                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-4098
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa.
Fabian Aguayo-Delgado,                  *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 10, 2000
                                 Filed: July 18, 2000
                                  ___________

Before BOWMAN, FLOYD R. GIBSON,1 and LOKEN, Circuit Judges.
                          ___________

BOWMAN, Circuit Judge.

       A grand jury indicted Fabian Aguayo-Delgado on two counts. The first count
of the indictment reads as follows:

             From on or about November, 1997, and continuing to on or about
      April, 1998, the exact dates to the Grand Jury unknown, in the Southern
      District of Iowa and elsewhere, two or more persons, known and


      1
       Complications from an automobile accident have prevented Judge Gibson from
reviewing this opinion prior to its being filed. The opinion is consistent with Judge
Gibson's vote at conference.
      unknown to the Grand Jury, including but not limited to the defendant,
      FABIAN AGUAYO-DELGADO, a/k/a Hugo Ruiz, a/k/a Coco, did
      conspire to commit an offense against the United States, namely to
      knowingly and intentionally distribute methamphetamine, a Schedule II
      controlled substance, in violation of Title 21, United States Code, Section
      841(a)(1).

             This is a violation of Title 21, United States Code, Section 846.

The second count charged a related firearms offense, namely possessing a firearm in
relation to a drug offense. See 18 § U.S.C. 924(c) (1994 & Supp. IV 1998). Aguayo-
Delgado was tried before a jury. The jury instructions specified that in order to return
a conviction on the first count, the jury must find that Aguayo-Delgado conspired to
distribute methamphetamine, but the instructions did not make any reference to drug
quantity. After deliberations, the jury convicted him on the first count and acquitted
him on the second.

       The District Court2 calculated Aguayo-Delgado's sentence according to the
sentencing guidelines. Based on trial testimony, the U.S. Probation Office's
presentence report figured the amount of drugs ascribable to Aguayo-Delgado. The
report specifically found that Aguayo-Delago was responsible for 17.68 kilograms of
methamphetamine and 1 kilogram of cocaine. The methamphetamine amount alone
would qualify Aguayo-Delgado for a base offense level of 38 under the guidelines, so
the Probation Office did not make further calculations, although there was evidence of
yet more drugs for which Aguayo-Delgado might be responsible. The highest possible
base offensive level for drug distribution is 38 except in specific circumstances not
found here. See U.S. Sentencing Guidelines Manual § 2D1.1 (1998).




      2
        The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
                                          -2-
       At his sentencing hearing, Aguayo-Delgado disputed the presentence report's
drug quantity calculation. The government conceded that the trial testimony relied
upon in the presentence report was inconsistent at points, that the testimony may have
involved double-counting, and that the amounts to which the witnesses testified were
based on estimates and averages. The District Court ultimately made a finding of a
quantity of methamphetamine of "more than 3 but under 15 kilograms," which
mandated a base offense level of 36. The District Court also found that Aguayo-
Delgado had possessed a gun during his drug-dealing activity and therefore applied a
two-level enhancement. See U.S.S.G. § 2D1.1(b)(1). While noting that the jury had
acquitted Aguayo-Delgado on a very similar substantive offense, the District Court
found that the record supported the enhancement under the less rigorous preponderance
standard applicable at sentencing. The District Court also applied a one-level
downward departure because, as a Mexican citizen, Aguayo-Delgado would be
deported immediately upon completing his sentence. Thus, the District Court found the
offense level to be 37.

       With a criminal history category of 2 and an offense level of 37, the sentencing
guidelines normally allow for a sentencing range of 235 to 293 months imprisonment.
As required, the District Court also looked to the federal statutes that describe drug
sentencing, finding an applicable mandatory minimum in 21 U.S.C. § 841(b)(1)(A)
(1994 & Supp. IV 1998), which, because of the drug quantity found by the judge and
because of Aguayo-Delgado's prior felony drug conviction, requires at least twenty
years' imprisonment and ten years' supervised release. The District Court therefore
concluded that the applicable sentencing range was 240 to 293 months. See U.S.S.G.
§ 5G1.1. The District Court ultimately sentenced Aguayo-Delgado at the bottom of
that range, the statutory minimum of 240 months. Based on § 841(b)(1)(A), the District
Court also sentenced Aguayo-Delgado to ten years of supervised release, also the
statutory minimum. The District Court did not impose a fine because it found that
Aguayo-Delgado would be unable to pay, but the District Court did impose the
mandatory special assessment.

