255 F.3d 890 (D.C.Cir. 2001)
United States of America, Appelleev.Dennis L. Webb, Appellant
No. 99-3114
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 9, 2001Decided July 27, 2001

Appeal from the United States District Court  for the District of Columbia  (No. 98cr00260-01)Peter S. Spivack, appointed by the court, argued the cause  for appellant.  With him on the briefs was Christopher T.  Handman.
Mary B. McCord, Assistant U.S. Attorney, argued the  cause for appellee.  With her on the brief were Wilma A.  Lewis, U.S. Attorney at the time the brief was filed, John R.  Fisher and Roy W. McLeese, III, Assistant U.S. Attorneys.
Before:  Ginsburg, Chief Judge, and Sentelle and  Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
This case presents questions arising from the Supreme Court's opinion in Apprendi v. New  Jersey, 530 U.S. 466 (2000), including the impact of Apprendi  on the interpretation of the career offender provision of the  United States Sentencing Guidelines, U.S.S.G.  4B1.1.  Dennis Webb appeals from his conviction on three counts of  distributing and one count of possessing with intent to distribute cocaine base, in violation of 21 U.S.C.  841.  Webb  contends that because a judge, rather than a jury, determined  facts concerning drug quantity and prior criminal convictions,  his sentence was imposed in violation of both the Constitution  and the Sentencing Guidelines.  For the reasons discussed  below, we reject those challenges.  We also reject Webb's  subsidiary claims that the trial court erred in failing to credit  him with accepting responsibility for his offenses, in admitting evidence of Webb's prior drug transactions, and in  denying his motion to suppress evidence obtained during a  search of his apartment.


2
* In the spring of 1998, the government began investigating  Webb for his suspected involvement in dealing cocaine base  ("crack" cocaine) in Washington, D.C., and for his ties to a  New York drug supplier.  The government recruited Danon  Johnson, a convicted drug dealer with whom Webb previously  had done business, to arrange several controlled purchases  from Webb.  Webb sold Johnson cocaine base on May 14, 18,  and 28, 1998.  Each of these transactions was preceded by  negotiations that were recorded on audiotape.  The first two  transactions took place in Johnson's apartment;  the third  transpired in a government car and was recorded on video  and audiotape.  Government laboratory reports showed that  the quantity of cocaine base purchased on these occasions was  22.5, 34.7, and 53.5 grams, respectively.  Following the sales,  on July 28, 1998, a federal grand jury handed down a sealed  indictment charging Webb with three counts of distributing  cocaine base.


3
The government's investigation into Webb resumed on  September 3, 1998, when investigators asked Johnson to  attempt another purchase from Webb.  Johnson contacted  Webb, but Webb told Johnson that he did not have any crack  for sale.  Soon thereafter, the government obtained a search  warrant for Webb's apartment, seeking documents related to  Webb's drug business.  The search warrant was executed on  September 15, 1998, and investigators found 6.52 grams of  crack, $15,114 in cash, drug packaging supplies, and a piece of  paper with the name and pager number of the New York  supplier sought by the government.


4
On December 3, 1998, a four-count superseding indictment  was filed against Webb.  The indictment charged him with  one count of distribution for each of the three May drug  purchases:  Counts One and Two each charged Webb with  distributing 5 grams or more of cocaine base, in violation of  21 U.S.C.  841(a)(1) and (b)(1)(B)(iii), and Count Three  charged him with distributing 50 grams or more of cocaine  base, in violation of 21 U.S.C.  841(a)(1) and (b)(1)(A)(iii).  A  fourth count, relating to the drugs seized from his apartment,  charged Webb with possessing with intent to distribute a  detectable amount of cocaine base, in violation of 21 U.S.C.   841(a)(1) and (b)(1)(C).


5
Webb's case went to trial on April 27, 1999.  Webb filed  pretrial motions to bar the government from introducing  evidence of his past drug transactions with Johnson, and to  suppress evidence collected from the search of his apartment. The district court denied both motions.  At trial, the government's evidence included the testimony of Johnson, as well as  that of investigators who surveilled the transactions between  the two men and who participated in the search.  A government chemist testified and introduced lab reports that specified the weight of the cocaine base recovered from each  transaction and the search. Webb neither testified nor presented witnesses in his defense.


6
Consistent with then-prevailing precedent in this circuit,  the trial court did not instruct the jury that it must find the  drug quantities recited in the indictment;  instead, it instructed that "the government need not prove that the defendant  distributed any particular numerical amount of cocaine, but it  must prove beyond a reasonable doubt that the defendant  distributed a detectable or measurable amount of cocaine." 4/29/99 Tr. at 48.  Similarly, the jury verdict form did not  specify quantities for any of the charges.  See App. 202.  On  May 4, 1999, the jury convicted Webb on all counts.


7
Based upon the presentence report ("PSR"), the district  court found that Webb had two prior felony drug convictions,  that he was on parole for one at the time of the offenses  charged in the indictment, that the quantities of cocaine base  involved in the indictment's four counts were as specified  above, and that the total quantity was 116.82 grams.1  This  would ordinarily have given Webb a criminal history category  of IV and an offense level of 32, which would have fixed his  sentencing range at 168 to 210 months.  See U.S.S.G.   2D1.1(c)(4);  id.  4A1.1(a), (d);  id. ch. 5, Pt. A.  However,  because of his two prior narcotics convictions, Webb qualified  as a career offender.  See U.S.S.G.  4B1.1.2  Under the  career offender guideline, Webb received a criminal history  category of VI and an offense level of 37.  PSR p 18.  These  figures exposed Webb to a sentencing range of 30 years to  life.  See U.S.S.G. ch. 5, pt. A.  On August 13, 1999, the court  sentenced Webb to 30 years' imprisonment and 10 years of  supervised release.

