                         ON REHEARING
                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellee,
                 v.                               No. 03-4848
RONALD COLLINS,
              Defendant-Appellant.
                                        
UNITED STATES OF AMERICA,               
                 Plaintiff-Appellant,
                 v.                               No. 03-4895
RONALD COLLINS,
               Defendant-Appellee.
                                        
           Appeals from the United States District Court
         for the Eastern District of Virginia, at Alexandria.
                Leonie M. Brinkema, District Judge.
                            (CR-03-180)

                      Argued: September 30, 2004

                        Decided: July 12, 2005

       Before MICHAEL and DUNCAN, Circuit Judges,
and Roger W. TITUS, United States District Judge for the District
              of Maryland, sitting by designation.



Affirmed and remanded in part and judgment withheld in part by pub-
lished opinion. Judge Titus wrote the opinion, in which Judge
Michael and Judge Duncan joined.
2                     UNITED STATES v. COLLINS
                             COUNSEL

ARGUED: Matthew Alan Wartel, Alexandria, Virginia, for
Appellant/Cross-appellee. Michael James Elston, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee/Cross-appellant. ON BRIEF: Paul
J. McNulty, United States Attorney, LeDora Knight, Assistant United
States Attorney, Alexandria, Virginia, for Appellee/Cross-appellant.


                             OPINION

TITUS, District Judge:

   Ronald Collins appeals his conviction for conspiracy to distribute
fifty (50) or more grams of a mixture containing a detectable amount
of cocaine in violation of 21 U.S.C. § 841(a)(1) and maintaining and
controlling a room or enclosure for the purpose of unlawfully storing,
distributing, and using a controlled substance in violation of 21
U.S.C. § 856(a)(2). Collins also appeals his sentence for the above
convictions. In addition, the Government cross-appeals, arguing that
the district court erroneously sentenced Collins.

   Collins was indicted for his role in a larger drug conspiracy. Some
of the members of that conspiracy testified against Collins at trial,
including his nephew, Lionel Kearse. The thrust of the case for the
defense was an attempt to discredit the various witnesses and infor-
mants who testified for the government. The jury, presumably finding
at least some of the informants credible, found Collins guilty on both
counts.

   In his appeal, Collins raises five issues. First, he argues that the
government attorney engaged in prosecutorial misconduct by making
an improper "vouching" statement during her rebuttal closing argu-
ment. Second, he argues that the Government made a late disclosure
of Brady material. Third, he argues that 21 U.S.C. § 841 is unconsti-
tutional. Fourth, he argues that the district court gave improper jury
instructions. Fifth, he argues that, under Apprendi and Blakely, his
sentence is unconstitutional, as the facts used to sentence him were
                        UNITED STATES v. COLLINS                        3
                                                        1
not determined by a jury beyond a reasonable doubt. In addition, the
Government has filed a cross-appeal arguing that the district court’s
determination of Collins’ criminal history was in error. Each of Col-
lins’ issues on appeal will be considered and disposed of seriatim, and
the Government’s cross-appeal will be considered last.

Improper Argument (Vouching)

   Collins’ first argument on appeal is that the prosecuting attorney
made an improper statement during her rebuttal closing argument,
unconstitutionally tainting the outcome of the case. As this issue
raises a question of law, the appropriate standard of review is de novo.
United States v. Cheek, 94 F.3d 136, 140 (4th Cir. 1996). The alleg-
edly improper statement made by the prosecutor is as follows:

      That [plea] agreement is a contract between them [the coop-
      erators] and the United States, which means that they have
      certain functions, and we have certain functions. Their func-
      tion is to tell the truth. Each witness who got up there said
      that his job or responsibility was to tell the truth.

         The government is always seeking to determine whether
      they are telling the truth, and we do not take lightly the fact
      that we have an agreement with the defendant - with each
      one of those witnesses where they are supposed to tell the
      truth.

J.A. 505-06. As conceded at oral argument, it is not this entire solilo-
quy which is arguably inappropriate. The allegedly improper state-
ment is the first sentence of the second paragraph, where the
  1
   In his supplemental brief, and again at oral argument, Collins sought
to preserve the issue of the unconstitutionality of his sentence "in the
event that the Supreme Court issues a favorable decision[ ]" in United
States v. Booker, 125 S. Ct. 738 (2005). Subsequent to oral argument, the
Court issued its opinion in Booker holding that the Sentencing Guide-
lines, which are mandatory and binding on all judges, are unconstitu-
tional. Id. Because we conclude that, for two other reasons, this case
must be remanded, this is the only argument which we do not address.
4                      UNITED STATES v. COLLINS
prosecutor stated that the "government is always seeking to determine
whether [a cooperator is] telling the truth[.]"

   The question then presented is first, whether this statement consti-
tutes improper vouching for the credibility of a witness and, if so,
whether those "remarks or conduct prejudicially affected [the Defen-
dant’s] substantial rights so as to deprive him of a fair trial." United
States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002).

