                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-9-2001

USA v. Vazquez
Precedential or Non-Precedential:

Docket 99-3845




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Volume 1 of 2

Filed October 9, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3845

UNITED STATES OF AMERICA

v.

ALEX VAZQUEZ,

       Appellant.

On Appeal from the United States District Court
for the Middle District of Pennsylvania

District Judge: Sylvia H. Rambo
(D.C. Crim. No. 98-00086-01)

Originally Argued December 15, 2000
Before: SCIRICA, FUENTES, and GARTH, Circuit Judges.

Argued En Banc May 23, 2001

Before: BECKER, Chief Judge, SLOVITER, MANSMANN,
SCIRICA, NYGAARD, ALITO, ROTH, McKEE, RENDELL,
BARRY, AMBRO, FUENTES, and GARTH, Circuit Judges .

(Opinion Filed: October 9, 2001)
Martin C. Carlson
United States Attorney
Christy H. Fawcett
Assistant United States Attorney
Office of United States Attorney
Federal Building
228 Walnut Street
P.O. Box 11754
Harrisburg, Pennsylvania 17108

Michael R. Dreeban (argued)
Deputy Solicitor General
U.S. Department of Justice
Nina Goodman
Michael A. Rotker
Criminal Division
U.S. Department of Justice
601 D Street N.W., room 6206
Washington, D.C. 20530
Attorneys for Appellee

Peter Goldberger (argued)
Pamela A. Wilk
James H. Feldman, Jr.
50 Rittenhouse Place
Ardmore, Pennsylvania 19003-2276
Attorneys for Appellant

Shelley Stark
Federal Public Defender
Lisa B. Freeland (argued)
Assistant Federal Public Defender
415 Convention Tower
960 Penn Avenue
Pittsburgh, Pennsylvania 15222
Attorneys for Amicus Curiae
 Leroy Campbell

Lisa Kemler
108 N. Alfred Street
Alexandria, Virginia 22315
Attorney for Amicus Curiae
 National Association of Criminal
Defense Lawyers

                        2
       Mary Price
       General Counsel
       1612 K Street N.W., suite 1400
       Washington, D.C. 20006
       Attorney for Amicus Curiae
        Families Against Mandatory
       Minimums Foundation

       Clayton A. Sweeney, Jr.
       1528 Walnut Street, suite 815
       Philadelphia, Pennsylvania
        19102-3604
       Attorney for Amici Curiae
        National Association of Criminal
       Defense Lawyers, Pennsylvania
       Association of Criminal Defense
       Lawyers and Families Against
       Mandatory Minimums Foundation

OPINION OF THE COURT

FUENTES, Circuit Judge:

This appeal requires us to apply the Supreme Court's
recent decision in Apprendi v. New Jersey, 530 U.S. 466
(2000), to a drug conspiracy sentence. At sentencing, the
trial court, adhering to established law and custom, itself
decided the issue of drug quantity under a preponderance
of the evidence standard. Based largely on this finding, the
court sentenced appellant, Alex Vazquez, to a prison term
of 292 months (24 years and 4 months), which exceeded,
by over 4 years, the statutory maximum authorized by the
jury's factual findings. Subsequently, the Supreme Court
held in Apprendi that a criminal defendant's constitutional
rights are violated when his prescribed statutory maximum
penalties are increased by any fact, other than a prior
conviction, that a jury does not find beyond a reasonable
doubt. Id. at 490. Vazquez now challenges his sentence
contending that, because the court did not submit the
issue of drug quantity to the jury for determination, he
must be resentenced in accordance with the default 20-year

                               3
statutory maximum sentence that applies to cocaine
offenses of unspecified drug quantity.

Vazquez did not contest the drug quantity evidence at
any stage of the proceedings. As a result, our review is for
plain error. We conclude that Vazquez's sentence violated
Apprendi, and therefore, the failure to submit drug quantity
to the jury, and the imposition of a prison term in excess
of 20 years, was erroneous. Nonetheless, because we
remain confident that a rational jury would have found,
beyond a reasonable doubt, the drug quantities that the
judge found, we conclude that Vazquez is not entitled to
plain error relief and we will therefore affirm his sentence.1

I.

The relevant facts are largely undisputed. On February
27, 1998, after a lengthy investigation, law enforcement
authorities seized a quantity of powder cocaine and crack
cocaine from a rooming house in Columbia, Pennsylvania.
Vazquez's fingerprint was on one of the bags in which the
cocaine had been stored.

The next day, officers executed a search warrant at
Vazquez's residence. There, police seized a digital scale
from Vazquez's bedroom, a key to the front door of the
rooming house, and a stolen firearm. Thereafter, state law
enforcement authorities and agents from the Federal
Bureau of Investigation ("FBI") interviewed a number of
Vazquez's drug customers, including James Freeland, Brian
Holmes, and Wayne Rice. All three gave statements
implicating Vazquez and Francisco Algarin in a drug
dealing operation. Algarin was identified as a "runner" for
the organization.
_________________________________________________________________

1. The District Court had jurisdiction pursuant to 18 U.S.C. S 3231. This
court has jurisdiction under 28 U.S.C. S 1291 and 18 U.S.C. S 3742(a).

The parties originally argued this case before a merits panel of our
court on December 15, 2000. However, given the importance of the
Apprendi issue, we elected to consider the case en banc prior to the
publication of the original three-judge panel opinion. See 3d Cir. I.O.P.
9.4 (2000).

                               4
On June 9, 1998, a grand jury for the Middle District of
Pennsylvania issued an indictment charging Vazquez with
conspiracy to possess and distribute "more than 5 kilos of
cocaine" in violation of 21 U.S.C. SS 846 and 841, several
related counts of obstruction of justice (including one under
18 U.S.C. S 1503), and two counts of witness tampering.
The indictment specifically charged a drug conspiracy
involving "cocaine." Although it did not reference cocaine
base or crack cocaine, it listed the following overt act:
"stor[ing] approximately 859 grams of `crack' cocaine
(cocaine base) and approximately 992 grams of cocaine
powder in Room #2, 647 Union Street, Columbia, PA."

The trial evidence, which included testimony based on a
forensic lab analysis, established that police seized 991
grams of powder cocaine and 859 grams of crack cocaine
from the Columbia rooming house.2 According to the
testimony, Vazquez had given the drugs to his co-
conspirator, Algarin, for storage at the rooming house, and
Vazquez's fingerprint was found on one of the bags in
which the cocaine was stored. Also, a key to the front door
of the rooming house was found on Vazquez's person.
Vazquez raised no objection to the testimony respecting
drug quantity, and he presented no affirmative evidence at
any time challenging the Government's evidence of drug
quantity. Additionally, neither the Government nor Vazquez
requested an instruction requiring the jury to find the
quantity of drugs involved in his conspiracy offense, and
the court gave no such instruction. The District Court's
instructions concerning the drug conspiracy only required
the jury to find that Vazquez conspired "to possess and
distribute cocaine." Following deliberations, the jury
convicted Vazquez of conspiracy to possess and distribute
cocaine, as well as obstruction of justice. However, the jury
acquitted Vazquez of a conspiracy to obstruct justice
charge. In addition, the jury was unable to reach verdicts
_________________________________________________________________

2. A discrepancy of 1 gram exists in the record as to the amount of
powder cocaine. The trial testimony referred to 991 grams, while the
District Court found the amount to be 992 grams. Because the 1 gram
difference is of no substantive import in these proceedings, we will refer
to the amount as 992 grams.

                               5
on the two witness tampering counts; the District Court
declared a hung jury as to those counts.

At the sentencing hearing, the District Court adopted the
factual findings and sentencing recommendations in the
presentence report. The court determined, without objection
and under a preponderance of the evidence standard, that,
based on the trial evidence and the presentence report,
Vazquez had been involved with 992 grams of powder
cocaine and 859 grams of crack cocaine. The court
therefore assigned Vazquez a base offense level of 36 in
accordance with U.S.S.G. S 2D1.1's Drug Quantity Table.
The District Court then applied two separate 2-level upward
adjustments, the first for being an organizer/leader under
U.S.S.G. S 3B1.1(c), and the second for attempted
obstruction of justice under U.S.S.G. S 3C1.1. An adjusted
offense level of 40 and a criminal history category of I
resulted in a sentencing range of 292 to 365 months. The
District Court ultimately sentenced Vazquez at the bottom
of that range, the guideline minimum of 292 months, for
the drug conspiracy, and to a concurrent term of 120
months for the obstruction of justice charge. The court also
imposed a 5-year supervised release term on the drug
conspiracy count and a concurrent 3-year supervised
release term on the obstruction of justice charge. With
regard to the drug conspiracy, the judgment of conviction
stated that Vazquez was sentenced for a conspiracy in
violation of 21 U.S.C. S 846, with the object of distributing
more than 5 kilograms of cocaine in violation of 21 U.S.C.
S 841(b)(1)(A).3

II.

We begin by explaining why Apprendi was violated in
Vazquez's case. Thereafter, because Vazquez did not contest
the evidence of drug quantity before the District Court, we
will analyze the parties' contentions under the plain error
standard.
_________________________________________________________________

3. Specifically, with regard to the drug conspiracy, the judgment of
conviction identifies the "Title & Section" as"21 U.S.C. S 846," and
describes the "Nature of Offense" as "Conspiracy to Possess and
Distribute More Than Five Kilograms of Cocaine."

                               6
A.

Vazquez was indicted and tried for conspiracy to possess
and distribute more than 5 kilograms of cocaine in violation
of 21 U.S.C. SS 846 and 841. To explain the relationship
between Apprendi and S 841, we will briefly review the
Apprendi decision, and we will then detail how Apprendi
was violated in this case.

In Apprendi, the defendant had fired several shots into
the home of an African-American family that had recently
moved into a New Jersey neighborhood. 530 U.S. at 469.
After his arrest, he reportedly stated that he did not know
the occupants personally but did not want African-
Americans in his neighborhood. Id. at 469. He later,
however, denied making such a statement. Id. at 469, 471.
He pled guilty in state court to two counts of second-degree
possession of a firearm for an unlawful purpose, each of
which carried a sentencing range of 5 to 10 years. Id. at
469-70. Subsequently, the prosecutor filed a motion to
enhance the defendant's sentence pursuant to New Jersey's
hate crime statute, which authorized an increased
punishment for first-degree offenses based upon a trial
judge's finding, by a preponderance of the evidence, that
the defendant had committed the crime with a purpose to
intimidate a person or group because of race. Id. at 470,
491-92 (discussing N.J. Stat. Ann. S 2C:44-3(e) (West Supp.
2000)). After a contested evidentiary hearing, the trial court
found, by a preponderance of the evidence, that the
shooting was racially motivated and imposed a 12-year
sentence on one of the second-degree counts. Id. at 471.

The Supreme Court granted certiorari and reversed,
holding that the New Jersey sentencing procedures violated
the Due Process Clause of the Fourteenth Amendment. In
doing so, the Court articulated a new 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 490 (emphasis added).
Further, with the exception for prior convictions, the Court
endorsed the following concept: " `[I]t is unconstitutional for
a legislature to remove from the jury the assessment of
facts that increase the prescribed range of penalties to

                               7
which a criminal defendant is exposed. It is equally clear
that such facts must be established by proof beyond a
reasonable doubt.' " Id. (quoting Jones v. United States, 526
U.S. 227, 252-53 (1999) (Stevens, J., concurring)).

In Vazquez's case, drug quantity was neither submitted
to the jury nor reflected in its verdict. Therefore,
S 841(b)(1)(C) defines Vazquez's prescribed statutory
maximum sentence as 20 years. We indicated in United
States v. Williams, 235 F.3d 858 (3d Cir. 2000), petition for
cert. filed, 69 U.S.L.W. 3763 (U.S. 2001), and we hold here,
that an Apprendi violation only occurs if the drug quantity
is not found by a jury beyond a reasonable doubt and the
defendant's sentence under S 841 exceeds 20 years.

In this case, the District Court sentenced Vazquez to
more than 24 years' imprisonment, specifically 292 months.
The court increased Vazquez's penalty based on its finding,
by a preponderance of the evidence, that he had been
involved with 992 grams of powder cocaine and 859 grams
of crack cocaine. This nearly 2-kilogram quantity led to
Vazquez's sentencing guideline range of 292 to 365 months,
which ultimately resulted in his 292-month sentence. The
Apprendi violation occurred when the judge, rather than
the jury, determined drug quantity and then sentenced
Vazquez to a more than 24-year sentence, a term in excess
of his prescribed 20-year statutory maximum under
S 841(b)(1)(C). Our sister courts of appeals have similarly
applied Apprendi to S 841. E.g. , United States v. Hishaw,
235 F.3d 565, 574-75 (10th Cir. 2000), cert. denied, 121 S.
Ct. 2254 (2001); United States v. Doggett, 230 F.3d 160,
164 (5th Cir. 2000), cert. denied, 121 S. Ct. 1152 (2001);
United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir.
2000); see also United States v. Rebmann, 226 F.3d 521,
524-25 (6th Cir. 2000); United States v. Nordby , 225 F.3d
1053, 1059 (9th Cir. 2000).

B.

We now turn to the consequences of the Apprendi
violation. Vazquez's strongest argument is that his jury did
not make a finding beyond a reasonable doubt as to drug
quantity, and thus, he must be resentenced in accordance

                               8
with S 841(b)(1)(C)'s 20-year maximum term. According to
Vazquez, the District Court committed reversible error
when it imposed a more than 24-year prison term based on
its own drug quantity finding, which was conducted under
the less demanding preponderance of the evidence
standard. As we stated previously, Vazquez neither
challenged the evidence of drug quantity nor objected to the
court's failure to submit the issue to the jury. Moreover, he
never argued that the sentencing court was constrained by
the 20-year maximum found in S 841(b). Consequently, the
plain error standard governs Vazquez's request for relief.
See Fed. R. Crim. P. 52(b); Johnson v. United States, 520
U.S. 461, 465-66 (1997). Under that standard, "before an
appellate court can correct an error not raised at trial, there
must be (1) error, (2) that is plain, and (3) that affect[s]
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 affect[s] the
fairness, integrity, or public reputation of judicial
proceedings." Johnson, 520 U.S. at 466-67 (internal
quotations and citations omitted); accord United States v.
Olano, 507 U.S. 725, 732-36 (1993).

1.

