co-conspirators  testified for the prosecution. Among other things, Cochran stated that on one  occasion, in December 1992 or January 1993, as part of the conspiracy,  Candelario sold Cochran nine ounces of crack cocaine for $4,500. After hearing  one day of testimony, the jury found Candelario guilty as charged on both  counts. For these crimes, the district court sentence Candelario, on April 21,  1994, to concurrent terms of life imprisonment without parole.


4
Candelario appealed his convictions and sentences, but his appeal was dismissed  for want of prosecution. On May 17, 1999, the district court, in a proceeding  brought under 28 U.S.C.  2255, granted Candelario leave to prosecute the  instant appeal out-of-time. At the same time, applying a retroactive amendment  of the Sentencing Guidelines to each count, the court reduced Candelario's  concurrent life sentences to concurrent terms of 360 months' imprisonment.

II.

5
The Supreme Court established in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.  2348, 2362-63, 147 L.Ed.2d 435 (2000), 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." Candelario's claim that his sentences violate this central principle of  Apprendi is reviewable under a plain error standard. Candelario must therefore  satisfy the four prongs of the plain error test, as set forth in United States  v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), and Johnson v.  United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).2 See United  States v. Pease, --- F.3d ----, No. 99-2301 (11th Cir.2001) (applying plain  error review to a case involving Apprendi issues); United States v. Smith, ---  F.3d ---- , No. 99-11377 (11th Cir.2001) (same); United States v. Gerrow, 232  F.3d 831, 835 (11th Cir.2000) (same); United States v. Swatzie, 228 F.3d 1278,  1281 (11th Cir.2000) (same). In this case, we clarify when a defendant's claim  that his sentence violates Apprendi will receive plain error review and when  such a claim will receive preserved error review.3

A.
1.

6
In cases raising Apprendi concerns, the first question a reviewing court must  ask is: Did the defendant make a constitutional objection? The second and  related question is: Was the objection timely?


7
The answer to the first question is critical, for not every objection is a  constitutional objection.4 A defendant may be deemed to have made a  constitutional objection if his objection invokes Apprendi, 120 S.Ct. at  2362-63, or Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 1224  n. 6, 143 L.Ed.2d 311 (1999). See United States v. Rogers, 228 F.3d 1318,  1320-21 (11th Cir.2000) (holding that the defendant, whose sentencing occurred  prior to Apprendi, made a valid constitutional objection by relying upon Jones,  which he claimed stood for the proposition that drug quantity had to be  determined by the jury). The defendant may also be deemed to have made a  constitutional objection if he contends that "the issue of drug quantity should  go to the jury." United States v. Nealy, 232 F.3d 825, 829 (11th Cir.2000). Other potential constitutional objections include that an element of the offense  was not proved, that the judge cannot determine quantity, or that quantity must  be proved beyond a reasonable doubt (and not by a preponderance of the  evidence). However, a defendant's objection to the quantity of drugs that the  Government attributes to him is not, on its own, a constitutional objection.  Such an objection is properly characterized as either an evidentiary objection  or a sufficiency of the evidence objection. Finally, an objection to the  indictment is not a constitutional objection if the indictment properly charges  a crime.5


8
If the court determines that the defendant made a constitutional objection, the  court must then determine whether the objection was timely. A constitutional  objection for Apprendi purposes is timely if a defendant makes the objection at  sentencing. See Smith, --- F.3d at ----, No. 99-11377 ("Defendants never  objected at their sentencing hearing when the judge determined drug quantity by  a preponderance of the evidence; so our review is limited to the stringent plain  error standard, an exception to the broad contemporaneous objection rule."); see  also United States v. Garcia-Guizar, 234 F.3d 483, 488 (9th Cir.2000) (reviewing  the defendant's sentence under preserved error review where the defendant  "argued in his sentencing memorandum that the amount of drugs for which he was  to be sentenced had to be pleaded [in the indictment] and found by the jury  beyond a reasonable doubt"); United States v. Doggett, 230 F.3d 160, 165 (5th  Cir.2000) (reviewing the defendants' sentences under preserved error review  because the defendants "raised their constitutional objections to their  sentences during the sentencing hearing"). Although a defendant's constitutional  objection will be timely if made at any time prior to sentencing, it is not  necessary that it be made prior to sentencing. The rationale behind this is  simple. If the indictment properly charges an offense, it would be unproductive  and run contrary to a defendant's interest to require him to object to the  indictment's failure to specify a quantity amount. If we insisted on an  objection to the indictment, we would effectively be forcing a defendant to  claim that the Government has undercharged him. That is, the defendant would  basically be forced to assert that the Government could have indicted him for a  section 841(b)(1)(A) or section 841(b)(1)(B) offense rather than the section  841(b)(1)(C)6 offense the Government is currently charging.7 Because it is the  Government's duty to ensure that it has charged the proper offense, a defendant  has no responsibility to point out that the Government could have charged him  with a greater offense. Similarly, it would be fruitless to insist that, at  trial, a defendant must request the court to instruct the jury to determine  quantity. Section 841(b)(1)(C) permits sentencing without regard to quantity, in  which event a jury finding of quantity is unnecessary. Therefore, to preserve  his constitutional objection, a defendant need object only at sentencing.