   Collins argues, and the Government agrees, that "[i]t is impermissi-
ble for a prosecutor to indicate her personal belief in the credibility
of Government witnesses or to elicit one witness’ opinion that another
witness has told the truth." United States v. Hayes, 322 F.3d 792, 800
(4th Cir. 2003) (citing United States v. Lewis, 10 F.3d 1086, 1089 (4th
Cir. 1993)); see also Berger v. United States, 295 U.S. 78, 88 (1935).
The disagreement between Collins and the Government arises from
each party’s interpretation of the aforementioned excerpt from the
prosecutor’s rebuttal closing argument. Collins contends that the
statement suggests to the jury that "the Government official was
checking to see whether the witnesses were telling the truth in accor-
dance with their plea agreements." Appellant’s Brief at 19. The Gov-
ernment disputes this interpretation, arguing that the prosecutor was
merely focusing the jury’s attention on the terms of the plea agree-
ment. Appellee’s Brief at 23-24. The district court, during the trial,
agreed with the Government’s interpretation, explaining to the parties
that "[i]t’s fair game for both sides to address [the credibility of the
witnesses]. What [the prosecutor] was doing, I think, was focusing to
raise attention on the plea agreement. . . . And that’s perfectly appro-
priate." J.A. 508.

   As could be expected considering the ubiquitous nature of cooper-
ating witnesses in criminal trials, the issue of a prosecutor referring
to plea agreements at trial has been considered by most circuits. A
Tenth Circuit opinion very effectively delineated what comments are
appropriate and what comments are improper, explaining that

    [p]resenting evidence on a witness’ obligation to testify
    truthfully pursuant to an agreement with the government and
    arguing that this gives the witness a strong motivation to tell
    the truth is not, by itself, improper vouching. . . . Use of the
                       UNITED STATES v. COLLINS                        5
    ‘truthfulness’ portions of [a plea agreement] becomes
    impermissible vouching only when the prosecutors explic-
    itly or implicitly indicate that they can monitor and accu-
    rately verify the truthfulness of the witness’ testimony.

United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990) (cita-
tions omitted). Other circuits are in agreement with the Tenth. For
example, the Ninth Circuit cautioned that "[t]he prosecution may not
portray itself as a guarantor of truthfulness." United States v. Roberts,
618 F.2d 530, 537 (9th Cir. 1980). Nor may the Government "give
jurors the impression that the prosecutor is carefully monitoring the
testimony of the cooperating witness to make sure that the latter is not
stretching the facts[.]" Id. at 536 (quoting United States v. Arroyo-
Angulo, 580 F.2d 1137, 1150 (2d Cir. 1978) (Friendly, J. concur-
ring)).

   The relevant case from this Circuit is United States v. Henderson,
717 F.2d 135 (4th Cir. 1983) cert. denied 465 U.S. 1009 (1984). After
canvassing the views of other circuits, this Court adhered to the views
of the Seventh Circuit, expressed in United States v. Hedman, 630
F.2d 1184, 1198-99 (7th Cir. 1980) and United States v. Craig, 573
513, 519 (7th Cir. 1978) cert. denied 439 U.S. 820 (1978), and found
no improprieties in "permitting the government to introduce the terms
of [the cooperator’s] plea bargain during the government’s case in
chief." Henderson, 717 F.2d at 138. Henderson, however, is not
directly on point because the statement made in the current contro-
versy was part of the prosecutor’s rebuttal closing argument, rather
than during the Government’s case in chief. The Government argues,
in effect, that there is no distinction between the two methods of
referring to the plea agreements. See Appellee’s Brief at 24. We dis-
agree.

   By its own language, Henderson differentiates the current situation
from the introduction of the terms of a plea agreement on direct or re-
direct examination. In explaining why the Government did not
improperly draw attention to the plea agreement, this Court found rel-
evant the fact that "Henderson ma[de] no claim that the prosecutor
made improper use of the plea bargain promise of truthfulness in clos-
ing argument." Henderson, 717 F.2d at 138. Thus, potentially prejudi-
cial statements made during closing arguments require closer scrutiny
6                      UNITED STATES v. COLLINS
than the eliciting of information about the plea agreement during the
prosecutor’s case in chief.

   This distinction is an important one because the potential for
impermissible vouching is greater during an attorney’s soliloquy to
the jury than during an attorney’s interaction with a witness. In the
former posture the attorney has greater leeway to develop her own
thoughts and convey those concepts to the jury. Therefore, we do not
find Henderson to be directly on point. Rather, applying the rationale
of Bowie, Roberts and Arroyo-Angulo, we find the prosecutor’s argu-
ment in this case, at a stage when there is a heightened concern about
impermissible vouching, either crossed the line, or, at best, was a
close call.