The trial court committed error in Vazquez's case. As we
explained above, the District Court violated Apprendi when
it increased Vazquez's sentence beyond the prescribed
statutory maximum, based on its own factual finding
concerning drug quantity, instead of submitting the issue
to the jury for its determination. Further, Apprendi applies
retroactively because Vazquez's direct appeal was pending
at the time Apprendi was decided. See Griffith v. Kentucky,
479 U.S. 314, 328 (1987) ("new rule[s] for the conduct of
criminal prosecutions [are] to be applied retroactively to all
cases . . . pending on direct review . . . , with no exception
for cases in which the new rule constitutes a `clear break'
with the past"); see also Johnson, 520 U.S. at 467.

2.

As even the Government concedes, the Apprendi violation
that occurred in Vazquez's case was plain. This second

                               9
factor of the plain error standard is met if the error is
"obvious" or "clear under current law." Olano, 507 U.S. at
734. Clearly, had the Government tried Vazquez's case
post-Apprendi, it would have been constitutional error for
the District Court to impose a sentence exceeding the 20-
year maximum in S 841(b)(1)(C) based on the court's
finding, by a preponderance of the evidence, as to drug
quantity. Thus, the Apprendi violation is plain even though
the District Court conducted Vazquez's proceedings
correctly under the then applicable law. See Johnson, 520
U.S. at 468 ("in a case such as this -- where the law at the
time of trial was settled and clearly contrary to the law at
the time of appeal," this second factor is satisfied if the
error is obvious "by the time of appellate consideration").

3.

Vazquez must next satisfy the third plain error factor,
which asks whether his substantial rights were affected.
Before resolving this issue, we will address several
preliminary matters raised in the parties' arguments
because our resolution of those matters will significantly
affect how we conduct the substantial rights inquiry. First,
we will consider whether an Apprendi violation should be
deemed a sentencing error (as opposed to a trial error), or
a combination of a trial and sentencing error. We conclude
that the latter approach is more consonant with the
realities of Apprendi violations, as well as Supreme Court
precedent. Second, we will consider whether an Apprendi
violation is per se prejudicial because it constitutes a
structural defect in the proceedings. If so, our plain error
analysis would come to an end, and we would be compelled
to grant Vazquez relief. We conclude that Apprendi
violations do not constitute structural defects. Third, we
will proceed to consider whether the Apprendi violation that
occurred in Vazquez's case affected his substantial rights.
We conclude that Vazquez's substantial rights were not
affected. Fourth, we also hold that, even if Vazquez's
substantial rights were affected, we decline to exercise our
discretion to notice the Apprendi violation under the final
plain error factor because the drug quantity evidence was
overwhelming. Therefore, Vazquez is not entitled to plain

                               10
error relief even though an Apprendi violation occurred
during his criminal proceedings.

Parenthetically, in addressing the substantial rights
inquiry, we will rely on precedent applying Fed. R. Crim. P.
52(a)'s harmless error standard, as well as Fed. R. Crim. P.
52(b)'s plain error standard, each of which provides relief
only if substantial rights are affected.4 The substantial
rights inquiry under each provision is essentially identical,
with the exception of the burden of proof. See Olano, 507
U.S. at 734-35 (clarifying that Government has burden of
proof under harmless error standard, while defendant has
burden under plain error standard); Nordby, 225 F.3d at
1060. Thus, we may properly rely upon both harmless and
plain error precedent in deciding whether Vazquez has
shown that the Apprendi violation affected his substantial
rights. In this case, Vazquez has not carried his burden of
proof.

(a)

The parties dispute the nature of Apprendi violations.
Vazquez claims that the Apprendi violation that adversely
affects the defendant's rights in most drug cases, including
this one, is the sentencing decision, not any trial error.
According to Vazquez, a properly conceived substantial
rights inquiry, in the context of an Apprendi violation,
requires an appellate court to ask whether it can say,
beyond a reasonable doubt, that the sentence would have
been the same absent the sentencing error, which occurred
when a sentence was imposed in excess of the prescribed
statutory maximum. See Nordby, 225 F.3d at 1060. Under
Vazquez's approach, every Apprendi violation with respect
to drug quantity in a cocaine case will automatically result
in a resentencing in accordance with the 20-year maximum
_________________________________________________________________

4. Rule 52 provides in full:

         (a) Harmless Error. Any error, defect, irregularity or variance
which
         does not affect substantial rights shall be disregarded.

         (b) Plain Error. Plain errors or defects affecting substantial
rights
         may be noticed although they were not brought to the attention
         of the court.

                                 11
sentence under S 841(b)(1)(C), regardless of how conclusive
the evidence is with regard to drug quantity.

The Government advocates a different approach, urging
us to recognize that an Apprendi violation involves not just
a sentencing error but also a trial error. This approach
emphasizes that, due to the Apprendi violation, drug
quantity becomes an element of the offense which a jury
has not determined beyond a reasonable doubt. See
Apprendi, 530 U.S. at 494 n.19; Nordby, 225 F.3d at 1060.
When we conduct plain error review under this paradigm,
the substantial rights inquiry turns on whether we can say
beyond a reasonable doubt that the sentence would have
been the same absent the trial error, which occurred when
drug quantity was not submitted for a jury determination.
See Neder v. United States, 527 U.S. 1, 18 (1999) (in case
of trial error resulting from failure to submit element to
jury, substantial rights inquiry asks whether it is"clear
beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error"); Sochor v.
Florida, 504 U.S. 527, 540 (1992) (harmless error asks
whether error " `did not contribute to the[sentence]
obtained' ") (quoting Chapman v. California, 386 U.S. 18, 24
(1967)). Thus, under the Government's approach, the
remedy for an Apprendi violation will depend upon the
entire record, and no remedy may be available if the court
determines that the evidence was sufficiently conclusive to
support the sentence actually imposed. However,
substantial rights will be affected if, for example,"the
defendant contested the omitted element and raised
evidence sufficient to support a contrary finding." Neder,
527 U.S. at 19.

We are persuaded that the Government's approach must
prevail for two reasons. First, the Government's position
better reflects the realities concerning the nature of
Apprendi violations. In Apprendi, the Supreme Court
recognized a new constitutional right grounded in the Due
Process Clause and the Sixth Amendment's notice and jury
trial guarantees. See 530 U.S. at 476. Consistent with the
Supreme Court's pronouncement of this new constitutional
right, in an Apprendi violation, the sentencing error
(imposing a sentence beyond the prescribed statutory

                                12
maximum) is inextricably intertwined with a trial error
(failing to submit an element of the offense to the jury). On
the one hand, the trial error exists only because of the
sentencing error. On the other hand, the sentencing error
cannot occur without the trial error. Thus, an appropriate
remedy must recognize that each Apprendi violation is both
a trial and a sentencing error. But see United States v.
Promise, ___ F.3d ___, No. 99-4737, 2001 WL 732389, at *5
(4th Cir. June 29, 2001) (en banc) (concluding that
Apprendi violation results from error at sentencing and not
in defendant's conviction). As a result, we properly consider
the trial record on plain error review. Indeed, as the
Supreme Court has stated: "Especially when addressing
plain error, a reviewing court cannot properly evaluate a
case except by viewing such a claim against the entire
record." United States v. Young, 470 U.S. 1, 16 (1985). Our
holding is consistent with decisions from the First, 5 Fifth,6
Seventh,7 Eighth,8 Tenth,9 Eleventh,10 and District of
_________________________________________________________________

5. See United States v. Patrick, 248 F.3d 11, 28 (1st Cir. 2001); United
States v. Terry, 240 F.3d 65, 74-75 (1st Cir.), cert. denied, 121 S. Ct.
1965 (2001).

6. See United States v. Green, 246 F.3d 433, 436-37 (5th Cir. 2001);
United States v. Slaughter, 238 F.3d 580, 583-84 (5th Cir.) (per curiam),
cert. denied, 121 S. Ct. 2015 (2001).

7. See United States v. Brough, 243 F.3d 1078, 1080 (7th Cir. 2001);
United States v. Jackson, 236 F.3d 886, 888 (7th Cir. 2001) (per curiam);
cf. United States v. Westmoreland, 240 F.3d 618, 634-35 (7th Cir. 2001)
(considering trial evidence in holding that substantial rights affected).

8. See United States v. Poulack, 236 F.3d 932, 938 (8th Cir. 2001),
petition for cert. filed, No. 00-10546 (U.S. June 8, 2001); United States
v.
Anderson, 236 F.3d 427, 429-30 (8th Cir. 2001) (per curiam); cf. United
States v. Butler, 238 F.3d 1001, 1005-06 (8th Cir. 2001) (considering
trial evidence in holding that substantial rights affected).

9. See Hishaw, 235 F.3d at 575-77.

10. See United States v. Gallego, 247 F.3d 1191, 1196-97 (11th Cir.
2001); United States v. Wims, 245 F.3d 1269, 1272-74 & nn.9-11 (11th
Cir. 2001) (per curiam); United States v. Candelario, 240 F.3d 1300,
1311-12 (11th Cir.), cert. denied, 121 S. Ct. 2535 (2001); United States
v. Pease, 240 F.3d 938, 944 (11th Cir. 2001) (per curiam); United States
v. Nealy, 232 F.3d 825, 829-30 (11th Cir. 2000); United States v.
Swatzie, 228 F.3d 1278, 1282-83 (11th Cir. 2000), cert. denied, No. 00-
9051, 2001 WL 291894 (U.S. June 29, 2001).

                               13
Columbia11 Circuits, which, in reviewing Apprendi
violations, have considered the trial evidence in determining
whether substantial rights were affected.

Second, we find the Government's approach is more
consonant with Supreme Court precedent. In both Neder
and Johnson, the Supreme Court confronted a failure to
submit an element of the offense to the jury. The omitted
element in each case was the materiality of a falsehood; a
tax fraud in Neder and a perjury in Johnson. See 527 U.S.
at 6-7; 520 U.S. at 463-65. The Court in Neder and
Johnson agreed that the error was of a constitutional
dimension. See 527 U.S. at 12; 520 U.S. at 465 (citing
United States v. Gaudin, 515 U.S. 506 (1995)). Further,
each decision addressed whether substantial rights were
affected; the Neder Court applied harmless error review,
while the Johnson Court applied plain error review. See 527
U.S. at 7-10; 520 U.S. at 466-67. The trial error presented
here is comparable to the errors in both Neder and Johnson
because in those cases the trial error resulted in a
constitutional defect, necessitating an inquiry as to whether
the defendant's substantial rights were affected. Thus,
Neder and Johnson apply because we are presented with
the same substantive issue, namely, the consequence of
failing to submit to the jury an element of an offense.

(b)

Next, Vazquez argues that the Apprendi violation
constitutes a structural defect in the proceedings. This
issue is properly considered at this juncture during the
course of our substantial rights inquiry. See Johnson, 520
U.S. at 466 (no structural defect exception to Fed. R. Crim.
P. 52(b)); id. at 468 (structural defect inquiry is relevant to
substantial rights inquiry). Structural defects are"defects
in the constitution of the trial mechanism" that affect "the
framework within which the trial proceeds," with such a
resulting impairment in the trial's function of determining
guilt or innocence that " `no criminal punishment may be
_________________________________________________________________

11. See United States v. Fields, 251 F.3d 1041, 1045 (D.C. Cir. 2001)
(considering trial evidence in holding that substantial rights affected).

                               14
regarded as fundamentally fair.' "12 Arizona v. Fulminante,
499 U.S. 279, 309-10 (1991) (opinion of Rehnquist, C.J.)
(quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986)).
Structural defects lead to automatic reversals because they
are per se prejudicial. See id. at 307-10 (opinion of
Rehnquist, C.J.).

We reject Vazquez's contention that Apprendi violations
constitute structural defects. As we have already explained,
Apprendi violations result in both trial and sentencing
errors, albeit ones that rise to a constitutional dimension.
However, the Supreme Court has instructed that "most
constitutional errors can be harmless," and that guidance
applies here. Fulminante, 499 U.S. at 306 (opinion of
Rehnquist, C.J.); see also West v. Vaughn, 204 F.3d 53, 60
n.7 (3d Cir. 2000), abrogated sub nom. on other grounds by
Tyler v. Cain, 121 S. Ct. 2478 (2001). Trial errors resulting
from a failure to submit an element of an offense to the jury
are not structural defects, but instead, are subject to
harmless or plain error analysis. That is, "an instruction
that omits an element of the offense does not necessarily
render a criminal trial fundamentally unfair or an
unreliable vehicle for determining guilt or innocence."
Neder, 527 U.S. at 9. Similarly, sentencing errors can also
be harmless. See, e.g., Jones v. United States, 527 U.S.
373, 402-05 (1999) (applying harmless error review to
federal death sentence); United States v. Stevens, 223 F.3d
239, 242-46 (3d Cir. 2000) (applying plain error review to
sentencing judge's failure to assure that defendant had
read and discussed presentence investigation report with
his attorney), cert. denied, 121 S. Ct. 1157 (2001). Thus, we
hold that an Apprendi violation is not a structural defect.
As far as we are aware, our holding is in accord with every
court of appeals decision that has addressed this issue.
_________________________________________________________________

12. Examples of structural defects include: (1) the complete denial of
counsel, see Gideon v. Wainwright, 372 U.S. 335 (1963); (2) a biased trial
judge, see Tumey v. Ohio, 273 U.S. 510 (1927); (3) racial discrimination
in the selection of a grand jury, see Vasquez v. Hillery, 474 U.S. 254
(1986); (4) the denial of self-representation at trial, see McKaskle v.
Wiggins, 465 U.S. 168 (1984); (5) the denial of a public trial, see Waller
v. Georgia, 467 U.S. 39 (1984); and (6) defective reasonable doubt
instructions, see Sullivan v. Louisiana, 508 U.S. 275 (1993).

                               15
See, e.g., United States v. Smith, 240 F.3d 927, 930 & n.5
(11th Cir. 2001) (per curiam); United States v.
Westmoreland, 240 F.3d 618, 634 (7th Cir. 2001);
Anderson, 236 F.3d at 429.

(c)

Having concluded that the Neder and Johnson
frameworks apply to this case, and that Apprendi violations
do not constitute structural defects, we address whether
Vazquez's substantial rights were affected. During the
course of this appeal, Vazquez has raised substantial rights
arguments with regard to both his sentence and conviction.
We will address each in turn.