9
Case law in this circuit demonstrates that we ask these two crucial questions in  every case. The answers to these questions dictate the appropriate standard of  review. If the defendant makes a constitutional objection that is timely, he  receives the benefit of preserved error review. 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.

2.

10
Preserved error review in Apprendi cases follows a line of cases stemming from  Rogers, 228 F.3d 1318 (11th Cir.2000), and Nealy, 232 F.3d 825 (11th Cir.2000).  In Rogers, the defendant clearly raised a timely constitutional objection.  Rogers asserted that, under Jones, 526 U.S. at 243 n. 6, 119 S.Ct. at 1224 n. 6,  "the quantity of cocaine should have been determined by the jury beyond a  reasonable doubt." Rogers, 228 F.3d at 1321. Rogers made this objection three  times: (1) in response to the Pre-Sentence Investigation Report ("PSI"), (2) at  his sentencing hearing, and (3) shortly after he was sentenced. Id. at 1320-21.  Rogers's objection was thus constitutional and timely, and he received the  benefit of preserved error review. Id. at 1328.


11
In Nealy, the defendant similarly raised a timely constitutional objection.  Nealy also relied on the footnote in Jones for the proposition that the issue of  drug quantity must be submitted to the jury.8 Nealy, 232 F.3d at 828. Before his  trial, Nealy requested that the jury instructions include an instruction about  drug quantity; Nealy renewed his objection at the sentencing hearing. Id. As  Nealy's constitutional objection was timely made, he received the benefit of  preserved error review. Id. at 829.


12
In cases applying preserved error review, the reviewing court applies a de novo  standard of review when determining whether a defendant's sentence violated  Apprendi by exceeding the prescribed statutory maximum. Nealy, 232 F.3d at 829;  Rogers, 228 F.3d at 1321. In Apprendi, the Supreme Court established, as a  constitutional matter, 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, 120 S.Ct. at 2362-63; see also Jones, 526 U.S. at 243 n. 6, 119 S.Ct.  at 1224 n. 6 ("[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").  In light of this clear constitutional principle, we have held that "drug  quantity in [21 U.S.C.  ]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."  Rogers, 228 F.3d at 1327. Therefore, the de novo review employed in preserved  error Apprendi drug cases reveals that there is an error if the defendant's  sentence exceeds the maximum sentence allowed by a statute without regard to  quantity. See Nealy, 232 F.3d at 829; Rogers, 228 F.3d at 1328; cf. Gerrow, 232  F.3d at 834 (holding that "there is no error ... 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").


13
If a reviewing court finds such an error, it is nonetheless subject to harmless  error analysis under Fed.R.Crim.P. 52(a).9 The dictates of Rule 52(a) apply to  errors "where a proper objection is made at trial," including most  constitutional errors. Neder v. United States, 527 U.S. 1, 7, 119 S.Ct. 1827,  1833, 144 L.Ed.2d 35 (1999). As Swatzie, 228 F.3d at 1283, Nealy, 232 F.3d at  829- 30, and Smith, --- F.3d at ----, have recognized, Apprendi errors do not  fall within the limited class of "fundamental constitutional errors that 'defy  analysis by "harmless error" standards.' " Neder, 527 U.S. at 7, 119 S.Ct. at  1833 (quoting Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 1265,  113 L.Ed.2d 302 (1991)). Therefore, Apprendi errors are subject to a traditional  harmless error analysis. Nealy, 232 F.3d at 829-30.10


