Defendants-Appellants Ignasio Maldenaldo Sanchez and Santiago Gilberto Sanchez ("the Sanchezes") appeal their convictions and sentences after pleading guilty to a single-count indictment that charged them with conspiracy to distribute and to possess with intent to distribute methamphetamine and amphetamine, in violation of 21 U.S.C. §§ 841, 846. They challenge their convictions and sentences primarily based on Apprendi v. New Jersey, 530 U.S. 466 (2000). A panel of this Court affirmed. See United States v. Sanchez, 242 F.3d 1294 (11th Cir. 2001). Relying on United States v. Rogers, 228 F.3d 1318 (11th Cir. 2000), the panel concluded that "in light of Apprendi, drug quantity is an element of the offense that must be charged in the indictment." Sanchez, 242 F.3d at 1298 (citing Rogers, 228 F.3d at 1324). The panel opinion repeated Rogers's statement that "'drug quantity in sections 841(b)(1)(A) and 841(b)(1)(B) cases must be charged in the indictment and proven to a jury beyond a reasonable doubt.'" Id. (quoting Rogers, 228 F.3d at 1327). Because the indictment did not allege a specific drug quantity, the panel opinion found that both defendants' plea colloquies were "technically inadequate." Id. The panel opinion held, however, that there was "no prejudice" because, inter alia, the Sanchezes' sentences fell below the maximum penalty permitted under 21 U.S.C. § 841(b)(1)(C). Id. at 1300.

We subsequently sua sponte vacated the panel opinion and, by vote of a majority of the judges in active service, ordered that the case be reheard en banc. See United States v. Sanchez, 247 F.3d 1306 (11th Cir. 2001). We address en banc: whether, in light of Apprendi, drug quantity is now always an element of an offense under § 841 that must be charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt; whether the district court properly denied the Sanchezes' motion to dismiss the indictment; whether the district court's drug quantity findings under § 841(b)(1)(B) and utilization of that sentencing scheme, which exposed the Sanchezes to enhanced sentences under that section but did not result in an actual term of imprisonment beyond the otherwise applicable maximum penalty in § 841(b)(1)(C), violated Apprendi; whether Apprendi applies to the Sanchezes' § 841 indictment, guilty pleas, convictions, and sentences given that the district court's drug quantity findings did not increase their ultimate sentences beyond the otherwise applicable maximum penalty in § 841(b)(1)(C); in this regard, whether we should adopt the analyses of Apprendi's impact on § 841 cases in United States v. Rogers, 228 F.3d 1318 (11th Cir. 2000) and United States v. Camacho, 248 F.3d 1286 (11th Cir. 2001), or the analyses in United States v. Gerrow, 232 F.3d 831 (11th Cir. 2000), cert. denied, ___ U.S. ___, ___ S. Ct. ___, 2001WL 385096 No. 00-9373 (Oct. 1, 2001), and other circuits' decisions finding that Apprendi does not apply unless a judge-made determination of drug quantity increases a defendant's sentence beyond the otherwise applicable maximum penalty in § 841(b)(1)(C); whether Apprendi rendered the Sanchezes' plea colloquies inadequate under Rule 11 and their guilty pleas unintelligent or involuntary if the court advised them about the higher statutory maximum penalties under §§ 841(b)(1)(A) and 841(b)(1)(B); whether terms of supervised release for § 841 convictions are controlled by 21 U.S.C. § 841(b)(1)(C) or 18 U.S.C. § 3583(b)(2) and whether the Sanchezes' four-year terms violated Apprendi; and what is the proper standard of review for each issue.

After such review and for the reasons discussed herein, we see no error, under Apprendi or otherwise, in the Sanchezes' indictment, plea colloquies, convictions, or sentences. We therefore affirm their convictions and their sentences.

This opinion proceeds as follows. In Part I, we review the proceedings in the district court. In Part II, we review the Supreme Court's decisions in Jones v. United States, 526 U.S. 227 (1999) and Apprendi. We then discuss the federal drug statute, our precedent construing that statute, and Apprendi's effect on both. In Part III, we address the Sanchezes' challenges to their indictment, guilty pleas, and sentences, along with the corresponding standards of review. In Part IV, we summarize our conclusions.

In the district court, the Sanchezes challenged not only their sentences but also their indictment and convictions based on Jones, and on appeal, they rely primarily on Apprendi. Additionally, for the first time on appeal they challenge their plea colloquies under Rule 11 based on Apprendi. The Sanchezes emphasize that from the outset of their cases the government sought enhanced penalties under § 841(b)(1)(B) based on drug quantities. They seek to expand Apprendi's constitutional principle to, and thereby show constitutional error at, all stages of their cases. Thus, we first review in detail the proceedings in the district court.

In late 1998, a federal grand jury returned a single-count indictment charging that the Sanchezes "did combine, conspire, confederate, agree, and have a tacit understanding with each other, and with others known and unknown to the Grand Jury, to violate Title 21, United States Code, § 841, to wit: to knowingly and intentionally possess with the intent to distribute and distribute quantities of methamphetamine and amphetamine, both being Schedule II controlled substances, in violation of Title 21, United States Code, Section 846."1 The indictment referenced 21 U.S.C. §§ 841, 846 and the type of drugs involved but not the quantities. Both defendants pled not guilty.

On April 21, 1999, defendant Ignasio Sanchez filed a "Motion to Dismiss Indictment for Failure to Allege Facts that Increase Maximum Penalty," specifically relying on Jones. The motion stated, "Jones clearly holds that the Constitution requires an indictment to allege 'any fact (other than prior conviction) that increases the maximum penalty for a crime.' Furthermore, such a fact must be submitted to a jury for a decision as to proof beyond a reasonable doubt."2 On this basis, Ignasio Sanchez argued that the indictment had to be dismissed because the various statutory maximum penalties under 21 U.S.C. § 841(b) for a violation of 21 U.S.C. § 841(a) were determined by drug quantity, and the indictment against him did not allege a specific drug quantity.

The district court denied the motion, noting that under this circuit's precedent "[t]he statutory scheme set forth in § 841 establishes that drug quantity is a sentencing consideration." The court continued that "the Constitution does not require drug quantity to be considered as an element of the criminal offense defined by § 841." The court noted that Jones "does not stand for the proposition that every fact which exposes a criminal defendant to a higher maximum penalty must be alleged in an indictment." Subsequently, the court granted, without objection, Santiago Sanchez's request to adopt Ignasio Sanchez's motion to dismiss the indictment and denied that motion as well.3

In early 2000, the district court conducted separate, but substantially similar, plea colloquies for each defendant pursuant to Rule 11. See Fed. R. Crim. P. 11. The court advised both defendants of their various constitutional rights and asked whether each defendant understood that, by pleading guilty to the single-count indictment, he waived those constitutional rights and there would not be a trial of any kind. Each defendant responded in the affirmative. The court read the entire indictment and advised the Sanchezes that before a jury could find them guilty, the government was required to prove the various elements of the offense, as stated in the indictment, beyond a reasonable doubt.

Regarding sentencing, the district court advised Ignasio Sanchez that depending on the amount of drugs found to be attributable to him, he faced a sentence of either (a) ten years to life imprisonment, five years' supervised release, and a $4,000,000 fine, or (b) five to forty years' imprisonment, four years' supervised release, and a $2,000,000 fine. The court advised Santiago Sanchez only of the first of these two sentences. Although not citing any particular subsections within § 841(b), the court, in effect, described the content of §§ 841(b)(1)(A) and 841(b)(1)(B).4 The court also discussed the Sentencing Guidelines and stated that a sentencing range would be developed for each defendant within which the court had discretion to impose a sentence depending on the circumstances of the case.

Both defendants, after acknowledging that they understood the nature of the charge against them, pled guilty to the single-count indictment. Ignasio Sanchez entered a written plea of guilty which, pursuant to Rule 11(a)(2),5 was conditional on his reservation of the right to appeal the denial of his motion to dismiss the indictment.6 See Fed. R. Crim. P. 11(a)(2). Santiago Sanchez likewise was allowed to enter a conditional guilty plea.7

The initial pre-sentence reports recommended that the Sanchezes be held accountable for specific quantities of methamphetamine and amphetamine which resulted in marijuana equivalencies of 38,106.94 kilograms for Ignasio Sanchez and 50,803.91 kilograms for Santiago Sanchez. Although § 841 specifies grams of methamphetamine and amphetamine, the Sentencing Guidelines convert certain drug quantities into marijuana equivalencies as part of calculating the offense level for the guideline range. See United States Sentencing Guidelines § 2D1.1(c), cmt. n.10 (drug equivalency tables). The statutory penalty for the Sanchezes' drug quantities was ten years' to life imprisonment, as set forth in 21 U.S.C. § 841(b)(1)(A)(viii).8 Regarding the guideline range within this statutory range, the initial pre-sentence reports recommended a custodial term of 210 to 262 months for both defendants.9

Both defendants and the government timely filed written objections. For example, Ignasio Sanchez objected "to all factual findings of the presentence report as a matter of due process under the Jones rationale." Ultimately, revised pre-sentence reports recommended that Ignasio Sanchez and Santiago Sanchez be held accountable for reduced amounts of methamphetamine and amphetamine, resulting in reduced marijuana equivalencies of 5,447.74 kilograms and 6,713.99 kilograms, respectively. These reduced amounts resulted in a reduced guideline range for both defendants of 135 to 168 months.10 The revised reports stated that the "Statutory Penalty" was "5 to 40 years."11 While this penalty corresponded to § 841(b)(1)(B), the revised reports did not specifically cite to that section of the statute.

The Sanchezes were sentenced in two joint sentencing hearings. At the outset of the first hearing, Ignasio Sanchez orally renewed his motion to dismiss the indictment based on Jones and specifically "based upon the lack of specificity and quantity in the indictment." He continued that this argument "would have an effect at this time . . . in that the findings must be beyond a reasonable doubt under my motion." Both defendants, however, agreed that if validly charged and convicted under this indictment, the court could find that they were accountable for (a) one transaction involving two pounds of methamphetamine, which is equivalent to 1,814.4 kilograms of marijuana, and (b) two other transactions each involving six pounds of amphetamine, the combination of which is equivalent to 1,087.2 kilograms of marijuana. On the basis of the government's evidentiary proffer and the Sanchezes' concessions, the district court found "as a matter of fact by a preponderance of the evidence" that each defendant was responsible for drug amounts resulting in a total marijuana equivalency of 2,903.04 kilograms.12

Regarding the statutory penalty, the district court then stated that its sentencing option was a statutory mandatory minimum sentence of five years up to forty years. While not expressly referencing § 841(b)(1)(B), the court described the content of that section. In calculating the guideline range within that statutory range, the court determined that the above drug amounts, along with other guideline calculations, produced a custodial guideline range of 87 to 108 months for Ignasio Sanchez and 108 to 135 months for Santiago Sanchez.13 Stating an intention to sentence at the bottom end of those ranges, the court sentenced Ignasio Sanchez to 87 months' imprisonment and Santiago Sanchez to 108 months' imprisonment, followed by four years' supervised release for each defendant.

After imposing the sentences, the court asked for objections. Citing Jones, Ignasio Sanchez's counsel objected to drug quantity not being charged in the indictment and not being proved beyond a reasonable doubt. Santiago Sanchez's counsel adopted the Jones objection made by Ignasio Sanchez's counsel. Subsequently, both defendants timely appealed.14

The Sanchezes challenge their single-count indictment, plea colloquies, convictions, and sentences based on Jones and Apprendi. We can discern no error in any of these phases of the Sanchezes' cases. We begin by analyzing Jones and Apprendi. We then review the federal drug statute, this circuit's precedent construing that statutory scheme, and what effect Apprendi has on that landscape.

Jones was a case of statutory interpretation, in which a grand jury charged the defendant with violating the federal carjacking statute, 18 U.S.C. § 2119.15 A jury found the defendant guilty. The Supreme Court stated, "This case turns on whether the federal carjacking statute, 18 U.S.C. § 2119, . . . defined three distinct offenses or a single crime with a choice of three maximum penalties, two of them dependent on sentencing factors exempt from the requirements of charge and jury verdict." 526 U.S. at 229, 119 S. Ct. 1215. After analyzing the carjacking statute's text, structure, and legislative history, and after comparing the statute to others in which "serious bodily injury" was "unmistakably identified" as an offense element, the Supreme Court adopted the former interpretation of the statute, concluding that "the fairest reading of § 2119 treats the fact of serious bodily harm as an element, not a mere enhancement." Id. at 239, 119 S. Ct. 1215.

While resolving Jones based on this statutory interpretation, the Supreme Court further justified its construction by invoking the doctrine of constitutional doubt. The Supreme Court observed that under the alternative statutory interpretation, in which serious bodily injury was construed as a sentencing factor, "the statute would be open to constitutional doubt in light of a series of cases over the past quarter century, dealing with due process and the guarantee of trial by jury." Id. at 240, 119 S. Ct. 1215 (citing cases). In the now-famous footnote six, the Supreme Court described the principle "animating" its view that this alternative interpretation "may violate the Constitution," as follows: "[U]nder 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." Id. at 243 n.6, 119 S. Ct. 1215. The Supreme Court continued that "[b]ecause our prior cases suggest rather than establish this principle, our concern . . . rises only to the level of doubt, not certainty." Id.

In contrast to its task of statutory interpretation in Jones, the Supreme Court in Apprendi squarely addressed the constitutionality of a statutory sentencing scheme that allowed judge-made findings to increase a defendant's statutory maximum penalty. The defendant, Charles Apprendi, admitted to firing several bullets into the home of an African-American family who had recently moved into a previously all-white neighborhood in New Jersey. Apprendi, 530 U.S. at 469. A New Jersey grand jury returned a 23-count indictment charging Apprendi with various shootings and with the unlawful possession of various weapons. Id.

Apprendi pled guilty to only three counts in the indictment, including two counts of the second-degree offense of possession of a firearm for an unlawful purpose, in violation of § 2C:39-4(a) of the New Jersey Statutes. Id. at 469-70, 120 S. Ct. 2348. That state firearm statute provided, "Any person who has in his possession any firearm with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the second degree." N.J. Stat. Ann. § 2C:39-4(a) (West 1995). As a second-degree crime, this firearm offense was punishable by a term of imprisonment "between five years and 10 years." Id. § 2C:43-6(a)(2) ("Except as otherwise provided, a person who has been convicted of a crime may be sentenced to imprisonment . . . [i]n the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years.").

An entirely separate New Jersey statute, however, provided for higher minimum and maximum sentences than those normally applicable to second-degree crimes if the sentencing court made certain factual findings. That statute provided, "The court shall, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime . . . to an extended term if it finds, by a preponderance of the evidence, the grounds in subsection e," specifically, that "[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." N.J. Stat. Ann. § 2C:44-3(e) (West Supp. 2000) (emphasis added).