                                          -3-
      Aguayo-Delgado appeals on two grounds. First, he argues that the drug quantity
should have been charged in the indictment and proven to the jury beyond a reasonable
doubt. Second, Aguayo-Delgado contends that the record contains insufficient
evidence to support his conviction. We affirm.

                                            I.

       The District Court, not the jury, determined the quantity of drugs upon which
Aguayo-Delgado's sentenced was based. Indeed, no quantity was specified in the
indictment, and there is no way of knowing what quantity the jury believed the
government had proven beyond a reasonable doubt. The jury returned only a
determination that Aguayo-Delgado was guilty of conspiring to distribute
methamphetamine. This has been the practice of the federal courts in recent times.
Drug quantity determinations are made by an informal procedure, without the
application of the Federal Rules of Evidence, and the burden of proof on the
government is only to prove the quantity by a preponderance of the evidence, as
opposed to the more difficult task of proving guilt beyond a reasonable doubt. See
Note, Awaiting the Mikado: Limiting Judicial Discretion to Define Criminal Elements
and Sentencing Factors, 112 Harv. L. Rev. 1349, 1350 (1999) (comparing procedural
rules applicable at sentencing with rules applicable at trial).

       The drug quantity determination is crucial to the statutory sentencing range. The
relevant statutes have several applicable parts. First, 21 U.S.C. § 846 (1994) states that
the penalty for conspiring to commit an offense in "this subchapter," which refers to 21
U.S.C. §§ 801-904 (1994 & Supp. IV 1998), shall be the same as the penalty for the
crime that was the object to the conspiracy. Second, 21 U.S.C. § 841(a) defines the
crime that was the object of the conspiracy, namely, distribution of a controlled
substance. Third, 21 U.S.C. § 841(b) defines the penalties for violations of § 841(a),
which, because of § 846, are also the penalties for conspiring to violate § 841(a).

                                           -4-
       Section 841(b) contains numerous possible sentencing ranges, based on drug
type, drug quantity, a defendant's prior criminal record, and other matters.3 Section
841(b)(1)(C) defines penalties for schedule II controlled substances, such as
methamphetamine, without reference to drug quantity. Assuming that the defendant has
a prior felony drug conviction, as does Aguayo-Delgado, § 841(b)(1)(C) describes a
penalty of not more than thirty years' imprisonment and at least six years of supervised
release. Section 841(b)(1)(A) describes penalties based on fifty grams or more of
methamphetamine, and, considering a prior felony drug conviction, requires
imprisonment for at least twenty years and not more than life, and also requires at least
ten years of supervised release. Section 841(b)(1)(B) describes intermediate sentences
based on a methamphetamine quantity of five to fifty grams.

       In this case, because of his prior felony drug conviction and a finding that he was
responsible for more than fifty grams of methamphetamine, Aguayo-Delgado faced a
statutory range of twenty years to life imprisonment and at least ten years of supervised
release. See 21 U.S.C. § 841(b)(1)(A). The sentencing range applicable to Aguayo-
Delgado without reference to drug quantity would be not more than thirty years'
imprisonment and at least six years' supervised release. See 21 U.S.C. § 841(b)(1)(C).
These sentencing ranges are independent of the sentencing guidelines, for the guidelines
calculation cannot produce an applicable sentence above the maximum or below the
minimum authorized by the applicable statute defining the crime and setting the
possible punishment. See U.S.S.G. § 5G1.1. Indeed, the constitutionality of the
guidelines system is premised upon this assumption. See Mistretta v. United States,
488 U.S. 361, 396 (1989) ("[The guidelines] do no more than fetter the discretion of
sentencing judges to do what they have done for generations—impose sentences within
the broad limits established by Congress."); see also id. at 391, 395.