14
A constitutional error, such as an Apprendi error, must be disregarded as not  "affect[ing] substantial rights," Fed.R.Crim.P. 52(a), if the error is "harmless  beyond a reasonable doubt," Chapman v. California, 386 U.S. 18, 24, 87 S.Ct.  824, 828, 17 L.Ed.2d 705 (1967). This standard is only met where it is clear  "beyond a reasonable doubt that the error complained of did not contribute to  the verdict obtained." Id. In the most recent formulation of this inquiry, the  Supreme Court framed the question: "Is it clear beyond a reasonable doubt that a  rational jury would have found the defendant guilty absent the error?" Neder,  527 U.S. at 18, 119 S.Ct. at 1838. Applying this harmless error analysis, the  Court held in Neder that the failure to submit to the jury the issue of the  materiality of the misrepresentation, an element of the offense of fraud, may be  harmless error if the evidence is so overwhelming that the jury could not have  found otherwise. Neder, 527 U.S. at 15-20, 119 S.Ct. at 1837-39.


15
The Court's application of harmless error analysis in Neder is instructive.  Neder held that the failure to submit an element of an offense to the jury is a  constitutional error but may, nonetheless, be harmless. Neder, 527 U.S. at 8-15,  119 S.Ct. at 1833-37. Apprendi held that, as a constitutional matter, any fact  that increases the penalty for a crime beyond the prescribed statutory maximum  must be decided by a jury beyond a reasonable doubt. Apprendi, 120 S.Ct. at  2362- 63. We have held that Apprendi applies to sentencing determinations under  21 U.S.C.  841(b)(1)(A) & (B), thereby rendering the quantity of drugs an  element of the offense rather than a sentencing factor. Rogers, 228 F.3d at  1326-27. Because Neder held that constitutional errors, including the failure to  submit an element to the jury, must be subjected to harmless error analysis  (unless they are "fundamental constitutional errors"), an Apprendi error at  sentencing must be subjected to harmless error analysis. See Swatzie, 228 F.3d  at 1283 (noting that "[t]he error in Neder is in material respects  indistinguishable from error under Apprendi"); Nealy, 232 F.3d at 829 ("Apprendi  did not recognize or create a structural error that would require per se  reversal."). Therefore, a court reviewing a defendant's sentence in which it  finds an Apprendi error must look to whether the "omitted element is supported  by uncontroverted evidence" and also "ask[ ] whether the record contains  evidence that could rationally lead to a contrary finding with respect to the  omitted element." Neder, 527 U.S. at 18-19, 119 S.Ct. at 1838-39.


16
In Nealy, for example, the police found a specific amount of cocaine in Nealy's  backpack, which also contained Nealy's identification card. The amount of  cocaine was uncontested at trial and sentencing. Nealy was found guilty of the  substantive offense of possession, and, "given the undisputed evidence about  drug quantity, no reasonable jury could have concluded that [Nealy] was guilty  of the substantive offense ... but that the amount of cocaine possessed" was  less than the five grams necessary for sentencing under 21 U.S.C.   841(b)(1)(B). Nealy, 232 F.3d at 830. If the error is harmless, as in Nealy, a  sentence may stand; if the error is harmful-that is, it affects the defendant's  substantial rights-a new sentence must be imposed.

3.

17
In contrast to the preserved error line of Apprendi cases are cases that receive  plain error review under Fed.R.Crim.P. 52(b). These cases are exemplified by  Swatzie, 228 F.3d 1278, Gerrow, 232 F.3d 831, Smith --- F.3d ----, No. 99-11377,  and Pease, --- F.3d ----, No. 99-2301 . In these cases, the defendants failed to  raise a constitutional objection in a timely fashion.11


18
In Swatzie, the defendant did not raise a constitutional objection, but rather  only an evidentiary objection. He "put the amount of and form of cocaine at  issue by objecting to the presentence report's findings as to those two facts."  Swatzie, 228 F.3d at 1280. Importantly, he did not raise Apprendi or Jones, or  otherwise base his objection on the fact that drug quantity (and type) must be  found by the jury beyond a reasonable doubt. Therefore, although the amount of  cocaine was in controversy, the objection was merely evidentiary.