We assess Vazquez's challenge to his sentence by
determining whether it would have been the same absent
the failure to submit drug quantity for a jury determination.
We are confident that Vazquez's sentence would have been
the same had the jury made the drug quantity finding. In
his case, the evidence established beyond a reasonable
doubt that Vazquez had been involved with 992 grams of
powder cocaine and 859 grams of crack cocaine. Indeed,
the sentencing judge, explaining that Vazquez's sentence
was driven by the quantity of drugs involved, stated that
"[t]he lab report which was admitted into evidence in this
case substantiates the amount, and there has never been
any question about the amount."

In these circumstances, we can say without a doubt that
Vazquez conspired to possess and/or distribute the 992
grams of powder cocaine and 859 grams of crack cocaine
the authorities found at the Columbia rooming house.
Solely on the basis of the uncontested 992 grams of powder
cocaine, Vazquez would have faced a statutory sentencing
range of between 5 to 40 years. See 21 U.S.C.
S 841(b)(1)(B)(ii)(II). Thus, the slightly more than 24-year
sentence imposed here fell within the statutory limits
applicable to a cocaine-only conspiracy given the drug
amount established at trial. Cf. Edwards v. United States,
523 U.S. 511, 515 (1998) (rejecting statutory and
constitutional challenges to sentences because imposed
incarceration terms "were within the statutory limits

                                16
applicable to a cocaine-only conspiracy, given the quantities
of that drug attributed to each petitioner").

Further, Vazquez's sentence would not have changed
because the court would have considered the 859 grams of
crack cocaine for sentencing guideline purposes under the
Guidelines' relevant conduct provisions. See U.S.S.G.
S 1B1.3 (1998); Edwards, 523 U.S. at 514; Williams, 235
F.3d at 864. This fact would have led to the same guideline
sentencing range of 292 to 365 months that the court
actually applied to Vazquez. No Apprendi problem would
then exist because the resulting 292-month sentence would
be less than the 40-year statutory maximum sentence
under S 841(b)(1)(B)(ii)(II) to which Vazquez was exposed
solely for his conspiracy offense involving 992 grams of
powder cocaine.

Vazquez's failure to dispute the amount of cocaine at trial
or sentencing supports our conclusion that he cannot show
an effect on his substantial rights. Indeed, he presented
no challenge to, or affirmative evidence against, the
Government's evidence of drug quantity. As a result, the
sentencing judge stated that "there has never been any
question about the [drug] amount." In a comparable
situation, the Supreme Court observed:

       [W]here a reviewing court concludes beyond a
       reasonable doubt that the omitted element was
       uncontested and supported by overwhelming evidence,
       such that the jury verdict would have been the same
       absent the error, the erroneous instruction is properly
       found to be harmless. We think it beyond cavil here
       that the error "did not contribute to the verdict
       obtained."

Neder, 527 U.S. at 17 (quoting Chapman , 386 U.S. at 24).

In addition to attacking his sentence, Vazquez relies upon
Apprendi to challenge his conviction. Vazquez contends that
his substantial rights were affected because, had the trial
judge properly submitted drug quantity to the jury, he
necessarily would have been acquitted because the
evidence the Government presented at trial -- 992 grams of
powder cocaine and 859 grams of crack cocaine -- did not
support a more than 5-kilogram cocaine conspiracy, as

                               17
alleged in the indictment. Vazquez also contends that his
sentence cannot be upheld based upon the 992 grams of
powder cocaine because doing so would create a material
variance from the more than 5-kilogram drug quantity
alleged in the indictment. See United States v. Balter, 91
F.3d 427, 441 (3d Cir. 1996) (explaining that "[a] variance
occurs when `the charging terms are unchanged, but the
evidence at trial proves facts materially different from those
alleged in the indictment' ") (quoting United States v. Castro,
776 F.2d 1118, 1121 (3d Cir. 1985)); United States v.
Crocker, 568 F.2d 1049, 1059 (3d Cir. 1977) (discussing
variance concept).

Vazquez's arguments are unavailing. The discrepancy
between the amount of cocaine stated in the indictment --
more than 5 kilograms -- and the amount of powder
cocaine upon which we uphold Vazquez's sentence-- 992
grams -- is, for purposes of the substantial rights inquiry,
immaterial. It is immaterial because the indictment charged
the 5-kilogram amount, and it is well settled that courts
"may direct the entry of judgment for a lesser included
offense when a conviction for a greater offense is reversed
on grounds that affect only the greater offense." Rutledge v.
United States, 517 U.S. 292, 306 (1996); accord Fed. R.
Crim. P. 31(c); see also Schmuck v. United States, 489 U.S.
705, 716 (1989) (adopting "elements approach" to resolving
greater/lesser offense issues); cf. United States v. Frorup,
963 F.2d 41, 42 (3d Cir. 1992) ("This court will uphold a
jury verdict convicting a defendant of a lesser offense than
the one charged if `the evidence would permit a jury
rationally to find [the defendant] guilty of the lesser offense
and acquit of the greater.' ") (quoting Keeble v. United
States, 412 U.S. 205, 208 (1973)). Additionally, had the
court submitted drug quantity to the jury to avoid an
Apprendi issue, and had Vazquez argued to the jury that
the evidence did not support a finding that the conspiracy's
object concerned more than 5 kilograms of powder cocaine,
the Government would have been entitled to a lesser
included offense instruction. See Frorup, 963 F.2d at 42 ("A
jury instruction on [a] lesser included offense is allowable
as long as there is some evidence to support the
conviction.").

                               18
4.

Even if we were to assume that the Apprendi violation
affected Vazquez's substantial rights, he cannot establish
the final plain error factor, namely, that the violation
seriously affected the fairness, integrity, or public
reputation of judicial proceedings. In Johnson , the Supreme
Court held that, when the evidence of an element wrongly
taken from a jury "overwhelming[ly]" supports the trial
court's finding with regard to that element, "there is no
basis for concluding that the error `seriously affect[ed] the
fairness, integrity or public reputation of judicial
proceedings,' " and therefore, plain error relief is
unavailable. See 520 U.S. at 470.

The evidence at trial showed that Vazquez was the leader
of a drug trafficking operation that distributed powder and
crack cocaine in Lancaster County, Pennsylvania. Here, the
Government presented overwhelming evidence that Vazquez
conspired with others to possess and distribute a quantity
of drugs sufficient to justify his sentence. As we previously
noted, law enforcement officers seized about 992 grams of
powder cocaine and 859 grams of crack cocaine from a
rooming house. Vazquez had given the drugs to a co-
conspirator, Francisco Algarin, for storage. The key to the
rooming house's front door was found on Vazquez's person.
In addition, investigators found Vazquez's fingerprint on
one of the bags in which the cocaine was stored. After the
seizure, police interviewed three of Vazquez's drug
customers. All three described Vazquez as the leader of a
drug dealing operation. The trial testimony directly tied
Vazquez to a drug conspiracy with the co-conspirator,
Algarin. On the basis of this evidence, including the
undisputed evidence of drug quantity, a rational jury would
certainly have found that Vazquez had conspired to possess
or distribute no less than 992 grams of powder cocaine,
almost twice the amount necessary to support his slightly
more than 24-year sentence pursuant to S 841(b)(1)(B)'s 5-
to-40-year sentencing range.

Under these circumstances, the evidence concerning drug
quantity was "overwhelming," and, as we explained in the
preceding section, because Vazquez's sentence would not
have changed absent the trial error, there is no reasonable

                               19
basis upon which to conclude that the fairness, integrity, or
public reputation of the judicial proceedings were seriously
affected. Our holding is in accord with decisions from the
First,13 Fifth,14 Seventh,15 Tenth,16 and Eleventh17 Circuits,
in which panels considered the evidence adduced at trial
and, under the fourth plain error factor, denied relief for
Apprendi violations where the evidence was conclusive. Our
holding is also in accord with a recent en banc decision of
the Fourth Circuit.18 We therefore conclude that, in light of
the undisputed evidence of drug quantity attributable to
Vazquez and our determination that his sentence did not
exceed the statutory maximum for the cocaine amount
introduced at trial, the fairness, integrity, or public
reputation of judicial proceedings were not seriously
affected even though an Apprendi violation occurred in his
case.19
_________________________________________________________________

13. See Terry, 240 F.3d at 74-75.

14. See United States v. Miranda, 248 F.3d 434, 445-46 (5th Cir. 2001).

15. See United States v. Robinson, 250 F.3d 527, 530-31 (7th Cir. 2001);
United States v. Patterson, 241 F.3d 912, 913-15 (7th Cir.) (per curiam),
petition for cert. filed, No. 00-10365 (U.S. May 30, 2001); United States
v. Mietus, 237 F.3d 866, 875 (7th Cir. 2001); United States v. Nance, 236
F.3d 820, 825-26 (7th Cir. 2000), petition for cert. filed, No. 00-9633
(U.S. April 24, 2001).

16. See United States v. Wilson, 244 F.3d 1208, 1220 n.7 (10th Cir.
2001), petition for cert. filed, No. 00-10834 (U.S. June 25, 2001), and
cert. denied, No. 00-10289, 2001 WL 606873 (U.S. June 29, 2001);
United States v. Keeling, 235 F.3d 533, 539-40 (10th Cir. 2000), cert.
denied, No. 00-10161, 2001 WL 578795 (U.S. June 25, 2001).

17. See Swatzie, 228 F.3d at 1284.

18. See Promise, 2001 WL 732389, at *8-10 & n.9.

19. The Government presents the alternative argument that Vazquez
should not prevail under the plain error standard because the District
Court could have justified its 292-month sentence by imposing
consecutive terms. According to the Government, even if Vazquez had
been sentenced to S 841(b)(1)(C)'s 20-year maximum term of
imprisonment on the drug conspiracy conviction, the District Court
would have been required to impose a consecutive rather than
concurrent sentence on the obstruction of justice conviction. See 18
U.S.C. S 3584(a); U.S.S.G. S 5G1.2(d) (1998). Thus, the Government
submits, because Vazquez would have been subject to the same 292-

                               20
III.

Vazquez also challenges the supervised release term that
the District Court imposed. He contends that the court
incorrectly applied the 5-year minimum term of supervised
release under S 841(b)(1)(A), when the minimum term was
actually 3 years under S 841(b)(1)(C). We note, however,
that Vazquez did not raise this argument before the District
Court and he did not brief and argue this issue before the
panel that initially considered his appeal. Under these
circumstances, we conclude that Vazquez has waived his
right to pursue this issue here. See Atwater v. City of Lago
Vista, 195 F.3d 242, 245 n.3 (5th Cir. 1999) (en banc),
aff 'd 121 S. Ct. 1536 (2001); Travitz v. Northeast Dep't
ILGWU Health & Welfare Fund, 13 F.3d 704, 711 (3d Cir.
1994) ("When an issue is not pursued in the argument
section of the brief, the appellant has abandoned and
waived that issue on appeal."). But even if Vazquez had not
waived the issue, there was no plain error because the 5-
year supervised release term was clearly within the range
that the court was authorized to impose under any of
S 841(b)'s penalty provisions.

IV.

We have reviewed the additional points on appeal, which
_________________________________________________________________

month term of imprisonment through the imposition of consecutive
sentences on the conspiracy and obstruction of justice convictions, the
Apprendi violation did not "affect[ ] the outcome of the district court
proceedings." Olano, 507 U.S. at 734; see, e.g., Angle, 2001 WL 732124,
at *3-4 (holding that substantial rights not violated because S 5G1.2(d)
would have obligated court to achieve same sentence by imposing
consecutive terms); Page, 232 F.3d at 544-45 (denying plain error relief
to defendants convicted on multiple counts becauseS 5G1.2(d) required
imposition of consecutive sentences to extent necessary to produce
combined sentence within guideline sentencing range).

We decline to address this contention because we have determined on
other grounds that Vazquez has failed to establish that he is entitled to
plain error relief.

                               21
we identify in the margin and none of which require
extended discussion. We find them all to be without merit.20

V.

Accordingly, for the reasons that we have set forth above,
we will affirm Vazquez's conviction and sentence.
_________________________________________________________________

20. Vazquez asserts that (1) the District Court's pretrial
disqualification
of the attorneys he initially obtained, due to their alleged involvement
in
the charged obstruction of justice, violated his Sixth Amendment right to
counsel of his choice; (2) his assigned pretrial counsel provided
ineffective representation in failing to file a motion to suppress the key
to the rooming house, and the District Court abused its discretion in
denying as untimely a motion raising that issue that was filed shortly
before trial by counsel that Vazquez had recently retained; (3) the
District
Court committed reversible error in denying his motion for a mistrial,
and his subsequent motion for a new trial, which were based on alleged
prejudice he suffered from the jury possibly having learned about his
prior arrest for possession of a stolen firearm; and (4) the evidence is
insufficient to support his conviction for obstruction of justice under 18
U.S.C. S 1503.


                               22
BECKER, Chief Judge, concurring, with whom Judge Ambro
joins.

Justice Frankfurter may not have been the first to
observe that "[w]isdom too often never comes, and so one
ought not to reject it merely because it comes too late,"
Henslee v. Union Planters Nat'l Bank & Trust Co., 335 U.S.
595, 600 (1949) (Frankfurter, J., dissenting), but he was
surely right in so declaring. Had he the occasion, he might
also have observed that sometimes belated wisdom does not
arrive until a doctrinal shift removes the obstacles to its
revelation, thereby exposing the unstable foundation of that
which had been uncritically accepted before. I believe this
to be such a case.

The doctrinal shift at work here emanates from Apprendi
v. New Jersey, 530 U.S. 466 (2000), which held 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." Id. at 490. This holding in turn
exposed the instability of our prior holding that under 21
U.S.C. S 841 drug type and quantity are sentencing factors,
requiring only proof by a preponderance of the evidence to
a judge, instead of elements of the offense, which would
require proof beyond a reasonable doubt to a jury. See, e.g.,
United States v. Gibbs, 813 F.2d 596, 600 (3d Cir. 1987).

Today the Court partially retreats from our prior position
in holding that, at least when drug quantity increases the
statutory maximum penalty, it must, per Apprendi , be
submitted to the jury and proved beyond a reasonable
doubt. By not re-examining Gibbs and its progeny, however,
the Court lets stand our interpretation of drug type and
quantity as sentencing factors in all other instances.
Indeed, by deciding this case on constitutional rather than
statutory grounds, see opinion of the Court, ante, at 3, the
Court implicitly signals that it is satisfied with our prior
statutory construction of S 841, and will continue to apply
it in cases where no constitutional -- i.e., Apprendi --
difficulty arises. Cf. Ashwander v. TVA, 297 U.S. 288, 346-
47 (1936) (Brandeis, J., concurring) (articulating principle
that cases should be decided on statutory grounds before
reaching constitutional questions).