The "extended term" permitted for a second-degree crime, such as possession of a firearm for an unlawful purpose, was "between 10 and 20 years." N.J. Stat. Ann. § 2C:43-7a(3) ("In the cases designated in section 2C:44-3, a person who has been convicted of a crime may be sentenced . . . to an extended term of imprisonment . . . [i]n the case of a crime of the second degree, for a term which shall be fixed by the court between 10 and 20 years."). This "extended term" of imprisonment was identical to the penalty normally applicable to first-degree crimes. See id. § 2C:43-6(a)(1).

It was this separate state statute - providing for an "extended term" of imprisonment upon a finding that the defendant acted "with a purpose to intimidate . . . because of race" - that was the focus of the Supreme Court's decision in Apprendi. Only after Apprendi pled guilty to the second-degree crime of firearm possession for an unlawful purpose, which carried a maximum penalty of ten years' imprisonment, the state requested that the sentencing court impose an enhanced sentence on one of the two firearms counts, pursuant to N.J. Stat. Ann. § 2C:44-3(e). Following an evidentiary hearing on whether Apprendi's "purpose" for the shooting at issue in that count was "to intimidate . . . because of race," the trial judge found by a preponderance of the evidence "that the crime was motivated by racial bias" and thus that Apprendi acted "with a purpose to intimidate . . . because of race" as stated in the statute. Apprendi, 530 U.S. at 471.

Under the terms of the state statute, this judge-made finding triggered an "extended term" of imprisonment of ten to twenty years. Accordingly, the trial judge, over Apprendi's constitutional objection, sentenced Apprendi to twelve years' imprisonment on that count. Id. This sentence was two years above the ten-year maximum ordinarily applicable to the second-degree offense with which Apprendi had been charged and to which he had pled guilty. Id. In addition to this sentence on one of the firearm counts, the court sentenced Apprendi to shorter, concurrent terms on the remaining two counts of the indictment to which Apprendi had pled guilty. Id.

Apprendi appealed his twelve-year sentence on the one firearm count. Id. He argued that the Due Process Clause of the Constitution required that the finding of racial bias upon which his sentence was increased be made by a jury beyond a reasonable doubt, rather than by a judge based on a preponderance of the evidence standard. Id. The state supreme court affirmed Apprendi's sentence, and he petitioned for certiorari to the Supreme Court of the United States. Id. at 472, 120 S. Ct. 2348.

The Supreme Court framed the issue as follows: "The question presented is whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt." Id. at 469, 120 S. Ct. 3248. The Supreme Court noted that the answer to this question was "foreshadowed" by its earlier opinion in Jones. Id. at 476, 120 S. Ct. 2348.

The Supreme Court stated that the rights set forth in the Sixth and Fourteenth Amendments "indisputably entitle a criminal defendant to 'a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.'" Id. at 477, 120 S. Ct. 2348 (quoting United States v. Gaudin, 515 U.S. 506, 510 (1995)). After conducting a historical examination of this entitlement, the Court noted that the "due process and associated jury protections extend, to some degree, to determinations that [go] not to a defendant's guilt or innocence, but simply to the length of his sentence." Id. at 484, 120 S. Ct. 2348 (internal quotation marks omitted).

The Supreme Court continued that its decision did not strip the term "sentencing factor" of all meaning, but rather, the "term appropriately describes a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury's finding that the defendant is guilty of a particular offense." Id. at 494 n.19, 120 S. Ct. 2348. The Court recognized, "On the other hand, when the term 'sentence enhancement' is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict. Indeed, it fits squarely within the usual definition of an 'element' of the offense." Id. (emphasis added).

The Supreme Court then squarely adopted the following constitutional principle, which was foreshadowed by Jones and has since provided the Sanchezes and so many other criminal defendants ammunition with which to attack their sentences: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S. Ct. 2348. Applying this principle to the facts of Apprendi's case, the Supreme Court concluded that the sentencing procedure permitted by the New Jersey statutory scheme - which allowed a judge-made finding of racial bias by a preponderance of the evidence to increase a defendant's term of imprisonment for a firearm offense beyond the prescribed statutory maximum of ten years and up to twenty years - was invalid. Id. at 491, 120 S. Ct. 2348. The Court therefore reversed Apprendi's 12-year sentence on the firearm offense.16 Id. at 497, 120 S. Ct. 2348.

Thus, Apprendi's holding does not paint with the wide brush suggested by the Sanchezes. Rather, Apprendi was a sentencing case, presented a narrow sentencing issue, and made only a narrow holding about New Jersey's sentencing procedure, specifically: A trial judge cannot find a fact, such as racial bias, and then use that fact to impose a sentence higher than the prescribed statutory maximum penalty for the underlying criminal offense. Indeed, the Court itself characterized the question presented in Apprendi as a "narrow issue." Id. at 474, 120 S. C. 2348.

Moreover, the Apprendi opinion expressly limited the applicability of the constitutional principle it described. Fundamentally, Apprendi did not require that all sentencing factors be submitted to a jury and proven beyond a reasonable doubt. Instead, Apprendi expressly reaffirmed the long-established general principle that a judge-decided fact may affect a defendant's sentence within the applicable statutory range without invoking the constitutional principles articulated in Apprendi. In describing the origins of the requirement that all elements of a crime be proven to a jury, the Court stated, "We should be clear that nothing in this history suggests 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. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case." Id. at 481, 120 S. Ct. 2348 (citing Williams v. New York, 337 U.S. 241, 246 (1949)). The Court continued that its "periodic recognition of judges' broad discretion in sentencing . . . has been regularly accompanied by the qualification that that discretion was bound by the range of sentencing options prescribed by the legislature." 530 U.S. at 481, 120 S. Ct. 1248.

In this same vein, the Supreme Court in Apprendi also expressly preserved its earlier opinion in McMillan v. Pennsylvania, 477 U.S. 79 (1986), in which the Court permitted a fact triggering a mandatory minimum sentence to be decided by a judge based on a preponderance of the evidence standard. Id. at 86-88, 106 A. Ct. 2411.17 In Apprendi, the Supreme Court specifically stated, "We do not overrule McMillan. We limit its holding to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury's verdict - a limitation identified in the McMillan opinion itself." Apprendi, 530 U.S. at 487 n.13. Thus, Apprendi actually reaffirmed the longstanding practice of allowing judge-decided facts to affect the length of a defendant's sentence, including leaving the imposition of a mandatory minimum sentence within the purview of the trial judge. Apprendi carved out only a limited exception to this general rule for facts that actually cause the sentence imposed on a defendant to exceed the prescribed statutory maximum, requiring that such facts be proven to a jury beyond a reasonable doubt rather than decided by a judge based on a preponderance of the evidence standard.

Likewise, Apprendi does not apply to judge-made determinations pursuant to the Sentencing Guidelines. See, e.g., United States v. Nealy, 232 F.3d 825, 829 n.3 (11th Cir. 2000) ("The Sentencing Guidelines are not subject to the Apprendi rule."); United States v. Harris, 244 F.3d 828, 829-30 (11th Cir. 2001) (holding that Apprendi does not apply to the relevant conduct provision of the Sentencing Guidelines); see also United States v. Diaz, 248 F.3d 1065, 1105 (11th Cir. 2001) (noting that "Sentencing Guideline issues are not subject to the Apprendi rule and, thus, there is no requirement that sentencing facts be submitted to a jury and found beyond a reasonable doubt"). As the Supreme Court in Apprendi noted, "The Guidelines are, of course, not before the Court. We therefore express no view on the subject beyond what this Court has already held." Apprendi, 530 U.S. at 497 n.21. While Apprendi was silent on the issue, its inapplicability to the Sentencing Guidelines follows from its holding. A factual finding under the Guidelines determines the sentence within the statutory range rather than outside it. Because Apprendi only addresses facts that increase the penalty for a crime beyond the statutory maximum, it does not apply to those findings that merely cause the guideline range to shift within the statutory range.18

Apprendi also did not hold that judge-decided facts that expose a defendant to a higher statutory maximum penalty must be proven to a jury beyond a reasonable doubt. The analysis employed in, and the holding of, Apprendi make clear that any consideration of a defendant's sentence in light of Apprendi is to be conducted retrospectively rather than prospectively. The defendant in Apprendi was not merely exposed to a higher sentence than otherwise applicable but was actually sentenced to twelve years' imprisonment under New Jersey's entirely separate "hate crime" statute, which was above the prescribed statutory maximum of ten years' imprisonment for his firearm offense. Our reading of Apprendi anchors its holding to the facts involved. In sum, Apprendi is implicated only when a judge-decided fact actually increases the defendant's sentence beyond the prescribed statutory maximum for the crime of conviction.19

We next examine the impact of Apprendi on the federal drug statute, 21 U.S.C. § 841. To do so, we review initially the plain language and structure of the statutory scheme itself and then our precedent regarding that statute. We then ascertain the effect of Apprendi on both. In reviewing a statutory scheme, "[o]ur task is to construe what Congress has enacted. We begin, as always, with the language of the statute." Duncan v. Walker, 121 S. Ct. 2120, 2124 (2001).20

The Sanchezes were charged with conspiring to distribute and to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a).21 Section 841(a), entitled "Unlawful acts," describes the prohibited conduct and the state of mind required for a drug offense. Specifically, § 841(a)(1) renders it "unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841(a)(1) (emphasis added).22 The Sanchezes pled guilty to conspiring to violate § 841(a)(1).

According to the plain language of § 841(a)(1), a "controlled substance" is a distinct element of that drug offense. Because § 841(a) makes it unlawful for a person knowingly or intentionally to possess with intent to distribute a "controlled substance," then necessarily there must be an actual "controlled substance" of some quantity involved in that drug offense.23 Thus, to some extent, when a defendant pleads guilty to, or a jury finds the defendant guilty of, an indictment charging possession with intent to distribute a "controlled substance," a drug quantity of some amount is already part of the underlying crime of conviction.

Section 841(b), entitled "Penalties," provides the penalties for violations of § 841(a). It states that "any person who violates subsection (a) of this section shall be sentenced as follows." 21 U.S.C. § 841(b) (emphasis added). What follows in § 841(b) are myriad sentencing factors (including serious bodily injury, prior felony drug convictions, and drug types and quantities) and associated penalties. Thus, the penalties in § 841(b) become applicable only after a defendant has been duly convicted of a substantive violation of § 841(a).

Section 841(b)'s penalties begin with a statutory maximum of life imprisonment in § 841(b)(1)(A) and decrease in severity based on this host of sentencing factors, including drug types and quantities.24 The first three subsections of § 841(b)(1) govern offenses involving controlled substances listed in schedules I and II, such as the methamphetamine and amphetamine involved in this case. Accordingly, those three subsections will receive the brunt of our attention.

Section 841(b)(1)(A) provides that "[i]n the case of a violation of subsection (a)" of § 841 "involving" certain enumerated quantities of certain enumerated drug types, the defendant "shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life." 21 U.S.C. § 841(b)(1)(A). Section 841(b)(1)(B) largely mirrors § 841(b)(1)(A), providing that "[i]n the case of a violation of subsection (a)" of § 841 "involving" certain lesser amounts of those same drugs set forth in § 841(b)(1)(A), the defendant "shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years." Id. § 841(b)(1)(B).

Section 841(b)(1)(C) applies to all other violations of § 841(a) involving schedule I or II substances and provides, "In the case of a controlled substance in schedule I or II, . . . except as provided in subparagraphs (A), (B), and (D), such person shall be sentenced to a term of imprisonment of not more than 20 years." 21 U.S.C. § 841(b)(1)(C).25 Section 841(b)(1)(C) sets a term of imprisonment for offenses without regard to drug quantity.26

Thus, § 841 is bifurcated, providing a clear dichotomy of offense elements and sentencing factors. Specifically, the plain language and structure of the statute reflect a congressional intent to create a single offense, defined in § 841(a), and to provide for penalties in § 841(b) dependant upon sentencing factors, such as drug types and quantities.27

On multiple occasions prior to both Jones and Apprendi, this Court construed the federal drug statute and concluded that while a "controlled substance" is an element of an offense under § 841(a), neither the nature nor the quantity of that substance is an element of that offense that must be submitted to a jury or proved beyond a reasonable doubt. Instead, this Court held that in order to obtain a conviction, the government need show only that some controlled substance was involved.28 The defendants in these pre-Apprendi cases often argued that drug quantity was an essential element of their offenses.29 We consistently rejected this claim, construing § 841(a) as setting forth a single, complete offense and § 841(b) as setting forth sentencing factors relevant only to determining a defendant's sentence for having violated § 841(a).30

We preserved this interpretation of § 841 even after Jones. See United States v. Hester, 199 F.3d 1287 (11th Cir.), vacated and remanded, 531 U.S. 941 (2000).31 Hester represented the first serious encounter between our prior statutory interpretation and the constitutional rule of Apprendi, which at that time existed in more embryonic form as footnote six of Jones. In Hester, we noted that our precedent construing § 841 constituted "binding authority" in which we "clearly rejected the characterization of the amount of drugs as an element of the offense under [section] 841." Id. at 1291 (citing cases). We then noted that this precedent foreclosed any argument that drug quantity was an element of an offense under § 841 "unless the Supreme Court decided otherwise in Jones." Id. After quoting and discussing footnote six, we adopted a narrow reading of Jones and concluded that the constitutional principles referenced in Jones did not disrupt our prior approach to § 841 cases.32 Id. at 1291-92. We therefore continued to follow our precedent holding that § 841 is clear and unambiguous and reaffirmed that "[a]s we have announced in our previous cases, Congress decided that the elements of a § 841 offense do not include the weight of the drugs." Id. at 1292.33

E. Apprendi's Impact on § 841 and Our Precedent

Such was the landscape applicable to the federal drug statute before Apprendi squarely adopted the constitutional principle 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." Apprendi, 530 U.S. at 490. Our reading of the tenor of the Supreme Court's decisions is that § 841 is impacted by Apprendi but only to the limited extent that judge-decided facts actually increase a defendant's sentence above the prescribed statutory maximum. We explain the narrow manner in which Apprendi affects § 841.34

Fundamentally, Apprendi did not announce any new principles of statutory construction. Rather, Apprendi addressed only the constitutionality of a state statutory sentencing scheme, and its holding only described constitutional principles affecting such statutory sentencing schemes. Apprendi thus does not change our precedent interpreting § 841 outlined above but instead imposes only an external constitutional restraint under the Sixth Amendment and the Due Process Clause. While Apprendi does not affect our prior statutory construction of § 841(b) as setting forth purely sentencing factors, it does alter our prior conclusion that such judge-decided facts satisfy a defendant's constitutional rights to due process and a jury trial even when those factors increase a defendant's sentence beyond the prescribed statutory maximum.35