19
In Gerrow, the defendants contested only the supervised release portion of their  sentences.12 We explicitly found that the defendants "did not challenge the  constitutionality of the district court's finding of drug quantity." Gerrow, 232  F.3d at 833. The defendants did not challenge the constitutionality of their  sentences until their appeal. Their sentences were therefore reviewed for plain  error. Id. at 835.


20
In the same way, the defendants in Smith and Pease did not raise constitutional  objections in a timely fashion. In Smith, although both the Government and the  defense presented experts to testify on drug quantity at the sentencing hearing,  the defendants "never objected at their sentencing hearing when the judge  determined drug quantity by a preponderance of the evidence." Smith, --- F.3d at  - ---. That is to say, although the defendants contested the amount of drugs  attributed to them, they did not make a constitutional objection at the  sentencing hearing. We therefore reviewed their sentences for plain error. Id.  Similarly, we reviewed the defendant's sentence for plain error in Pease because  he had "raise[d] the Apprendi issue for the first time on appeal."13 Pease, -- -  F.3d at ---- .


21
A case reviewed for plain error must meet the four-pronged test set forth Olano,  507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508, and clarified in Johnson, 520  U.S. 461, 468, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718. In Johnson, the Court  stated:


22
[B]efore an appellate court can correct an error not raised at trial, there  must be (1) error, (2) that is plain, and (3) that affects substantial rights.  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  affects the fairness, integrity, or public reputation of judicial proceedings.


23
Johnson, 520 U.S. at 466-67, 117 S.Ct. at 1548-49 (internal quotations and  citation omitted). It is imperative that asserted errors in plain error cases be  judged against a complete record. See United States v. Young, 470 U.S. 1, 16,  105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) ("Especially when addressing plain  error, a reviewing court cannot properly evaluate a case except by viewing such  a claim against the entire record.").


24
In drug cases after Apprendi, the first prong-"error"-is addressed by the same  inquiry utilized under preserved error review. There is error if the defendant's  sentence exceeds the statutory maximum set forth in section 841(b)(1)(C) (or  other section prescribing a penalty without regard to quantity). See Rogers, 228  F.3d at 1326-28.


25
An error meets the "plain" requirement-the second prong-if it is "obvious" or  "clear under current law." Olano, 507 U.S. at 734, 113 S.Ct. at 1777. Rogers  stands for the proposition that, unless there is a quantity finding by the jury,  a sentence that exceeds the maximum prescribed by 21 U.S.C.  841(b)(1)(C) (or  other section that lacks reference to quantity) is error under current law.  Rogers, 228 F.3d at 1326-28. This is sufficient for the error to be considered  "plain" even though the law was different at the time of the defendant's  conviction and sentencing. See Johnson, 520 U.S. at 468, 117 S.Ct. at 1549  (holding that "where the law at the time of trial was settled and clearly  contrary to the law at the time of appeal-it is enough that an error be 'plain'  at the time of appellate consideration"). Cf. In re Joshua, 224 F.3d 1281 (11th  Cir.2000) (holding that the Apprendi rule only applies to direct appeals and not  collateral attacks, because the Supreme Court has not made Apprendi retroactive  to collateral attacks).


26
The third prong of plain error analysis asks whether the error affected the  defendant's substantial rights. Rule 52(b) of the Federal Rules of Criminal  Procedure states that "[p]lain errors or defects affecting substantial rights  may be noticed although they were not brought to the attention of the court."  This third step is akin to the harmless error analysis employed in preserved  error cases, which asks whether a rational jury would have found the defendant  guilty absent the error.14 In Swatzie, the third prong was not satisfied because  the facts revealed that the substantial rights of the defendant were not  affected. Swatzie led authorities to over one hundred grams of cocaine and  twenty grams of cocaine base in his own house and admitted to possession of the  cocaine; the amount of cocaine was uncontested. There was no way a jury could  have found that Swatzie possessed drugs but that he possessed less than five  grams. Swatzie, 228 F.3d at 1282-83 (finding "no serious dispute" about the  quantity of drugs).