   However, regardless of the side of the line on which this statement
falls, we conclude that it did not "so infect[ ] the trial with unfairness
as to make the resulting conviction a denial of due process." Scheetz,
293 F.3d at 185 (citing United States v. Morsley, 64 F.3d 907, 913
(4th Cir. 1995)). Even if we were to find that the prosecutor’s state-
ment implied that the government could insure the credibility of the
witness, "[s]uch impermissible vouching is not necessarily reversible
error." United States v. Hayes, 322 F.3d 792, 800 (4th Cir. 2003).
Rather, a court makes a reversible error determination on the basis of
four factors: "(1) the degree to which the comments could have mis-
led the jury; (2) whether the comments were isolated or extensive; (3)
the strength of proof of guilt absent the inappropriate comments; and
(4) whether the comments were deliberately made to divert the jury’s
attention." United States v. Sanchez, 118 F.3d 192, 198 (4th Cir.
1997) (citing United States v. Mitchell, 1 F.3d 235, 241 (4th Cir.
1993); United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995)).

   First, it is unlikely, considering the overall context in which the
statement was made, that the prosecutor’s statement misled the jury.
As this Court found relevant in Henderson, "[t]he trial judge
instructed the jury on the caution necessary in evaluating testimony
given pursuant to a plea bargain." Henderson, 717 F.2d at 138. A
curative instruction, as indicated in Henderson, prevents the mislead-
ing of the jury. An instruction similar to the one given in Henderson
was given to the jury in this case after the allegedly improper state-
ment, thus effectively sanitizing any potential vouching concern. See
                       UNITED STATES v. COLLINS                        7
Transcript of Closing Argument at 434-39 (The relevant instructions
given to the jury were as follows: "You are the sole judges of the
credibility of each of the witnesses called to testify. . . . [T]here has
been testimony from several government witnesses who plead guilty
after entering into an agreement with the government to testify. . . .
You in turn may accept the testimony of such a witness . . . however,
you should bear in mind that a witness who has entered into such an
agreement has an interest in this case different than any ordinary wit-
ness. . . . [T]he testimony of a witness who has been promised that
the witness will not be prosecuted should be examined by you with
greater care than the testimony of an ordinary witness. You should
scrutinize such testimony closely to determine whether or not it is col-
ored in such a way as to place guilt upon the defendant in order to
further the witness’s own interests[.]"). These instructions, coming
immediately following the allegedly improper vouching by the prose-
cutor, clearly eliminated any prejudice to Collins. Thus, the first San-
chez factor must be resolved in favor of the Government.

   The second Sanchez factor strongly militates against a finding of
reversible error. As distilled at oral argument, the problematic state-
ment was actually only one clause of a sentence in the middle of the
rebuttal closing argument. As noted above, not only was the statement
sufficiently sanitized by the district court’s subsequent jury instruc-
tion, it was also an isolated, rather than pervasive or extensive, com-
ment.

   With regard to the third Sanchez factor, Collins asserts that the
Government’s case was centered around the cooperating witnesses
who signed plea agreements. Appellant’s Brief at 21; see also J.A. 81,
347 (listing the witnesses, eight of whom signed plea agreements with
the Government or were promised immunity). Therefore, Collins
argues, this factor weighs in favor of a finding of prosecutorial mis-
conduct because the jury’s verdict was primarily based on a credibil-
ity determination of those witnesses, allegedly buttressed by the
improper statement in the Government’s rebuttal closing argument.
Collins is correct that much of the evidence presented was the testi-
mony of cooperating witnesses. See Appellant’s Brief at 4 ("[T]he
Government relied entirely upon historical information from cooper-
ating witnesses[.]"). The Court also agrees with Collins that if vouch-
ing did occur, then it improperly buttressed the credibility of all
8                      UNITED STATES v. COLLINS
cooperating witnesses. Considering the Government’s reliance on tes-
timony from numerous cooperating witnesses, it is clear that if those
witnesses were not deemed credible by the jury, then the Govern-
ment’s case would have been weaker. Accordingly, this factor, as
Collins contends, does weigh towards a finding of reversible error.

   Finally, the fourth Sanchez factor militates against a finding of
reversible error. Nothing in the record suggests that the comments
were "deliberately made to divert the jury’s attention," and the Defen-
dant does not so contend.

   Considering all the factors enunciated in Sanchez, even accepting
Collins’ argument that the third factor weighs towards a finding of
prosecutorial misconduct, we conclude that it is outweighed by the
other three factors, leading to the conclusion that there was no revers-
ible error.

Late Disclosure of Brady Evidence

   Collins’ next argument for a reversal of the conviction is an alleged
violation of the Brady doctrine. Brady held that "the suppression by
the prosecution of evidence favorable to an accused upon request vio-
lates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecu-
tion." Brady v. Maryland, 373 U.S. 83, 87 (1963). The Supreme Court
later "held that the duty to disclose such evidence is applicable even
though there has been no request by the accused[.]" Strickler v.
Greene, 527 U.S. 263, 280 (1999)(citing United States v. Agurs, 427
U.S. 97, 107 (1976)). Collins moved to dismiss the charges against
him, arguing that the Government had disclosed the identities of non-
testifying confidential informants only a few days prior to commence-
ment of the trial, even though he requested this information a month
before the trial. As a result, Collins could locate only two of the six
confidential sources, and he contends that this "falls within the ambit
of Brady." Appellant’s Brief at 23. For two reasons, we cannot agree.