      3
       We only discuss those relevant to Aguayo-Delgado, namely penalties based on
methamphetamine applicable to an individual with a prior felony drug conviction. We
also omit discussion of applicable fines, which are not relevant in this case.
                                           -5-
       We have upheld this system before. In United States v. Wood, 834 F.2d 1382
(8th Cir. 1987), the defendant was convicted under 21 U.S.C. § 846 for conspiring to
distribute drugs and challenged his mandatory minimum sentence under § 841(b)(1)(A)
on the grounds that drug quantity was not charged in the indictment or proven to the
jury beyond a reasonable doubt. We concluded that § 841(b) contains sentencing
provisions, not the elements of substantive crimes. See id. at 1388-90. Therefore, we
said, Wood's claim must fail because "there is no constitutional right to jury sentencing,
even where the sentence turns on specific findings of fact." Id. at 1390. Wood has
been followed repeatedly despite numerous challenges. See, e.g., United States v.
Olness, 9 F.3d 716, 717 (8th Cir. 1993), cert. denied, 510 U.S. 1205 (1994).

       The Supreme Court raised doubts about this holding of Wood in Jones v. United
States, 526 U.S. 227 (1999). In interpreting the federal carjacking statute, 18 U.S.C.
§ 2119 (1994 & Supp. IV 1998), the Court concluded that the statute was ambiguous
as to whether an increased penalty for "serious bodily injury" during a carjacking was
a sentencing factor or an element of a different, more serious, substantive offense.
Citing the rule of constitutional doubt, the Court held that "serious bodily injury" was
an element of a different substantive crime. Interpreting the statute otherwise, the
Court said, the statute would run afoul of the principle that "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." Jones, 526
U.S. at 243 n.6. While noting that "prior cases suggest rather than establish this
principle," id., the Court concluded that it was required to interpret the statute to avoid
the constitutional question.

      In the recent United States v. Grimaldo, ___ F.3d ___, Nos. 99-1317, 99-2177,
2000 WL 709498 (8th Cir. June 2, 2000), this Court addressed the impact of Jones on
21 U.S.C. § 841(b) and Wood. Grimaldo had been sentenced pursuant to
§ 841(b)(1)(A) and argued that, based on Jones, drug quantity must be charged in the
indictment and proven to the jury beyond a reasonable doubt. We concluded,

                                            -6-
consistent with Wood, that the statute evidenced a clear legislative intent to make drug
quantity a sentencing factor, not an element of a different substantive offense. See id.
at *4. Thus, the statutory analysis in Jones did not apply. As to the constitutional
principle discussed in Jones, we noted that the Supreme Court refrained from
articulating a new constitutional rule. Because Grimaldo had not raised the Jones issue
in the district court (Jones had not yet been decided), we reviewed only for plain error.
We concluded: "We are not certain that the Constitution requires [the principle
discussed in Jones]. Until this constitutional principle is established, rather than
suggested, we decline to find plain error under these circumstances." Id. at *6. This
conclusion is in line with the analysis of other courts regarding the impact of Jones on
21 U.S.C. § 841. See, e.g., United States v. Williams, 194 F.3d 100, 106-07 (D.C. Cir.
1999).

       Aguayo-Delgado, unlike the appellant in Grimaldo, raised the drug-quantity issue
in the District Court, based on the then-recent Jones decision. Thus, our review is not
limited to plain error. Moreover, about three weeks after Grimaldo, and well after the
instant case was briefed and argued, the Supreme Court decided Apprendi v. New
Jersey, 530 U.S. ___, No. 99-478, 2000 WL 807189 (June 26, 2000). In Apprendi, the
Supreme Court made it clear that the principle discussed in Jones is a rule of
constitutional law. Thus, we are now squarely confronted with the impact of Jones and
Apprendi on Aguayo-Deglado's conviction. While we are convinced that Apprendi
requires that we abandon part of the analysis in Wood, we conclude that the District
Court committed no error in this case.

                                           A.