This external constitutional restraint, however, does not apply to the vast majority of sentencing scenarios. To repeat the oft-repeated, Apprendi explicitly limited its holding to facts "that increase[] the penalty for a crime beyond the prescribed statutory maximum." Apprendi, 530 U.S. at 490 (emphasis added). Therefore, Apprendi has no effect on cases in which a defendant's actual sentence falls within the range prescribed by the statute for the crime of conviction. As stated above, § 841(b)(1)(C) provides a statutory penalty range applicable to all drug offenses involving the controlled substances listed on Schedules I or II without regard to drug quantity. Apprendi thus does not even apply when a defendant's actual sentence for a § 841 drug offense falls within that range. See United States v. Gerrow, 232 F.3d 831, 834 (11th Cir. 2000) ("[T]here is no error, plain or otherwise, under Apprendi where the term of imprisonment is within the statutory maximum set forth in § 841(b)(1)(C) for a cocaine offense without regard to drug quantity."), cert. denied, ___ U.S. ___, ___ S. Ct. ___, No. 00-9373 (Oct. 1, 2001); United States v. Gallego, 247 F.3d 1191, 1197 (11th Cir. 2001) (noting that because the defendant's sentence of 168 months' imprisonment fell "below the twenty year maximum prescribed by section 841(b)(1)(C)," there is "no error under Apprendi"); United States v. Le, 256 F.3d 1229, 1240 (11th Cir. 2001) (stating in a case under the Hobbs Act that because the defendant's sentence was below the statutory maximum, "Apprendi is inapplicable").36 Accordingly, in a § 841 case, when a defendant's sentence falls at or below the statutory maximum penalty in § 841(b)(1)(C), there is no Apprendi error and there is no need for drug quantity to be submitted to a jury and proven beyond a reasonable doubt.37

Additionally, Apprendi has no application to cases in which statutory sentencing factors trigger a mandatory minimum sentence. As noted above, Apprendi expressly preserved McMillan, in which the Supreme Court approved the use of judge-made factual findings to sentence a defendant to a mandatory minimum penalty. Apprendi, 530 U.S. at 487 n.13. Therefore, in a § 841 case, Apprendi does not prohibit a judge from making drug quantity findings and sentencing a defendant to one of the mandatory minimum sentences in § 841(b), provided that the mandatory minimum term does not exceed the otherwise applicable statutory maximum. This important proposition leaves intact our pre-Apprendi cases involving the imposition of mandatory minimum sentences under § 841(b). See, e.g., United States v. Gomez, 905 F.2d 1513, 1514 (11th Cir. 1990) ("As to sentencing, it is now equally well-settled that a defendant need not know the quantity of drug involved in the offense in order to be subject to a mandatory minimum sentence based on quantity under § 841(b)(1)."). Thus, we join six other circuits in concluding that there is no error under Apprendi when the district court sentences a defendant to a mandatory minimum sentence under § 841(b).38

Instead, Apprendi applies to § 841 cases only in this limited sense: In light of Apprendi, there is constitutional error in a defendant's sentencing procedures when drug quantity increases a defendant's sentence beyond the prescribed statutory maximum under § 841(b)(1)(C), unless it was submitted to a jury and proven beyond a reasonable doubt. Conversely, in a § 841 case in which a defendant's ultimate sentence falls at or below the statutory maximum penalty in § 841(b)(1)(C), there is no Apprendi error and drug quantity need not have been submitted to a jury and proven beyond a reasonable doubt. Moreover, judge-made findings of drug quantity may be used to sentence a defendant anywhere within the applicable statutory range and, as outlined above, may be used in all guidelines calculations. All of these rules on the effect of Apprendi on § 841 have the additional benefit of being consistent with the views adopted in virtually every other circuit to address these matters to date.39

Having described Apprendi and its effect on § 841 and our precedent, we turn to the Sanchezes' challenges to their indictment, plea colloquies, convictions, and sentences. The Sanchezes seek to stretch Apprendi's constitutional rule and Jones's dicta to apply to the beginning, middle, and end of the criminal procedures in their cases. Specifically, they emphasize that from the outset of their cases, the government sought enhanced penalties under § 841(b)(1)(B) based on the quantity of the methamphetamine and amphetamine involved in their offense. As a result, they contend that their cases were "§ 841(b)(1)(B) cases" and thus that drug quantity was an element of their offense that not only had to be submitted to the jury and proven beyond a reasonable doubt but that also had to be charged in their indictment. Consistent with these views, the Sanchezes timely moved in the district court to dismiss the indictment for failure to allege the required element of drug quantity, specifically citing Jones. Upon denial of that motion, they entered conditional plea agreements preserving that issue for appeal.

On appeal, the Sanchezes also contend that because their cases are "§ 841(b)(1)(B) cases," the failure to comply with this trio of procedural requirements - indictment, jury submission, and proof beyond a reasonable doubt - was constitutional error under Apprendi or at least under United States v. Rogers, 228 F.3d 1318 (11th Cir. 2000), which the Sanchezes assert expanded Apprendi to all "§ 841(b)(1)(A) and § 841(b)(1)(B) cases." They further argue that the failure to comply with this procedural triumvirate constituted constitutional error that is so fundamental as to be structural error and reversible per se. They also assert that the omission of an essential element from the indictment constituted a jurisdictional error requiring dismissal of the indictment.

Alternatively, the Sanchezes claim that the lack of a specific drug quantity in their indictment meant that their maximum sentence was limited to twenty years under § 841(b)(1)(C) and that their plea colloquies thus did not comply with Rule 11. Although their indictment charged "quantities of methamphetamine and amphetamine," they submit that it had to charge a specific drug quantity in order to support an enhanced sentence under § 841(b)(1)(B). They argue that the district court erred not only by advising them of the increased penalty ranges corresponding to §§ 841(b)(1)(A) and 841(b)(1)(B) in Ignasio Sanchez's case and § 841(b)(1)(A) in Santiago Sanchez's case but also by not mentioning § 841(b)(1)(C) and by not advising them that only the lower penalty range under § 841(b)(1)(C) was applicable to the charges in their indictment. In short, the Sanchezes challenge not merely their sentences, as defendant Apprendi did, but also their indictment, plea colloquies, and convictions stemming from that indictment. We are not persuaded by their arguments and address each issue in turn.

Of course, the correct response to an argument that the Sanchezes make about the lack of a specific drug quantity in a § 841 indictment is usually that by entering a guilty plea and ultimately stipulating to or not contesting drug quantity, defendants thereby waive the right to appeal on the basis of Apprendi.40 The Sanchezes' plea agreements, however, were conditional on their right to appeal the sufficiency of the indictment. Because the Sanchezes' conditional plea agreements preserved the indictment issue for appellate review, their guilty pleas do not resolve the matter as would normally be the case. Thus, in light of Jones and Apprendi, we address whether the district court erred in denying the Sanchezes' motion to dismiss their indictment. In other words, we consider whether the Sanchezes correctly claimed in that motion that drug quantity is an essential element that now must always be charged in an indictment for a § 841 offense. We first address the standard of review and then why we conclude that the district court did not err in denying the Sanchezes' motion to dismiss the indictment.

Because the Sanchezes timely raised and thus preserved for appeal the issue of error in their indictment under Apprendi, we review it de novo, but we will reverse only for harmful error. See United States v. Mills, 138 F.3d 928, 938-39 (11th Cir. 1998). As we have held, Apprendi error is constitutional error, subject to harmless or plain error review depending on the timing of the constitutional objection. See, e.g., United States v. Smith, 240 F.3d 927, 929 (11th Cir. 2001) (affirming thirty-year sentence); United States v. Candelario, 240 F.3d 1300, 1308 (11th Cir.) (same), cert. denied, 121 S. Ct. 2535 (2001); United States v. Nealy, 232 F.3d 825, 829-30 & n.4 (11th Cir. 2000) (affirming thirty-two-year sentence).

Given our precedent, we reject the Sanchezes' claims that Apprendi error is either structural or jurisdictional. In Smith, Candelario, and Nealy, we correctly outlined why an Apprendi error did not create a structural error. In Nealy, we explained, "Structural error occurs only in the rare instance involving a 'structural defect affecting the framework within [which] the trial proceeds, rather than simply an error in the trial process itself.'" Nealy, 232 F.3d at 829 n.4 (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)).41 "Failure to submit the issue of drug quantity to the jury is just an element of the trial process and does not rise to the level of structural error. . . ." Id. It "is not structural error because it 'does not necessarily render a criminal trial fundamentally unfair or [an] unreliable vehicle for determining guilt or innocence.'" Id. (quoting Neder v. United States, 527 U.S. 1, 9 (1999)). Harmless error review is "appropriate" in the Apprendi context "because it 'block[s] setting aside [sentences] for small errors or defects that have little, if any, likelihood of having changed the result of the trial.'" Id. at 829-30 (quoting Chapman v. California, 386 U.S. 18, 22 (1967)).

Our precedent follows Neder v. United States, 527 U.S. 1 (1999), where the Supreme Court held that "the omission of an element [in a jury instruction] is an error that is subject to harmless-error analysis." Id. at 15. Any Apprendi error arising from the omission of a specific drug quantity in a § 841 indictment is analogous to the jury-instruction error in Neder.42 Indeed, part of the Sanchezes' argument is precisely that a specific drug quantity must be charged in the indictment so that it will then be submitted to the jury and proven beyond a reasonable doubt. A defendant's right to have a petit jury find each element of the offense is no less important than his right to have that same element presented to the grand jury.43

Likewise, we have rejected the claim, which the Sanchezes also make, that an Apprendi error creates a jurisdictional error. See United States v. Cromartie, ___ F.3d ___, No. 00-13957 (11th Cir. Oct. 3, 2001); McCoy v. United States, ___ F.3d ___, No. 00-16434 (11th Cir. Sept. 25, 2001).44 A jurisdictional defect occurs only where a federal court lacks power to adjudicate at all. Id.45 The constitutional rights to be charged by a grand jury, be informed of an accusation, and to have a jury trial are the personal rights of the defendant and do not go to the district court's subject matter jurisdiction. Indeed, Federal Rule of Criminal Procedure 7(b) provides that certain offenses "may be prosecuted by information" if the defendant "waives in open court prosecution by indictment." Fed. R. Crim. P. 7(b). Such waiver would not be possible if the indictment-related right were jurisdictional, as parties cannot confer subject-matter jurisdiction on federal courts by consent. See United States v. Griffin, 303 U.S. 226, 229 (1938).

The notion that any Apprendi-based challenge has a jurisdictional dimension is also implicitly rejected by our precedent's consistent application of plain or harmless error review. See, e.g., United States v. Pease, 240 F.3d 938, 943-44 (11th Cir. 2001) (finding plain error under Apprendi in a thirty-year sentence where the indictment did not allege drug quantity but finding no effect on defendant's substantial rights); United States v. Swatzie, 228 F.3d 1278, 1282-84 (11th Cir. 2000) (assuming arguendo a life sentence was plain error under Apprendi where indictment did not allege drug quantity but finding no effect on defendant's substantial rights), cert. denied, 121 S. Ct. 2600 (2001).46

The Tenth Circuit, sitting en banc, explicitly endorsed this approach. See United States v. Prentiss, 256 F.3d 971 (10th Cir. 2001) (en banc) (concluding that "the failure of an indictment to allege an essential element of a crime does not deprive a district court of subject matter jurisdiction; rather, such failure is subject to harmless error review"). Two other circuits have handled omissions of an element from an indictment in a similar manner.47 See United States v. Nance, 236 F.3d 820, 825-26 (7th Cir. 2000) (stating in a § 841 case involving an Apprendi challenge that indictment and jury-instruction errors are "analogous to the instructional error the Court considered in Neder" and did not constitute structural error, and affirming the defendant's 262-month sentence under plain-error review); United States v. Mojica-Baez, 229 F.3d 292, 310-12 (1st Cir. 2000) (stating in a 18 U.S.C. § 924(c)(1) case where the indictment did not charge a type of firearm that the court was "compelled by the Supreme Court's decision in Neder to subject the indictment error in this case to plain error review," and thus finding error was not structural and affirming the defendants' ten-year sentences under 18 U.S.C. § 924(c)(1)(B)), cert. denied, 121 S. Ct. 2215 (2001).48 We now turn to the Sanchezes' Apprendi-based challenge to their indictment.

By sparing no expense in the foundational discussion above, the case-specific application of Apprendi that follows will enjoy the luxury of brevity. The correct response to the Sanchezes' argument is that they ultimately were sentenced below the otherwise applicable statutory maximum in § 841(b)(1)(C), and thus, drug quantity never was an element of their offense under § 841 and never became an element under Apprendi. Therefore, there is no Apprendi error in their indictment or in their convictions and sentences stemming from that indictment.

Both before and after Apprendi, in any § 841 case, an indictment charging that a defendant violated § 841 properly charges a complete federal crime without any reference to either drug type or quantity. While under Apprendi the allowable maximum sentence for a § 841 violation may differ depending on how drug quantity was handled at the plea, trial, or sentencing phases, and on the timeliness of an Apprendi-based objection, Apprendi has no effect whatsoever on whether a complete federal crime under § 841 is charged in an indictment that does not specify drug quantity. Therefore, even if an indictment for a § 841 offense does not allege a specific drug quantity, it is legally and constitutionally sufficient both before and after Apprendi, and a district court may still accept the defendant's guilty plea to, or try a defendant on, a § 841 charge and then sentence the defendant for that charge. Thus, the district court did not err in denying the Sanchezes' motion to dismiss their indictment.49

We fully recognize that from the outset of the Sanchezes' cases the government sought enhanced sentences, particularly under § 841(b)(1)(B), and that the district court made drug quantity findings and purported to sentence both Sanchezes under that section. Accordingly, the Sanchezes argue that their cases were "§ 841(b)(1)(B) cases" and thus that there is not only Apprendi error in their cases but also "Rogers error" as coined in United States v. Camacho, 248 F.3d 1286, 1289-90 (11th Cir. 2001) (citing United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir. 2000)).