   First, "evidence is ‘material’ under Brady, and the failure to dis-
close it justifies setting aside a conviction, only where there exists a
‘reasonable probability’ that had the evidence been disclosed the
result at trial would have been different." Wood v. Bartholomew, 516
                       UNITED STATES v. COLLINS                         9
U.S. 1, 5 (1995) (citing Kyles v. Whitley, 514 U.S. 419, 433-34
(1995)). Considering the record, no such reasonable probability exists
in this case. There is nothing to support Collins’ assertion that these
informants would have produced exculpatory information. Indeed,
from a reading of the record, his counsel’s assertions could be inter-
preted to suggest that these informants would not produce evidence
favorable to him. See J.A. at 72-74 (defense counsel proffering that
"these witnesses do not mention Mr. Collins. . . . [T]hese are wit-
nesses that came forward and provided information to the police that
never mentioned my client. They described who was involved in the
conspiracy."). In short, we agree with the district court that "[t]here
are probably hundreds of people who could" testify that they pur-
chased drugs from an individual other than Collins. Id. Second, we
agree with the district court that "a motion to dismiss is not the proper
vehicle [for a late Brady disclosure]. At best, a motion to get more
time to talk to these people." Id. at 71. No such motion was made.
Collins’ motion sought dismissal of the charges, and, when his motion
was denied, he did not seek a continuance.

Unconstitutionality of 21 U.S.C. § 841

   Collins argues that, pursuant to Apprendi v. New Jersey, 530 U.S.
466 (2000), the penalty provisions of 21 U.S.C. § 8412 are unconstitu-
tional and, because they cannot be severed from the remainder of the
statute, the entire statute is facially invalid. This argument is fore-
closed by United States v. McAllister, 272 F.3d 228 (4th Cir. 2001),
where this Court unambiguously concluded that "Apprendi does not
render § 841 facially unconstitutional[.]" Id. at 234. "A decision of a
panel of this court becomes the law of the circuit and is binding on
other panels unless it is overruled by a subsequent en banc opinion
of this court or a superseding contrary decision of the Supreme
Court." Etheridge v. Norfolk & W. Ry. Co., 9 F.3d 1087, 1090 (4th
Cir. 1993). Therefore, Collins cannot succeed on his claim that 21
U.S.C. § 841 is unconstitutional.
  2
   21 U.S.C. § 841(b) prescribes the penalties for manufacturing, distrib-
uting, or dispensing controlled substances; or possessing controlled sub-
stances with the intent to engage in the above activities. This subsection
determines the length of incarceration for a violation by considering both
the type of controlled substance and the weight of the substance.
10                     UNITED STATES v. COLLINS
Jury Charge Regarding Drug Quantity

   During its deliberations, the jury submitted several questions to the
district court. One read as follows: "Under Count 1, does the amount
of drug apply to Ron Collins alone or the entire group of conspira-
tors?" J.A. 527. The court answered the question as follows: "The
amount of drugs applies to the entire group of conspirators. In other
words, it’s a conspiracy to distribute 50 grams or more of crack
cocaine. That’s what the charge is. So the amount applies to the con-
spiracy, to the group." J.A. 533.

   Collins argues that the district court erred in answering the jury’s
question. Collins contends that the jury should have been instructed
that in order to hold Collins responsible for 50 grams or more of crack
cocaine it must make one of two findings, either that (1) Collins him-
self was involved in the distribution of 50 grams of crack cocaine, or
(2) other members of the conspiracy were involved in that amount,
and those actions of coconspirators were both reasonably foreseeable
and in furtherance of the jointly undertaken criminal activity, see Pin-
kerton v. United States, 328 U.S. 640 (1946).

   The Superseding Indictment charged Collins with two counts:
Count 1, a violation of 21 U.S.C. § 846 (conspiracy to distribute a
controlled substance), and Count 2, a violation of 21 U.S.C.
§ 856(a)(2) (maintaining a crack house). J.A. 15-17 Collins’ appeal
concerning the district court’s allegedly erroneous answer to the
jury’s question implicates only Count 1.