        We begin by reviewing Apprendi. Charles Apprendi fired several shots from a
rifle into the home of a neighbor. He was arrested and eventually pleaded guilty to
three counts, the relevant count for our purposes being second-degree possession of a
firearm for an unlawful purpose. Normally, under New Jersey law, that would carry

                                           -7-
a penalty range of five to ten years' imprisonment. The sentencing judge, after a
contested evidentiary hearing, found by a preponderance of the evidence that the crime
was motivated by racial bias, applied a statute that increased the sentence for racially-
motivated crimes, and therefore sentenced Apprendi to twelve years' imprisonment.
The sentence was upheld by a divided New Jersey Supreme Court.

        The United States Supreme Court granted certiorari and reversed, holding that
the procedure used by the New Jersey courts was in violation of the Due Process
Clause of the Fourteenth Amendment. After reviewing the historical importance of trial
by jury and the requirement of proof beyond a reasonable doubt, the Court concluded
that "[t]he historic link between verdict and judgment and the consistent limitation on
judges' discretion to operate within the limits of the legal penalties provided highlight
the novelty of a legislative scheme that removes the jury from the determination of a
fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum
he would receive if punished according to the facts reflected in the jury verdict alone."
Id. at *10. Where a "defendant faces punishment beyond that provided by statute when
an offense is committed under certain circumstances but not others, it is obvious that
both the loss of liberty and the stigma attaching to the offense are heightened; it
necessarily follows that the defendant should not—at the moment the State is put to
proof of those circumstances—be deprived of protections that have, until that point,
unquestionably attached." Id. From these principles the Court discerned a
constitutional rule, first suggested in Jones, and now expressly articulated as a rule of
constitutional law: "Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." Id. at *13.

       The Court took care to clarify that McMillan v. Pennsylvania, 477 U.S. 79
(1986), remains good law, if limited in its application. McMillan upheld a statute that
required the sentencing judge to impose a minimum sentence, within the statutory range
applicable to the crime, if the judge found by a preponderance of the evidence that the

                                            -8-
defendant visibly possessed a firearm during the commission of the offense. See id. at
81-93. As the Apprendi Court stated: "We do not overrule McMillan. We limit its
holding to cases that do not involve the imposition of a sentence more severe than the
statutory maximum for the offense established by the jury's verdict—a limitation
identified in the McMillan opinion itself." Apprendi, 2000 WL 807189, at *12 n.13.
The Court did express a willingness to reconsider McMillan in the future, see id., but
of course we are bound by McMillan unless the Supreme Court actually does so.4

       There is no doubt that after Apprendi the analysis of the federal drug sentencing
system in Wood and its progeny no longer fully comports with the Supreme Court's
jurisprudence concerning the requirement of proof beyond reasonable doubt and the
scope of criminal defendants' jury trial right. Quite simply, we have held repeatedly
that because the legislature defined drug quantity as a sentencing factor in 21 U.S.C.
§ 841(b), a judge could decide drug quantity using a preponderance of the evidence
standard. See Wood, 834 F.2d at 1390; see also, e.g., United States v. Sales, 25 F.3d
709, 711 (8th Cir. 1994). We have maintained this holding regardless of the impact of
the drug quantity on the applicable sentencing range.




      4
        The Court in Apprendi also retained an exception for recidivism. In
Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Court upheld a
conviction and sentence where the sentence was increased from two years to twenty
based on a prior conviction. The fact of prior conviction had not been charged in the
indictment nor the issue submitted to the jury. The Court noted that recidivism "is a
traditional, if not the most traditional, basis for a sentencing court's increasing an
offender's sentence." Id. at 243. In Apprendi, the Court left Almenarez-Torres
untouched, although, as with McMillan, expressed a willingness to reconsider it. See
Apprendi, 2000 WL 807189, at *13. Aguayo-Delgado does not raise any issue relating
to the impact of his prior conviction on his conviction or sentence. The government
provided notice, pursuant to 21 U.S.C. § 851 (1994), of its intent to seek an enhanced
sentence based on Aguayo-Delgado's prior conviction.
                                          -9-
        After Apprendi, the issue is more complicated. A judge-found fact may
permissibly alter a defendant's sentence within the range allowed by statute for the
offense simpliciter. But when a statutory "sentencing factor" increases the maximum
sentence beyond the sentencing range otherwise allowed given the jury's verdict, then
the sentencing factor has become the "'tail which wags the dog of the substantive
offense.'" Apprendi, 2000 WL 807189 at *15 (quoting McMillan, 477 U.S. at 88). A
fact, other than prior conviction, that increases the maximum punishment for an offense
is the "functional equivalent of an element of a greater offense than the one covered by
the jury's verdict." Id. at *14 n.19. Thus, if the government wishes to seek penalties
in excess of those applicable by virtue of the elements of the offense alone, then the
government must charge the facts giving rise to the increased sentence in the
indictment, and must prove those facts to the jury beyond a reasonable doubt. To allow
otherwise would be "an unacceptable departure from the jury tradition that is an
indispensable part of our criminal justice system." Id. at *17. To the extent that Wood
and its progeny are inconsistent with that principle, Apprendi requires that we abandon
them.