As explained above, being sentenced under § 841(b)(1)(A) or § 841(b)(1)(B) and being potentially exposed to a higher sentence under either section do not create Apprendi error. Indeed, the condition that the Sanchezes describe - that of facing theoretical or potential exposure to a particular fate under § 841(b)(1)(B) but actually being consigned to one of less severity under § 841(b)(1)(C) - borders on the metaphysical. Contrary to the Sanchezes' suggestion, Apprendi did not hold that judge-made factual findings that merely expose a defendant to a higher statutory maximum penalty, without actually resulting in a sentence beyond the applicable maximum, must be proven to a jury beyond a reasonable doubt. We thus agree with those circuits that have concluded that theoretical exposure to a higher sentence does not constitute error under Apprendi. See, e.g., United States v. Robinson, 241 F.3d 115, 121-22 (1st Cir. 2001) ("[T]heoretical exposure to a higher sentence, unaccompanied by the imposition of a sentence that in fact exceeds the otherwise-applicable statutory maximum, is of no consequence. . . . In fine, the Apprendi rule applies only in situations in which a judge-made factual determination actually boosts the defendant's sentence beyond the basic statutory maximum. Theoretical exposure to a higher maximum punishment, in and of itself, is not enough.") (emphasis added) (citation omitted), cert. denied, ___ S. Ct. ___, No. 00-10411 (Oct. 1, 2001). As stated above, there is no error at all under Apprendi unless a judge-made factual finding actually increases the defendant's sentence beyond the statutory maximum in § 841(b)(1)(C).50

We also recognize that, prior to this en banc decision, our circuit precedent regarding the impact of Apprendi on § 841 cases stemmed largely from United States v. Rogers, 228 F.3d 1318 (11th Cir. 2000) and its progeny. See, e.g., United States v. Camacho, 248 F.3d 1286 (11th Cir. 2001); United States v. Candelario, 240 F.3d 1300 (11th Cir.), cert. denied, 121 S. Ct. 2535 (2001); United States v. Shepard, 235 F.3d 1295 (11th Cir. 2000), cert. denied, ___ S. Ct. ___, No. 00-10410 (Oct. 1, 2001). Rogers was correct in some aspects of its analysis but wrong in others. Rogers properly recognized, "Applying Apprendi's constitutional principle to § 841 cases, it is clear that the principle is violated if a defendant is sentenced to a greater sentence than the statutory maximum based upon the quantity of drugs, if such quantity is determined by the sentencing judge rather than the trial jury." Rogers, 228 F.3d at 1327 (emphasis added). Rogers continued that such a sentence - that is, one greater than the statutory maximum - violates Apprendi unless drug quantity was charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt. See id.51 To this extent, Rogers correctly analyzed Apprendi's effect on § 841.52

Rogers, however, extended Apprendi substantially beyond its holding, and we are not prepared to go that far. Rogers suggested that the mere fact that a sentence arose in "section 841(b)(1)(A) and section 841(b)(1)(B) cases" meant that drug quantity must be charged in the indictment and proven to a jury beyond a reasonable doubt even if the sentence did not exceed the statutory maximum in § 841(b)(1)(C). See id. at 1327. As we have explained, this is not so unless the factual finding of drug quantity boosts the actual sentence imposed under §§ 841(b)(1)(A) or 841(b)(1)(B) beyond the statutory maximum otherwise permissible under § 841(b)(1)(C) absent drug quantity.

Specifically, Rogers also stated: (1) that "sections 841(b)(1)(A) and 841(b)(1)(B) may not be utilized for sentencing without a finding of drug quantity by the jury," Rogers, 228 F.3d at 1327 (emphasis added); (2) "that drug quantity in section 841(b)(1)(A) and section 841(b)(1)(B) cases must be charged in the indictment and proven to a jury beyond a reasonable doubt in light of Apprendi," id. (emphasis added); (3) that when a defendant is sentenced under the wrong subsection of § 841(b), "this alone is reason for us to vacate and remand the sentence," id. at 1321; and (4) that "[a]pplying the rule [of Apprendi] to the facts at hand, it is clear that Rogers must be sentenced under section 841 without reference to drug quantity," id. at 1328; and decided (5) to "overrule Hester to the extent it is inconsistent with this holding," id.

As we have explained, however, a district court's drug quantity findings and utilization of the § 841(b)(1)(A) and § 841(b)(1)(B) sentencing schemes in § 841 cases in no manner violate Apprendi unless the actual sentence ultimately imposed exceeds the catchall maximum penalty in § 841(b)(1)(C). Thus, for example, mandatory minimum sentences do not violate Apprendi's constitutional rule because they do not exceed the catchall statutory maximum penalty in § 841(b)(1)(C) that is otherwise applicable when no specific drug quantity is charged or found by the jury.53 We therefore expressly disavow these five propositions in Rogers and any repetition of them in Rogers's progeny.

Apprendi does not prohibit all uses of drug quantity in sentencing under § 841, or any use of drug quantity in guideline calculations under the Sentencing Guidelines for that matter. Rather, it prohibits such use only to the extent that a factual finding of drug quantity increases a defendant's sentence beyond the otherwise applicable statutory maximum penalty under § 841(b)(1)(C) absent drug quantity. We limit Rogers's analysis and conclusion about Apprendi to those § 841 cases where the defendant's sentence is both (1) directly affected by a judge-made finding of drug quantity under either § 841(b)(1)(A) or § 841(b)(1)(B), and (2) as a direct result of that drug quantity finding actually exceeds the statutory maximum otherwise permissible under § 841(b)(1)(C).54 As explained above, in all circumstances other than this, there is no Apprendi error.

In sum, a defendant is not entitled to dismissal of a § 841 indictment that does not allege a specific drug quantity, whether that indictment was issued before or after Apprendi. Instead, whether a specific drug quantity is charged affects only the permissible statutory maximum sentence and not the sufficiency of a § 841 indictment. In the context of § 841, Apprendi involves error in sentencing and necessarily looks retrospectively, rather than prospectively, at whether the criminal procedures that culminated in the actual sentence pass constitutional muster.55 Thus, for all of these reasons, the Sanchezes have not shown that the district court erred in denying their motion to dismiss the indictment.

The Sanchezes next attempt to make use of Apprendi by arguing - for the first time on appeal - that their convictions must be reversed because their guilty pleas were unintelligent and involuntary under Apprendi. The Sanchezes' challenge to their guilty pleas rests on two branches of the Apprendi tree.

First, the Sanchezes assert that the district court failed to comply with Rule 11 before accepting their guilty pleas because it did not address drug quantity, which they believe Apprendi converted into an element of their offense. The second aspect of their argument is that Apprendi vitiated the voluntariness of their guilty pleas by reducing the legally permissible maximum penalty they faced for their drug offense. More specifically, they aver that their guilty pleas were induced by the threat of a harsher punishment - up to forty years or life imprisonment - than was possible given Apprendi, under which they faced a maximum penalty of only twenty years' imprisonment under § 841(b)(1)(C).

The Sanchezes raise the Apprendi issues concerning their guilty pleas for the first time on appeal. This Court has held "that a defendant who has not presented his objection to the district court - for example, through a motion to withdraw the plea - must show plain error on direct appeal." United States v. Quinones, 97 F.3d 473, 475 (11th Cir. 1996).56 Thus, the Sanchezes must show that there is (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. (quoting Olano, 507 U.S. at 732) (other internal quotation marks omitted).

The Sanchezes claim that the district court failed to comply with the requirements of Rule 11 when it accepted their guilty pleas. Rule 11 provides that "[b]efore accepting a plea of guilty . . . the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands," certain matters. Fed. R. Crim. P. 11(c). At issue in this case are the requirements in Rule 11 that the court properly advise the defendant of "the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term." Fed. R. Crim. P. 11(c)(1). Under Rule 11, a "court shall not accept a plea of guilty . . . without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement." Fed. R. Crim. P. 11(d).

Rule 11 serves two purposes: "to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary" and "to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination." McCarthy v. United States, 394 U.S. 459, 465 (1969). "Thus, the more meticulously the Rule is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous post-conviction attacks on the constitutional validity of guilty pleas." Id.

"No simple or mechanical rule determines whether the district court complied with Rule 11's mandate to satisfy itself that [the defendants] understood the nature of the charges against them." United States v. DePace, 120 F.3d 233, 237 (11th Cir. 1997) (citing United States v. Bell, 776 F.2d 965, 968 (11th Cir. 1985)). "Rather, the inquiry varies from case to case depending on 'the relative difficulty of comprehension of the charges and of the defendant's sophistication and intelligence.'" Id. (quoting Bell, 776 F.2d at 968). This Court has described "the spectrum of complexity of charges and the concomitant degree of required explication" as follows:

"For simple charges . . . a reading of the indictment, followed by an opportunity given the defendant to ask questions about it, will usually suffice. Charges of a more complex nature, incorporating esoteric terms or concepts unfamiliar to the lay mind, may require more explication. In the cases of extreme complexity, an explanation of the elements of the offense like that given the jury in its instructions may be required."

Id. (quoting United States v. Dayton, 604 F.2d 931, 937-38 (5th Cir. 1979) (en banc)). We recently stated that "[p]ossession with intent to distribute crack and conspiracy to do the same are not of course the most complicated of offenses." United States v. Telemaque, 244 F.3d 1247, 1249 (11th Cir. 2001).

In assessing whether a district court's failure to comply with Rule 11 constitutes plain error, this Court has identified three "core concerns" of that rule: "(1) ensuring that the guilty plea is free of coercion; (2) ensuring that the defendant understands the nature of the charges against him; and (3) ensuring that the defendant is aware of the direct consequences of the guilty plea." Quinones, 97 F.3d at 475 (citing United States v. Zickert, 955 F.2d 665, 668 (11th Cir. 1992)). "Failure to satisfy any of the core objectives violates the defendants's substantial rights." Id.

The Sanchezes maintain that the district court failed to comply with Rule 11 because it did not inform them of all of the elements of the offense with which they were charged. Because both Sanchezes were sentenced below the prescribed maximum penalty otherwise permissible under § 841(b)(1)(C), a specific drug quantity was not, nor did it ever become, an element of their drug offenses.57 Thus, that the district court did not discuss any specific drug quantity in their plea colloquies was not error, plain or otherwise, under Apprendi.

4. "Maximum Possible Penalty"

Alternatively, the Sanchezes assert that if drug quantity never became an element of their offense, their guilty pleas were nonetheless involuntary and unknowing because they were misadvised during their plea colloquies as to the "maximum possible penalty" they faced. See Fed. R. Crim. P. 11(c)(1). The argument is that their guilty pleas were induced by the threat of a harsher punishment than was legally permissible under the indictment in this case. Specifically, the Sanchezes' contention is that they entered their guilty pleas while laboring under the understanding that they could face up to forty years' or life imprisonment, when actually they could have been sentenced only to a maximum of twenty years' imprisonment because their indictment did not allege a specific drug quantity.

The Sanchezes first must establish that they were in fact misadvised about the "maximum possible penalty" under Rule 11. See Fed. R. Crim. P. 11(c)(1). To do so, they argue that, in light of Apprendi, their indictment would not have supported an enhanced sentence of forty years under § 841(b)(1)(B) because it did not allege a drug quantity. The Sanchezes emphasize that to obtain a sentence beyond that otherwise provided under § 841(b)(1)(C), Apprendi requires that drug quantity be charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt. Since their indictment did not charge a specific drug quantity, the Sanchezes argue that it was insufficient for an enhanced sentence and that their maximum possible penalty, in light of Apprendi, was actually twenty years' imprisonment under § 841(b)(1)(C). The issue presented by this argument, however, is not whether drug quantity should be alleged in some form in the indictment when it increases a sentence beyond the maximum in § 841(b)(1)(C) - a question already answered by Rogers - but whether the wording of the Sanchezes' indictment is sufficient to satisfy that indictment requirement.58

We need not resolve this issue, however, because even assuming arguendo that the Sanchezes were misadvised about the "maximum possible penalty" they faced, their challenge to their plea colloquies lacks merit due to Brady v. United States, 397 U.S. 742 (1970). The Supreme Court in Brady expressly held that a guilty plea was not rendered involuntary by a subsequent legal pronouncement that reduced the statutory maximum sentence below what the defendant was advised of at the time of his plea. In Brady, the defendant was charged with violating the Federal Kidnaping Act, 18 U.S.C. § 1201(a), which authorized a penalty of death or imprisonment.59 Id. at 743, 90 S. Ct. 1463. Although initially pleading not guilty, he later changed his plea to guilty.60 Id. The trial judge twice questioned the defendant as to the voluntariness of his plea, and the defendant affirmed that the plea was voluntary. Id. at 743 n.2, 90 S. Ct. 1463 (excerpt from the defendant's plea colloquy).61 The trial judge then sentenced the defendant to fifty years' imprisonment, which was later reduced to thirty years. Id. at 744, 90 S. Ct. 1463.

After the defendant pled guilty and was sentenced, the Supreme Court invalidated the portion of § 1201(a) that permitted the death penalty. See United States v. Jackson, 390 U.S. 570, 572 (1968).62 The defendant filed a federal habeas petition pursuant to 28 U.S.C. § 2255 and claimed that, after Jackson, his guilty plea could not be considered voluntary because § 1201(a) had operated to coerce his plea. Brady, 397 U.S. at 744. The Supreme Court thus was faced with the questions of whether "it violates the Fifth Amendment to influence or encourage a guilty plea by opportunity or promise of leniency" and whether "a guilty plea is coerced and invalid if influenced by the fear of a possibly higher penalty for the crime charged if a conviction is obtained after the State is put to its proof." Id. at 750-51, 90 S. Ct. 1463.

The Supreme Court answered in the negative, stating:

A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. A plea of guilty triggered by the expectations of a competently counseled defendant that the State will have a strong case against him is not subject to later attack because the defendant's lawyer correctly advised him with respect to the then existing law as to possible penalties but later pronouncements of the courts, as in this case, hold that the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered.

The fact that [the defendant] did not anticipate [the later change in the law] does not impugn the truth or reliability of his plea. We find no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that the State would have had a weaker case than the defendant had thought or that the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions.

Id. at 757, 90 S. Ct. 1463 (citation omitted) (emphasis added). The Supreme Court concluded that the defendant's guilty plea was voluntary at the time it was made:

[The defendant] first pleaded not guilty; prior to changing his plea to guilty he was subjected to no threats or promises in face-to-face encounters with the authorities. He had competent counsel and full opportunity to assess the advantages and disadvantages of a trial as compared with those attending a plea of guilty; there was no hazard of an impulsive and improvident response to a seeming but unreal advantage. His plea of guilty was entered in open court and before a judge obviously sensitive to the requirements of the law with respect to guilty pleas. [The defendant's] plea . . . was voluntary.

The Supreme Court further concluded that even if the fear of the death penalty in fact caused the defendant to enter a guilty plea rather than go to trial, that did not render the plea involuntary, explaining, "But even if we assume that [the defendant] would not have pleaded guilty except for the death penalty provision of [the statute at issue], this assumption merely identifies the penalty provision as a 'but for' cause of his plea. That the statute caused the plea in this sense does not necessarily prove that the plea was coerced and invalid as an involuntary act." Id. at 750-51, 90 S. Ct. 1463.