   Section 846 of Title 21 is a conspiracy statute. It provides that
"[a]ny person who attempts or conspires to commit any offense
defined in this subchapter shall be subject to the same penalties as
those prescribed for the offense, the commission of which was the
object of the attempt or conspiracy." 21 U.S.C. § 846. Count 1 of the
Superseding Indictment charged Collins with conspiracy to violate
§ 841(a)(1), which makes it a crime to intentionally "manufacture,
distribute, or dispense, or possess with the intent to manufacture, dis-
tribute, or dispense, a controlled substance." 21 U.S.C. § 841(a)(1).
Section 841(b) establishes the penalties applicable to individuals who
violate § 841(a). Not surprisingly, the greater the quantity of drugs
involved, the harsher the penalty.
                        UNITED STATES v. COLLINS                        11
   The most stringent penalty section under § 841(b), § 841(b)(1)(A),
mandates a 10 year minimum sentence for an individual found guilty
under § 841(a) for manufacturing, distributing, or dispensing (or pos-
sessing with the intent to engage in those activities) 50 grams or more
of cocaine base. The Superseding Indictment contemplates this sub-
section by charging Collins with conspiring to distribute 50 or more
grams of cocaine base, commonly known as crack cocaine. J.A. 15.

   Considering the statutory scheme outlined above, it is clear that the
amount of narcotics attributable to a defendant dictates the period of
incarceration for a defendant convicted of the substantive offense.
When a defendant is charged and convicted for conspiracy to violate
§ 841(a), the important question of quantity becomes more difficult
to interpret and apply. Should an individual defendant, found guilty
of conspiracy to violate § 841(a), be sentenced under § 841(b) by con-
sidering the amount of narcotics distributed by the entire conspiracy?
Or should that defendant’s sentence be more individualized, subject-
ing him to punishment only for distribution of the amount of narcotics
attributable to him? In United States v. Irvin, 2 F.3d 72 (4th Cir.
1993) we answered these questions.

  In Irvin, the Government argued that

      in a narcotics conspiracy comprised of different individuals
      and multiple criminal acts, a district court must determine
      the applicable sentence by ascertaining the quantity of nar-
      cotics involved in each object of the offense of the conspir-
      acy, aggregate these amounts, and then assign to each
      coconspirator the mandatory minimum sentence of § 841(b)
      corresponding to the aggregated quantity of narcotics.

Id. at 76. Although we observed that this was a plausible interpreta-
tion of § 841(b) and § 846, we noted that "[u]nder another logical
reading of the statutory language, the sentencing provisions applica-
ble to conspiracies involving multiple narcotics should be individual-
ized to reflect a particular coconspirator’s relative culpability in the
conspiracy." Id.3 We then unambiguously rejected the Government’s
  3
    Irvin considered the issue of individualized culpability in the context
of both narcotic type and quantity. In this case, the Superseding Indict-
ment charged Collins only with conspiracy to distribute one type of con-
trolled substance: cocaine base. Thus, the only required individualized
determination is quantity.
12                      UNITED STATES v. COLLINS
interpretation, concluding that "the most reasonable interpretation of
the relevant statutory provisions requires a sentencing court to assess
the quantity of narcotics attributable to each coconspirator by relying
on the principles set forth in Pinkerton." Id. at 77 (citing United States
v. Martinez, 987 F.2d 920, 925 (2d Cir. 1993); United States v. Bush,
813 F. Supp. 1175, 1180 (E.D. Va. 1993)).

   Having established the governing principles, we now turn to the
facts of this case. Once again two questions must be answered. First,
did the district court err in its answer to the jury’s question? Second,
if the district court erred, what is the appropriate remedy? We con-
clude that the district court did err. The error, however, was not the
court’s answer to the question, but the failure to give a supplemental
instruction which is necessary to determine the penalty subsection in
§ 841(b) applicable to Collins.

     Collins argues that the district court’s answer to the question was

       in contravention of the requirement that a defendant is only
       responsible for drug activity by other conspirators that was
       both within the scope of his agreement (i.e., a part of his
       jointly undertaken activity) and reasonably foreseeable to
       him. Thus, the jury’s determination that Mr. Collins was
       responsible for the drug quantity threshold of 50 grams or
       more of crack cocaine must be set aside.

Appellant’s Brief at 37. Stated differently, Appellant argues that the
district court, when answering the jury’s question, should have given
a Pinkerton instruction.

   The principles outlined in Pinkerton, however, have no applicabil-
ity to a conviction under § 846. Pinkerton principles are relevant
when a conspirator is charged with a substantive offense arising from
the actions of a coconspirator, not when a conspirator is charged with
conspiracy.4 Because Count 1 charges Collins with conspiracy
  4
   For example, in Pinkerton, brothers Daniel and Walter Pinkerton were
charged with both substantive violations of the Internal Revenue Code
and conspiracy to violate those provisions. There was no evidence to
                        UNITED STATES v. COLLINS                        13
(§ 846), and not a substantive offense, the district court’s answer to
the jury’s question, as well as its original conspiracy instruction, see
Trans. at 444, is unassailable as a matter of law. See e.g., United
States v. Wilson, 135 F.3d 291, 306 (4th Cir. 1998). This, however,
does not end the inquiry.