27
In Smith, we found that the defendants' substantial rights were not affected  when, upon conviction of three counts of conspiracy to possess methamphetamine,  they were sentenced to three concurrent thirty year sentences. Although  sentencing under 21 U.S.C.  841(b)(1)(C), without reference to quantity, would  have carried a maximum penalty of twenty years' imprisonment, we held that that  the statutory maximum "on each count" was twenty years, yielding a possible  maximum sentence of sixty years (if each twenty year sentence ran  consecutively). Smith, --- F.3d at - --- . Because the defendants' "ultimate  sentence d[id] not exceed the aggregate statutory maximum for the[ir] multiple  convictions," the defendants' substantial rights were not affected. Id.


28
In Pease, the defendant's substantial rights were not affected where, after  entering a guilty plea to one count of conspiracy to distribute cocaine in  violation of 21 U.S.C.  846, there was no contest at sentencing as to the  relevant quantity of drugs. Pease, --- F.3d at ----. Although the "the amount of  cocaine ... was disputed at sentencing," the defendant "never contended that he  conspired to distribute less than 500 grams. In fact, in both his plea agreement  and during the plea colloquy Pease admitted that he had accepted delivery of  three kilograms of cocaine." Id. Because a quantity of 500 grams of cocaine is  punishable under 21 U.S.C.  841(b)(1)(B) with a sentence of five to forty  years' imprisonment, the error in sentencing Pease to thirty years' imprisonment  (instead of a maximum of twenty years, pursuant to section 841(b)(1)(C), without  regard to quantity) did not affect his substantial rights. Id.


29
"When the first three parts of [plain error review] are satisfied, an appellate  court must then determine whether the forfeited error seriously affects the  fairness, integrity or public reputation of judicial proceedings before it may  exercise its discretion to correct the error." Johnson, 520 U.S. at 469-70, 117  S.Ct. at 1550 (internal quotations omitted).15 Although we have not yet based a  holding of a case involving an Apprendi error in sentencing on this fourth  prong, we noted in Swatzie that in cases where the evidence was "overwhelming"  we need not exercise our discretion to notice the error. Swatzie, 228 F.3d at  1284 (quoting Johnson, 520 U.S. at 470, 117 S.Ct. at 1550). That is to say, if  the sentencing judge had ample, "overwhelming" evidence with regard to quantity,  we would not undermine the integrity or the fairness and public reputation of  judicial proceedings by declining to recognize the error-even if the finding of  quantity was ostensibly made only by a preponderance of the evidence rather than  beyond a reasonable doubt.

B.

30
In the instant case, Candelario's objection was neither constitutional nor  timely. Although Candelario contested the amount of crack cocaine attributable  to him in his objections to the PSI and at sentencing, these objections were  merely evidentiary objections. Candelario did not raise a constitutional  objection on Apprendi grounds until he filed a petition for rehearing and  suggestion for rehearing en banc following our first opinion in this case. We  therefore may only review the claim for plain error.16

III.

31
Applying the plain error standard of review to Candelario's case, we find that  Candelario is unable to satisfy the requirements of the plain error test  necessary to obtain reversal on the basis of an alleged Apprendi violation.


32
The first prong of the plain error test requires that there be error. Johnson  520 U.S. at 467, 117 S.Ct. at 1549. Rogers held that Apprendi applies to  sentencing determinations under 21 U.S.C.  841(b)(1)(A) and (B). United States  v. Rogers, 228 F.3d 1318, 1327 (11th Cir.2000). Candelario was sentenced to 360  months' imprisonment on each count, and there was no explicit finding of drug  quantity by the jury. With no finding of drug quantity, the statutory maximum is  twenty years' imprisonment for each count.17 21 U.S.C.  841(b)(1)(C); United  States v. Nealy, 232 F.3d 825, 829 (11th Cir.2000). Because Candelario's  sentences exceeded that allowed by section 841(b)(1)(C), there was error in his  sentences. Nealy, 232 F.3d at 829.


33
Candelario's Apprendi error also satisfies the second prong of the plain error  test-that the error must be plain-as described supra Part II.A.3.