                               23
It has become clear to me, however, upon reconsidering
S 841 in light of Apprendi, that our prior statutory
construction ought to be abandoned altogether. I submit
that drug type and quantity are always elements of an
offense under S 841, and therefore must always be
submitted to the jury for proof beyond a reasonable doubt.
See United States v. Gaudin, 515 U.S. 506, 510 (1995)
("[C]riminal convictions [must] rest upon a jury
determination that the defendant is guilty of every element
of the crime with which he is charged, beyond a reasonable
doubt."). Concomitantly, I believe that drug type and
quantity should not be treated as element-like factors only
when they increase the prescribed statutory maximum
penalty.

In reaching this conclusion, I am guided primarily by the
intent of Congress in drafting S 841. In my view, Congress's
intent to make drug type and quantity elements of aS 841
offense is evident from the statute's legislative history. It is
also evident from the structure of S 841, which, when
interpreted according to the canons of construction used by
the Supreme Court to distinguish between offense elements
and sentencing factors, indicates that Congress intended
for drug type and quantity to be elements of an offense. The
doctrine of constitutional doubt, which requires that
"constitutionally doubtful constructions be avoided where
`fairly possible,' " Miller v. French , 530 U.S. 327, 336 (2000)
(quoting Communication Workers v. Beck, 487 U.S. 735,
762 (1988)), buttresses the statutory interpretation I offer.
Finally, on a practical level, I note that requiring drug type
and quantity to be proved to the jury beyond a reasonable
doubt would not cause problems in the prosecution and
trial processes; indeed, in the wake of Apprendi , federal
courts throughout the nation are easily accommodating this
requirement. Nor, as I will explain below, would it require
overturning large numbers of convictions.

I. Congress's Intent

A. Legislative History

In support of our prior conclusion that drug type was not
an element of a S 841 offense, this court has noted that
"[w]hile Congress could have enacted separate statutes

                               24
criminalizing the distribution of particular controlled
substances, it did not do so." United States v. Lewis, 113
F.3d 487, 491 (3d Cir. 1997). Similarly, at least one federal
appellate judge has concluded that drug type and quantity
are not elements because "[i]t is simply not credible to hold
that Congress knowingly and intentionally fashioned some
350 offenses in section 841." United States v. Promise, 255
F.3d 150, 175 (4th Cir. 2001) (Luttig, J., concurring in the
judgment). The legislative history of S 841, however, points
to the opposite conclusion.

Congress enacted the original version of S 841 as part of
the Controlled Substances Act ("CSA") of 1970, Pub. L. No.
91-513, S 401, 84 Stat. 1242, 1260-62. In doing so,
Congress's intent was to unify in a single statute what was
at that time a "plethora of legislation" creating drug
offenses in diverse public health and revenue acts. H. R.
Rep. No. 91-1444, in 1970 U.S.C.C.A.N. 4566, 4571; see
also 116 Cong. Rec. 33,299-300 (1970) (statement of Rep.
Springer) (describing the CSA as "a comprehensive
approach" to the "big[ ] problem" of "many drug laws which
have come about under different circumstances and with
entirely separate and diverse histories"); id. at 33,304
(statement of Rep. Rogers) (explaining how the CSA"would
consolidate all of the Federal drug laws into one act . . . to
enable more efficient administration of the laws").
Recognizing that enacting separate statutes for each type of
drug would have been a needless legislative burden,
Congress opted for the more efficient double-axis
prosecution scheme, under which each act in violation of
what is now S 841(a) (manufacture, distribute, etc.) could
be prosecuted with respect to the different drug types. See,
e.g., United States v. Grandison, 783 F.2d 1152, 1156 (4th
Cir. 1986) (holding that, at least for the purposes of double
jeopardy, "Congress intended the possession of each
scheduled substance to be a separate offense").

Congress first included drug quantity as an operative fact
in determining penalties for marijuana manufacture and
distribution in its 1980 amendments to the CSA. See Infant
Formula Act of 1980, Pub. L. No. 96-359, S 8(c)(2), 94 Stat.
1190, 1194. Both the House and Senate Reports reflect
that Congress intended quantity to function as an element

                               25
with respect to marijuana offenses; they state,"Individuals
convicted of trafficking in over 1,000 pounds would be
subject to a maximum 15 year prison sentence and/or a
maximum $125,000 fine." H. R. Rep. No. 96-936, at 13
(1980); S. Rep. No. 96-916, at 14 (1980) (emphasis added).
As evidenced by the language used in 21 U.S.C. S 851,
which was passed as part of the original CSA in 1970, Pub.
L. No. 91-513, S 411, 84 Stat. 1269, Congress can be
presumed to have been aware of the traditional legal
distinction between conviction and sentencing at the time it
adopted these quantity thresholds. See 21 U.S.C. S 851(b)
(noting that the proceedings to establish prior convictions
shall be undertaken by the court "after conviction but
before pronouncement of sentence").

In 1984 Congress again amended the CSA to account for
drug quantity for illegal substances other than marijuana.
See S. Rep. No. 98-225, at 255 (1983) (noting that, with the
exception of marijuana, the prior CSA did not specifically
account for drug quantity). Thus, according to the Senate
Report, Congress created "a new subparagraph (A) under
section 841(b)(1) that would provide, for offenses involving
large amounts of particularly dangerous drugs, higher
penalties than those now provided under section 841." Id.
at 258 (emphasis added). The use of the plural "offenses"
indicates Congress's intention to create within the single
statute a multitude of separate crimes depending on drug
type and quantity.

The last relevant major changes to the CSA occurred in
1986 when Congress, using the internal structure of
subparagraph (b)(1)(A) of the 1984 amendments, created
new subparagraphs (b)(1)(A) and (b)(1)(B) and included
mandatory minimum sentences for offenses under those
subparagraphs. See Narcotics Penalties and Enforcement
Act of 1986, Pub. L. No. 99-570, S 1002, 100 Stat. 3207-2.
The legislative record indicates that during its discussion of
the proposed amendments, Congress understood that
prosecutors would be required to introduce evidence of
drug quantity during trial in order to obtain a conviction.
See H. R. Rep. No. 99-845, at 12 (1986) (explaining that
Congress had been informed by U.S. Attorneys that they
would be able to meet the evidentiary burden for proving
quantity to the jury).

                               26
Furthermore, the record reflects that Congress did not
consider subparagraph (a) to lay out all of the elements of
a S 841 offense; rather, Congress deemed drug type and
quantity essential elements of a crime as specified in
subparagraphs (b)(1)(A) & (B). The House Report, for
instance, specifically notes that "[a] person convicted under
those subparagraphs [(b)(1)(A) & (B)] shall not be eligible for
parole until the individual has served the minimum
sentences required by such subparagraphs." Id. at 19
(emphasis added). Again, as noted above, Congress can be
presumed to have been aware of the traditional legal
distinction between conviction and sentencing. If Congress
had intended for the drug types and quantities listed in
S 841(b)(1)(A) & (B) to be sentencing factors, the
accompanying legislative record would have referred to a
person sentenced -- rather than convicted-- under those
subparagraphs.

Immediately following the 1986 amendments, the Justice
Department itself, which had been consulted by Congress
throughout the amendment process, see H. R. Rep. No. 99-
845, at 12 (1986), seemed to conclude that drug type and
quantity were elements of separate offenses defined in
S 841(b). See Handbook on the Anti-Drug Abuse Act of
1986, at 20-21 (Dep't of Justice Mar. 1987) ("1986
Handbook"). Notably, the 1986 Handbook repeatedly
referred to "convictions" under the subparagraphs of
S 841(b)(1), which lay out the penalties for the different
drug types and quantities. Id. at 3-4, 6-7. Most importantly,
the Department "recommend[ed] that where the enhanced
and mandatory minimum penalty provisions of 21 U.S.C.
SS 841(b)(1) and 960(b), as amended, are based on the kind
and quantity of drug involved in particular offenses . . . both
the kind and the quantity of the drug be specified in the
indictment and proven at trial." Id. at 20 (third emphasis
added). I acknowledge that the Department only
"recommend[ed]" such an approach, and that it later
retreated from this position. See, e.g., United States v.
Jenkins, 866 F.2d 331 (10th Cir. 1989). But the fact that it
expressed this view in its initial "bible" on the critical 1986
drug law, obviously written after high-level deliberations
and at a time when vision was not clouded by subsequent
events and perceptions, seems to me very persuasive.

                               27
In addition to what Congress did, what Congress did not
do in adding drug type and quantity in the 1980, 1984, and
1986 amendments is also informative. Specifically,
Congress never expressly denoted drug type and quantity
as sentencing factors to be determined by the judge and not
the jury. See United States v. Brough, 243 F.3d 1078, 1079
(7th Cir. 2001) ("[T]he statute [S 841] does not say who
makes the findings or which party bears what burden of
persuasion."). In contrast, in the aforementionedS 851,
which covers proceedings to establish prior convictions for
sentence-enhancement purposes, the statute expressly
provides that "the court shall after conviction but before
pronouncement of sentence" make its determination
regarding prior conviction. 21 U.S.C. S 851(b) (emphasis
added). My point is further advanced by reference to the
now-repealed Dangerous Special Drug Offender Sentencing
provision of the original CSA, which created sentencing
factors. See Pub. L. No. 91-513, S 409, 84 Stat. 1242, 1266-
69 (1970) (repealed 1984). Under that provision, prior felon
status was to be assessed by a judge after conviction using
a preponderance-of-the-evidence standard. See id. at 1267.

In sum, Congress's failure to include drug type and
quantity within its express sentence-enhancement
provisions indicates its intent to treat these factors as
elements of a crime. See United States v. McQuilkin, 78 F.3d
105, 108 (3d Cir. 1996) ("It is a canon of statutory
construction that the inclusion of certain provisions implies
the exclusion of others.") ("inclusio unius est exclusio
alterius").

B. Nomenclature and Structure of the Statute

In construing drug type and quantity as sentencing
factors rather than elements, this court, as well as the
other courts of appeals, have relied on the presence of the
labels "Unlawful Acts" and "Penalties" preceding
subsections (a) and (b) of the statute. See, e.g., United
States v. Lewis, 113 F.3d 487, 490-91 (3d Cir. 1997). This
approach is deeply flawed. Although one of our sister courts
has noted that this approach "took Congress at its caption,"
Brough, 243 F.3d at 1079, a close examination reveals that
the caption was never really Congress's at all. The original
version of the CSA passed by Congress and signed by the

                               28
President did not affix the label "Unlawful Acts" to S 841(a)
or "Penalties" to S 841(b). See CSA, Pub. L. No. 91-513,
1970 U.S.C.C.A.N. (84 Stat. 1260-62) 1466-68. Nor were
these captions added in any of the subsequent
amendments to the CSA. Rather, these section headings
can be traced to the Office of the Federal Register, National
Archives and Records Services, which added a reference to
"penalties" as a margin note to the predecessor of S 841(b)
in the Statutes at Large simply for user convenience. 84
Stat. 1261 (1970). Unfortunately, when the CSA was
reproduced in the United States Code, the margin notes
were converted into subsection headings by the codification
committee, but have never been officially adopted by the
Congress, and, therefore, do not have the force of law. See
U.S.C. at vii (1994 & Supp. V 1999) (noting that Title 21
has never been officially codified).

Even if the subsection titles had been officially adopted
by Congress, we would be wrong to ascribe to subsection
(b)'s "Penalties" label the talismanic power to indicate that
drug type and quantity are sentencing factors rather than
elements of separate crimes. See Castillo v. United States,
530 U.S. 120, 125 (2000) (noting that the mere fact that a
statutory section is entitled "Penalties" does not indicate
whether that section creates sentencing factors or entirely
new crimes for "[t]he title alone does not tell us which are
which"). Although S 841(a) is entitled"Unlawful Acts," this
subsection alone does not define a complete offense
because it includes no punishment. A jury verdict finding
only that the defendant had committed the acts described
in subsection (a), without more, would not render the
defendant guilty of a crime requiring any ascertainable
punishment. Compare Almendarez-Torres v. United States,
523 U.S. 224 (1998) (construing 8 U.S.C. S 1326(b)(2) as a
sentencing factor where an earlier portion of the statute --
S 1326(a) -- already provided for specific penalties), with
Jones v. United States, 526 U.S. 227 (1999) (construing the
provisions of 18 U.S.C. S 2119(2)-(3) as elements where the
prefatory statutory text did not provide for penalties but
only described prohibited conduct).

Furthermore, the wide variation in penalties for the
manufacture and distribution of different combinations of

                               29
drug type and quantity counsels in favor of construing
these factors as elements. In two recent cases, Jones and
Castillo, the Supreme Court observed that the degree to
which the commission of a proscribed act increases the
maximum penalty reflects Congress's intent to make the
particular act an element or a sentencing factor. In Castillo,
the Government argued that under 18 U.S.C. S 924(c),
which prohibits the use or carrying of a firearm in relation
to a crime of violence, the particular type of firearm used by
the defendant was a sentencing factor for the judge to
determine. In rejecting this argument, the Court deemed it
important that the mandatory penalty for using or carrying
a machinegun was "six times more severe" than the penalty
for using or carrying a mere "firearm," such as a pistol,
thereby demonstrating Congress's intent to make each of
these a "separate crime." 530 U.S. at 127.