When distilled to its essence, the Sanchezes' argument here is no different from that rejected by the Supreme Court in Brady. The Sanchezes claim, as did the defendant in Brady, that a subsequent judicial pronouncement - namely, Apprendi - reduced the maximum possible penalty they faced for their offense and that this new knowledge, of which they did not have the benefit during their plea colloquies, retroactively invalidated their guilty pleas. We agree with the Supreme Court, however, that there is "no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that . . . the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions." Id. at 757, 90 S. Ct. 1463. Thus, we reject the Sanchezes' claim that Apprendi invalidated their guilty pleas.64

The Sanchezes' plea colloquies were otherwise sufficient. Like the defendant in Brady, both defendants here were represented by counsel. The requirements of Rule 11 were met by the district court's advice to the Sanchezes before accepting their guilty pleas.65 Also like the defendant in Brady, the Sanchezes' argument is based on a speculative "but-for" argument - that is, they appear to suggest that but for the district court's statement that they faced a possible life sentence, they would not have pled guilty. The Sanchezes were ultimately sentenced well below the maximum penalties of which they had been advised.66 Under these circumstances, the Sanchezes cannot correctly claim that their guilty pleas were involuntary and unintelligent, and they can claim no harm or detriment whatsoever resulting from their plea colloquies.67

In addition to challenging their prison terms - an argument we have already rejected - the Sanchezes, for the first time on appeal, make an Apprendi-based attack on their terms of supervised release.68 Specifically, they contend that their supervised release was limited by statute to three years and that the four-year terms imposed violated Apprendi. We conclude that there was no Apprendi error in the supervised release portion of the Sanchezes' sentences.

The central question presented is what statute provides the prescribed term of supervised release applicable to the Sanchezes' convictions.69 Section 841(b)(1)(C) requires a term of supervised release of "at least three years." 21 U.S.C. § 841(b)(1)(C) (emphasis added). The Sanchezes rely, however, on 18 U.S.C. § 3583(b)(2), which provides that "[e]xcept as otherwise provided," the term of supervised release for a "Class C felony" may be "not more than three years." 18 U.S.C. § 3583(b)(2). A Class C felony is a felony for which the "maximum term of imprisonment authorized" is "less than twenty-five years but ten or more years." 18 U.S.C. § 3559(a)(3). Thus, § 841(b)(1)(C), which provides for a maximum prison term of twenty years, constitutes a Class C felony.

The Sanchezes argue that, based on the facts of their cases, § 3583(b)(2) creates a maximum term of supervised release of three years, while § 841(b)(1)(C) authorizes a minimum term of supervised release of three years. The issue presented, then, is whether § 841(b)(1)(C) or § 3583(b)(2) controls the length of their terms of supervised release.

A term of supervised release of four years, as the Sanchezes received, is permitted under 21 U.S.C. § 841(b)(1)(C). As emphasized above, § 3583(b)(2) limits the maximum term of supervised release for a Class C felony to three years, "[e]xcept as otherwise provided." 18 U.S.C. § 3583(b)(2). Section 841(b)(1)(C), in fact, expressly "otherwise provide[s]" - specifically, § 841(b)(1)(C) provides that the term of supervised release for that particular Class C felony must be "at least three years." 21 U.S.C. § 841(b)(1)(C).

To adopt the Sanchezes' interpretation of the statute would require us to ignore the words "at least" in § 841(b)(1)(C), thus rendering that statutory language superfluous. Furthermore, the legislative history of both statutes indicates that Congress did not intend for a term of supervised release ordered pursuant to § 841(b)(1)(C) to be limited to three years. As noted by the Second Circuit when faced with the identical question, "the supervised release terms authorized by Congress for drug offenses, including section 841, were added in the same statute that amended section 3583(b) by adding the introductory phrase 'Except as otherwise provided.'" United States v. Eng, 14 F.3d 165, 172-73 (2d Cir. 1994) (citing the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 1006, 100 Stat. 3207). As the Second Circuit concluded from this legislative history, "It is apparent that in enacting . . . the Anti-Drug Abuse Act of 1986, Congress intended to enhance the penalties available to combat drug offenses. That Congress intended these penalties to override the maximums set by 18 U.S.C. § 3583(b) is clear from the fact that Congress simultaneously amended that section to add the phrase '[e]xcept as otherwise provided.'" Id. at 173.

In light of its language and history, § 841(b)(1)(C) cannot be understood to provide for a term of supervised release not greater than three years, as the Sanchezes contend. Relying on these principles of statutory interpretation, six other circuits have held that § 3583(b) does not limit the term of supervised release authorized in § 841(b)(1)(C) and that a term of supervised release over the minimum set forth in § 841(b)(1)(C) may be imposed notwithstanding the provisions of § 3583(b). See United States v. Pratt, 239 F.3d 640, 647 (4th Cir. 2001) (holding that § 3583 "does not cap the period of supervised release that a district court may impose under § 841(b)(1)(C)"); United States v. Shorty, 159 F.3d 312, 315-16 n.6 (7th Cir. 1998) (noting that the provision for the term of supervised release in § 841(b)(1)(C) "sets a floor requirement, leaving the ceiling open, closed only by a defendant's death"); United States v. Page, 131 F.3d 1173, 1177-80 (6th Cir. 1997), abrogated on other grounds by Johnson v. United States, 529 U.S. 694 (2000); United States v. Garcia, 112 F.3d 395, 398 (9th Cir. 1997); United States v. Orozco-Rodriguez, 60 F.3d 705, 707-08 (10th Cir. 1995); United States v. Eng, 14 F.3d 165, 172-73 (2d Cir. 1994); United States v. LeMay, 952 F.2d 995, 998 (8th Cir. 1991).70 We therefore conclude that the Sanchezes' four-year terms of supervised release are authorized by § 841(b)(1)(C) and not limited by § 3583(b)(3).71 Therefore, the Sanchezes' Apprendi-based challenges to the supervised release portions of their sentences lack merit.

In conclusion, we recognize the following principles. Apprendi is implicated only when a judge-decided fact actually increases a defendant's sentence beyond the prescribed statutory maximum penalty for the crime of conviction and has no application to, or effect on, cases where a defendant's sentence falls at or below that maximum penalty. This means, among other things, that Apprendi has no application to, or effect on, either mandatory minimum sentences or Sentencing Guidelines calculations, when in either case the ultimate sentence imposed does not exceed the prescribed statutory maximum penalty. Thus, in a § 841 case when a specific drug quantity triggers a mandatory minimum sentence or is used in a Sentencing Guidelines calculation, and results in a sentence at or below the otherwise applicable maximum penalty in § 841(b)(1)(C), there is no Apprendi error and there is no requirement that a specific drug quantity be alleged in the indictment, submitted to a jury, and proven beyond a reasonable doubt.

More specifically, we conclude that: 1) the various Apprendi errors that the Sanchezes assert are constitutional errors subject to harmless or plain error review, depending on the timing of their constitutional objections, and are not structural or jurisdictional errors; 2) the district court's drug quantity findings under § 841(b)(1)(B) and utilization of that sentencing scheme, which exposed the Sanchezes to enhanced sentences under that section but did not result in an actual term of imprisonment beyond the otherwise applicable maximum penalty in § 841(b)(1)(C), did not violate Apprendi; 3) because the district court's drug quantity findings did not increase the Sanchezes' ultimate sentences beyond the otherwise applicable maximum penalty in § 841(b)(1)(C), Apprendi does not apply to their § 841 indictment, guilty pleas, convictions, and sentences, and there was no requirement that a specific drug quantity be alleged in their indictment, covered in their plea colloquies, submitted to a jury, or proven beyond a reasonable doubt; 4) in this regard, we adopt the analyses of Apprendi in United States v. Gerrow, 232 F.3d 831 (11th Cir. 2000), cert. denied, ___U.S. ___, ___ S. Ct. ___, No. 00-9373 (Oct. 1, 2001), and other circuits' decisions concluding that Apprendi does not apply to § 841 cases unless drug quantity actually increases a defendant's sentence beyond the otherwise applicable maximum penalty, and we reject the extension of the Apprendi rule contemplated by the five propositions identified above in United States v. Rogers, 228 F.3d 1318 (11th Cir. 2000) and reflected by the subsequent coining of the term "Rogers error" in United States v. Camacho, 248 F.3d 1286 (11th Cir. 2001); 5) the district court thus properly denied the Sanchezes' motion to dismiss their indictment because drug quantity was not an essential element of their § 841 offense, and their indictment charging a violation of § 841 without alleging a specific drug quantity properly charged a completed federal crime both before and after Apprendi; 6) a specific drug quantity also never became an element of the Sanchezes' § 841 offense under Apprendi because their ultimate sentences did not exceed the otherwise applicable maximum penalty under § 841(b)(1)(C); 7) Apprendi also did not render the Sanchezes' plea colloquies inadequate and their guilty pleas unintelligent or involuntary even assuming that the district court misadvised them about the higher statutory maximum penalties under §§ 841(b)(1)(A) and 841(b)(1)(B); and 8) the Sanchezes' four-year terms of supervised release were permitted by § 841(b)(1)(C) and thus did not implicate Apprendi.72

For the foregoing reasons, no error exists in the Sanchezes' indictment, plea colloquies, convictions, or sentences. Thus, we affirm both the convictions and the sentences of defendants Ignasio Sanchez and Santiago Sanchez.

AFFIRMED.

TJOFLAT, Circuit Judge, specially concurring, in which WILSON, Circuit Judge, joins:

It is obvious from the start that there is no Apprendi error in this case. Because the Sanchezes' sentences did not exceed the twenty-year maximum sentence prescribed by 21 U.S.C. § 841(b)(1)(C), Apprendi simply does not apply. Likewise, there is no error under this circuit's post-Apprendi cases, United States v. Rogers, 228 F.3d 1318 (11th Cir. 2000), and United States v. Camacho, 248 F.3d 1286 (11th Cir. 2001), because the mandatory minimums of neither section 841(b)(1)(A) nor (B) constrained the district court's sentencing discretion provided by the sentencing guidelines. Hence, further discussion is unnecessary.1

Yet, the court commences to canvass every issue that could possibly arise out of a potential Apprendi error, and, in the process, composes a treatise of dicta that compromises this circuit's commitment to the policies established by Apprendi. The majority, for instance, misinterprets Rogers' holding that drug quantity must be charged in the indictment when a court utilizes sections 841(b)(1)(A) or (B), and then sets about overruling it. Likewise, the court disavows Camacho after finding it inconsistent with McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986); yet, a closer reading of Camacho reveals it to be entirely consistent with McMillan and a significant decision in this circuit's application of Apprendi to section 841(a) cases. Overruling these two cases undermines the progress of our post-Apprendi decisions and, because it is accomplished through dicta, creates a blurring array of contradictions through which trial court judges and practitioners must now sift. Not content to confine its decision to this dictum, the majority continues by tackling the task of deciding whether an Apprendi error, when it actually occurs, is jurisdictional and reversible per se or is, instead, subject to harmless or plain error analyses under Rule 52(a) or (b) of the Federal Rules of Criminal Procedure.2 Again, though the question is interesting, our task as judges is to decide the issues this appeal actually presents.

Anxious though it may be to establish a hornbook on Apprendi errors, the majority simply chose the wrong case as its vehicle, a decision which is both unfortunate and counterproductive. Dicta, especially erroneous dicta, creates a potential for mischief. "For the layperson, as well as for judges, confusion about the state of the law most often comes about by confusing the holding of a case with the dicta in the opinion." Denno v. School Bd. of Volusia County, 218 F.3d 1267, 1280 (11th Cir. 2000) (Forrester, J., concurring in part, dissenting in part) (emphasis in original). Faced with the majority's opinion here and the earlier decisions it seeks to disavow, a trial judge or practitioner sits in an unenviable position in discerning our law. Our own court will face uncertainty; in analyzing any question answered by dictum, "we are 'free to give that question fresh consideration.'" United States v. Hunter, 172 F.3d 1307, 1310 (11th Cir. 1999) (Carnes, J., concurring) (quoting Great Lakes Dredge & Dock Co. v. Tanker Robert Watt Miller, 957 F.2d 1575, 1578 (11th Cir. 1992)).

While I agree that the Sanchezes' convictions and sentences should be affirmed, and therefore concur in the court's judgment, I write separately to eliminate the confusion our decision may cause district judges and the lawyers who litigate drug cases. I begin in part I with a brief recitation of the facts and procedural history leading up to this appeal. I then explain in part II why Apprendi does not apply in this case and assert, moreover, that discussion of Rogers is entirely irrelevant. Rogers is irrelevant because the defendant there, unlike the Sanchezes, who pled guilty, stood on his not guilty plea and was tried by a jury. Putting this dispositive distinction aside, to address the majority's disavowing of Rogers, I also explain in part II the proper interpretation of that decision and its importance in our caselaw. In part III, I turn to respond more fully to Judge Barkett's argument that Apprendi errors are jurisdictional. In short, I believe that a closer look at Apprendi reveals the Supreme Court's true concerns: that the defendant receive notice of the enhanced sentence and that the enhanced sentence be reliable. Two conclusions necessarily follow from this observation. First, when these two concerns are not alleviated, the error is not jurisdictionally fatal; in fact, analyzing the error under harmless or plain error analysis best fulfills the Apprendi Court's mantra. I set out in part IV the second conclusion: as long as the defendant receives notice and a reliable sentence, then there is no Apprendi error. I then describe the various scenarios in which Apprendi errors arise and the sound approach in analyzing each one.