   Although the district court correctly instructed the jury as to the
elements of conspiracy, it erred by not issuing a further instruction
relating to the factual predicate necessary for sentencing. As previ-
ously outlined, § 841(b) has various subsections that prescribe grada-
tions of minimum and maximum sentences dependent on the quantity
of narcotics involved in the violation. Following Irvin, the subsection
of § 841(b) applicable to an individual defendant is determined by a
consideration of the amount of narcotics attributable to that defendant.
Irvin was decided, however, prior to Apprendi v. New Jersey, 530
U.S. 466 (2000) and United States v. Promise, 255 F.3d 150 (4th Cir.
2001).5

   At the time Irvin was decided, it was the district court that deter-
mined, under a preponderance of the evidence standard, the quantity
of narcotics attributable to a defendant for purposes of setting the spe-

show that Daniel had committed the substantive offense. Nevertheless,
his conviction on those offenses was upheld because there was ample
proof that Walter, his coconspirator, had committed those offenses dur-
ing and in furtherance of the unlawful conspiracy. The Court explained
that "so long as the partnership in crime continues, the partners act for
each other in carrying it forward." Pinkerton, 328 U.S. at 646.
   5
     In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) the Court
announced that "[o]ther than the fact of prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maxi-
mum must be submitted to a jury, and proved beyond a reasonable
doubt." Applying this holding to cases involving § 841, we explained
that the jury, rather than the district court, must determine the quantity
of narcotics. See Promise, 255 F.3d at 156 ("Apprendi dictates that in
order to authorize the imposition of a sentence exceeding the maximum
allowable without a jury finding of a specific threshold drug quantity, the
specific threshold quantity must be treated as an element of an aggra-
vated drug trafficking offense, i.e., charged in the indictment and proved
to the jury beyond a reasonable doubt.").
14                     UNITED STATES v. COLLINS
cific threshold drug quantity under § 841(b). See Irvin, 2 F.3d at 76
("[T]he statutes require a district court to determine the accountability
of each coconspirator for each object offense and the quantity of nar-
cotics involved in each object offense using the principles of Pinker-
ton."). Apprendi and Promise altered Irvin’s holding by effectively
replacing the words "a district court" with "the jury," and requiring
proof beyond a reasonable doubt. Although Apprendi modified Irvin
in this manner, Irvin’s holding that Pinkerton principles should be
used to determine, for sentencing purposes, the amount of narcotics
attributable to any one individual in a conspiracy, remains good law.
Under current precedent, rather than the district court applying Pin-
kerton principles when determining the appropriate sentence under
§ 841(b), that same court must instead instruct a jury to use Pinker-
ton principles when making the same determination. This is what the
district court failed to do.

   By failing to instruct the jury in a manner consistent with our hold-
ing in Irvin (i.e. that, for purposes of setting a specific threshold drug
quantity under § 841(b), the jury must determine what amount of
cocaine base was attributable to Collins using Pinkerton principles),
the district court’s sentence effectively attributed to Collins, an indi-
vidual member of the conspiracy, the quantity of cocaine base distrib-
uted by the entire conspiracy. Because the district court adopted the
jury’s drug quantity determination in its application of the sentencing
guidelines, the error affected both the threshold statutory range under
§ 841(b) and the district court’s application of the guidelines. For
these reasons, the district court’s sentence, which was based on the 10
year minimum set forth in § 841(b)(1)(A), cannot stand.

   Having determined that the district court’s failure to issue appropri-
ate jury instructions concerning the facts necessary to determine Col-
lins’ sentence, we turn to the more difficult question of fashioning the
appropriate remedy. As we have already made clear, Collins’ convic-
tion under § 846 is sound. The jury unanimously found Collins to be
guilty of a conspiracy to distribute crack cocaine (i.e. a conspiracy to
violate § 841(a)). See Paper No. 54 (Verdict Sheet, question 1). Guilt
of the substantive offense defined in § 841(a) is not dependent upon
a determination of the amount or type of narcotics distributed. There-
fore, the error below concerns not § 841(a), but the penalty provisions
in § 841(b).
                      UNITED STATES v. COLLINS                      15
   Because the conviction of conspiracy to violate § 841(a) is sound,
remanding for a new trial is not the appropriate remedy. It is also
clear that remanding the case for resentencing, and permitting the dis-
trict court to determine the quantity of cocaine base for § 841(b) pur-
poses, would be inconsistent with the Sixth Amendment. See
Apprendi, 530 U.S. at 490. A previous case from this circuit provides
some guidance concerning the appropriate remedy.