Likewise, in Jones, the Court considered"serious bodily
injury" an element of the crime of carjacking rather than a
sentencing factor under 18 U.S.C. S 2119 in large part
because it increased the authorized penalty by two-thirds.
526 U.S. at 243. The Court worried that leaving such
consequential determinations to a judge rather than the
jury would relegate the jury to the role of "low-level
gatekeeping," resulting in "the erosion of the jury's
function." Id. at 244. Such a diminution of the jury's role,
the Court cautioned in language foreshadowing Apprendi,
"would merit Sixth Amendment concern." Id. at 248.1
_________________________________________________________________

1. In Almendarez-Torres v. United States, 523 U.S. 224 (1998), a case
that preceded Jones and Castillo, the Supreme Court construed a
provision of immigration law that increased the maximum prison term
for a deported alien who has illegally reentered the country from two to
twenty years if his initial deportation was subsequent to an aggravated
felony conviction. Despite the tenfold increase in maximum prison time,
the Court construed the provision as a sentencing factor rather than an
element in large part because recidivism "is a traditional, if not the
most
traditional, basis for a sentencing court's increasing an offender's
sentence." Id. at 243. The Court again limited the breadth of this holding
a year later in Jones when it noted that Almendarez-Torres "rested in
substantial part on the tradition of regarding recidivism as a sentencing
factor, not as an element. . . ." 526 U.S. at 249. The Court's refusal to
consider prior conviction an element in Almendarez-Torres despite the

                               30
Applying the lessons of Castillo and Jones, it seems clear
to me that S 841 establishes multiple offenses based on the
elements of drug type and quantity. The maximum
penalties authorized by the statute vary greatly depending
on type and quantity of the controlled substance. For
example, assuming no prior convictions, the maximum
penalty for the distribution of a schedule V substance of
any quantity is one year, see S 841(b)(3), while the
maximum penalty for the distribution of more than 500
grams of cocaine not resulting in any death or serious
bodily injury is forty years. See S 841(b)(1)(B)(ii)(II). Even
within the same drug type, penalties can vary significantly
by quantity alone. Compare, e.g., S 841(b)(1)(B)(vii)
(providing a maximum of forty years imprisonment for a
violation of subsection (a) involving "100 kilograms or more
of a mixture or substance containing a detectable amount
of marijuana" for a defendant with no prior convictions),
with S 841(b)(1)(D) (providing a maximum of five years
imprisonment "[i]n the case of less than 50 kilograms of
marihuana [sic]" for a defendant with no prior convictions).
I believe that these dramatic differences in the severity of
punishment further signal Congress's intent to make drug
type and quantity elements of the several offenses
established under S 841.

II. Constitutional Doubt

Undergirding my interpretation of S 841 is the time-
honored maxim that "constitutionally doubtful
constructions should be avoided where `fairly possible.' "
Miller v. French, 530 U.S. 327, 336 (2000) (quoting
Communications Workers v. Beck, 487 U.S. 735, 762
(1988)). To be sure, a statutory construction ofS 841 that
requires proving drug type and/or quantity to the jury
beyond a reasonable doubt only when either factor
_________________________________________________________________

tenfold increase in penalty, therefore, ought not to be considered in
tension with its approach to statutory construction in Jones and Castillo,
for, as the Court subsequently made clear in Apprendi, sentence
enhancements for prior conviction are sui generis. See Apprendi, 530
U.S. at 490 (announcing the Apprendi rule as applying to "any fact that
increases the penalty beyond the prescribed statutory maximum" except
"the fact of a prior conviction").

                               31
increases the maximum statutory penalty avoids
constitutional doubt. See, e.g., United States v. Brough, 243
F.3d 1078, 1080 (7th Cir. 2001). In choosing between that
construction and the one offered here, however, we ought to
be guided by a realistic appraisal of Congress's intent, for
although it is our duty to "strain to construe legislation so
as to save it against constitutional attack," we"must not
and will not carry this to the point of perverting the
purpose of a statute . . .' or judicially rewriting it." Aptheker
v. Secretary of State, 378 U.S. 500, 515 (1964) (quoting
Scales v. United States, 367 U.S. 203, 211 (1961)).

Although I believe that the legislative history and
statutory structure indicate that drug type and quantity are
elements of a S 841 offense, it is possible that Congress
intended them to be sentencing factors for the judge to
determine. See United States v. Buckland, 259 F.3d 1157,
2001 U.S. App. LEXIS 17867 (9th Cir. Aug. 9, 2001) (re-
affirming, despite Apprendi, an earlier holding finding drug
type and quantity always to be sentencing factors for the
judge to determine, thereby rendering S 841
unconstitutional). It strains credulity, however, to assert
that Congress intended for type and quantity to be treated
as sentencing factors in some cases and as elements in
others. I know of no statute written in such a manner, nor
am I aware of any statutes construed this way. See also
Promise, 255 F.3d at 185 (Luttig, J., concurring in the
judgment) ("Either facts that affect the sentence a
defendant receives are elements or they are not; they are
not elements for some purposes and not for others.").

Furthermore, in this case we cannot assume that
Congress might have adopted such an unusual approach
simply to avoid an Apprendi violation. See Rust v. Sullivan,
500 U.S. 173, 191 (1991) (explaining that the canon of
constitutional doubt "is followed out of respect for
Congress, which we assume legislates in the light of
constitutional limitations"). Congress enacted the most
recent relevant structural changes to S 841 in 1986; the
Supreme Court issued its Apprendi decision just last year.
Indeed, Congress has not amended S 841 at all since the
Apprendi decision. The constitutional limitation of Apprendi
perforce did not exist at any time at which Congress wrote

                               32
or re-wrote S 841. Although we can never be entirely certain
of what Congress did intend in draftingS 841, we can be
sure that Congress did not intend to designS 841 to fit
precisely within the contours of a constitutional rule that
did not yet exist. It is much more likely that Congress
intended for drug type and quantity always to be elements
of a S 841 offense. I would, therefore, overrule our prior
cases -- e.g., United States v. Lewis, 113 F.3d 487 (3d Cir.
1997); United States v. Chapple, 985 F.2d 729 (3d Cir.
1993); United States v. Gibbs, 813 F.2d 596 (3d Cir. 1987)
-- that hold to the contrary.

III. Administrability

While the foregoing discussion explicates my position, it
is necessary that I respond to the suggestion that"the sky
will fall" if my interpretation prevails. Requiring the
prosecution to prove drug type and quantity to the jury
beyond a reasonable doubt will not needlessly complicate
the trial process. See Promise, 255 F.3d at 157 n.6 ("It will
not be unduly difficult for juries to determine whether an
offense involved a specific threshold drug quantity."). Since
Apprendi, federal district courts have proceeded in this
manner, submitting special interrogatories to the jury for
determination of drug type and quantity, and many have
been operating in this manner since Jones. In the Appendix
to this opinion I attach an example of a special
interrogatory on drug quantity prepared by the Office of the
United States Attorney for the Eastern District of
Pennsylvania and used without incident or problem by the
judges of the district court since Jones. Furthermore, in
some state systems, juries have been routinely performing
this function for at least five years. See Promise, 255 F.3d
at 157 n.6 (citing State v. Virgo, 947 P.2d 923, 926 (Ariz.
Ct. App. 1997); State v. Moore, 698 A.2d 1259, 1264 (N.J.
Super. Ct. App. Div. 1997)).

Nor will requiring drug type and quantity to be proved to
the jury unduly burden the defendant. Justice Breyer and
others have objected to the interpretation I offer because it
"could easily place the defendant in the awkward (and
conceivably unfair) position of having to deny he committed
the crime yet offer proof about how he committed it, e.g., `I
did not sell drugs, but I sold no more than 500 grams.' "

                               33
Apprendi, 530 U.S. at 557 (Breyer, J., dissenting); see also
United States v. Buckland, 259 F.3d 1157, 2001 U.S. App.
LEXIS 17867, at *29-30 (9th Cir. Aug. 9, 2001) (quoting
same). However, if drug quantity were classified as a
sentencing factor for which preponderance of the evidence
is the burden of proof, the defendant would lose the
advantage of forcing the government to prove this oft-
disputed fact beyond a reasonable doubt.2

Even if the defendant would be advantaged by having the
issue decided by a judge rather than a jury, as Justice
Breyer contends, such is not the system envisioned by our
Constitution. That system puts its faith in the fairness of a
trial by a jury of one's peers. See Apprendi, 530 U.S. at 498
(Scalia, J., concurring) ("[I]t is not arguable that, just
because one thinks [having a judge determine the facts that
affect the length of a sentence] is a better system, it must
_________________________________________________________________

2. Moreover, it seems to me that the kind of scenario feared by Justice
Breyer is often intrinsic to criminal statutes in which penalties vary
according to different elements. In Castillo, the Court concluded that the
type of weapon used in violation of 18 U.S.C. S 924(c), which prohibits
the use or carrying of a "firearm" in relation to a crime of violence, was
an element of an offense under the statute. In an opinion written by
Justice Breyer himself, the Court noted:

       [I]nasmuch as the prosecution's case underS 924(c) usually will
       involve presenting a certain weapon (or weapons) to the jury and
       arguing that the defendant used or carried that weapon during a
       crime of violence within the meaning of the statute, the evidence
is
       unlikely to enable a defendant to respond both   (1) "I did not use
or
       carry any firearm," and (2) "even if I did, it was a pistol, not a
       machinegun."

530 U.S. at 128. I fail to see any principled distinction between S 924(c)
and the position in which the defendant would be placed under my
interpretation of S 841. In either case, the defendant might be forced, as
a matter of trial strategy, to choose between denying the commission of
the crime outright and admitting a lesser amount of wrongdoing in order
to receive a shorter sentence. Perhaps Justice Breyer's distinction is
that
under S 924(c), the prosecution will present to the jury a tangible,
discrete object -- the weapon -- whereas in the drug context, the
prosecution will present only a plastic bag of powder or pills, whose type
and quantity may not be readily apparent to the jury. Such a distinction,
I submit, is too slender a reed upon which to hinge the determination of
element or sentencing factor.

                               34
be, or is even more likely to be, the system envisioned by a
Constitution that guarantees trial by jury.").

Additionally, I do not believe that my construction of
S 841 will result in the overturning of the myriad
convictions obtained where drug type and/or quantity were
not proved to the jury beyond a reasonable doubt, thereby
imposing huge burdens on the court system. Any appeal
from such a conviction is likely to be reviewed under the
plain error standard. Evidenced by the decision of this
court today, plain error analysis will rarely result in the
overturning of a conviction. Most of the other courts of
appeals engaging in plain error review have similarly
declined to exercise their discretion to reverse convictions
that have violated Apprendi by not proving drug type and
quantity to the jury beyond a reasonable doubt. See cases
cited in opinion of the Court, ante, at 20 nn.14-18. Even
under the harmless error standard, the evidence of drug
quantity adduced at trial, as the cases I have seen in the
last decade suggest, is usually so overwhelming as to have
not affected the defendant's substantial rights. See, e.g.,
United States v. Lawson, 2001 U.S. App. LEXIS 18153, at
*4 (4th Cir. Aug. 10, 2001) (per curiam).3

IV. Conclusion

Construing S 841 in the manner explained, I nonetheless
join the judgment of the Court because I believe, as set
forth in Section II.B of the Court's opinion, that the failure
to submit drug quantity to the jury did not affect Vazquez's
_________________________________________________________________

3. In this case, the indictment alleged drug type and quantity, so
Vazquez cannot (and does not) raise the argument that the failure to
allege drug type and quantity in the indictment raises different issues on
review than failure to prove these factors to a jury beyond a reasonable
doubt. Cf. United States v. Gonzalez, 259 F.3d 355, 361 (5th Cir. 2001)
(noticing plain error where drug quantity was not included in the
indictment for a S 841 offense because "the district court lacks the
jurisdiction to impose a sentence exceeding the statutory maximum of
the offense alleged in the indictment"); cf. also United States v. Tran,
234
F.3d 798, 809 (2d Cir. 2000) (reversing conviction where the indictment
failed to allege "all of the material elements of an offense" without
requiring any showing of prejudice by the defendant because the district
court lacked jurisdiction to convict the defendant of an offense not
properly charged).

                               35
substantial rights and that, even if it did, it did not
seriously affect the fairness, integrity, or public reputation
of judicial proceedings.

                               36
APPENDIX

8. Drug case special interrogatories and verdict form re
       quantity

COUNT 1 (Conspiracy)

____________________ Guilty

____________________ Guilty

Jury Interrogatory Number One -- Count 1 (Conspiracy)

If you find the defendant guilty of the conspiracy charged
in Count 1, please answer the following question:

-- Do you unanimously agree, by proof beyond a
reasonable doubt, that the quantity of cocaine base
("crack") which was distributed and/or intended to be
distributed as part of the conspiracy was 50 grams or
more?

       _______ Yes

       _______ No

If your answer to this question is "yes," that concludes
Jury Interrogatory Number One. Do not go on to the next
question on this page. Proceed to Count 2 of this verdict
form.

If your answer to this question is "no," please answer the
following question:

-- Do you unanimously agree, by proof beyond a
reasonable doubt, that the quantity of cocaine base
("crack") which was distributed and/or intended to be
distributed as part of the conspiracy was five (5) grams or
more?

       _______ Yes

       _______ No

COUNT 2 (Distribution)

___________________ Guilty

                                37
___________________ Not Guilty

Jury Interrogatory Number Two -- Count 2 (Distribution)

If you find the defendant guilty of the distribution
charged in Count 2, please answer the following question:

-- Do you unanimously agree, by proof beyond a
reasonable doubt, that the quantity of cocaine base
("crack") which was distributed was 50 grams or more?

       _______ Yes

       _______ No

If your answer to this question is "yes," that concludes
Jury Interrogatory Number Two. Do not go on to the next
question on this page.

If your answer to this question is "no," please answer the
following question:

-- Do you unanimously agree, by proof beyond a
reasonable doubt, that the quantity of cocaine base
("crack") which was distributed was five (5) grams or more?

       _______ Yes

       _______ No

       JURY FOREPERSON

                                 38
Volume 2 of 2

                39
SLOVITER, Circuit Judge, dissenting, with whom Judges
Mansmann, Nygaard, and McKee join, and with whom
Judges Roth and Rendell join as to Part I.

The majority's opinion is based on the following logic:
Vazquez was convicted after a jury trial of conspiracy to
possess and distribute more than 5 kilograms of cocaine in
violation of 21 U.S.C. SS 846 and 841 respectively; the jury
was instructed to find whether Vazquez conspired to
possess and distribute cocaine but was not instructed to
find the quantity of cocaine involved; following the Supreme
Court's opinion in Apprendi v. New Jersey, 530 U.S. 466
(2000), a jury is required to find beyond a reasonable doubt
any fact that increases the prescribed range of penalties to
which the defendant is exposed by the jury's verdict; in this
case the jury's verdict exposed Vazquez to sentencing under
S 841(b)(1)(C) for which the maximum penalty is 20 years
(240 months) imprisonment; the trial judge, applying a
preponderance of the evidence standard, determined that
Vazquez had been involved with 992 grams of powder
cocaine and 859 grams of crack cocaine and therefore
sentenced Vazquez to 292 months imprisonment; this
constituted a violation of Apprendi, but the court will affirm
because Vazquez didn't contest the amount of drugs at
trial, and the court is confident that the jury would have
made the same determination that the trial judge made, so
the Apprendi violation was not plain error.

There are many bases on which one might take issue
with the logic of the majority's opinion, but I begin by
approaching the majority's opinion on its own terms. That
requires consideration of whether the Apprendi violation
can meet the plain error inquiry.