                                          B.

       We apply these principles to the case before us. Aguayo-Delgado was convicted
by a jury for conspiring to distribute methamphetamine. As we have discussed, a
statute defines the applicable statutory sentencing range, assuming a prior felony drug
conviction but without reference to drug quantity, as up to thirty years' imprisonment.
See 21 U.S.C. § 841(b)(1)(C). The permissible amount of supervised release for a
class A felony (such as § 841(a)) is "not more than" five years, "[e]xcept as otherwise
provided." 18 U.S.C. § 3583(b)(1) (1994). Here, however, the governing statute
requires "at least" six years of supervised release, 21 U.S.C. § 841(b)(1)(C), which
permits the imposition of any amount of supervised release between six years and life.
See United States v. Eng, 14 F.3d 165, 172-73 (2d Cir.), cert. denied, 513 U.S. 807
(1994); see also United States v. Bongiorno, 139 F.3d 640, 641 (8th Cir.) (per curiam)

                                          -10-
(citing this discussion in Eng), cert. denied, 525 U.S. 865 (1998). Aguayo-Delgado's
sentence, 240 months imprisonment and ten years' supervised release, therefore is
within the statutory range allowable for conspiracy to distribute methamphetamine
regardless of drug quantity, considering his prior drug conviction.

       Aguayo-Delgado's sentence was imposed, however, because of 21 U.S.C.
§ 841(b)(1)(A), which requires a factual finding of at least fifty grams of
methamphetamine attributable to the defendant. As a result of the drug quantity,
mandatory minimums apply, requiring at least twenty years' imprisonment and ten
years' supervised release. Aguayo-Delgado argues that because drug quantity affected
his sentence, the quantity was required to have been charged in the indictment and
proven to the jury beyond a reasonable doubt.

       This argument goes too far, and is not supported by the Supreme Court's opinion
in Apprendi. The rule of Apprendi only applies where the non-jury factual
determination increases the maximum sentence beyond the statutory range authorized
by the jury's verdict. If the non-jury factual determination only narrows the sentencing
judge's discretion within the range already authorized by the offense of conviction, such
as with the mandatory minimums applied to Aguayo-Delgado, then the governing
constitutional standard is provided by McMillan. As we have said, McMillan allows
the legislature to raise the minimum penalty associated with a crime based on non-jury
factual findings, as long as the penalty is within the range specified for the crime for
which the defendant was convicted by the jury. Apprendi expressly states that
McMillan is still good law, though limited in application, and McMillan controls that
aspect of this case.

        We conclude that the fact that 21 U.S.C. § 841(b)(1)(A) authorizes an increase
in the applicable sentence based on drug quantity does not require reversal in this case.
The District Court sentenced Aguayo-Delgado to the statutory minimums, both with
respect to imprisonment and supervised release. Those minimums, because they are

                                          -11-
within the statutory range authorized by § 841(b)(1)(C) without reference to drug
quantity, are permissible under Apprendi and McMillan even where the drug quantity
was not charged in the indictment or found by the jury to have been beyond a
reasonable doubt. Moreover, because Aguayo-Delgado was sentenced at the absolute
statutory minimums, it is clear that the increased maximum sentence afforded in
§ 841(b)(1)(A) played no role in Aguayo-Delgado's case.