Appellants Ignasio Sanchez and Santiago Sanchez were indicted, along with four others, for conspiring knowingly and intentionally to possess with intent to distribute methamphetamine and amphetamine, in violation of 21 U.S.C. §§ 841(a) and 846.3 The indictment did not include a specific drug quantity. Ignasio Sanchez subsequently moved to dismiss the indictment for "failure to allege facts that increase the maximum penalty," arguing that "Jones [v. United States, 526 U.S. 227, 243 n.6, 119 S. Ct. 1215, 1224 n.6, 143 L. Ed. 2d 311 (1999)], clearly holds that the Constitution requires an indictment to allege 'any fact (other than prior conviction) that increases the maximum penalty for a crime.'" Santiago Sanchez later adopted Ignasio's motion. After the district court denied both motions, the defendants pled guilty conditioned on the right to appeal the court's denial.4

The initial pre-sentence investigation reports ("PSIs") recommended that the Sanchezes be found responsible for various drug quantities of methamphetamine and amphetamine. Following objections from both the Government and the appellants, the reports were revised and the drug quantities were lowered. In the final PSIs, Santiago Sanchez was held accountable for 24,494.4 grams of amphetamine, 907.2 grams of methamphetamine, and 3.54 grams of cocaine, and Ignasio Sanchez was held responsible for 18,144 grams of amphetamine, 907.2 grams of methamphetamine, and 4,536 grams of marijuana. As the majority notes, the PSIs then converted these drug quantities into amounts of marijuana, according to the drug equivalency tables of the sentencing guidelines. For Santiago, this yielded an equivalency of 6,713.99 kilograms of marijuana; for Ignasio, the total was 5,447.74 kilograms of marijuana. Then, without citing any penal provision in 21 U.S.C. § 841(b), the reports stated that the "Statutory Penalty" for each defendant was "5 to 40 years."5

The Sanchezes were sentenced at the conclusion of the second of two sentencing hearings. At the first hearing, after the court denied the Sanchezes' renewed motion to dismiss the indictment (for failure to allege drug quantity), the prosecutor streamlined the drug transactions listed in the PSIs into essentially three categories. The first category included one significant drug transaction, one to which Santiago Sanchez never objected, that occurred at a Stone Mountain motel in June 1998 and involved 907.2 grams of methamphetamine.6 In the second category, the prosecutor described several transactions between the Sanchezes and a woman named C.J. Franks, which, according to the prosecutor, yielded approximately 2,718 grams of amphetamine. Finally, the prosecutor reported a third category of transactions involving the Sanchezes and a man named Kenneth Kish Green, which totaled 2,718 grams of amphetamine. While the Sanchezes did not withdraw their objections to the initial PSIs, they both conceded that the prosecutor's revision of the drug quantities had "the same effect on [their] sentencing guidelines as if [they had] won all of [their] objections." Then, based on these three categories of transactions, the district court found by a preponderance of the evidence that the Sanchezes should be held responsible for 907.2 grams of methamphetamine and 5,436 grams of amphetamine, which together yielded a marijuana equivalency of 2,903.04 kilograms. Under the sentencing guidelines, the district court concluded, these drug quantities resulted in a base offense level of 32. At this first sentencing hearing, the Sanchezes made an oral motion for a downward departure from the applicable guidelines range based on the prison conditions at the Atlanta Pretrial Detention Center. The court deferred ruling on the motion.

At the second sentencing hearing, the court denied the motion for the downward departure, finding that the conditions at the Atlanta Pretrial Detention Center were not "so atypical as to justify the highly infrequent exercise of a downward departure." The court then noted that its sentencing option in this case was a mandatory minimum of five years and a maximum of forty years imprisonment, thus describing, but not citing, the statutory provision of section 841(b)(1)(B).7 Using the sentencing guidelines, the drug amounts described in the first sentencing hearing, and other adjustments, the court then announced a guideline range of 87 to 108 months for Ignasio Sanchez and 108 to 135 months for Santiago Sanchez.8 The court then settled on the lower end of the guideline range for each defendant, taking into account the offensive conditions at the Atlanta Pretrial Detention Center, and sentenced Ignasio Sanchez to 87 months' imprisonment and Santiago Sanchez to 108 months' imprisonment.9 This appeal followed.

The Sanchezes contend that the district court should have dismissed their indictment for failing to allege drug quantity. As I see it, they appear to advance two arguments. First, the Sanchezes assert that because drug quantity determines the range of punishment in a case prosecuted under 21 U.S.C. §§ 841(a) and 846, the Supreme Court's decision in Apprendi requires quantity to be treated as an element. Second, noting that the district court believed that 21 U.S.C. § 841(b)(1)(B) prescribed their maximum and minimum sentences, the Sanchezes argue that drug quantity should have been alleged in the indictment and proven beyond a reasonable doubt under both Apprendi and Rogers.

Because the Sanchezes properly preserved this issue for appeal, the majority is correct in applying a de novo standard of review to their arguments. United States v. Candelario, 240 F.3d 1300, 1306-07 (11th Cir. 2001).10

The Sanchezes' first argument, that the Supreme Court's decision in Apprendi requires quantity to be treated as an element of any 21 U.S.C. § 841(a) offense, may be disposed of quickly. In Apprendi, the Supreme Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63. As the majority correctly notes, in applying the rule of Apprendi to 21 U.S.C. § 841, this circuit has held in case after case that the rule of Apprendi does not apply to cases in which the ultimate sentence is no greater than the twenty-year maximum set out in section 841(b)(1)(C).11 See, e.g., Rogers, 228 F.3d at 1327; see also United States v. Gallego, 247 F.3d 1191, 1197 (11th Cir. 2001); United States v. Gerrow, 232 F.3d 831, 834 (11th Cir. 2000); United States v. Nealy, 232 F.3d 825, 829 (11th Cir. 2000); United States v. Shepard, 235 F.3d 1295, 1296-97 (11th Cir. 2000). That is to say, we have treated section 841(b)(1)(C) as the "catch-all [penalty] provision" of section 841(b) because under that section, a defendant may be sentenced up to a maximum of twenty years without regard to any drug quantity. Rogers, 228 F.3d at 1327, n.15. Hence, if a defendant is sentenced under section 841(b)(1)(C) to a term no greater than twenty years, there is no Apprendi error. See, e.g., Rogers, 228 F.3d at 1327; see also Gallego, 247 F.3d at 1197; United States v. Pease, 240 F.3d 938, 943-44 (11th Cir. 2001); Gerrow, 232 F.3d at 834; Nealy, 232 F.3d at 829; Shepard, 235 F.3d at 1296-97;.

Therefore, I contend that the rule of Apprendi does not apply here, because the Sanchezes' ultimate sentences did not exceed the twenty-year maximum of section 841(b)(1)(C).

The Sanchezes persist, however, arguing that even though their sentences did not exceed section 841(b)(1)(C)'s maximum, they were imposed under section 841(b)(1)(B) because the district court, at the second sentencing hearing, referred to and felt limited by that section. Specifically, the Sanchezes argue that by mentioning section 841(b)(1)(B), the district court exposed the defendants to a possible prison term higher than the maximum penalty set out in section 841(b)(1)(C). Therefore, the Sanchezes assert, Apprendi requires that drug quantity be treated as an essential element of their offense and that, under Rogers, the quantity be charged in the indictment. It is this latter argument that most confuses the majority and leads unnecessarily to the dicta regarding Rogers and United States v. Camacho, 248 F.3d 1286 (11th Cir. 2001). Before addressing the Sanchezes' alleged Rogers' error, however, I review briefly the decisions disposing of the Sanchezes' supposed Apprendi error.

Bared to their essentials, these cases hold that there is no Apprendi error as long as the defendant's sentence does not exceed the twenty-year maximum of section 841(b)(1)(C), no matter what the district court said or found during sentencing. Although I concur with the majority in its treatment of the alleged Apprendi error, I believe it is important to show that our precedents, standing independent of Rogers, have long held that mere references to or reliance on sections 841(b)(1)(A) or 841(b)(1)(B) do not create error under Apprendi.12 In United States v. Gerrow, 232 F.3d 831 (11th Cir. 2000), for example, two defendants were tried and convicted under sections 841(a)(1) and 846 without regard to drug quantity. See id., 232 F.3d at 833. At their sentencing hearing, the district court determined drug quantities for each and then sentenced them under the sentencing guidelines to terms well under the twenty-year maximum of section 841(b)(1)(C). See id. at 834. We found no error, plain or otherwise, under Apprendi because the terms of imprisonment did not exceed the statutory maximum set forth in section 841(b)(1)(C). See id. Moreover, in United States v. Gallego, 247 F.3d 1191 (11th Cir. 2001), one of the defendants was charged in an indictment that did not include drug quantity and was tried and convicted under section 841(a)(1). See id., 247 F.3d at 1194 n.3. The district court sentenced this defendant under the sentencing guidelines to 168 months imprisonment, and we held that there was no Apprendi error because the sentence fell within the statutory maximum of section 841(b)(1)(C). See id. at 1197. Likewise, in Rogers, Nealy, Pease, Candelario, and Wims, this court found sentencing errors under Apprendi only because the lower courts had sentenced defendants to terms over the twenty-year maximum of section 841(b)(1)(C), meaning that the district courts had necessarily employed either section 841(b)(1)(A) or section 841(b)(1)(B) without properly treating drug quantity as an element.

In only one case has this court intimated that there could be an Apprendi error for not treating drug quantity as an element even when the defendant's sentence did not exceed the twenty-year maximum of section 841(b)(1)(C). In United States v. Shepard, 235 F.3d 1295 (11th Cir. 2000), although no drug quantity was alleged in the indictment, the district court "sentenc[ed] [the defendant] under section 841(b)(1)(B)" for possessing the requisite drug quantity13 to 188 months imprisonment. Id. at 1296. On appeal, we found this to be an error under Apprendi because the "[defendant's] sentence was controlled by section 841(b)(1)(C)" but the district court had applied section 841(b)(1)(B). Id. at 1297. Nevertheless, we affirmed the sentence because it fell "within the range authorized" by section 841(b)(1)(C); the error, we held, was not prejudicial. Id. As the majority correctly notes, however, we effectively limited Shepard in United States v. Candelario, 240 F.3d 1300 (11th Cir. 2001). In Candelario, we explained that "Shepard's holding was merely that a sentence that falls below the twenty year maximum, as set forth in 21 U.S.C. § 841(b)(1)(C), is not subject to reversal due to Apprendi" and therefore "'there is no error, plain or otherwise, under Apprendi where the term of imprisonment is within the statutory maximum set forth in section 841(b)(1)(C).'" Id. at 1308 n.11 (quoting in part Gerrow, 232 F.3d at 834).

The proper response, then, to the Sanchezes' second argument - that the district court committed an Apprendi error because it effectively sentenced them under section 841(b)(1)(B) - is straightforward. There is no Apprendi error because the defendants' sentences do not exceed the twenty-year maximum of section 841(b)(1)(C). The district court's reference to the penalty range of section 841(b)(1)(B) in sentencing the Sanchezes does not violate Apprendi, according to this circuit's well-established law.

The Sanchezes are correct that there may be another kind of error, however, even when the sentence falls under the twenty-year maximum of section 841(b)(1)(C). Termed the "Rogers' error" after our decision in United States v. Rogers, 228 F.3d 1318 (11th Cir. 2000), this mistake occurs when the indictment fails to allege a drug quantity, none is proven at trial, and yet the district court utilizes section 841(b)(1)(A) or 841(b)(1)(B) in sentencing. See id. at 1327; Camacho, 248 F.3d at 1290 n.7. It is in addressing this argument that the majority errs. Rather than determining whether Rogers even applies to the case at hand, the majority incorrectly assumes that it does and then attempts to overrule parts of Rogers and the cases which apply it. To respond, I first explain that Rogers has no application in a case like the one before us because, unlike the defendant in Rogers, the Sanchezes pled guilty. I then demonstrate how exactly a sentencing court commits a Rogers' error, show why no such error was ever committed here (even assuming Rogers' application), and, finally, assert that the majority's overruling of Rogers and its progeny is both wrong and pure dictum.

The holding in Rogers is inapplicable in the case before us. In Rogers, we held that "drug quantity in section 841(b)(1)(A) and section 841(b)(1)(B) cases must be charged in the indictment and proven to a jury beyond a reasonable doubt in light of Apprendi." Rogers, 228 F.3d at 1327. Unlike the Sanchezes, however, the defendant in Rogers chose to stand on his not-guilty plea and was tried before a jury. See id. at 1319. If the mantra of Apprendi is to provide the defendant with notice (and a reliable sentence), as I have already stated and explain more fully in part III, then the only way to satisfy that imperative in a case to be tried to a jury is to allege the sentence-enhancing fact in the indictment. Thus, we held in Rogers that in light of Apprendi, a fact like drug quantity, which enhances the sentence of a section 841(a) offense, must be charged in the indictment.

Clarifying our holding in Rogers in this way illustrates its inapplicability in the case before us. Here, the Sanchezes pled guilty, waiving their right to a jury trial. Moreover, because, as I point out in part III, the failure to allege drug quantity did not deprive the court of subject matter jurisdiction, the guilty pleas also waived notice of the drug quantity the Government would rely upon at sentencing. The Sanchezes, however, actually did receive notice of the drug quantity involved in the charged offense. Federal Rule of Criminal Procedure 11(c), "Advice to Defendant," required the court to inform the defendants of "the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law." Fed. R. of Crim. Pro. 11(c). In order to inform the defendants of such penalties, the court had to know the quantity of drugs the Government would establish at sentencing. In fact, after summarizing the various drug transactions later included in the PSIs, the prosecutor stated, "[O]ur evidence would indicate the distributions were probably more than one kilogram of methamphetamine." Likewise, the court informed the Sanchezes that if their offense involved one kilogram or more of methamphetamine, they would be facing a maximum penalty of life imprisonment and a mandatory minimum penalty of ten years imprisonment. If their offense involved "more than 100 grams but less than 1,000 grams of methamphetamine and amphetamine," the maximum penalty would be forty years imprisonment and a mandatory minimum penalty of five years imprisonment. Our command in Rogers, that all sentence-enhancing facts be included in the indictment, simply does not apply to cases such as this, in which the defendants were put on notice of drug quantity well in advance of the sentencing hearing.

Despite Rogers' inapplicability to the case before us, the majority assumes that it applies and then sets about overruling it and Camacho. The source of the majority's confusion is its acceptance of the Sanchezes' argument that because the district court cited section 841(b)(1)(B) they were sentenced as if their case was "a section 841(b)(1)(B) case." It is true that, in Rogers, we stated that "sections 841(b)(1)(A) and 841(b)(1)(B) may not be utilized for sentencing without a finding of drug quantity by the jury." Rogers, 228 F.3d at 1327. Both the Sanchezes and the majority, however, misinterpret and misapply the phrase "utilizing sections 841(b)(1)(A) or 841(b)(1)(B)." Essentially, a district court utilizes those sections when its sentencing discretion dictated by the sentencing guidelines is eliminated or cut short by the sections' mandatory minimums. If, for example, the defendant requests a downward departure from the applicable guideline range, and the court's compliance with section 841(b)(1)(A) or 841(b)(1)(B) is the only reason it refuses the departure, then that court would be "utilizing section 841(b)(1)(A) or 841(b)(1)(B)." Though this would not result in an Apprendi error, we have held that it constitutes a "Rogers' error." See United States v. Camacho, 248 F.3d 1286, 1289 (11th Cir. 2001). If a Rogers' error occurs in a case tried before a jury, then drug quantity would need to be alleged in the indictment and proven to the jury beyond a reasonable doubt. We have never held, however, that a sentencing judge utilizes section 841(a)(1)(A) or 841(b)(1)(B) simply by referring to it during the imposition of a sentence.