I.

A.

The Apprendi Decision

Apprendi, who had fired several shots into the home of
an African-American family, was charged in state court

                               40
with, inter alia, two counts of second-degree possession of
a firearm for an unlawful purpose and one count of third-
degree unlawful possession of an antipersonnel bomb.
Under New Jersey law, a second-degree offense carries a
penalty range of 5 to 10 years of imprisonment. After
Apprendi pleaded guilty to these counts pursuant to a plea
agreement, the prosecutor, as permitted by that agreement,
filed a motion to enhance Apprendi's sentence under New
Jersey's hate crime statute which authorized an enhanced
sentence upon the finding of a trial judge, by a
preponderance of the evidence, that the defendant
committed the crime with a purpose to intimidate a person
or group because of race. See N.J. Stat. Ann. S 2C:44-3(e)
(West Supp. 1999-2000). Based on Apprendi's own
statements made after his arrest, the trial court found that
the shooting was racially motivated and sentenced him to
12 years of imprisonment. Apprendi appealed his sentence
through the New Jersey courts, contending that the Due
Process Clause requires that racial bias be proven to a jury
beyond a reasonable doubt, but they upheld the enhanced
sentence.

The United States Supreme Court reversed. In reaching
its conclusion, the Court noted among the "constitutional
protections of surpassing importance" the provision of the
Fourteenth Amendment that liberty can be deprived only
with due process and the Sixth Amendment guarantee of a
trial by jury, which entitle the defendant to a jury
determination that s/he is guilty of every element of the
crime beyond a reasonable doubt. Apprendi, 530 U.S. at
476. The Court cited to its earlier decision in In re Winship,
where it stated: "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." Id. at 477 (quoting In re
Winship, 397 U.S. 358, 364 (1970)) (brackets omitted).

The Apprendi Court examined the historical
underpinnings of these principles and, while recognizing
that discretion had been accorded to trial judges in their
sentencing decisions, reasoned that such discretion cannot
deprive a defendant at the time of sentencing "of
protections that have, until that point, unquestionably
attached." Id. at 484.

                                41
Finding that the New Jersey statutory scheme under
which a judge may enhance the punishment based on a
finding by a preponderance of the evidence violated due
process, 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." Id. at 490. In doing so, the Court rejected New
Jersey's argument that racial bias was only a sentencing
factor and not an element of the crime, stating:"the
relevant inquiry is one not of form, but of effect-- does the
required finding expose the defendant to a greater
punishment than that authorized by the jury's guilty
verdict?" Id. at 494.

B.

Vazquez's Sentence

The count of the Superseding Indictment on which
Vazquez was tried and found guilty, and which is at issue
here, charges him with conspiracy to possess with intent to
distribute, and to distribute, more than 5 kilos of cocaine in
violation of 21 U.S.C. S 841, and, following the setting forth
of 10 paragraphs constituting the Overt Acts, states, "All in
violation of Title 21 United States Code, Section 846."

Section 841(a) is entitled "Unlawful acts" and provides
that "it shall be unlawful for any person knowingly or
intentionally -- (1) to manufacture, distribute, or dispense,
or possess with intent to manufacture, distribute, or
dispense, a controlled substance." Section 841(a) does not
prescribe penalties. It is S 841(b), entitled"Penalties," that
prescribes the range of penalties for certain quantities of
controlled substances. Under S 841(b)(1)(A)(iii), the sentence
for a defendant convicted of violating S 841(a) with 50
grams or more of a mixture containing cocaine base (i.e.,
crack cocaine) is not less than 10 years of imprisonment
and no more than life. The sentence under S 841(b)(1)(B)(iii)
for a defendant with 5 grams or more of a mixture
containing cocaine base is not less than 5 years and not
more than 40 years of imprisonment. Section 841(b)(1)(C),

                               42
often referred to as the catch all provision, contains no
drug quantity requirement and provides a maximum
possible sentence of 20 years of imprisonment.
The majority concedes that S 841(b)(1)(C) "defines
Vazquez's prescribed statutory maximum sentence as 20
years." Maj. Op. at 8. The majority then states:"The
Apprendi violation occurred when the judge, rather than
the jury, determined drug quantity and then sentenced
Vazquez to a more than 24-year sentence." Maj. Op. at 8.
Surprisingly, it does not remand so that Vazquez can be
resentenced to a sentence that does not exceed the
maximum authorized by the statute. Instead, it devises a
rationale to affirm the sentence that was arrived at in an
unconstitutional manner.

I do not understand why the majority's disposition is
appropriate, necessary, or just. I note that in Apprendi, the
Supreme Court, after finding that the procedure that led
to the enhancement of Apprendi's sentence was
unconstitutional, reversed and remanded. Of course,
Apprendi came to the Court from the New Jersey Supreme
Court, not from a federal court, but I see no justification in
Apprendi itself for us to do anything different with a District
Court judgment.

The majority, however, after noting that Vazquez did not
challenge the evidence of drug quantity or object to the
court's failure to submit the issue to the jury, 1 sustains the
sentence that was unconstitutionally enhanced by applying
the plain error standard. Under Rule 52(b) of the Federal
_________________________________________________________________

1. Because Apprendi was decided after Vazquez's conviction and
sentence, it is understandable that Vazquez did not timely object in the
District Court either before or after the instruction on the ground that
drug quantity should be submitted to the jury. In United States v. Nance,
236 F.3d 820, 823-24 (7th Cir. 2000), the court considering a similar
question stated that because of earlier indications, primarily the opinion
of the Supreme Court in Jones v. United States , 526 U.S. 227 (1999), the
defendant could have argued that the quantity of the drugs should have
been charged in the indictment and proved beyond a reasonable doubt.
As a result, the court concluded it would review for plain error. Nance,
236 F.3d at 825. In light of the position I take, I need not consider
whether the Jones decision provided a sufficient basis to forewarn
criminal defendants that an objection was called for.

                                43
Rules of Criminal Procedure, "[p]lain errors or defects
affecting substantial rights may be noticed although they
were not brought to the attention of the court." In United
States v. Olano, 507 U.S. 725 (1993), the Supreme Court
explained that there must be (1) "error," (2) that is "plain,"
and (3) that "affect[s] substantial rights." Id. at 732
(quotation marks omitted). The appellate court will then
have discretion to correct such an error if it (4)"seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings." Id. (quotation marks omitted).

The majority agrees that in sentencing Vazquez, the court
committed error and that it was plain. It concludes that the
error was harmless because Vazquez cannot show that the
error affected his substantial rights. The majority bases
that conclusion on its determination that the evidence
established that Vazquez sold more than 5 grams, which is
sufficient to carry a statutory maximum penalty under 21
U.S.C. S 841(b)(1)(B)(iii) of 40 years imprisonment, more
than the 24 plus years to which he was sentenced. The
majority states that based on its consideration of the
evidence "we can say without a doubt that Vazquez
conspired to possess and/or distribute the 992 grams of
powder cocaine and 859 grams of crack cocaine the
authorities found at the Columbia rooming house." Maj.
Op. at 16. Therefore, the majority concludes that the
Apprendi error did not affect Vazquez's substantial rights.

Completing its plain error inquiry, the majority holds that
even if the Apprendi violation affected Vazquez's substantial
rights, he cannot establish the fourth factor, i.e., that the
error seriously affected the fairness, integrity, or public
reputation of judicial proceedings. The majority so holds
because, it says, Vazquez was the leader of a drug
trafficking operation that distributed cocaine in Lancaster
County, and a rational jury would certainly have found that
he conspired to possess and distribute more than the
amount necessary to support a "slightly more than 24-year
sentence pursuant to S 841(b)(1)(B)'s 5-to-40-year
sentencing range." Maj. Op. at 19.

                               44
C.

The Substantial Rights Inquiry

I agree with the majority that there was error in
sentencing Vazquez and that it was plain. I disagree that
the error did not affect Vazquez's substantial rights. Under
the plain error inquiry, "the error must have been
prejudicial: It must have affected the outcome of the district
court proceedings." Olano, 507 U.S. at 734. It is the
defendant who bears the burden of persuasion. See id.
Vazquez's sentence to more than 24 years imprisonment,
which exceeds the statutory maximum of 20 years
imprisonment under S 841(b)(1)(C) authorized by the jury
verdict, clearly affects Vazquez's substantial rights. An error
that will cause a defendant to spend four plus years more
in prison than statutorily authorized by the jury's verdict
necessarily adversely affects the defendant's substantial
rights.

I find it curious that the majority never acknowledges
that additional time in prison could affect substantial
rights. In other contexts, courts of appeals have not
hesitated to conclude that an error resulting in an increase
in the defendant's sentence affected the defendant's
substantial rights. See, e.g., United States v. Anderson, 201
F.3d 1145, 1152 (9th Cir. 2000) ("An error that results in
a longer sentence undoubtedly affects substantial rights.");
United States v. Martinez-Rios, 143 F.3d 662, 676 (2d Cir.
1998) (finding clerical error which increased defendant's
sentence by several months to affect substantial rights).
Indeed, the Supreme Court recently held in Glover v. United
States, 531 U.S. 198 (2001), that an increase in a
defendant's sentence of at least six months was prejudicial
in relation to an ineffective assistance of counsel claim
under Strickland v. Washington, 466 U.S. 668 (1984). Of
relevance here, the Court noted that "any amount of actual
jail time has Sixth Amendment significance." Glover, 531
U.S. at 203; see also United States v. Knight , No. 99-5642
(3d Cir. Sept. 6, 2001) (holding application of an incorrect
sentencing guideline range affected substantial rights and
was plain error even though sentence was also within
correct range).

                                 45
In Apprendi violation cases, numerous courts have
recognized that extra prison time affects substantial rights.
In United States v. Nordby, the Ninth Circuit stated that
"[f]ive additional years of imprisonment were imposed
beyond that authorized by this verdict, which easily affected
[defendant's] substantial rights." 225 F.3d 1053, 1060 (9th
Cir. 2000). It reiterated that holding the following year in
United States v. Buckland, 2001 WL 893440, *9, reh'g en
banc granted, 2001 WL 1091167 (9th Cir. 2001) ("Imposing
a sentence that is seven years more than the maximum
sentence constitutionally permitted under the facts as
found by the jury undoubtedly `seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.' "). Morever, the Tenth Circuit in United States
v. Jones, 235 F.3d 1231 (10th Cir. 2000), recognized that it
"regularly has found reversible error when the sentence
imposed by the district court exceeded the statutory
maximum penalty applicable to the offense of conviction."
Id. at 1238. Even courts that did not ultimately reverse on
the basis of an Apprendi error have recognized that prison
sentences in excess of the applicable maximum affect
substantial rights. See United States v. Promise , 255 F.3d
150, 150, 160-61 (4th Cir. 2001); see also United States v.
Mietus, 237 F.3d 866, 875 (7th Cir. 2001) (assuming that
Apprendi error that increased defendant's sentence by over
7 years affected his substantial rights); Nance , 236 F.3d at
825-26 (same).2

Because the majority opinion would leave intact a
sentence beyond the statutory maximum that was not
based on a jury finding under the beyond-a-reasonable-
doubt standard, thereby ignoring established constitutional
principles, I cannot see how the effect could be other than
to impugn the "fairness, integrity and public reputation" of
the judicial process. The fact that the majority condones a
process by which a judge usurped a determination within
the jury's province strikes at the reputation of the judicial
_________________________________________________________________

2. In affirming the sentences, these courts shifted the inquiry from the
effect on substantial rights to the discretionary question referred to in
Olano, which was whether the error was one that"seriously affect[ed] the
fairness, integrity or public reputation of judicial proceedings," 507
U.S.
at 732.

                                46
proceedings here. Cf. Apprendi, 530 U.S. at 498 (Scalia, J.
concurring) ("Judges, it is sometimes necessary to remind
ourselves, are part of the State . . . . The founders of the
American Republic were not prepared to leave [criminal
justice] to the State, which is why the jury-trial guarantee
was one of the least controversial provisions of the Bill of
Rights. It has never been efficient; but it has always been
free.") (parenthesis omitted).

In determining that Vazquez's substantial rights were not
affected, the majority relies on the Supreme Court's
decisions in Johnson v. United States, 520 U.S. 461 (1997),
and Neder v. United States, 527 U.S. 1 (1999), where the
Court held that erroneous jury instructions did not require
reversal. However, the substantial rights inquiry in those
cases was not the same as it is here.

In Johnson, the trial judge had instructed the jury that
the materiality of the statements was an issue for the judge
and not the jury to decide, and the defendant did not object
to this instruction. Johnson, 520 U.S. at 463. After
Johnson's conviction, the Supreme Court decided United
States v. Gaudin, 515 U.S. 506 (1995), which held that the
materiality of a false statement must be decided by a jury.
Johnson, 520 U.S. at 463. The Supreme Court held that
Johnson had not established the fourth prong of the plain
error standard -- that the error seriously affected the
fairness, integrity or public reputation of judicial
proceedings. In so holding, the Court noted that the
evidence supporting materiality was overwhelming and that
the defendant presented no plausible argument that her
false statements under oath were not material. See id. at
470.

In Neder, the error was similar, i.e., the trial court's
failure to charge the jury on the materiality of the false
statements or omissions for which the defendant was
convicted. The defendant in Neder had objected to the
instruction, so the Court's discussion on prejudice was in
the context of a harmless error analysis. See 527 U.S. at 6-
7, 15. The Court held there was overwhelming evidence of
the materiality of the statements, and hence the omission
of the charge was harmless error. See id. at 16-20.

                               47
In neither case was the sentence at issue; rather the
issue was whether to uphold or reverse the jury's verdict of
guilt. Here, we must decide whether an increase in prison
time as a result of the error affects the defendant's
substantial rights. As a result, those cases are inapposite
here.