   In United States v. Rhynes, 206 F.3d 349 (4th Cir. 1999), rev’d on
other grounds 218 F.3d 310 (4th Cir. 2000) (en banc), we considered
a case where a district court sentenced defendants after the jury
returned a verdict of guilty on an indictment charging the defendants
with a multi-drug conspiracy (heroin, cocaine, cocaine base, and mar-
ijuana), without specifying which drug was the object of the conspir-
acy. Three of the defendants received a sentence exceeding the
statutory maximum for conspiracy to distribute marijuana, the con-
trolled substance with the least stringent statutory sentencing range.
Id. at 237-40. We found that this sentence was impermissible, relying
on Edwards v. United States, 523 U.S. 511 (1998) and United States
v. Quicksey, 525 F.2d 337 (4th Cir. 1975), because the district court
could not determine which controlled substance the jury found to be
the object of the conspiracy. Rhynes, 206 F.3d at 381. Because no
special verdict was requested by the Government, Quicksey and
Edwards dictated that the sentences be set aside. Id. at 378-81.

   In fashioning a remedy in Rhynes we looked to Quicksey, the case
which compelled our Rhynes conclusion. See id. at 381. Following
Quicksey, the remedy adopted in Rhynes was to "withhold judgment
as to the sentences of [three defendants] under Count I, giving the
Government the choice between resentencing these defendants con-
sistent with a marijuana conspiracy conviction, or retrying them on
Count I." Id. "If the Government chooses to resentence these defen-
dants, we will affirm the convictions and remand for resentencing. If
the Government does not so choose, we will vacate the sentences and
remand for a new trial on Count I." Id. Although this remedy was ulti-
mately voided by a later en banc decision remanding the case for a
new trial, the panel’s proposed resolution provides helpful guidance
in fashioning the appropriate remedy in this case.

  We will withhold judgment as to the conspiracy count for thirty
days. The Government may elect to request that we affirm the con-
16                      UNITED STATES v. COLLINS
spiracy conviction and remand for Collins to be resentenced under the
default penalty provision in § 841 that applies when the amount of
crack cocaine attributable to a defendant is less than 5 grams, 21
U.S.C. § 841(b)(1)(C) (providing for a range of zero to 20 years
imprisonment), or the Government can request that we reverse Col-
lins’s conspiracy conviction and remand for a new trial.

Cross-Appeal by the Government — Criminal History Category of
Defendant

   At the sentencing portion of the trial, the district court determined
that Collins’ criminal history should be Category I rather than Cate-
gory III. J.A. 575. The Government argues that the district court’s
sentencing determination was in error. This court reviews "a district
court’s interpretation of the applicable sentencing guidelines de novo
and its factual findings for clear error." United States v. Quinn, 359
F.3d 666, 679 (4th Cir. 2004) (citing United States v. Daughtrey, 874
F.2d 213, 217 (4th Cir. 1989)).

   The dispute regarding Collins’ criminal history stems from his
prior DWI convictions in 1988, 1989, and 1990. When this case
reached the sentencing stage, the Government argued that Collins
should be assigned a criminal history of Category III. See generally
U.S. SENTENCING GUIDELINES MANUAL § 4A1.1 (2003). Collins, in
rebuttal, contended that the district judge should place him in Cate-
gory I because "there is no information concerning whether Mr. Col-
lins had attorney representation for these offenses. Nor, is there any
information reflecting whether Mr. Collins received any jail time for
the offenses." J.A. 546. Additionally, Collins’ counsel asserted that,
"[d]ue to the age of the offense, Mr. Collins also does not recall
whether he in fact had counsel or went to jail." Id.

   Under Burgett v. Texas, 389 U.S. 109, 115 (1967), a conviction
achieved in violation of the Sixth Amendment right to counsel cannot
"be used against a person either to support guilt or enhance punish-
ment for another offense[.]" In this case, it is difficult not to view with
skepticism the contention that Collins simply "did not recall" whether
he was represented by an attorney at his prior convictions. From the
record, it appears that defense counsel’s proffer did, however, factor
into the district court’s sentencing determination:
                        UNITED STATES v. COLLINS                         17
      Given the nature of those [DWI] offenses, while driving
      while intoxicated is a serious offense, it’s certainly not the
      same thing as dealing drugs or burglary or serious types of
      felonies, and it strikes the Court that while the government
      is arguing that the court draw an inference of regularity, the
      criminal law also talks about the rule of lenity, and I think
      that this criminal history is not sufficiently reliable for the
      Court to impose a level III on this defendant.

J.A. 575. This conclusion was reached even though Collins offered no
evidence that the prior convictions were not constitutionally sound.6

   The underlying issue, as we see it, is effectively a question of bur-
den shifting. When a prior conviction is used to assess the applicable
criminal history category of a defendant, pursuant to sections 4A1.1
and 4A1.2 of the Sentencing Guidelines, should the burden fall on the
government to show that there was no constitutional defect regarding
that prior conviction, or should the burden fall on the Defendant to at
least raise an inference of the invalidity of the prior conviction? We
believe that the burden should fall on the Defendant.