II

8
Webb's principal challenge to his sentence is that it is  contrary to the rule announced in Apprendi, that "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."  530 U.S. at 490.  Specifically,  Webb first contends that, because the jury merely found him  responsible for a detectable amount of cocaine base and made  no findings concerning his prior convictions, his 30-year  sentence exceeds the 20-year maximum constitutionally authorized by the jury's findings.  See 21 U.S.C.  841(b)(1)(C). Second, Webb contends that even if his sentence of 30 years  did not exceed the lawful maximum, the district court committed error by sentencing him, under the career offender  provision of the Sentencing Guidelines, U.S.S.G.  4B1.1, to a  sentence greater than that justified by the jury's determination alone.  We consider these contentions in Parts B through  D below.  We begin with an explication of the relevant  statutory provisions, and with a discussion of the case law  leading to, and following from, the Supreme Court's opinion  in Apprendi.


9
* Section 841(a) of Title 21 of the United States Code makes  it "unlawful for any person knowingly or intentionally" to  distribute or possess with intent to distribute a controlled  substance.  Section 841(b) specifies sentences for "any person  who violates subsection (a)."  For violations involving cocaine  base,  841(b) establishes three categories of penalties, depending upon the amount of the drug involved:   841(b)(1)(A)  sets a maximum sentence of life in prison for violations  involving 50 grams or more;   841(b)(1)(B) sets a maximum  sentence of 40 years for violations involving 5 grams or more  (or life, if the defendant has a prior felony drug conviction); and  841(b)(1)(C) sets a maximum sentence of 20 years for  any other amount (or 30 years, if the defendant has a prior  felony drug conviction).3


10
Until 2000, well-established precedent in this circuit held  that drug quantity was a sentencing factor to be determined  by the trial court by a preponderance of the evidence, and not  an element of the  841 offense to be determined by a jury  beyond a reasonable doubt.  See, e.g., United States v.  Williams, 194 F.3d 100, 102 (D.C. Cir. 1999);  United States v.  Lam Kwong-Wah, 966 F.2d 682, 685 (D.C. Cir. 1992);  United  States v. Patrick, 959 F.2d 991, 995-96 n.5 (D.C. Cir. 1992). That precedent was consistent with the rule in the other  circuits.  See Lam Kwong-Wah, 966 F.2d at 685 (collecting  cases).  The fact of a defendant's prior conviction was also  treated as a sentencing factor and, in Almendarez-Torres v.  United States, the Supreme Court confirmed that prior conviction could constitutionally be determined by a judge rather  than a jury.  523 U.S. 224, 226-27 (1998).  In accord with this  precedent, standard practice in the district court was for the  judge at sentencing, rather than the jury at trial, to make the  necessary findings about drug quantity and prior conviction. This was the procedure the district court followed in Webb's  case.


11
In Jones v. United States, 526 U.S. 227 (1999), the Supreme  Court considered the statute that makes carjacking a federal  crime, 18 U.S.C.  2119.  That statute has a tripartite structure, with a base penalty of imprisonment for a maximum of  15 years, and greater penalties dependent upon whether the  offense involved the injury or death of a victim.  The Court  suggested that it could well be unconstitutional for Congress  to remove those latter determinations from a jury's consideration, pursuant to the principle that "under the Due Process  Clause of the Fifth Amendment and the notice and jury trial  guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a  crime must be charged in an indictment, submitted to a jury,  and proven beyond a reasonable doubt."  Jones, 526 U.S. at  243 n.6.  To avoid doubt about the constitutionality of  2119,  the Court construed the statute "as establishing three separate offenses by the specification of distinct elements, each of  which must be charged by indictment, proven beyond a  reasonable doubt, and submitted to a jury for its verdict." Id. at 252.


12
The next Term, the Supreme Court decided Apprendi v.  New Jersey.  Confirming what the Court said it had "foreshadowed" in Jones, Apprendi held that due process requires  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."  530 U.S. at 476, 490.  Such a  fact, the Court said, was the "functional equivalent of an  element of a greater offense than the one covered by the  jury's guilty verdict."  Id. at 494 n.19.  In Apprendi, the  defendant had pled guilty to a state firearms charge that  exposed him to a sentencing range of 5 to 10 years' imprisonment.  Id. at 469-70.  However, pursuant to a separate state  statute enhancing punishment for hate crimes, a defendant's  maximum sentence could be increased to 20 years if the  sentencing judge found, by a preponderance of the evidence,  that the offense was motivated by racial bias.  Id. at 470. The judge made that finding and sentenced Apprendi to 12  years' imprisonment.  Id. at 471.  The Supreme Court held  this sentence unconstitutional, because it exceeded the statutory maximum for the firearms offense based upon the  judge's factfinding concerning racial bias.


13
Apprendi contained two important caveats.  First, the  Court confirmed that Almendarez-Torres was still good law,  and hence that a judge rather than a jury could continue to  determine whether a defendant had prior convictions, regardless whether that determination increased the defendant's  sentence above a statutory maximum.  Id. at 489-90.  The  Court added, however, that it is "arguable that AlmendarezTorres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue  were contested."  Id.  Second, the Court made clear that it  was not suggesting "that it is impermissible for judges to  exercise discretion--taking into consideration various factors  relating both to offense and offender--in imposing a judgment within the range prescribed by statute."  Id. at 481.  In  so doing, Apprendi expressly preserved the holding of  McMillan v. Pennsylvania, 477 U.S. 79 (1986), that sentencing factors that determine where a defendant's sentence falls  within a statutory maximum need not be proven to a jury. Apprendi, 530 U.S. at 487 n.13, 494 & n.19.  Indeed, the Court suggested that it would be permissible for a legislature to set a crime's maximum sentence at, 34for example, 50 years and [to] giv[e] judges guided discretion as to a few specially selected factors within that range.34 Id. at 490 n.16.