Instead of affirming the sentence on the ground that
Vazquez's substantial rights were not affected, as the
majority does, I would follow the disposition recently
reached by some of our sister circuits who, after finding an
Apprendi error in sentencing the defendant, vacated the
sentence and remanded for resentencing within the
statutory maximum sentence authorized by the jury
verdict. See, e.g., United States v. Martinez , 253 F.3d 251,
255-56 (6th Cir. 2001) (vacating the defendants' sentences
and remanding for resentencing because the sentences
exceeded the maximum sentence authorized by the jury
verdict by 12 and 15 years respectively); United States v.
Ray, 250 F.3d 596, 603 (8th Cir. 2001) (remanding for
resentencing because the defendant's 97 month sentence of
imprisonment exceeded the statutory maximum of 60
months); United States v. Velazquez, 246 F.3d 204, 218-19
(2d Cir. 2001) (vacating the defendant's sentence and
remanding for sentencing because the sentence exceeded
by four months the maximum that could be imposed
without a jury determination of an element of the crime);
United States v. McWaine, 243 F.3d 871, 875-76 (5th Cir.
2001) (vacating the sentence and remanding for
resentencing because the defendant's life sentence exceeded
the 20-year statutory maximum sentence authorized by the
jury); United States v. Jones, 235 F.3d 1231, 1238 (10th
Cir. 2000) (remanding for resentencing because the actual
sentence of 30 years exceeded the 20-year statutory
maximum sentence authorized by the jury verdict); United
States v. Nordby, 225 F.3d 1053, 1060 (9th Cir. 2000)
(remanding for resentencing because "[f]ive additional years
of imprisonment were imposed beyond that authorized by
this verdict, which easily affected [defendant's] substantial
rights."). Although not every court that has found an
Apprendi violation followed the course of these cases, I
believe that course is the one demanded by justice.

                               48
II.

In reaching its conclusion to affirm Vazquez's sentence,
the majority rejects Vazquez's argument that the Apprendi
error was a structural defect. Structural defects are per se
prejudicial and pretermit the substantial rights inquiry.
Johnson v. United States, 520 U.S. 461, 468 (1997). The
majority reasons that "Apprendi violations result in both
trial and sentencing errors, albeit ones that rise to a
constitutional dimension," Maj. Op. at 15; that the
Supreme Court has instructed that most constitutional
errors can be harmless; that both trial errors and
sentencing errors have been subjected to harmless or plain
error analysis; and that therefore "an Apprendi violation is
not a structural defect." Maj. Op. at 15.

I believe the majority's syllogism is flawed and that the
issue of an Apprendi violation as a structural defect merits
more analysis than has been given to it in the cases,
including even those cases that have reversed sentences
imposed in violation of Apprendi and remanded for
resentencing.

In Chapman v. California, 386 U.S. 18 (1967), even
though the Court held that constitutional errors could be
harmless, it also recognized that there are some
constitutional errors that are not subject to harmless error
analysis. Chief Justice Rehnquist referred to them in
Arizona v. Fulminante, 499 U.S. 279 (1991), as involving
rights "so basic to a fair trial that their infraction can never
be treated as harmless error." Id. at 308 (quoting Chapman,
386 U.S. at 23). Structural defects occur in a limited class
of cases, such as where there has been a complete denial
of counsel, see Gideon v. Wainwright, 372 U.S. 335 (1963),
a biased trial judge, see Tumey v. Ohio, 273 U.S. 510
(1927), unlawful exclusion of grand jurors of defendant's
race, see Vazquez v. Hillery, 474 U.S. 254 (1986), denial of
self-representation, see McKaskle v. Wiggins, 465 U.S. 168
(1984), denial of public trial, see Waller v. Georgia, 467 U.S.
39 (1984), or a defective reasonable-doubt instruction to
the jury, see Sullivan v. Louisiana, 508 U.S. 275 (1993).
Such errors have been termed "structural" because each
involves a "defect affecting the framework within which the
trial proceeds, rather than simply an error in the trial

                               49
process itself." Johnson, 520 U.S. at 468 (quoting Arizona v.
Fulminante, 499 U.S. 279, 310 (1991)).

Perhaps the Sullivan case best illustrates a structural
error. As explained in Justice Scalia's opinion for a
unanimous Court, a constitutionally defective reasonable-
doubt instruction violated the Sixth Amendment right to
trial by jury, a right that is " `fundamental to the American
scheme of justice.' " 508 U.S. at 277 (quoting Duncan v.
Louisiana, 391 U.S. 145, 149 (1968)).

Sullivan was convicted by a jury following a charge that
defined a reasonable doubt in terms of "a grave
uncertainty," a definition that did not meet constitutional
standards. Justice Scalia began his discussion why such
an error was not amenable to harmless-error analysis with
the principle that the most important element in the Sixth
Amendment right to trial by jury is "the right to have the
jury, rather than the judge, reach the requisite finding of
`guilty.' " Id. He continued, "although a judge may direct a
verdict for the defendant if the evidence is legally
insufficient to establish guilt, he may not direct a verdict for
the State, no matter how overwhelming the evidence." Id.
(emphasis added).

Having established the constitutional principle, he then
considered whether the Court could uphold the jury verdict
on the basis of harmless error, stating that "[h]armless-
error review looks . . . to the basis on which `the jury
actually rested its verdict.' " Id. at 279 (alteration in
original) (quoting Yates v. Evatt, 500 U.S. 391, 404 (1991)).
The inquiry "is not whether, in a trial that occurred without
the error, a guilty verdict would surely have been rendered,
but whether the guilty verdict actually rendered in this trial
was surely unattributable to the error." Id. "That must be
so, because to hypothesize a guilty verdict that was never
in fact rendered -- no matter how inescapable the findings
to support that verdict might be -- would violate the jury-
trial guarantee." Id.

It appears that the majority in this case rejects the
possibility that the Apprendi violation was a structural
defect by reliance on the Supreme Court's decisions in
Johnson and Neder. Johnson had argued that the error, the

                               50
failure to instruct the jury that it must decide the
materiality of the false statements, was a structural defect
and therefore outside the scope of Rule 52(b). The Johnson
Court stated that "[i]t is by no means clear" whether the
failure to submit an element of the offense to the jury was
a structural error. 520 U.S. at 469. It continued,"Sullivan
v. Louisiana, the case most closely on point, held that the
erroneous definition of `reasonable doubt' vitiated all of the
jury's findings because one could only speculate what a
properly charged jury might have done." Id. The Court then
noted that the failure to submit materiality to the jury "can
just as easily be analogized to improperly instructing the
jury on an element of the offense, an error which is subject
to harmless-error analysis, as it can be to failing to give a
proper reasonable-doubt instruction altogether." Id.
(citations omitted). The Court did not resolve this question
because it affirmed the conviction notwithstanding the error
on the ground that Johnson had not established the fourth
prong of the plain error standard. Id. at 469-70.

In Neder, the Court undertook the analysis of structural
defects it avoided in Johnson. The Court considered and
rejected the defendant's argument that the error-- the trial
court's omission of an element of the offense from the jury
instruction -- was a structural defect. 527 U.S. at 8-15.
The Court reviewed the numerous cases in which it held
that various trial errors were not structural defects. Among
those were cases dealing with improperly instructing the
jury on an element of the offense, see California v. Roy,
519 U.S. 2 (1996), erroneous mandatory conclusive
presumptions, see Carella v. California, 491 U.S. 263
(1989), and erroneous mandatory rebuttable presumptions,
see Yates v. Evatt, 500 U.S. 391 (1991). Similarly, it noted
that the Court had previously held that harmless-error
analysis applies to the erroneous admission of evidence in
violation of the Fifth Amendment's guarantee against self-
incrimination, see Arizona v. Fulminante, 499 U.S. 279
(1991), and the erroneous exclusion of evidence in violation
of the Sixth Amendment right to confront witnesses, see
Delaware v. Van Arsdall, 475 U.S. 673 (1986).

The error in Neder's case was not a structural defect
because it "[did] not necessarily render a criminal trial

                               51
fundamentally unfair or an unreliable vehicle for
determining guilt or innocence." Neder, 527 U.S. at 9
(emphasis omitted). That is, "where a reviewing court
concludes beyond a reasonable doubt that the omitted
element was uncontested and supported by overwhelming
evidence, such that the jury verdict would have been the
same absent the error, the erroneous instruction is properly
found to be harmless." Id. at 17.

Therefore, if the majority is correct that the error here
was the failure to submit an element of the offense to the
jury, then there would be no basis to argue that the error
in this case was a structural defect. However, I believe that
an Apprendi error is an error of a different dimension.
There were at least two constitutional violations identified
in Apprendi. One dealt with the issue of the respective roles
of the jury and judge. See Apprendi, 530 U.S. at 477. The
other dealt with the standard of proof, the requirement that
the government prove a criminal defendant guilty beyond a
reasonable doubt. See id. at 478. It is arguable that after
Neder, a trial error that enables a judge, rather than a jury,
to determine one of the elements of the offense is not a
structural defect, although Justice Scalia's dissent in Neder
persuades me (albeit not a majority of the Court) that it
should be so regarded.

In his Neder opinion, Justice Scalia characterized
Johnson as standing "for the proposition that, just as the
absolute right to trial by jury can be waived, so also the
failure to object to its deprivation at the point where the
deprivation can be remedied will preclude automatic
reversal." Neder, 527 U.S. at 35. Following Justice Scalia's
reading of Johnson in Neder, one might argue that even if
Vazquez waived his jury trial right by failing to contest the
trial court's arrogation of the jury's obligation to decide
drug quantity, an element of the crime, this case is unlike
both Johnson and Neder because an Apprendi violation also
implicates the right to be convicted under a beyond-a-
reasonable-doubt standard.3
_________________________________________________________________

3. As the Neder majority observed, appellate inquiry into "whether the
record contains evidence that could rationally lead to a contrary finding
with respect to the omitted element . . . . `serve[s] a very useful
purpose

                               52
Nothing in either Johnson or Neder, or any other case of
which I am aware, justifies treating the failure to apply the
beyond-a-reasonable-doubt standard to drug quantity as
anything other than a structural defect. That failure, I
believe, is comparable to the structural defect in the
constitutionally deficient beyond-a-reasonable-doubt
instruction found in Sullivan. The Due Process Clause,
Sullivan explains, requires that the prosecution persuade
the factfinder "beyond a reasonable doubt" of the facts
necessary to establish all elements of the offense. 508 U.S.
at 277-78. If there is no jury verdict finding petitioner guilty
beyond a reasonable doubt, "[t]he most an appellate court
can conclude is that a jury would surely have found
petitioner guilty beyond a reasonable doubt." Id. at 280.
"That," said the Court in Sullivan,"is not enough." Id. And
further, "[t]he Sixth Amendment requires more than
appellate speculation about a hypothetical jury's action, or
else directed verdicts for the State would be sustainable on
appeal." Id.

In Apprendi, the Court discussed separately the two
rights -- the one that requires trial by jury and"the
companion right to have the jury verdict based on proof
beyond a reasonable doubt." 530 U.S. at 478. The Court
commented, "The `demand for a higher degree of persuasion
in criminal cases was recurrently expressed from ancient
times, [though] its crystallization into the formula "beyond
a reasonable doubt" seems to have occurred as late as
1798. It is now accepted in common law jurisdictions as
the measure of persuasion by which the prosecution must
convince the trier of all the essential elements of guilt.' " C.
McCormick, Evidence S 321, pp. 681-682 (1954); see also 9
_________________________________________________________________

insofar as [it] block[s] setting aside convictions for small errors or
defects
that have little, if any likelihood of having changed the result of the
trial.' " Neder, 527 U.S. at 19 (quoting Chapman v. California, 386 U.S.
18, 22 (1967)). At the conclusion of its rejection of the structural error
claim, the Court observed: "Reversal without any consideration of the
effect of the error upon the verdict would send the case back for retrial
-- a retrial not focused at on the issue of materiality, but on contested
issues on which the jury was properly instructed." Id. at 15. In Vazquez's
case, there would be no retrial, only a remand for resentencing.

                               53
J. Wigmore, Evidence S 2497 (3d ed.1940)." Id. (quoting In
re Winship, 397 U.S. 358, 361 (1970)). Apprendi reaffirmed
the pronouncement in Winship that "the`reasonable doubt'
standard among common-law jurisdictions `reflect[s] a
profound judgment about the way in which law should be
enforced and justice administered.' " Id. (quoting Winship,
397 U.S. at 361-62) (quotation omitted).

In the Supreme Court cases discussing structural
defects, the Court consistently lists among the errors that
it has found to be structural the defective reasonable-doubt
instruction in Sullivan. It did so in Johnson and it did so in
Neder. See Neder, 527 U.S. at 8; Johnson, 520 U.S. at 469.
In contrast, in Vazquez's case, the trial judge made the
finding of drug quantity by a preponderance of the
evidence. It is the majority that first applies the beyond-a-
reasonable-doubt standard to drug quantity.

While it is true that the jury made findings sufficient to
sustain a S 841(b)(1)(C) verdict under a beyond-a-
reasonable-doubt standard, it did not so find as to the
amount of drugs under any other provision of S 841(b). It is
this defect, which, while it did not "infect the entire trial
process," Brecht v. Abrahamson, 507 U.S. 619, 630 (1993),
as most structural defects have done, infected the portion
of the criminal proceedings at issue here, i.e., the sentence,
and I see no reason why the same structural defect analysis
that applies in the other cases which the Court agrees defy
harmless-error review would not apply to the sentence. I
believe that the majority opinion undermines, indeed
nullifies, the long tradition in American constitutional
criminal jurisprudence that it is the jury, rather than the
judge, that must determine the offense for which the
defendant has been sentenced and that it must so find
beyond a reasonable doubt.4 I would therefore hold that we
_________________________________________________________________

4. Justice Scalia closes his Neder dissent with the following quote from
Blackstone,

       However convenient [intrusions on the jury right] may appear at
       first, (as doubtless, all arbitrary powers, well executed, are the
most
       convenient,) yet let it be again remembered that delays and little
       inconveniences in the forms of justice are the price that all free
       nations must pay for their liberty in more substantial matters;
that

                               54
must remand for a new sentencing hearing.5
_________________________________________________________________

       these inroads upon this sacred bulwark of the nation are
       fundamentally opposite to the spirit of our constitution; and that,
       though begun in trifles, the precedent may gradually increase and
       spread to the utter disuse of juries in questions of the most
       momentous concern.

Neder, 527 U.S., at 39-40 (quoting 4 Blackstone, Commentaries *350).

5. Although I believe that Chief Judge Becker's concurrence may have
much to commend it, it is not the rationale adopted by the majority
opinion. I would therefore leave the question of the interpretation of the
relevant drug statutes for decision in another case where the defendant's
sentence is not inconsistent with the teaching of Apprendi, as the
government concedes in this case.


                               55
RENDELL, Circuit Judge, dissenting.

I agree with Part I of Judge Sloviter's dissent. I write
separately to express my view that the majority has written
a new chapter in the book of plain error review of
sentencing, and, I further suggest, has rewritten Apprendi
and Williams.