The prototypical Rogers' error occurred in Camacho. In Camacho, the defendant was indicted and convicted at trial under section 841(a)(1) without regard to drug quantity. See id. at 1288. At the sentencing hearing, the defendant stipulated to a drug quantity sufficient for a sentence under section 841(b)(1)(A), which prescribes a mandatory minimum sentence of ten years. See id. When the district court determined the defendant's sentence range under the sentencing guidelines, it arrived at a range of 108 to 135 months. Id. at 1289 n.6. The court applied the mandatory minimum of section 841(b)(1)(A), however, which narrowed the range to 120 to 135 months and effectively limited the district court's sentencing discretion. See Camacho, 248 F.3d at 1289 n.6. The court then sentenced the defendant to 120 months. Id. at 1289. On appeal, this court found no Apprendi error because the sentence was less than the statutory maximum of section 841(b)(1)(C). Id. We nevertheless found an error under Rogers because "Rogers . . . went beyond Apprendi to hold that 'drug quantity in section 841(b)(1)(A) and section 841(b)(1)(B) cases must be charged in the indictment and proven to a jury beyond a reasonable doubt.'" Camacho, 248 F.3d at 1289. Because the district court had used the ten-year mandatory minimum of section 841(b)(1)(A), narrowing the applicable guidelines range, we found that there was "no doubt that the district court applied the regime of section 841(b)(1)(A) when sentencing Camacho . . . [which] is error under this circuit's precedent in Rogers." Id.

Even assuming that Rogers' command to charge quantity in the indictment applies to the case before us, I maintain that the district court never "utilized sections 841(b)(1)(A) or 841(b)(1)(B)" because it never relied on the mandatory minimum of either section. Thus, unlike Camacho, the statutory provisions of section 841(b)(1)(A) and 841(b)(1)(B) did not constrain the district court or narrow the guidelines sentence range of either defendant. Rather, in sentencing the Sanchezes, the district court determined and applied the sentencing guidelines without any interference from section 841(b) at all. Even after they moved for a downward departure, the district court denied the motion because the motion lacked merit - not because any provision in section 841(b) prevented it from doing so. Because the district court did not "utilize section 841(b)(1)(A) or (B)," the Sanchezes' cases were not "section 841(b)(1)(B) cases." Rogers and Camacho, therefore, are simply inapplicable.14

I now turn to the discussion of whether hypothetical Apprendi errors are jurisdictional. I reiterate here that, like its treatment of Rogers and Camacho, the court's discourse about Apprendi error is unnecessary because there was no such error in this case. While I join the court's conclusion that an Apprendi error, when it occurs, should be subject to harmless or plain error analysis under Rule 52(a) or (b), I write separately to respond more fully to Judge Barkett's argument that Apprendi errors are jurisdictional.15

The argument that any fact which enhances a defendant's sentence becomes an element of the offense and must be included in the indictment in order to sustain a court's jurisdiction derives from a simple misunderstanding of the Court's opinion in Apprendi. The Court did not hold that such facts become elements; rather, Apprendi commands courts to treat a sentence-enhancing fact as the "functional equivalent of an element." Apprendi, 530 U.S. 466, 494 n.19. In this part, I show that the Court's concern was twofold: first, that a defendant have notice that the Government seeks to use a fact to enhance his sentence; and, second, that the enhanced sentence itself be reliable. As long as these two concerns are satisfied, then the district court has properly treated a sentence-enhancing fact as the functional equivalent of an element under Apprendi. I contend, therefore, that because a section 841(a) indictment would still state an offense even without including the drug quantity, a court would have subject matter jurisdiction under federal law. Hence, failing to allege drug quantity in the indictment is not jursidictionally fatal.

In understanding Apprendi's holding that sentence-enhancing facts are to be treated like elements, rather than made elements, it is useful to compare Apprendi with the Supreme Court's earlier opinion in Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999). In Apprendi, the Court's task was determining whether and to what extent the Constitution protects a defendant from a penalty exceeding the statutory maximum based on a fact found by a judge by a preponderance of the evidence. See Apprendi, 530 U.S. at 476, 120 S. Ct. at 2355. The engines propelling the Court's decision were the due process clause of the Fourteenth Amendment and the Sixth Amendment right to trial by jury, which, taken together, the Court held, "entitle a criminal defendant to a jury determination" of any fact which enhances his sentence beyond the statutory maximum. Id. at 476-77, 120 S. Ct. at 2356. In order that courts honor these constitutional protections, Apprendi declared that such sentence-enhancing facts are to be treated as "the functional equivalent of an element" and are "'elemental' [in] nature." Id. at 494 & n.19, 120 S. Ct. at 2365 & n.19 (emphasis mine). The Court's focus in Jones, on the other hand, was determining whether Congress intended that a sentence-enhancing fact be an element or a sentencing factor of an offense set out in the federal carjacking statute, 18 U.S.C. § 2119. See Jones, 526 U.S. at 229, 119 S. Ct. at 1217. The Jones Court, then, was not driven by any constitutional provision but by the federal statute. Based on its interpretation of that statute, the Court held that Congress had intended that serious bodily injury or death, a fact which resulted in higher penalties, be an element of the offense. See id. at 233-39, 119 S. Ct. at 1219-1223. In Apprendi, the Court brought the distinction to light, noting that while Jones discussed the "constitutionality of allowing penalty-enhancing findings to be determined by a judge by a preponderance of the evidence . . ., the [Jones] court concluded that those doubts were not essential to our holding." Apprendi, 530 U.S. at 472-73, 120 S. Ct. at 2353. Not only were the sources of the two opinions different, but their conclusions were dissimilar as well: in Jones, the Court found the sentence-enhancing fact to be an element; in Apprendi, on the other hand, the Court found that the fact was to be treated like an element.16

The focus of the Apprendi Court was not on legislative intent, but, rather, on the constitutional protections to which a defendant is entitled when a prosecutor seeks to enhance his sentence beyond the offense's maximum penalty. In focusing on these constitutional protections, I contend that the Court in Apprendi was fundamentally concerned with giving the defendant notice of the sentence enhancement and ensuring that any increased sentence be reliable. The Court began with the historical foundations of due process, noting that criminal proceedings have traditionally been initiated by an indictment that includes all facts in order "that the defendant . . . may be enabled to determine the species of offence they constitute, in order that he may prepare his defence accordingly . . . and that there may be no doubt as to the judgment which should be given, if the defendant be convicted." Id. at 478, 120 S. Ct. at 2356 (quoting J. Archbold, Pleading and Evidence in Criminal Cases 44 (15th ed. 1862) (emphasis mine). Honing in on the concern for reliability, the Court submitted that one way to ensure the fairness and accuracy of the sentence is to require the prosecutor to prove all the facts of the offense to a jury beyond a reasonable doubt. See id. at 483-84, 120 S. Ct. at 2359. "The 'reasonable doubt' requirement 'has a vital role in our criminal procedure for cogent reasons,'" not the least of which is to "reduce the risk of imposing [due process] deprivations erroneously." Id. at 484, 120 S. Ct. at 2360 (quoting In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)).

The Court's two-part concern for fair notice and sentence reliability are highlighted in its discussion in Jones and Apprendi of Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), in which the Court found that recidivism is a sentencing factor that does not need to be treated as an element. Although the Court pointed out that its conclusion in Almendarez-Torres relied partly on the tradition of treating recidivism as a sentencing factor and not an element, the Court in Jones and Apprendi illuminated other reasons. Unlike most sentence-enhancing facts, the Court observed, a prior conviction has already "been established through procedures satisfying fair notice, reasonable doubt, and jury trial guarantees." Jones, 526 U.S. at 249, 119 S. Ct. at 1227. In Apprendi the Court further explained that the defendant in Almendarez-Torres had admitted his earlier convictions, all three of which "had been entered pursuant to proceedings with substantial procedural safeguards of their own," and thus there was "no question [before the Court] concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact." Apprendi, 530 U.S. at 488, 120 S. Ct. at 2361.

The command of Apprendi, therefore, is not to transform sentence-enhancing facts into elements, the allegation of which is necessary in the indictment in order to state an offense, but, rather, to treat sentence-enhancing facts like elements in order to provide the defendant with notice of the sentence enhancement and to make certain the resulting sentence is reliable. Even though a sentence-enhancing fact like drug quantity should be included in the indictment in order to provide the defendant with notice,17 its absence is not a jurisdictionally fatal error. On the contrary, a court's power to adjudicate a federal criminal prosecution comes from 18 U.S.C. § 3231, which gives federal courts original jurisdiction of "all offenses against the laws of the United States." 18 U.S.C. § 3231. In many instances, an indictment may sufficiently charge a federal offense, and thus sustain the court's jurisdiction, without including the sentence-enhancing fact. In a section 841(a)(1) case, for example, an indictment charging the defendant with possessing or distributing a controlled substance properly states an offense against the United States without alleging a specific drug quantity. 18 U.S.C. § 841(a)(1). See also Prou v. United States, 199 F.3d 37, 45 (1st Cir. 1999) ("Whether or not the prosecution files a timely section 851(a)(1) information, a federal district court plainly possesses subject-matter jurisdiction over drug cases. See 18 U.S.C. § 3231 (conferring original jurisdiction of 'all offenses against the laws of the United States')."); United States v. Prentiss, 256 F.3d 971, 982 (10th Cir. 2001) (finding that the elements of the crime of arson (in Indian country) are "jurisdictional only in the sense that in the absence of those elements, no federal crime exists"). Failing to include drug quantity in a section 841(a) offense, therefore, is not jurisdictional.

Furthermore, it is well-established that failing to include an element in a jury instruction (or wrongly putting the burden on the defendant to prove an element) is not jurisdictional error but is subject to harmless error analysis. In Franklin v. Francis, 720 F.2d 1206 (11th Cir. 1983), for example, this court, after finding that the jury instructions had improperly shifted the burden of proving an essential element of the offense to the defendant, evaluated the error under the harmless error standard. See Franklin, 720 F.2d at 1212.18 We upheld this analysis in Collins v. Zant, 892 F.2d 1502 (11th Cir. 1990), stating that impermissibly shifting the burden of proof of an essential element to the defendant "does not automatically require reversal of an otherwise valid conviction; it is subject to the harmless error analysis under Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)." Collins, 892 F.2d at 1506. This approach was explicitly adopted by the Supreme Court in Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), in which the Court held outright that omitting an element from the judge's charge to the jury can be harmless error under Rule 52(a). See Neder, 527 U.S. at 7-8, 119 S. Ct. at 1833. Such an error, the Court held, "differs markedly from the constitutional violations we have found to defy harmless-error review." Id. at 8, 119 S. Ct. at 1833.

I contend, as the majority of this court does, that jury instruction errors, like the one that occurred in Neder, are no different from Apprendi errors occurring when an indictment fails to charge a sentence-enhancing fact (and the jury is not instructed to find such fact beyond a reasonable doubt).19 Indeed, we have already held as much, finding in United States v. Swatzie, 228 F.3d 1278 (11th Cir. 2000), cert. denied, 121 S. Ct. 2600 (2001), that "the error in Neder is in material respects indistinguishable from error under Apprendi" because both Neder and Apprendi involve facts that were to be resolved by a jury under a reasonable-doubt standard but, instead, were resolved by the judge using a less-exacting standard. Swatzie, 228 F.3d at 1283. Under Neder, therefore, failing to include a sentence-enhancing fact in the indictment is not jurisdictional error but is, instead, subject to harmless or plain error analysis under Rule 52(a) or (b).

Though failing to include a sentence-enhancing fact could create an error under Apprendi and Rogers, it is not a "structural error," but a constitutional error, which is subject to harmless or plain error review. We review section 841(a) cases on direct appeal under Rule 52. If an Apprendi error occurs and is properly preserved, then Rule 52(a) applies, and we "must disregard [the] error[] [if it is] harmless 'beyond a reasonable doubt.'" Neder, 527 U.S. at 7, 119 S. Ct. at 1833 (1999) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705 (1967)); see also United States v. Nealy, 232 F.3d 825, 829 (11th Cir. 2000) (applying Rule 52(a)'s harmless error analysis and using Chapman's standard to section 841(a) cases). In other words, Apprendi errors that are not harmless beyond a reasonable doubt "affect [the defendant's] substantial rights" within the meaning of Rule 52(a). When a defendant fails to preserve an Apprendi error, then we may reverse under Rule 52(b) only if the error is plain, affects substantial rights, and "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549, 137 L. Ed. 2d 718 (1997).20

In my view, focusing on Apprendi's two-part concern - notice of the drug quantity and reliability of sentence - better illuminates our task in resolving the cases that come before us. In this part, I divide those cases into two groups: those arising after Apprendi and those arising before. My comments on the first group are short. It is apparent that, in section 841(a) cases, the indictments returned in this circuit (and elsewhere) are alleging drug quantity when the government's proof will trigger the application of section 841(b)(1)(A) or (b)(1)(B). Thus, whether the defendant pleads guilty or goes to trial, the defendant will be on notice of the quantity of drugs the prosecution contends is involved in the offense.21 In both cases, the drug quantity involved in the offense of conviction will be found by the trier of fact - whether jury or judge - beyond a reasonable doubt as Apprendi requires.

I turn now to those cases arising before Apprendi and further divide them into two groups: those in which the defendant was tried before a jury and those in which the defendant pled guilty. In cases tried before a jury, if the drug quantity involved in the offense was not found by the jury beyond a reasonable doubt and the court used section 841(b)(1)(A) or 841(b)(1)(B) in imposing the sentence, we review the defendant's sentence under Rule 52(a) or (b), depending on whether the defendant objected to the court's failure to instruct the jury to find the drug quantity or the court's failure to find such quantity beyond a reasonable doubt. In cases adjudicated on a plea of guilty, the defendant would have been informed at the Rule 11 plea hearing of the quantity of drugs involved in the offense to which he tendered his plea.22 The Apprendi error - the failure of the court to determine the quantity of drugs involved in the offense of conviction beyond a reasonable doubt - will have arisen at sentencing. If the defendant objected to the court's finding such quantity by a preponderance of the evidence, we consider whether the error was harmless beyond a reasonable doubt under Rule 52(a). Absent a defense objection, we conduct this harmless error analysis under Rule 52(b).

In sum, Apprendi does not apply in this case because the Sanchezes' sentences did not exceed the twenty-year maximum of section 841(b)(1)(C). Nor does Rogers apply: (1) unlike the instant case, Rogers involved a case tried to a jury, and (2) the five-year mandatory minimum provision of section 841(b)(1)(B) played no role in the court's decision making. For these reasons, much of which the majority and I have written is pure dicta. My concern is that it causes the district courts no mischief.

