                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 00-4850
JOSEPH RUSSELL TYLER,
               Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
                James C. Fox, Senior District Judge.
                            (CR-00-83-F)

                  Submitted: September 10, 2001

                      Decided: September 25, 2001

      Before WIDENER, MOTZ, and KING, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                              COUNSEL

Thomas P. McNamara, Federal Public Defender, G. Alan Dubois,
Assistant Federal Public Defender, for Appellant. John Stuart Bruce,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. TYLER
                              OPINION

PER CURIAM:

   Joseph Russell Tyler pleaded guilty in July 2000 to the offense of
importing cocaine and marijuana, in violation of 21 U.S.C.A. § 963
(West 1999). The criminal information charged that Tyler’s offense
involved approximately forty-eight kilograms of cocaine hydrochlo-
ride and approximately 338 kilograms of marijuana.* During the
guilty plea proceeding, Tyler acknowledged that his sentencing range
was from ten years to life imprisonment. After granting the Govern-
ment’s motion for a downward departure pursuant to U.S. Sentencing
Guidelines Manual § 5K1.1 (1998), the district court sentenced Tyler
to a 138-month term of imprisonment. On appeal, Tyler challenges
the constitutionality of the statutory sentencing scheme for his 21
U.S.C.A. § 963 offense and penalty provisions of 21 U.S.C.A. § 960
(West 1999 & Supp. 2001) after Apprendi v. New Jersey, 530 U.S.
466 (2000).

   We reject Tyler’s challenge to the constitutionality of the federal
drug statutes. In essence, Tyler argues that in the context of 21
U.S.C.A. §§ 841, 846 (West 1999), because courts uniformly treated
the criteria in § 841(b) permitting enhanced maximum sentences as
sentencing factors prior to Apprendi, but have since identified those
facts as elements of "aggravated drug trafficking offenses," see, e.g.,
United States v. Promise, 255 F.3d 150, 152 n.1 (4th Cir. 2001),
Apprendi renders § 841 internally inconsistent, and thus unconstitu-
tional. However, because the sentencing factor label applied to the
drug thresholds of § 841(b) is a purely judicial construct, the creation
and use of which followed the enactment of § 841, we conclude the
reassignment of these facts from sentencing factors to elements of the
offense following Apprendi is not of constitutional moment. See
United States v. Cernobyl, 255 F.3d 1215, 1218-19 (10th Cir. 2001)
(citing cases from the Fifth, Seventh, and Eleventh Circuits dismiss-
ing constitutional challenges to § 841 in the wake of Apprendi); see
also Promise, 255 F.3d at 168-74 (Luttig, J., concurring) (arguing the
constitutional rule of Apprendi should not impact the statutory analy-

  *Tyler waived prosecution by indictment and consented that the pro-
ceeding may be by information rather than by indictment.
                       UNITED STATES v. TYLER                        3
sis of § 841). The same rationale applies to the sentencing scheme
under 21 U.S.C.A. § 960, and therefore Tyler’s claim fails.

  We therefore affirm the judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

                                                          AFFIRMED