14
Apprendi did not address the interpretation or constitutionality of   841. Apprendi itself involved two 34separate statute[s].34  Id. at 468-69.  One fixed a 10-year maximum sentence for possessing a firearm for an unlawful purpose. The other--the hate crime law--increased the maximum sentence for any crime (with certain exceptions) where a judge found by a preponderance of the evidence that the defendant committed the offense out of racial bias.  Id. Section 841, by contrast, is a single statute with two subsections.  One subsection,  841(a), is entitled "Unlawful acts" and specifies that  it is unlawful to knowingly or intentionally distribute a controlled substance.  The other,  841(b), is entitled "Penalties"  and specifies three categories of sentences for "any person  who violates subsection (a)."  See  841(b)(1)(A), (B), (C).4 Following the logic of Apprendi, if  841 were interpreted as  a unitary statute--establishing a single crime with a statutory  maximum of life in prison and three sentencing factors dependent upon drug quantity--then drug quantity in a particular  case may be decided by a judge.  However, if  841 were  interpreted as a tripartite statute--establishing three separate crimes with three different statutory maxima depending  upon the drug quantity categories of  841(b) (hereinafter the  (A), (B), and (C) offenses)--then the drug quantity thresholds  effectively are elements that must be decided by a jury.


15
Since Apprendi was decided, numerous circuits have held  that Apprendi requires that the drug quantity thresholds of   841(b) be treated as offense elements and thus "charged in  the indictment and proved to the jury beyond a reasonable  doubt."  United States v. Promise, 255 F.3d 150, 156-57 (4th Cir.2001).5  In several cases,  including the instant case, the government has conceded the  point.  Br. for Gov't at 11-12.6  Subsequent to the oral  argument in this case, another panel of this court agreed,  holding in United States v. Fields that, "[i]n light of Apprendi, it is now clear that, in drug cases under 21 U.S.C. §§ 841  and 846, before a defendant can be sentenced to any of the  progressively higher statutory maximums that are based on  progressively higher quantities of drugs specified in subsections 841(b)(1)(A) or (B), the Government must state the drug  type and quantity in the indictment, submit the required  evidence to the jury, and prove the relevant drug quantity  beyond a reasonable doubt."  United States v. Fields, 242  F.3d 393, 396 (D.C. Cir. 2001) ("Fields I"), aff'd and amended  on reh'g, 251 F.3d 1041, 1043 (D.C. Cir. 2001) ("Fields II"); accord In re Sealed Case, 246 F.3d 696, 699 (D.C. Cir. 2001).7 Fields also held, however, that "Apprendi does not apply to  enhancements under the Sentencing Guidelines when the  resulting sentence remains within the statutory maximum." Fields II, 251 F.3d at 1043-44;  see United States v. King, 254 F.3d 1098, 1102-03(D.C. Cir.2001);  In  re Sealed Case, 246 F.3d at 698-99;  see also Fields II, 251  F.3d at 1044 (collecting cases from other courts of appeals). These holdings are now the law of the circuit.


16
As will be evident in our discussion below, in order to  decide this case it is important to know whether  841 is  properly interpreted as a unitary (one crime with a life  maximum) or tripartite (three crimes with three increasing  maxima) statute.  The defendant argues that it is the latter. Although the Fields court did not explicitly address the  question, it must have understood  841 to be tripartite. Otherwise, and contrary both to Fields' holding and to the  government's concession in this case, drug quantity would not  need to be decided by a jury because a judge's determination  would not increase the penalty beyond the prescribed statutory maximum--life imprisonment.8  Accordingly, the question  of the statute's structure is not open for us to consider denovo, and we therefore accept for purposes of our analysis  that it is tripartite, without examining the indicia of legislative  intent ourselves.

B

17
Webb's first challenge to his sentence is that, because the  jury did not determine drug quantity, he may not lawfully be  sentenced to a term greater than that authorized for the (C)  offense--the only one of the three  841(b) offenses for which  drug quantity is not an element.  See 21 U.S.C.   841(b)(1)(C);  United States v. Allen, 960 F.2d 1055, 1058  (D.C. Cir. 1992) (holding that  841(b)(1)(C) is satisfied if the  defendant's violation involves "any detectable amount" of  cocaine base).  Further contending that the maximum sentence under the (C) offense is 20 years' imprisonment, Webb  argues that, in light of Apprendi, he should not have been  sentenced to any more than 20 years.


18
Webb did not raise this objection below, and the parties  agree that as a consequence we must review it under the  four-pronged plain error standard of Federal Rule of Criminal Procedure 52(b).  See Fed. R. Crim. P. 52(b);  Fields II,  251 F.3d at 1045;  In re Sealed Case, 246 F.3d at 698.  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.' "  Johnson v. United  States, 520 U.S. 461, 466-67 (1997) (quoting United States v.  Olano, 507 U.S. 725, 732 (1993)).  "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.' "  Id. at 467 (additional internal quotations and  citations omitted).  In evaluating whether an error is "plain"  in a case like Webb's, where the law has changed since the  time of the trial, "it is enough that an error be 'plain' at the  time of appellate consideration."  Id. at 468.