   We arrive at this conclusion by following Supreme Court precedent
which states that "even when a collateral attack on a final conviction
rests on constitutional grounds, the presumption of regularity that
attaches to final judgments makes it appropriate to assign a proof bur-
den to the defendant." Parke v. Raley, 506 U.S. 20, 31 (1992) (citing
Johnson v. Zerbst, 304 U.S. 458, 468-69 (1938)). Although Parke
dealt with a Kentucky procedure that permitted a defendant to chal-
lenge prior convictions before being sentenced under a recidivism
statute, see Parke, 506 U.S. at 22-23, its discussion of the presump-
tion of regularity of prior convictions remains applicable. Cf. United
States v. Gray, 177 F.3d 86, 91 (1st Cir. 1999)(citing cases which
suggest that "[a]lthough Parke was a habeas case and not a sentencing
  6
   For an example of an instance where a defendant did submit sufficient
evidence to defeat the presumption that a prior conviction was constitu-
tionally sound, see Burgett, 389 U.S. at 114-15 ("In this case the certified
records of the Tennessee conviction on their face raise a presumption
that petitioner was denied his right to counsel in the Tennessee proceed-
ing, and therefore his conviction was void.").
18                      UNITED STATES v. COLLINS
case, for these purposes this is a distinction without a difference.").
Indeed, material aspects of Parke make it more, not less analogous to
the facts of this case. For example, neither Parke nor this case was
"a case in which an extant transcript is suspiciously ‘silent’ on the
question whether the defendant waived constitutional rights." Parke,
506 U.S. at 30. Rather, in both cases "no transcripts or other records
of the earlier plea colloquies exist at all." Id. Therefore, we find Parke
to be controlling.

   The First Circuit also found Parke to dictate the same outcome.
Gray, 177 F.3d 86. Gray determined that the rationale from Parke
forecloses a defendant’s argument that the burden of proving a consti-
tutionally sound conviction from a silent record "shift[s] back to the
government." Id. at 90 (citing Parke, 506 U.S. at 20). The First Cir-
cuit in Gray also rejected the defendant’s burden shifting argument
for the practical reason that "a defendant stands in the best position
to offer a first-hand account of the details of his own past legal pro-
ceedings[ ] [and] his silence can be deafening." Id. We find ourselves
in complete agreement with our sister circuit’s application of the pre-
sumption of regularity in these circumstances.

   During sentencing, the district court stated that the "criminal his-
tory is not sufficiently reliable for the Court to impose a level III on
this defendant[,]" so it was "going to make an adjustment to the crimi-
nal history." J.A. 575. It was not clear, however, whether the district
court, when making its sentencing determination, granted a downward
departure pursuant to § 4A.1.3 of the Sentencing Guidelines or
whether the district court refused to apply the presumption of regular-
ity. Assuming that the district court’s decision was based on the fail-
ure to apply the presumption, or the balancing of the presumption
with the rule of lenity,7 we conclude that such a decision was
improper as a matter of law.
  7
    The district court referenced the rule of lenity during the sentencing
hearing. The rule of lenity is invoked when a criminal statute is ambigu-
ous. It has the effect of directing a court to interpret an ambiguous crimi-
nal statute in such a way that results in a more lenient punishment for the
defendant. See Black’s Law Dictionary (7th ed.) ("The rule of lenity is
a judicial doctrine holding that a court, in construing an ambiguous crim-
inal statute that sets out multiple or inconsistent punishments, should
                        UNITED STATES v. COLLINS                        19
                            CONCLUSION

   In sum, we conclude that the district court’s sentence was errone-
ous for two reasons. First, the district court’s failure to issue instruc-
tions conveying the principles enumerated in Pinkerton prevented the
jury from making a factual finding which would serve as the neces-
sary predicate for the district court’s sentence. Second, the district
court did not properly take into account Collins’ criminal history.
Thus, we affirm Collins’s conviction for maintaining and controlling
a room or enclosure for the purpose of unlawfully storing, distribut-
ing, and using a controlled substance in violation of 21 U.S.C.
§ 856(a)(2) and remand for resentencing in a manner consistent with
this opinion and with "the remedial scheme adopted by the Court in
Booker[.]" United States v. Robinson, 404 F.3d 850, 861 (4th Cir.
2005). We will withhold judgment on the validity of Collins’s con-
spiracy conviction for thirty days, during which time the government
can request either that we affirm the conviction and remand for resen-
tencing under 21 U.S.C. § 841(b)(1)(C) or that we reverse the con-
viction and remand for a new trial.

                       AFFIRMED AND REMANDED IN PART AND
                               JUDGMENT WITHHELD IN PART

resolve the ambiguity in favor of the more lenient punishment."); United
States v. Wildes, 120 F.3d 468, 471 (4th Cir. 1997) ("Application of the
rule of lenity is appropriate only when there remains ‘a grievous ambigu-
ity’ in the language of the statute after a court has used every method of
statutory construction to resolve it." (citing Chapman v. United States,
500 U.S. 453, 463 (1991)). In this case there was no ambiguity as to the
sentencing guidelines or a criminal statute. Therefore, the invocation of
the rule of lenity in these circumstances is not appropriate, and certainly
should not outweigh the presumption of regularity.