34
Candelario fails, however, to satisfy the third prong of the plain error  test-the error must affect substantial rights. Candelario is unable to make such  a showing as to either of his sentences. On Count Two, the possession count,  Candelario's partner, Theodore Cochran, was the only witness. The jury  necessarily believed Cochran for conviction under this count. Cochran testified  that, on one occasion, Candelario delivered nine ounces of cocaine base to him  for distribution. Based on this testimony, no reasonable jury could have  concluded that Candelario was guilty of the substantive offense (possession with  intent to distribute cocaine base), but that the amount was less than five  grams.18 Under the statute, if Candelario possessed five grams or more of  cocaine base, he exposed himself to up to forty years' imprisonment pursuant to  21 U.S.C.  841(b)(1)(B)(iii). Because Candelario was sentenced to thirty years'  imprisonment, his sentence falls below the forty year maximum of section  841(b)(1)(B)(iii). Thus, Apprendi is not violated, because Candelario's  "substantial rights" are not affected.


35
Count One of the indictment, the conspiracy count, necessarily subsumes the  amount of cocaine in the possession charge, at least in this case. Because the  jury found at least nine ounces of crack cocaine in the possession charge, the  jury also must have determined that at least nine ounces were involved in the  conspiracy. The jury convicted Candelario of the conspiracy, and, according to  Cochran's testimony, the nine ounces of crack cocaine passed from Candelario to  Cochran for distribution in furtherance of the conspiracy. A finding of nine  ounces of crack cocaine places Candelario within the reach of section  841(b)(1)(B)(iii) for the conspiracy count. Because Candelario's sentence on  Count One is thirty years-less than the forty year maximum allowed under section  841(b)(1)(B)(iii)-we find that his substantial rights were not affected.


36
Because Candelario is unable to satisfy the third prong of the plain error test,  we need not pass judgment on the fourth prong of plain error review-whether the  error seriously affected the fairness, integrity, or public reputation of  judicial proceedings.

IV.

37
Candelario failed to raise a constitutional objection to his sentences in a  timely fashion. Therefore, his alleged Apprendi errors receive plain error  review. Plain error review shows that, although there was error in Candelario's  sentencing, his substantial rights were not affected by the error. Therefore,  Candelario's convictions and sentences are


38
AFFIRMED.



NOTES:


1
  As we concluded in our previous opinion, United States v. Candelario, 232 F.3d  214 (11th Cir. August 16, 2000) (per curiam) (unpublished table decision), we  find no merit in Candelario's contentions: (1) that the district court abused  its discretion in admitting the evidence of Candelario's arrest (on unspecified  grounds) and presentation of false identification to police; or (2) in the  district court's refusal to grant a mistrial on these grounds. Assuming that the  evidence should have been excluded-and reasonable jurists could differ as to  whether it should have been-we are satisfied that the court's curative  instruction to the jury removed whatever undue prejudice the evidence may have  produced.


2
  [B]efore an appellate court can correct an error not raised at trial, there must be (1)  error, (2) that is plain, and (3) that affects substantial rights. 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 affects the  fairness, integrity, or public reputation of judicial proceedings." Johnson, 520  U.S. at 466-67, 117 S.Ct. at 1548-49 (internal quotations and citation omitted);  see also infra Part II.A.3.


3
  As explained infra Part II.A.2, in cases receiving preserved error review, a  reviewing court looks at the case de novo to determine whether there is error.  If error is found, it is generally subject to the harmless error analysis of  Fed.R.Crim.P. 52(a).


4
  A defendant's failure to raise a constitutional objection does not waive the  Government's burden of alleging and proving every element of the offense. See In  re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970) ("Lest  there remain any doubt about the constitutional stature of the reasonable-doubt  standard, we explicitly hold that the Due Process Clause protects the accused  against conviction except upon proof beyond a reasonable doubt of every fact  necessary to constitute the crime with which he is charged."). Because we have  held that a defendant may not be sentenced above the prescribed statutory  maximum based on a quantity of drugs, unless that quantity is found by the jury,  see United States v. Rogers, 228 F.3d 1318, 1327-28 (11th Cir.2000), a defendant  cannot waive the Government's failure to prove this element to the jury-and a  defendant need not object to obtain review of an Apprendi error on direct  appeal. However, a defendant's failure to make a timely constitutional objection  will subject the alleged error to a different analysis (plain error under  Fed.R.Crim.P. 52(b) rather than preserved error under Fed.R.Crim.P. 52(a)).