19
The problem with Webb's claim to a 20-year maximum  sentence is that, although the basic (C) violation is subject to  a 20-year cap, the statute provides that "[i]f any person  commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced  to a term of imprisonment of not more than 30 years."  21  U.S.C.  841(b)(1)(C).  Moreover, as discussed above, in Almendarez-Torres the Supreme Court expressly held that an  enhancement for prior convictions need not be based on a  jury's finding--a holding the Court preserved in Apprendi. See Apprendi, 530 U.S. at 490 ("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." (emphasis  added)).  Webb nonetheless notes the skepticism about Almendarez-Torres expressed in Apprendi, and asks us to  disregard the earlier case because he counts five Justices as  no longer supporting its holding.  That, of course, we may not  do.  See Agostini v. Felton, 521 U.S. 203, 237 (1997) ("[I]f a  precedent of this Court has direct application in a case, yet  appears to rest on reasons rejected in some other line of  decisions, the Court of Appeals should follow the case which  directly controls, leaving to this Court the prerogative of  overruling its own decisions." (internal quotation omitted)). Thus, taking into consideration the district court's recidivism  finding, Webb faced a maximum sentence of 30 years even if  he had been convicted of the (C) offense alone.  And because  he was only sentenced to 30 years, Webb was not sentenced,  as he claims, to a term greater than the statutory maximum  of  841(b)(1)(C).

C

20
If this case were not complicated by the application of the  career offender guideline, the fact that the defendant received  a sentence within the statutory maximum of the (C) offense  might well end the analysis, notwithstanding that a judge  rather than a jury made a quantity determination that could  have exposed the defendant to a higher maximum.  In such  cases, some courts of appeals have held that, because the  defendant was sentenced below (C)'s maximum, there was no  "Apprendi error" at all.9  Such an approach seems appropri ate where the defendant was charged with and convicted of  the (C) offense (or with an unspecified  841(b) offense not  based on quantity).  In such a case, drug quantity is not an  element of the offense that must be decided by a jury, and  the defendant's sentence was determined by the Sentencing  Guidelines' drug quantity table, U.S.S.G.  2D1.1(c), which  assigns offense levels based on drug quantities rather than  statutory maxima.10


21
Other courts of appeals have found "Apprendi error" where  the trial court determined a drug quantity that would qualify  the defendant for an enhanced maximum sentence, but have  concluded that the error did not "affect substantial rights,"  Fed. R. Crim. P. 52, because the defendant's actual sentence  fell below the maximum for the (C) offense.11  This approach  is appropriate where the defendant, like Webb, was charged  with and convicted of the (A) or (B) offense.  See App. 11-12  (indictment);  App. 216 (judgment of conviction).  In such a  case, there is error because an element of the offense (the  quantity threshold) was not submitted to the jury.  See  Apprendi, 530 U.S. at 490.  Such an error does not affect the  defendant's substantial rights, however, because the application of the Sentencing Guidelines' drug quantity table resulted in the same guidelines sentence the defendant would have  received had he only been convicted of (C).


22
But Webb's case presents an additional complication.  Because of his two prior felony convictions, Webb was not sentenced under the drug table but instead under the career  offender guideline, U.S.S.G.  4B1.1.  See supra note 2. Unlike the former, which determines offense level based upon  drug quantity, the latter determines a defendant's offense  level based upon his "offense statutory maximum," which is  defined as the "maximum term of imprisonment authorized  for the offense of conviction ... including any increase in that  maximum term under a sentencing enhancement provision  that applies because of the defendant's prior criminal record." U.S.S.G.  4B1.1, comment. n.2 (emphasis added).  According  to Guideline  4B1.1, a career offender convicted of an offense with a statutory maximum of life receives an offense  level of 37, while a defendant convicted of an offense with a  maximum of 25 years or more (but not life) receives an  offense level of only 34.  All career offenders receive a  criminal history category of VI.


23
If the district court had treated Webb as having been  convicted of the (C) offense, which carries a (recidivistenhanced) maximum of 30 years,  4B1.1 would have assigned Webb an offense level of 34.  This level, combined  with a criminal history category of VI, would have yielded a  sentencing range of 262 to 327 months--for a maximum  sentence of 27.25 years.  See U.S.S.G. ch. 5, pt. A.  However,  because the district court treated Webb as having been  convicted of the (A) and (B) offenses, both of which carry  (recidivist-enhanced) statutory maxima of life,  4B1.1 assigned Webb an offense level of 37.  That level, combined  with Webb's criminal history category of VI, produced a  sentencing range of 30 years to life.  Thus, Webb argues,  although the district court only sentenced him to 30 years,  that sentence was greater than the sentence he would have  received had he been convicted of the (C) offense alone.  And  that, Webb argues, constitutes plain error.  Cf. United States  v. Camacho, 248 F.3d 1286, 1290 n.7 (11th Cir. 2001) (holding  that error "occurs when a defendant in a section 841 case is  sentenced on the basis of [a judge's determination of] drug  quantity and the sentence cannot logically be construed as a  section 841(b)(1)(C) sentence").  Accordingly, in order to  determine whether Webb's sentence passes muster under the plain error standard, we must consider whether the district  court's application of the career offender guideline does so.

D

24
The government contends that the district court's application of Guideline  4B1.1 was not plain error because it was  not error at all.  See Johnson, 520 U.S. at 466-67 (noting that  first prong of plain error standard requires that there be  "error.")  As the government notes, even after Apprendi and  Fields, a judge may still make quantity determinations that  affect sentencing as long as the sentence a defendant receives  falls within the maximum sentence authorized by   841(b)(1)(C).  The government argues that, subject to this  cap, a sentencing court can determine the "offense of conviction" (and hence the "offense statutory maximum") within the  meaning of  4B1.1 based upon the court's own determination  of drug quantity--even if the defendant was only properly  convicted of the (C) offense.