                                           II.

       Aguayo-Delgado also asserts that insufficient evidence supports his conviction.
The evidence against Aguayo-Delgado at trial consisted mainly of the testimony of
other participants in drug transactions. Aguayo-Delgado asserts that such testimony
is unreliable and inconsistent, and that some corroborating evidence is necessary for
his conviction to stand.

       We review de novo the sufficiency of the evidence to sustain a conviction,
viewing the evidence in the light most favorable to the government and resolving
conflicts in the government's favor, and we accept all reasonable inferences that support
the verdict. See Grimaldo, 2000 WL 709498, at *6. We uphold a conviction if it is
supported by substantial evidence, that is, evidence sufficient to convince a reasonable
jury of a defendant's guilt beyond a reasonable doubt, and we do not require that the
evidence rule out all reasonable hypotheses of innocence. See id.

        Aguayo-Delgado was convicted of conspiracy to distribute methamphetamine.
The government was required to prove that a conspiracy existed, that Aguayo-Delgado
knew of the conspiracy, and that he knowingly became a part of the conspiracy. See
id. at *7. A conspiracy may be proven through circumstantial evidence. See id.

       Roberto Martinez testified that he and Aguayo-Delgado repeatedly exchanged
large amounts of cash and drugs. Martinez said that he acted as a driver for David

                                          -12-
Caban, traveling from Des Moines to Sioux City to pick up methamphetamine from
Aguayo-Delgado and that, on some occasions, Martinez bought drugs from Aguayo-
Deglado for Martinez's independent distribution. This testimony, if believed, proves
that Aguayo-Delgado and Martinez made an agreement to distribute methamphetamine.
That agreement would be a conspiracy in violation of 21 U.S.C. § 846.

       That testimony is certainly not the only evidence in the record that helps the case
against Aguayo-Delgado. Nick Griffith testified that he traveled with Martinez on one
drug-buying trip to Sioux City. Celso Lopez also testified that he drove from Des
Moines to Sioux City to give Aguayo-Delgado cash and pick up methamphetamine for
David Caban, including at least one trip with Martinez. Guy Wayne Newman testified
that he too traveled to Sioux City to give cash to Aguayo-Delgado and bring
methamphetamine back to Caban. Newman testified that Martinez brought Newman
along so that he could test the quality of the methamphetamine before it was purchased.
Jerry Galvan testified that he, Caban, and Martinez were partners, and that they
distributed methamphetamine, including that purchased from Aguayo-Delgado. Galvan
said that he, Aguayo-Delgado and Martinez discussed problems with the quality of
Aguayo-Delgado's methamphetamine, and that Aguayo-Delgado agreed to increase the
quality of future shipments. By videotaped deposition, David Caban testified that he
bought methamphetamine from Aguayo-Delgado, both in person and through
intermediaries, and that Caban distributed the drugs. Pamela Wight Gomez testified
that she traveled with Aguayo-Delgado to California to pick up methamphetamine and
bring it back to Des Moines.

       There are certainly questions about the reliability and consistency of these
accounts. The testimony against Aguayo-Delgado was from drug dealers and others
involved in the drug trade. Each of the witnesses had some agreement with the
government, which could show motive to lie. Moreover, the details of their accounts
are inconsistent at times, to varying degrees of significance. These differences might
only show poor memory or they might tend to show outright fabrication in some

                                           -13-
instances. But these questions of reliability and consistency are within the province of
the jury. See, e.g., United States v. McNeil, 184 F.3d 770, 778 (8th Cir. 1999). No
rule of law requires extrinsic proof of conspiracy outside the testimony of other
conspirators, even where, as is not uncommon, the witnesses are of questionable
veracity. See, e.g., United States v. Guerrero-Cortez, 110 F.3d 647, 650 (8th Cir.),
cert. denied, 522 U.S. 1017 (1997). The government was required only to prove that
Aguayo-Delgado was part of an agreement to distribute methamphetamine, and, on this
record, a reasonable jury could have been convinced of this beyond a reasonable doubt.

                                           III.

      For the reasons stated, we affirm.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                           -14-