5
  In a case for possession of cocaine, for example, the indictment generally  charges only that a defendant violated 21 U.S.C.  841(a). Under pre-Apprendi  law, a defendant could have been sentenced under 21 U.S.C.  841(b)(1)(A) or 21  U.S.C.  841(b)(1)(B) without a finding of drug quantity by the jury; this  changed in Rogers, 228 F.3d 1318. However, a defendant charged by such an  indictment, if convicted, may still be properly sentenced under 21 U.S.C.   841(b)(1)(C), without regard to quantity. Therefore, the defendant may not  object that the indictment is invalid, for it in fact charges him with a crime.  However, the defendant may object that the indictment fails to provide adequate  notice concerning the extent of the penalty to which the defendant will be  subjected; such an objection likely will not carry the day.


6
  For cocaine, 21 U.S.C.  841(b)(1)(A)-(C) states, in pertinent part:
(A) In the case of a violation of subsection (a) of this section involving-
. . . .
(ii) 5 kilograms or more of a mixture or substance containing a detectable  amount of-
(I) coca leaves ...;
(II) cocaine, its salts, optical and geometric isomers, and salts of isomers;
(III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or
(IV) any compound, mixture, or preparation which contains any quantity of any of  the substances referred to in subclauses (I) through (III);
(iii) 50 grams or more of a mixture or substance described in clause (ii) which  contains cocaine base;
. . . .
such person shall be sentenced to a term of imprisonment which may not be less  than 10 years or more than life ... [and if] any person commits such a violation  after a prior conviction for a felony drug offense has become final, such person  shall be sentenced to a term of imprisonment which may not be less than 20 years  and not more than life imprisonment ... [and if the violation is] after two or  more prior convictions ... have become final, such person shall be sentenced to  a mandatory term of life imprisonment without release....
(B) In the case of a violation of subsection (a) of this section involving-
. . . .
(ii) 500 grams or more of a mixture or substance containing a detectable amount  of-
(I) coca leaves ...;
(II) cocaine, its salts, optical and geometric isomers, and salts of isomers;
(III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or
(IV) any compound, mixture, or preparation which contains any quantity of any of  the substances referred to in subclauses (I) through (III);
(iii) 5 grams or more of a mixture or substance described in clause (ii) which  contains cocaine base;
. . . .
such person shall be sentenced to a term of imprisonment which may not be less  than 5 years and not more than 40 years ... [and if] any person commits such a  violation after a prior conviction for a felony drug offense has become final,  such person shall be sentenced to a term of imprisonment which may not be less  than 10 years and not more than life imprisonment....
(C) 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 ... [and if] any person commits  such a violation after a prior conviction for a felony drug offense has become  final, such person shall be sentenced to a term of imprisonment of not more than  30 years....
21 U.S.C.  841(b)(1) (1994). Cocaine is a schedule II drug according to 21  U.S.C.  812, Schedule II.


7
  If the indictment alleges only a violation of 21 U.S.C.  841(a), we would  necessarily read the indictment as presenting a section 841(b)(1)(C) case for  sentencing purposes. However, if 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.


8
  Both Nealy and Rogers were convicted and sentenced before the Supreme Court  handed down Apprendi.


9
  Fed.R.Crim.P. 52(a) reads: "Any error, defect, irregularity or variance which  does not affect substantial rights shall be disregarded." As noted infra note  13, this rule places the burden on the Government to demonstrate that the error  does not affect the defendant's substantial rights. See O'Neal v. McAninch, 513  U.S. 432, 438, 115 S.Ct. 992, 995, 130 L.Ed.2d 947 (1995).