25
The government's argument may well support a conclusion  that any error that was committed here was not "plain": courts long thought that the drug thresholds of  841(b) could  be determined by judges, and it is plausible that the Sentencing Commission likewise expected judges to determine the  meaning of "offense of conviction" based on nothing more  than their own determinations of drug quantity.  In light of  this circuit's post Apprendi decision in Fields, however, we  conclude that the district court's application of  4B1.1 was  nonetheless error.  After Fields, a conviction for the (A) or  (B) offense is not proper unless the relevant drug threshold  has been stated in the indictment, submitted to the jury, and  proven beyond a reasonable doubt.  Fields II, 251 F.3d at  1043.  Whatever the Sentencing Commission thought constituted an "offense of conviction" when the guidelines were  initially promulgated, we are confident that it intended that  only a conviction that was in accord with governing law would  qualify.  See United States v. Gilliam, 255 F.3d 428, 436 (7th Cir. 2001) (finding error where  court calculated sentence under career offender guideline  based on judge's determination of drug quantity);  United  States v. Saya, 247 F.3d 929, 940-42 (9th Cir. 2001) (same); United States v. Rogers, 228 F.3d 1318, 1329-30 (11th Cir.  2000) (holding that without a quantity finding by the jury, the  "offense statutory maximum" under  4B1.1 must be that of   841(b)(1)(C)).


26
But although the district court committed error in its  application of  4B1.1, and even assuming that error were  plain, Webb's sentence nonetheless survives plain error review under Rule 52(b) because his underlying convictions for  the (A) and (B) offenses survive such review.  Counts One  through Three of the indictment expressly charged Webb  with offenses under  841(b)(1)(A) and (B), and expressly  alleged that he distributed 50 grams or more of cocaine base  on one occasion (Count Three), and 5 grams or more on two  other occasions (Counts One and Two).  App. 11-12.  Under  Fields, those quantities constitute elements of the charged  offenses, and by failing to submit them to the jury, the  district court erred.  As the Supreme Court directed in  Johnson, however, we may not "exercise [our] discretion to  notice" such an error unless the fourth prong of plain error  review is satisfied:  the error must "seriously affect[ ] the  fairness, integrity, or public reputation of judicial proceedings."  520 U.S. at 469-70;  see Fields II, 251 F.3d at 1045  (noting that plain error review is applicable to Apprendi error  and finding plain error);  Gallego, 247 F.3d at 1198 (applying  plain error review but finding none);  United States v. Nance,  236 F.3d 820, 824 (7th Cir. 2000) (same).  That prong is not  satisfied here.12


27
In Johnson, the Court considered the validity of Johnson's  conviction for perjury under 18 U.S.C.  1623.  The trial  court, without objection and following then-settled law, had  instructed the jury that the element of materiality was a  question for the court to decide, and that it had already  determined that the statements at issue were material.  After  Johnson's conviction but before her appeal, the Supreme  Court decided United States v. Gaudin, 515 U.S. 506, 522-23  (1995), holding that the materiality of a false statement under  18 U.S.C.  1001 must be decided by the jury rather than the  court.  See Johnson, 520 U.S. at 464.  When Johnson's  perjury case came before the Supreme Court, it held that the  trial court had committed error by failing to submit the  materiality question to the jury.  The Court nonetheless  sustained the conviction, holding that the error did not affect  the integrity of the proceeding because the evidence that  Johnson's false statements were material was "overwhelming"  and "essentially uncontroverted." Id. at 470;  cf. Neder v.  United States, 527 U.S. 1, 17 (1999) (finding that failure to  submit element of offense to jury was harmless error where  the "omitted element was uncontested and supported by  overwhelming evidence").13


28
As in Johnson, the evidence of the drug quantities charged  in Counts One through Three of Webb's indictment was both  overwhelming and uncontroverted.  Those counts involved  three separate transactions:  the government alleged that on  each occasion, Webb sold a quantity of crack to the government's cooperating witness.  For the jury to have convicted  Webb of each of these three incidents, the jurors must have  believed that Webb engaged in each of the three transactions  and was responsible for the amounts he provided.  The  specific amount involved in each transaction was established by the testimony and report of a government chemist, and  was confirmed by tape recordings of conversations between  Webb and Johnson, in which the two discussed the quantities  of crack involved in the transactions.  Webb did nothing to  challenge the evidence of drug quantity at either trial or  sentencing, and even on appeal offers no scenario under  which the jury could have convicted him of the transactions,  yet rationally found that they involved different quantities  than those testified to by the government chemist.  See  Nance, 236 F.3d at 826 (finding Apprendi error not plain  because "[i]f this jury was going to convict [defendant] at all  ... there is simply no way on this record that it could have  failed to find that he was conspiring to distribute 5 grams or  more of crack cocaine");  United States v. Swatzie, 228 F.3d  1278, 1284 (11th Cir. 2000) (same);  cf. Neder, 527 U.S. at 19  (finding omission of element in jury instructions harmless  because "defendant did not, and apparently could not, bring  forth facts contesting the omitted element").14


29
Webb contends that he had no reason to contest drug  quantity below because his trial occurred before Apprendi  was issued, and hence before the drug quantity thresholds  were regarded as elements of the  841 offenses.  But even  accepting Webb's contention that he had no reason to contest  quantity at trial,15 he had every incentive to contest it at  sentencing.  The presentence report's recommendations concerning the quantity of drugs involved in Webb's transactions,  and the district court's adoption of those recommendations,  dramatically affected Webb's sentencing range.  Yet, while  Webb "noted one factual inaccuracy" in the presentence  report regarding an unrelated issue, he did not dispute the  accuracy of the drug quantities there reported.  PSR at 12  (noting Webb's objections).  Moreover, whatever his incentives below, Webb surely has an incentive on appeal to  suggest a scenario under which he could plausibly have  disputed the drug quantities specified by the chemist.  Even  now, however, he suggests none.  See Johnson, 520 U.S. at  470 (noting that "[b]efore the Eleventh Circuit and in her  briefing before this Court, petitioner has presented no plausible argument" that the false statement for which she was  convicted was not material).