In Apprendi, the Supreme Court held that the New Jersey
statutory scheme "cannot stand," because, after the jury
convicted the defendant of a second degree offense, the
statute allowed a judge to impose punishment identical to
what New Jersey provides for crimes of the first degree,
provided that the judge found, by a preponderance of the
evidence, that the defendant's purpose for unlawfully
possessing the weapon was to intimidate his victim on the
basis of a particular characteristic the victim possessed.
530 U.S. at 491-92. In Williams, we determined that an
Apprendi error will only be found to have occurred if the
judge actually imposes a sentence that is above a certain
threshold, namely, the maximum sentence allowable for the
crime of which the defendant was convicted. 235 F.3d at
863.

I submit that we ignore the teachings of both of these
cases in issuing the majority opinion today. I say this
because we are advocating the judicial determination of the
proof that supports a certain sentence, contrary to the
specific dictates of Apprendi, and we are forgetting that, in
Williams, our analysis was based upon our view that an
Apprendi error is a sentencing error, not an error that
occurs at trial. I submit that the majority opinion writes a
new chapter regarding plain error analysis in the
sentencing context, because the law as it presently exists
requires resentencing in the event that a sentence has been
imposed in violation of the law, 18 U.S.C. S 3742,1 and even
_________________________________________________________________

1. 18 U.S.C. S 3742(f)(1) provides:

       (f) Sentence and disposition--If the court of appeals determines
       that the sentence--

       (1) was imposed in violation of law or imposed as a result of an
       incorrect application of the sentencing guidelines, the court shall
       remand the case for further sentencing proceedings with such
       instructions as the court considers appropriate. . ..

Id.

                                56
under the microscope of plain error review, we have had
little difficulty noticing an error and remanding cases for
resentencing where substantial rights were affected and the
integrity of our system had been undermined by illegal
sentences.2

Today, we are not requiring a new sentencing proceeding,
nor are we even saying that a new trial should occur, which
could arguably follow from the logic and language of
Apprendi. Rather, we search for a way to uphold an
offensive, unconstitutional sentence, although there is no
intimation in Apprendi that such a sentence can ever be
countenanced, in the first instance, let alone preserved by
the jurists' view of what may have occurred.

The majority's discussion of the "substantial rights" or
"prejudice" inquiry that we must make under plain error
review does not focus on the tenor and logic of the Supreme
Court's opinion in Apprendi,3 but, rather, it reaches out and
follows the reasoning of Johnson and Neder. However, in
doing so, the majority overlooks the fact that the Supreme
Court in Apprendi never alludes to Johnson or Neder, and
we, in Williams, never intimated that this is an appropriate
_________________________________________________________________

2. For example, we previously have addressed sentencing errors such as
those implicated by a trial court's improper guideline calculation, and
have found that such mistakes are sufficiently prejudicial to warrant
relief under the plain error standard. E.g., United States v. Felton, 55
F.3d 861, 869 n.3 (3d Cir. 1995) ("This circuit and others have found
that the miscalculation of a defendant's offense level `certainly is error
that seriously affect[s] [the defendant's] rights, and so amounts to plain
error.' ") (quoting United States v. Pollen, 978 F.2d 78, 90 (3d Cir.
1992)
(alteration in original); Pollen, 978 F.2d at 90 ("The district court's
improper calculation . . . , resulting in a significantly higher Guideline
sentencing range, certainly is an error that seriously affected
[defendant's] substantial rights and so amounts to plain error.").

3. As the Supreme Court explained in Olano :

         The third and final limitation on appellate authority under Rule
         52(b) is that the plain error "affec[t] substantial rights." This
is the
         same language employed in Rule 52(a), and in most cases it means
         that the error must have been prejudicial: It must have affected
the
         outcome of the judicial proceedings.

507 U.S. at 734 (alteration in original) (quoting Fed. R. Crim. P. 52(b)).

                                 57
exercise. I submit that we were right in not doing so, since
Johnson and Neder involved trial errors rather than
sentencing errors such as that implicated in Apprendi and
the instant case.4 Thus, the Court's method of analysis in
those cases cannot be so easily imported into this distinctly
different situation.

In Johnson, the error at issue was the district court's
failure, in a perjury prosecution, to submit the issue of
materiality of the false statements to the jury. 520 U.S. at
467. Rather than having the jury decide that issue, the
district court instructed the jury that it had determined
that the defendant's statements were material, and the
defendant did not object to the instruction as such. On
appeal, the defendant claimed that the district court
committed plain error in failing to submit the issue of
materiality to the jury, and that the error "rendered her
conviction invalid" under Supreme Court precedent. Id. at
464. The Supreme Court rejected that argument, and found
that the error, while "plain," did not warrant correction
under the last prong of Olano because there was
"overwhelming" and "uncontroverted" evidence that the
statement was material, and thus, the "fairness, integrity or
public reputation of the judicial proceedings" would not be
seriously affected by its failure to correct the error. Id. at
470. The Court expressly noted the fact that correcting the
error in such a case would yield the opposite result because
it would require "the reversal of a conviction." Id.

Neder involved the same error -- the failure to submit the
element of materiality to the jury -- and the Court there
determined that the error was subject to harmless error
review. 527 U.S. at 8-9. In conducting its harmless
error/prejudice inquiry, the Court applied the following test
in view of the nature of the error at issue: "whether it
_________________________________________________________________

4. The majority states that we are presented with a combination of trial
and sentencing errors. I am not sure what that means, and the majority
has provided no supporting authority for its new category of error. Maj.
Op. at 12. Clearly, we have a sentencing error, probably due to
someone's error at trial -- most likely, the government's -- but I submit
that there is no argument that the District Court actually committed
error during the trial itself, and there has been no request for a new
trial
on that basis.

                               58
appears beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained."
Id. at 15 (emphasis added). The Court answered that
question by reference to the trial record, and concluded
that "no jury could reasonably find" that the defendant's
actions were not material. Id. at 16.

Based on the Court's analysis in Neder, the majority
pretends to ask the same question in assessing prejudice to
the defendant, but it actually asks a different one:"whether
[the sentence] would have been the same absent the failure
to submit drug quantity for a jury determination." Maj. Op.
at 16. However, given that I view the Apprendi error as
having occurred at sentencing, and given the question
asked in Neder (if we really are to draw on Neder as a
guide), the appropriate question to ask in assessing the
third element of the plain error analysis under Olano is
whether, in the context of the sentencing proceedings, it
appears beyond a reasonable doubt that the Apprendi error
complained of -- sentencing a defendant to a greater term
of imprisonment than that permitted under the law--
contributed to the sentence obtained. E.g., Sochor v.
Florida, 504 U.S. 527, 540 (1992) (applying harmless error
analysis and asking whether, in the context of the
sentencing proceedings, a sentencing error " `was harmless
beyond a reasonable doubt' in that `it did not contribute to
the sentence obtained' ") (quoting Chapman v. California,
386 U.S. 18, 24 (1967)); Richmond v. Lewis, 506 U.S. 40,
49 (1992) (explaining when a sentencing error occurs, such
as consideration of invalid aggravating circumstance,
harmless error review requires courts to "actually perform
a new sentencing calculus, if the sentence is to stand");
Parker v. Dugger, 498 U.S. 308, 319 (1991) (describing
harmless error analysis in the context of sentencing
proceedings as requiring a determination of whether the
sentencing error "would have made no difference to the
sentence"); Clemons v. Mississippi, 494 U.S. 738, 753
(1990) (stating that harmless error analysis in the context
of sentencing proceedings must ask whether "it was beyond
a reasonable doubt that the sentence would have been the
same" had there been no sentencing error). Plainly, the
answer is "yes," because if the District Court had not
sentenced Vazquez to more than the prescribed statutory

                               59
maximum for the offense for which he was convicted, he
would have received less prison time than he actually
received. Thus, his substantial rights were affected.

Similarly, in assessing whether we should correct the
error under the last prong of Olano, the issue is not, as it
was in Johnson, whether the trial proofs indicate that the
fairness and integrity of the trial proceedings would not be
impugned by the fact that judge rather than the jury made
the determination at issue, given the strength of the
evidence. Rather, given the language and logic of Apprendi,
we should ask whether the error affected the sentencing in
a way that affects the fairness and integrity of the judicial
proceedings. And, unlike the situation presented in
Johnson, our correction of the error would not result in the
reversal of a conviction; rather, the remedy for the
unconstitutionally imposed sentence is a remand for
resentencing in accordance with the jury's verdict.

Clearly, one cannot read Apprendi without realizing that,
not only are substantial rights affected by the Apprendi
sentencing error,5 but also the public reputation of judicial
_________________________________________________________________

5. As Judge Sloviter's dissent points out, several of our sister circuits
have recognized that an Apprendi violation constitutes an error that
affects a defendant's substantial rights. E.g. , United States v.
Buckland,
___ F.3d. ___, 2001 WL 893440, at *9, reh'g en banc granted, 2001 WL
1091167 (9th Cir. Aug. 9, 2001) ("Imposing a sentence that is seven
years more than the maximum sentence constitutionally permitted
under the facts as found by the jury undoubtedly seriously affects the
fairness, integrity or public reputation of the judicial proceedings.")
(internal quotation marks omitted); United States v. Maynie, ___ F.3d ___,
2001 WL 856142, at *8 (8th Cir. July 30, 2001) (finding "that greater,
and improper, infringement of defendants' liberty substantially affected
their rights"); United States v. Miranda, 248 F.3d 434, 444 (5th Cir.
2001) ("Because Appellants were sentenced to serve between 20-30 years
of incarceration--considerably longer than the maximum sentences
available pursuant to the jury determination under the federal drug
offense statute, . . . the error clearly affected . . . substantial
rights.");
United States v. Noble, 246 F.3d 946, 955 (7th Cir. 2001) (concluding
that "[t]he Apprendi error substantially prejudiced Noble's rights by
extending his sentence 10 years in excess of the statutory maximum");
United States v. Page, 232 F.3d 536, 544 (6th Cir. 2000) (stating that
"[t]here is no doubt that imposing additional years of imprisonment
beyond that authorized by a jury's verdict affects a defendant's
substantial rights"), cert. denied, 121 S.Ct. 2002 (2001).

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proceedings is affected by the sentencing of a defendant to
more prison time than the maximum permissible based on
the crime charged and the jury's verdict. In Apprendi, the
focus was on New Jersey's statutory scheme, and the Court
was not faced with having to apply Fed. R. Crim. P. 52(b)
because the issue came before the Court on an appeal from
a guilty plea entered in New Jersey state court. Thus, we
must speculate from its language precisely what the Court
really would do in a situation such as this. But the
language in Apprendi does not make this a difficult
exercise. There the Court referenced the differential in
sentencing between what Apprendi would have received
without the finding of a biased purpose, and what he could
receive with it, stating that it was "more than a nominal
effect." Apprendi, 530 U.S. at 495. The Court then stated:
"Both in terms of absolute years behind bars, and because
of the more severe stigma attached, the differential here is
unquestionably of constitutional significance." 6 Id. It
concluded its opinion by stating that "[t]he New Jersey
procedure challenged in this case is an unacceptable
departure from the jury tradition that is an indispensable
part of our criminal justice system." Id. at 497.

To my mind, in order to read Apprendi in a way that
would be what the majority holds today, we would have to
read into, or add to, the Court's closing statement the
following:

       Of course, on the other hand, if reasonable jurists can
       determine from the record that the jury would have
       found the necessary element or sentencing factor
       beyond a reasonable doubt, then the jury's actual
_________________________________________________________________

6. As an aside, I should note that by concentrating on our divergence
from Apprendi and Williams, I do not downplay the constitutional
significance of the fact that Vazquez was never indicted for the crime for
which he has been sentenced. As eloquently stated by Judge Motz in her
powerful partial dissent in United States v. Promise, 255 F.3d 150 (4th
Cir. 2001), the end result of the Apprendi violation meant that "the
district court sentenced [the defendant] as if he had been indicted and
convicted of a far more serious offense, imposing on[him] ten more years
of imprisonment than the offense for which he was actually indicted and
convicted permits." Id. at 189 (Motz, J., concurring in part, dissenting
in
part).

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       finding on that element, and its verdict, is not such an
       indispensable part of our criminal justice system. In
       such circumstances, the otherwise unconstitutional
       sentence may nevertheless stand.

I believe the tone and language of Apprendi preclude any
such reading. In fact, the very language of Apprendi quoted
by the majority seems to negate this idea. Maj. Op. at 7-8
(stating that the Court in Apprendi "endorsed the following
concept: `It is unconstitutional for the legislature to remove
from the jury the assessment of facts that increase the
prescribed range of penalties to which a criminal defendant
is exposed. It is equally clear that such facts must be
established by proof beyond a reasonable doubt.' ") (quoting
Apprendi, 530 U.S. at 490) (internal quotation marks
omitted).

If we follow the logic of the majority, the government can
charge and convict a defendant of manslaughter, but
sentence him for murder, and, as long as the government
produced evidence at trial that would support that
sentence, we would not notice or correct the error under
Rule 52(b) and require resentencing in accordance with the
jury's verdict. That result is not what Johnson and Neder
stand for, nor is it what the Supreme Court envisioned.
E.g., United States v. Promise, 255 F.3d 150, 190 (4th Cir.
2001) (Motz, J., concurring in part, dissenting in part). If
anything, it is just the opposite. In fact, in Apprendi, the
Supreme Court noted disapprovingly, "Indeed, the effect of
New Jersey's sentencing `enhancement' here is
unquestionably to turn a second-degree offense into a first-
degree offense under the state's own criminal code." 530
U.S. at 494.

For these reasons, I join in Judge Sloviter's dissent in
Part I.

However I disagree with Judge Sloviter's conclusion that
the error is structural, because it is, again, a sentencing
error. It did not occur until the sentence exceeding the
maximum allowed was pronounced. The error did not
"infect the entire trial process" and "unnecessarily render
[the] trial fundamentally unfair." Neder, 527 U.S. at 8. I can
find no Supreme Court opinion that suggests that a

                               62
sentencing error can be "structural." In fact, Judge Sloviter
appears to fall somewhat into the trial error trap of Neder
and Johnson in her discussion in Part II, when she speaks
of the need for the jury, not the judge, to determine the
offense. While that is the nature of the discussion in
Apprendi, because it focuses on the statutory scheme, in
light of Williams, that is not the nature of the error before
us. What kind of error is it if a defendant is sentenced to
a term greater than the maximum allowable for that
offense? I submit that it is a sentencing error, that it is
constitutional, not structural, and that the error is plain in
any event.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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