10
  Although Rogers did not explicitly mention harmless error review, it was  implicit in the reasoning. In that case, "[p]olice found 1 gram of cocaine base  (crack cocaine) in Rogers's pocket and two cocaine cookies, which totaled 40  grams, in the van Rogers had been driving." Rogers, 228 F.3d at 1319. Rogers was  sentenced on the basis of possession of 41 grams of crack cocaine. Id. at 1320. It is clear, however, that because the jury did not determine a quantity amount,  the jury could have found one of three alternatives: (1) Rogers possessed only  the 1 gram of crack cocaine found on his person but not the 40 grams in the van;  (2) Rogers possessed only the 40 grams in the van but not the 1 gram found on  his person; or (3) Rogers possessed both the 40 grams in the van and the 1 gram  on his person. Because the first alternative is a finding of crack cocaine that  is less than five grams, Rogers could not have been sentenced under 21 U.S.C.   841(b)(1)(B)(iii), which requires a finding of at least five grams of crack  cocaine. (A finding of cocaine sufficient to place Rogers under section  841(b)(1)(B)(iii) would have been sufficient to cover his sentence of 360  months, which is less than the forty year maximum sentence contained within that  statute. See Nealy, 232 F.3d at 830; see also infra Part III.) Because the facts  in Rogers clearly show, then, that the jury could have convicted and yet found  an amount less than the five grams necessary to satisfy section  841(b)(1)(B)(iii), there is no way that the error in Rogers could have been  harmless; reversal was the only proper choice on those facts.


11
  While we may not have explicitly stated the standard of review in United States  v. Shepard, 235 F.3d 1295 (11th Cir.2000), it is irrelevant since 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, 235 F.3d at 1295. 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." Gerrow, 232 F.3d at 834.


12
  The defendants conceded that Apprendi did not apply to the imprisonment portion  of their sentences, "as the terms of imprisonment imposed were below the  prescribed statutory maximum." Gerrow, 232 F.3d at 834 (internal quotations  omitted).


13
  We noted in Pease that the defendant had entered a guilty plea which "expressly  waived his right to appeal his sentence either directly or collaterally on any  ground except for an upward departure by the sentencing judge or a sentence  above the statutory maximum or a sentence in violation of the law apart from the  sentencing guidelines." Pease, --- F.3d at ---- n. 5 . We therefore "assume[d]  without deciding" that the Apprendi issue fell outside the scope of the waiver  when we reviewed the Apprendi issue for plain error. Id.


14
  The Court has made clear that the inquiries are substantially similar, as both  Fed.R.Crim.P. 52(a) and Rule 52(b) discuss the "substantial rights" of the  defendant:
When the defendant has made a timely objection to an error and Rule 52(a)  applies, a court of appeals normally engages in a specific analysis of the  district court record-a so-called "harmless error" inquiry-to determine whether  the error was prejudicial. Rule 52(b) normally requires the same kind of  inquiry, with one important difference: It is the defendant rather than the  Government who bears the burden of persuasion with respect to prejudice. Olano, 507 U.S. at 734, 113 S.Ct. at 1778. In Rule 52(b), the burden is on the  defendant to show that the error did affect his substantial rights. By contrast,  in 52(a)-used in preserved error cases-the burden is on the Government to show  that the error did not affect the defendant's substantial rights. See Olano, 507  U.S. at 741, 113 S.Ct. at 1781.
We recognize that in drug cases alleging Apprendi violations, there is no  material difference between preserved error review and plain error review, with  the exception of this burden-shifting regarding substantial rights. Moreover, to  date, it this difference in who bears the burden has not yielded different  results in drug cases alleging Apprendi violations. If this pattern holds, the  only functional difference between preserved error review and plain error review  will be the fourth prong of plain error review.


15
  This fourth prong adds a step that is not included in preserved error review. If  the defendant preserved the error and our review shows that the defendant's  substantial rights were affected, our inquiry ends and we must reverse and  remand for resentencing. In plain error review, a showing of an effect on  substantial rights does not result in an automatic remand-this fourth prong of  the plain error test must also be satisfied.


16
  Candelario also makes what he characterizes as a "facial challenge" to the  constitutionality of 21 U.S.C.  841 and 846. This challenge does not change  the standard of review applicable to his Apprendi issues. Moreover, we find this  challenge to be without merit.


17
  21 U.S.C.  841(b)(1)(C) authorizes a maximum sentence of thirty years instead  of twenty years if there is a proper enhancement under 21 U.S.C.  851 for  recidivism. See Rogers, 228 F.3d at 1328-29.


18
  There are 28.35 grams in an ounce. U.S.S.G.  2D1.1 Measurement Conversion  Table.