30
In sum, because the evidence of drug quantity was overwhelming and uncontroverted, and because even now Webb  offers no plausible scenario under which it could be disputed,  "there is no basis for concluding that the error 'seriously  affect[s] the fairness, integrity or public reputation of judicial  proceedings,' " and hence no grounds for noticing that error  under Rule 52(b).  Id.  Webb's convictions for selling 50 or  more and 5 or more grams of cocaine base, in violation of 21  U.S.C.  841(b)(1)(A) and (B), therefore survive plain error  review and remain intact.  As a consequence, the sentence  that was based on those convictions would stand even if it had  exceeded the statutory maximum for the (C) offense.  See  Nance, 236 F.3d at 826;  Swatzie, 228 F.3d at 1284.16  That result follows a fortiori in a case like this one, in which the  sentence Webb actually received was below the statutory  maximum.  See Gilliam, 255 F.3d at 436(affirming  defendant's sentence, notwithstanding that district court  erred in applying the career offender guideline as if defendant had been convicted of an (A) offense, because the error  passed plain error review);  Saya, 247 F.3d at 940-42 (same).

III

31
Webb raises three additional arguments on this appeal, one  relating to his sentence and two concerning the validity of his  convictions.  Only the third requires any extended discussion.


32
* Defendant's additional sentencing contention is that the  district court erred by failing to reduce his offense level by  two points for acceptance of responsibility, pursuant to Sentencing Guideline  3E1.1.  Because Webb neither sought  this reduction nor objected to the district court's failure to  grant it sua sponte, our review is again for plain error.  The  standard of review is unimportant, however, because the  district court did not commit error, plain or otherwise.


33
The Sentencing Guidelines require a two-point reduction in  a defendant's offense level "[i]f the defendant clearly demonstrates acceptance of responsibility for his offense."  U.S.S.G.   3E1.1(a) (emphasis added).  The commentary to this provision explains that acceptance involves "truthfully admitting  the conduct comprising the offense(s) of conviction."  Id.,  comment. n.1(a).17  Webb never did so.  Although upon arrest  he did waive his Miranda rights and admit to possession of  the crack found in his apartment and charged in Count Four,  Webb never admitted to the transactions for which he was  convicted under Counts One, Two and Three.  During his  interview with the probation officer who prepared his presentence report, Webb "declined to discuss his involvement" in  the offenses of conviction.  PSR p 8.  When he stood before  the judge at sentencing and was asked whether he wished to  speak, Webb once again declined.  8/13/99 Tr. at 14.  As we  have said before, "[w]hile the district court lacks the power to  force a defendant to express remorse he does not feel, it is  not required to reward a remorseless defendant with a decrease in his offense level."  United States v. Dozier, 162 F.3d  120, 128 (D.C. Cir. 1998).  Accordingly, the court did not err  in failing to reduce Webb's offense level for acceptance of  responsibility.18

B

34
Webb also contends that the court erred, under Federal  Rule of Evidence 404(b), in rejecting his request to bar the  government's cooperating witness, Danon Johnson, from testifying about his prior drug transactions with Webb.  See  Fed. R. Evid. 404(b) (governing the admissibility of "[e]vi


35
dence of other crimes, wrongs, or acts").  We need spend  little time on this point because even if admission of the  testimony were erroneous, it was also harmless.  See Fed. R.  Crim. P. 52(a).  The government tape-recorded the conversations between Webb and Johnson that took place in connection with the three transactions charged in Webb's indictment.  Those recordings contained numerous references to  the duo's prior drug transactions, and were admitted into  evidence without any objection from Webb.  Even on appeal,  he does not dispute the admissibility of the tapes.  We can  perceive no material additional harm that Webb suffered as a  consequence of Johnson's testimony on the same subjects,  particularly in light of the overwhelming evidence of Webb's  guilt.  Cf. United States v. Lampkin, 159 F.3d 607, 615 (D.C.  Cir. 1998) (holding inadmissible hearsay harmless where  "merely cumulative of other evidence adduced at trial"); United States v. Walls, 70 F.3d 1323, 1327 (D.C. Cir. 1995) (holding erroneous Rule 404(b) ruling harmless where evidence against defendant was overwhelming).

C

36
Finally, we consider Webb's claim that the district court  erred in denying his motion to suppress evidence obtained  during the September 15, 1998 search of his apartment.  The  search was undertaken pursuant to a warrant, which authorized a search for books and records relating to narcotics  transactions.  It resulted in the seizure of evidence that  became the basis of Count Four of the indictment, including  6.52 grams of crack, $15,114 in cash, drug packaging supplies,  and a piece of paper with the name and pager number of  Webb's New York supplier.


37
Webb argued below and argues here that the warrant was  issued without probable cause because the affidavit upon  which it was based recited stale information:  the affidavit was  sworn and the warrant issued on September 14, 1998, 109  days after the final drug transaction took place between  Webb and Johnson on May 28, 1998.  The district court  denied Webb's motion to suppress, finding that although defendant's arguments were "certainly not frivolous," "a reasonable judicial officer could determine that it is likely that a  person who is engaged in drug selling in May, having not  been arrested, would continue to be engaged in such activities  three and a half months later." 4/27/99 Tr. at 5.  Like the  district court, we give "a determination of probable cause by a  federal magistrate ... 'great deference.' "  United States v.  Hubbell, 167 F.3d 552, 559 (D.C. Cir. 1999) (quoting Illinois v.  Gates, 462 U.S. 213, 236 (1983));  see Ornelas v. United States,  517 U.S. 690, 698-99 (1996).


38
We find the issuance of this warrant troubling.  The  Fourth Amendment provides that "[t]he right of the people to  be secure in their persons, houses, papers, and effects,  against unreasonable searches and seizures, shall not be  violated, and no warrants shall issue, but upon probable  cause...."  U.S. Const. amend. IV.  To protect that right,  the Supreme Court has declared that the facts supporting a  warrant must be "so closely related to the time of the issue of  the warrant as to justify a finding of probable cause at that  time."  Sgro v. United States, 287 U.S. 206, 210 (1932).  Our  court has interpreted Sgro to mean that although the time  between the application for a warrant and the discovery of  the evidence supporting that application is "not controlling,"  it is nonetheless important.  See Schoeneman v. United  States, 317 F.2d 173, 177 (D.C. Cir. 1963).  In Schoeneman,  we found no probable cause to believe that classified government documents, last seen in the defendant's house 107 days  before the application for the warrant was made, were still  present in that house on the date of the application.  Id. at  177-78.


39
In this case, as in Schoeneman, the search warrant sought  documents, here relating to Webb's alleged drug activity. See App. 184-85.  As in Schoeneman, the warrant was issued  more than 100 days after the government last had direct  information that there was evidence of criminal activity in the  defendant's home.  Although the government's application  included its affiant's statement that those involved in drug  transactions typically keep records of such transactions in  their homes, the question remains whether there was probable cause to believe that such records would still be there four  months after the last known transaction.


40
But even if the affidavit were insufficient to establish  probable cause, the Supreme Court has held that when police  officers obtain evidence through a search incident to a warrant, "suppression is appropriate only if the officers ... could  not have harbored an objectively reasonable belief in the  existence of probable cause."  United States v. Leon, 468 U.S.  897, 926 (1984);  see United States v. Maxwell, 920 F.2d 1028,  1034 (D.C. Cir. 1990).19  On that standard, suppression is  inappropriate in this case.  Although Schoeneman concluded  that 107-day-old evidence was too stale to support probable  cause in that case, the evidence there consisted solely of an  informant's statement that he had seen classified documents  in the defendant's home on that single occasion.  Schoeneman, 317 F.2d at 175-77.  Here, by contrast, the affidavit  reported a series of three drug transactions between Webb  and Johnson, transactions that verified Johnson's statement  that Webb had been a supplier of narcotics "for an extended  period of time."  App. 188.  Courts have been considerably  more lenient in assessing the currency of information supporting probable cause in the context of extended conspiracies than in the context of single-incident crimes.  See generally United States v. Schaefer, 87 F.3d 562, 568 (1st Cir.  1996);  United States v. Dozier, 844 F.2d 701, 707 (9th Cir.  1988);  In re Search Warrant Dated July 4, 1977, 667 F.2d  117, 135-36 (D.C. Cir. 1981).  While Webb was not ultimately  charged with conspiracy, the warrant application expressly  sought evidence regarding the crime of conspiracy to distribute cocaine base.  See App. 190.  Moreover, even if Webb did  not have drugs in his apartment at the time of the application,  it would not necessarily have been unreasonable for an officer  to conclude that a longtime drug dealer, whose most recent  known deal had occurred three months earlier, would still  retain papers permitting him to get back in touch with his  customers or--as turned out to be the case--his supplier.


41
In sum, whatever may be said of the search warrant  affidavit in this case, we cannot say "that no reasonably well  trained police officer could have believed that there existed  probable cause to search" Webb's apartment.  Leon, 468 U.S.  at 926.  Accordingly, the district court did not err in failing to  suppress the evidence recovered from the search.

VI

42
We conclude that neither Apprendi and its progeny, nor  the Sentencing Guidelines, compel a conclusion that the sentence imposed upon Webb was reversible error.  Nor do we  find reversible error in the district court's evidentiary rulings  or in its denial of Webb's motion to suppress.  Webb's  convictions and sentence are therefore


43
Affirmed.



Notes:


1
  The PSR apparently made a mathematical error in totalling  drug quantity;  the total should have been 117.22 grams.


2
  Section 4B1.1 provides that:  "A defendant is a career offender if (1) the defendant was at least eighteen years old at the time  the defendant committed the instant offense of conviction, (2) the  instant offense of conviction is a felony that is either a crime of  violence or a controlled substance offense, and (3) the defendant has  at least two prior felony convictions of either a crime of violence or  a controlled substance offense."  U.S.S.G.  4B1.1.  If a defendant  meets these criteria, his offense level is determined by using a table  set forth in  4B1.1--if the table produces a higher offense level  than that which the defendant would otherwise receive under the  guidelines.  Id.  All defendants qualifying as career offenders receive a criminal history Category of VI.  Id.


3
  Section 841(b)(1)(A) and (B) establish different quantity  thresholds for other drugs.  They also establish mandatory minimum sentences, but Webb raises no claim concerning the mandatory minimum penalties on this appeal.  See generally United States  v. Camacho, 248 F.3d 1286, 1288-89 & n.5 (11th Cir. 2001).


4
  Section 841(b) includes a fourth category,  841(b)(1)(D),  which applies to offenses involving (inter alia) less than 50 kilograms of marijuana and which is not applicable here.


5
  See, e.g., United States v. Nance, 236 F.3d 820, 824-25 (7th  Cir. 2000);  United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir.  2000);  United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir.  2000);  United States v. Nordby, 225 F.3d 1053, 1058-59 (9th Cir.  2000);  United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th  Cir. 2000).


6
  See, e.g., United States v. Fields, 251 F.3d 1041, 1044 (D.C.  Cir. 2001) ("Fields II");  United States v. Swatzie, 228 F.3d 1278,  1282 (11th Cir. 2000);  United States v. Meshack, 225 F.3d 556, 575  (5th Cir. 2000).


7
  Although failure to follow these requirements constitutes error, it is not reversible error if it is either "harmless" under Federal  Rule of Criminal Procedure 52(a) or not "plain" under Federal Rule  of Criminal Procedure 52(b).  See Fields II, 251 F.3d at 1045;  infra  Parts II.B-D.


8
  In her dissent in Apprendi, Justice O'Connor wrote that  "[t]he actual principle underlying the Court's decision may be that  any fact (other than prior conviction) that has the effect, in real  terms, of increasing the maximum punishment beyond an otherwise  applicable range must be submitted to a jury and proved beyond a  reasonable doubt."  530 U.S. at 543-44 (O'Connor, J., dissenting). Such a principle, Justice O'Connor said, would also apply "to all  determinate-sentencing schemes in which the length of a defendant's sentence within the statutory range turns on specific factual  determinations (e.g., the federal Sentencing Guidelines)."  Id. at  544.  But this expansive reading of Apprendi would effectively  overrule McMillan, a step the majority expressly stated it was not  taking.  See Apprendi, 530 U.S. at 487 n.13.  As noted above, this  circuit has taken a narrower view of the meaning of Apprendi.  See  Fields II, 251 F.3d at 1043-44;  In re Sealed Case, 246 F.3d at 69899.


9
  See, e.g., United States v. Angle, 254 F.3d 514, 518(4th Cir. 2001);  United States v. Meshack,  225 F.3d at 576.


10
  The drug quantity table assigns a defendant a base offense  level depending upon the type and quantity of the drug involved in  his offense.  For example, the drug quantity table assigns a base  offense level of 32 to a crime involving at least 50 but less than 150  grams of cocaine base.  See U.S.S.G.  2D1.1(c)(4).  For a person  with Webb's criminal history category of IV (prior to application of  the career offender guideline), this results in a sentencing range of  168 to 210 months--notwithstanding the statutory maximum of 360  months for an offense involving 50 grams or more of cocaine base. See U.S.S.G. ch. 5, pt. A.


11
  See, e.g., United States v. Garcia-Guizar, 234 F.3d 483, 488  (9th Cir. 2000);  United States v. Heckard, 238 F.3d 1222, 1235 (10th  Cir. 2001).


12
  As in Johnson, in light of our conclusion that the trial court's  error does not satisfy the fourth prong of the plain error standard,  we need not consider whether it satisfies the third prong:  that the  error "affec[t] substantial rights."  Johnson, 520 U.S. at 468-69.


13
  Johnson and Neder both involved a district court's failure to  submit an element to the jury.  Webb contends that those cases are  inapplicable here.  He argues that the error in this case was not  that the district court failed to submit the quantity elements of the  (A) and (B) offenses to the jury, but rather that the district court  sentenced Webb as if he had been convicted of (A) and (B) when in  fact he had only been convicted of (C).  We need not decide  whether Johnson and Neder would apply where a defendant was  convicted only of the (C) offense, because in this case the (A) and  (B) offenses were charged in the indictment and entered in the  court's judgment of conviction.  Thus, the error here was the  district court's failure to submit an element (the drug quantity  thresholds of (A) and (B)) to the jury for determination beyond a  reasonable doubt--the same error as in Johnson and Neder.


14
  Webb's case is considerably different from that of the defendant in Fields.  In Fields, although the court recognized the  application of Rule 52(b) to Apprendi error, it did not find "overwhelming" proof that the quantity of drugs involved exceeded the  threshold required to authorize a maximum sentence of life imprisonment under  841(b).  Fields II, 251 F.3d at 1045.  By contrast  to Webb's case, in Fields the government had recovered only 7  grams of cocaine base and 20 kilograms of marijuana (compared to  50 grams of the former and 1000 kilograms of the latter required to  authorize a life maximum), and was forced to rely on "imprecise  testimony" of cooperating witnesses and vague admissions by the  defendant.  See id. at 1044-45.


15
  But see Williams, 194 F.3d at 102 (noting that defendant-who was faced with the same pre-Apprendi circuit precedent as  Webb--argued at trial that drug quantity was an element of a   841 offense);  Rogers, 228 F.3d at 1320 (noting that in reliance on  Jones, defendant argued that drug quantity was an element that  had to be determined by the jury).


16
  For that reason, we reject Webb's argument (made in a  footnote) that the district court also imposed an improper term of  supervisory release, without deciding whether Webb is correct in  contending that the length of the term imposed is appropriate only  for a defendant convicted of the (A) offense.  Similarly, our conclusion that the (A) and (B) convictions survive review eliminates any  argument (although Webb has made none) that those convictions  should themselves be vacated because they carry collateral consequences beyond those created by the alleged differential in sentences.


17
  The commentary also states that "[t]his adjustment is not  intended to apply to a defendant who puts the government to its  burden of proof at trial by denying the essential factual elements of  guilt, is convicted, and only then admits guilt and expresses remorse."  U.S.S.G.  3E1.1, comment. n.2.  Although "[c]onviction  by trial ... does not automatically preclude a defendant from  consideration for such a reduction," it will be only the "rare  situation[ ]" in which a defendant goes to trial and receives the   3E1.1 deduction.  Id.  Webb's is clearly not that situation--not  because he put the government to its proof by going to trial, but  because (as noted below) even after his conviction he failed either to  admit guilt or express remorse.


18
  Webb further contends that his failure to accept responsibility at sentencing was due to the ineffective assistance of his counsel,  who he claims failed to prepare him properly for the proceeding. But nothing in the transcript of the sentencing proceeding suggests  that it was Webb's lack of preparation, rather than his own recalcitrance, that caused his failure to accept responsibility.  See 8/13/99  Tr. at 15 (statement by the sentencing judge that Webb was  evincing "an attitude ... like it's no big thing").


19
  Leon also permits suppression if "the magistrate abandoned  his detached and neutral role," or if the officers were "dishonest or  reckless in preparing their affidavit."  468 U.S. at 926.  There is no  suggestion in the record that either circumstance applies to this  case.