BARKETT, Circuit Judge, concurring in result only:

I agree that the sentences in this case should be affirmed because a sentence below the 20-year statutory maximum established by 21 U.S.C. § 841(b)(1)(C) for the violation of § 841(a) does not violate Apprendi v. New Jersey, 530 U.S. 466 (2000),1 and both Ignasio and Santiago Sanchez were sentenced to terms below 20 years. However, although the majority acknowledges that Apprendi error occurs when an indictment charging a violation of § 841(a) fails to allege drug quantity and a sentence in excess of 20 years pursuant to § 841(b)(1)(A) or (b)(1)(B) is nonetheless imposed, the majority proceeds to argue--hypothetically, because no Apprendi error occurred in the case before us--that such an error would be a "trial type" error subject to harmless or plain error review. While I do not believe the majority's discussion of this question is warranted by the instant case, I write separately because I believe its analysis is mistaken.

I Does Apprendi Require That Drug Quantity Be Treated As An Essential Element Of The Crimes Set Forth In 21 U.S.C. §§ 841 And 846?

No one disputes that prior to Apprendi certain basic principles were clearly and unambiguously established: (1) A defendant has the constitutional right under the Fifth Amendment to be charged by an indictment returned by a grand jury; (2) The court has the power to act only within the parameters of the specific crime charged in the indictment or information; (3) A sentence imposed outside of the parameters of the crime charged in the indictment or information is per se reversible; (4) A defendant has the constitutional right under the Fifth and Sixth Amendments to an information or indictment that gives notice of all of the essential elements of the crime charged and the factual bases therefor; (5) A defendant has the constitutional right to a jury determination of guilt beyond a reasonable doubt as to each essential element of the crime charged; (6) Any waiver, by plea or otherwise, of the right to notice by indictment or information, or of the right to a jury determination of guilt beyond a reasonable doubt, must be voluntary and intelligent.

In Apprendi, the Court stated that a fact that increases the penalty for a crime beyond the otherwise-applicable statutory maximum "fits squarely within the usual definition of an 'element' of the offense." Apprendi, 530 U.S. at 494 n.19. The Court held that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S. Ct. 2348.

The fundamental question posed after Apprendi is whether these statements mean that drug quantity must be treated as an element of the offenses set forth in 21 U.S.C. §§ 841 and 846 in order to impose the enhanced penalties provided by § 841(b)(1)(A) and (b)(1)(B) for the increased amount of drugs involved in the offense.2 I see only three ways to answer this question. The first is that drug quantity is an essential element of the offenses punishable under § 841(b)(1)(A) and (b)(1)(B), and that, therefore, all of the basic principles established by long standing precedent that apply to traditional offense elements--involving the defendants' rights under the Fifth and Sixth Amendments, as well as the boundaries of the court's power to act--apply to the element of drug quantity in § 841(b)(1)(A) and (b)(1)(B). Application of these principles to 21 U.S.C. § 841 leads to the conclusion that when an indictment charging a violation of § 841(a) fails to allege drug quantity, any sentence in excess of 20 years is reversible per se for resentencing within the 20 year statutory maximum prescribed by § 841(b)(1)(C).

The second option is that drug quantity is not an essential element of the crimes set forth in § 841(b)(1)(A) and (b)(1)(B), but remains a mere "sentencing factor." If this is so, drug quantity need not be charged in the indictment or proved to a jury beyond a reasonable doubt, but may be found by the sentencing judge by a preponderance of the evidence.

The third possibility is that although drug quantity is an element necessary to be charged and proven to a jury beyond a reasonable doubt, it constitutes a new kind of element, a constitutionally novel creature that is an element for some purposes but not for others. On this unprecedented theory, which the majority appears to endorse, the "element" must be alleged in the indictment, but if it is not, that failure does not have the same effect as a failure to allege a "real" element. Whereas precedent teaches that the failure to allege an element essential to the crime charged is a fatal defect requiring reversal of the excess sentence for resentencing within the proper bounds of the offense charged, the failure to allege this new "quasi-element" may be excused by an appellate court if it thinks it harmless.

Our own circuit, and every other circuit to have spoken on the question, has determined that the only plausible interpretation of Apprendi, especially as read together with Jones v. United States, 526 U.S. 227 (1999), is that drug quantity is an offense element of the crimes punishable by § 841(b)(1)(A) and (b)(1)(B) that must be alleged in the indictment as a prerequisite to the imposition of the sentences under those provisions.3 I believe this conclusion derives from both the language and holding of Apprendi.

In Apprendi, the Supreme Court reiterated that the Sixth and Fourteenth Amendments "indisputably entitle a criminal defendant to 'a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.'" Apprendi, 530 U.S. at 477 (quoting United States v. Gaudin, 515 U.S. 506, 510 (1995)). The Court characterized any "fact that increases the penalty for a crime" as "the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict," indeed, as noted above, as one that "fits squarely within the usual definition of an 'element' of the offense." Apprendi, 530 U.S. at 494 n.19. As Justice Thomas wrote in his concurring opinion, joined by Justice Scalia, "[o]ne need only look to the kind, degree, or range of punishment to which the prosecution is by law entitled for a given set of facts. Each fact necessary for that entitlement is an element." Id. at 501, 120 S. Ct. 2348 (Thomas, J., concurring). Drug quantity, in 21 U.S.C. § 841 is precisely such a fact--that is, a fact that legally entitles the prosecution to increased ranges of punishment under § 841(b)(1)(A) and (b)(1)(B) that exceed the statutory maximum for drug crimes of indeterminate quantity set forth in §§ 841(a) and 841(b)(1)(C).4 Thus, as a result of Apprendi, it is clear that drug quantity must be treated as an element of the offenses described by these sections.

Accordingly, I agree with the majority that if a sentence under § 841(b)(1)(A) or (b)(1)(B) is to be imposed, the necessary elements of the crimes charged therein, including the threshold drug amount prerequisite to the application of these subsections of the statute,5 must be "charged in the indictment and proven to a jury beyond a reasonable doubt . . . ." United States v. Rogers, 228 F.3d 1318, 1327; see also, e.g., United States v. Cotton, 261 F.3d 397 (4th Cir. 2001). My disagreement with the majority and with Judge Tjoflat's special concurrence is that I can find no reason in logic or law for failing to apply the consequences that flow from that determination.

The majority suggests that, on appeal, an Apprendi error in the indictment is susceptible to harmless error review if it has been preserved, and plain error review if it has not. The problem with this view is, first, that it fails to account for the court's responsibility, in every criminal case, to ascertain precisely the bounds of its own jurisdiction as delineated by the offenses charged in the indictment or information. If, as the majority agrees, drug quantity constitutes an element of the offenses in § 841)b)(1)(A) and (b)(1)(B), then failure to plead quantity in the indictment must, under all existing precedent, constitute jurisdictional error that requires any sentence in excess of 20 years to be reversed for resentencing within the limit of § 841(b)(1)(C). The majority, in its effort to sidestep this result, impermissibly creates a new class of "quasi-elements" not subject to this rule.6 At the same time, the majority fails to consider the constitutional principles that govern the validity of any waiver of constitutional rights--in this instance, the waiver of the right to a grand jury's consideration of the charges, and the requirement that any guilty plea, and corresponding waiver of the right to a jury trial, be voluntary and intelligent. Again, if drug quantity is an element of

§ 841(b)(1)(A) and(b)(1)(B), then failure to plead it in the indictment deprives the defendant of the meaningful notice to which he is due, under the Fifth and Sixth Amendments, of each of the elements of the crime charged, rendering his plea unintelligent and hence invalid.

II Failure To Plead Drug Quantity In The Indictment Is A Fatal Jurisdictional Defect To Any Sentence In Excess of 20 Years

A. The Court's Jurisdiction To Impose A Sentence Is Limited To the Offense Charged In The Indictment

When an indictment is not brought by the grand jury or does not contain all the essential elements of the crime charged and the necessary factual bases therefor, there is error in the subsequent criminal proceedings. When challenged, a conviction or sentence based on charges not initially brought by the grand jury must be per se reversed because, unlike most ordinary trial errors, "an indictment found by a grand jury [i]s indispensable to the power of the court to try [the defendant] for the crime with which he was charged." Ex Parte Bain, 121 U.S. 1, 12-13 (1887). Likewise, a "court cannot permit a defendant to be tried on charges that are not made in the indictment against him." Stirone v. United States, 361 U.S. 212, 217 (1960). The power, or lack thereof, to try defendants on the specific charges made in an indictment is the essence of the court's criminal jurisdiction.7

The remedy required by the Supreme Court for a sentence imposed beyond the trial court's jurisdiction is a remand for resentencing within the proper confines of its jurisdiction: "[T]he imposition of a sentence in excess of what the law permits does not render the legal or authorized section of the sentence void, but only leaves such portion of the sentence as may be in excess open to attack . . . . [T]he sound rule is that a sentence is legal so far as it is within the provisions of law . . . and only void as to the excess . . . ." United States v. Pridgeon, 153 U.S. 48, 62 (1894).8 Therefore, any sentence imposed under § 841(b)(1)(A) or 841(b)(1)B) in excess of 20 years, where the indictment alleges only a violation of § 841(a), is "void as to the excess" sentence imposed beyond the court's jurisdiction. Id.

The majority takes no account of this jurisdictional error that occurs when a court acts in excess of its authority. Indeed, even guilty pleas can not excuse such jurisdictional errors, for the court simply does not have authority to accept a plea to an offense greater than that charged in the indictment.

The objection that the indictment fails to charge an offense is not waived by a guilty plea. The violation of [the defendant's] right to be free of prosecution for a nonoffense would bar his conviction even if his "factual guilt" had been established validly. The entry of a guilty plea does not act as a waiver of jurisdictional defects such as an indictment's failure to charge an offense.

United States v. Meacham, 626 F.2d 503, 510 (5th Cir. 1980).9

The majority argues that a sentence in excess of 20 years under an indictment alleging only a violation of § 841(a) can be affirmed because it is not a structural error but simply a trial type error "analogous to the jury-instruction error" in Neder v. United States, 527 U.S. 1 (1999). Although, prior to Apprendi, no court had held that the omission of an essential element from an indictment was reviewable for harmless error, the majority, in applying this principle to Apprendi cases, would do just that.10 To categorize the error in this way ignores the initial question that must be asked when an essential element has not been alleged in the indictment: What is the extent of the court's power to act or, put in the traditional way, the extent of its jurisdiction?11 Neder is not applicable to this threshold issue.

First, as Neder recognizes, an error in a petit jury instruction is "simply an error in the trial process itself." Id. at 1833. Such errors can be assessed within the context of the trial and may consequently be deemed harmless. In contrast, the grand jury indictment confers initial jurisdiction upon the court and defines its scope. See, e.g., Gaither v. United States, 413 F.2d 1061 (D.C. Cir. 1969). Thus, an error by which the scope of the indictment is expanded cannot be analyzed in the context of the trial, for such errors precede any consideration of trial process errors and challenge either the court's initial jurisdiction or its reach.

As illustrated by Stirone, not every error in jury instructions is susceptible to harmless error review. Unlike the non-jurisdictional jury instruction error in Neder--to wit, failure to submit the issue of materiality to the jury when it was implicit in the jury instructions as a whole--the jury instructions given in Stirone varied from the indictment to such an extent that the substantial right to be tried only on charges presented in the indictment returned by a grand jury was abrogated. The defendant's sentence was therefore vacated because the court had exceeded its jurisdiction. See also United States v. Tran, 234 F.3d 798, 809 (2d Cir. 2000) ("If the district court acts beyond its jurisdiction by trying, accepting a guilty plea from, convicting, or sentencing a defendant for an offense not charged in the indictment, this Court must notice such error and act accordingly to correct it, regardless of whether the defendant has raised the issue.").12

B. A Defendant Has A Right To Have A Grand Jury Consider The Crime For Which He or She Will be Punished And Can Only Waive This Right If The Waiver Is Voluntary

The conclusion that the failure to allege an element in the indictment is not susceptible to harmless error review flows from a recognition of the pivotal role played by the grand jury in the process of a criminal case. Under the Fifth Amendment the Constitution gives the grand jury complete discretion to provide the parameters of a criminal proceeding, vesting it with the power to indict based on the evidence presented to it and the absolute choice not to indict, notwithstanding any evidence presented:

In the hands of the grand jury lies the power to charge a greater offense or a lesser offense; numerous counts or a single count; and perhaps most significant of all, a capital offense or a noncapital offense--all on the basis of the same facts. Moreover, "[t]he grand jury is not bound to indict in every case where a conviction can be obtained." Thus, even if a grand jury's determination of probable cause is confirmed in hindsight by a conviction on the indicted offense, that confirmation in no way suggests that the discrimination did not impermissibly infect the framing of the indictment and, consequently, the nature or very existence of the proceedings to come.

Vasquez v. Hillery, 474 U.S. 254, 263 (1986) (quoting United States v. Ciambrone, 601 F.2d 616, 629 (2d Cir. 1979) (Friendly, J., dissenting)).

Thus, even when there is overwhelming evidence of drug amounts to support conviction and sentence under § 841(b)(1)(A) or (b)(1)(B), the grand jury has the right to refuse to charge the defendant with those amounts. Whatever decision is made by the grand jury for whatever reason, it cannot be reversed by a later petit jury, or worse, by the decision of the sentencing judge.

The content of the charge, as well as the decision to charge at all, is entirely up to the grand jury-subject to its popular veto, as it were. The grand jury's decision not to indict at all, or not to charge the facts alleged by the prosecutorial officials, is not subject to review by any other body.

Gaither v. United States, 413 F.2d 1061, 1066 (D.C. Cir. 1969) (internal citations omitted); Russell, 369 U.S. at 770 (1962) (harmless error analysis would allow a defendant to "be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.").

Moreover, just as the grand jury alone has the power to return an indictment, any amendments to the indictment must be made by the grand jury as well. See Stirone, 361 U.S. at 215-16; Bain, 121 U.S. 1. If, in subsequent proceedings, "the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them," United States v. Bursten, 453 F.2d 605, 607 (5th Cir. 1971), the alteration is deemed a "constructive" or "effective" amendment. Id. Such substantial "broaden[ing]," see Stirone, 360 U.S. at 216, constitutes per se reversible error because it violates the defendant's constitutional right to be tried solely within the parameters of the charges returned by the grand jury.13 See id.; Bursten, 453 F.2d at 607. In reviewing instructions to a jury which differed from the charges in the indictment, the Court in Stirone held:

While there was a variance in the sense of a variation between pleading and proof, that variation here destroyed the defendant's substantial right to be tried only on charges presented in an indictment returned by a grand jury. Deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error.

Id. at 217, 80 S. Ct. 270. In United States v. Peel, 837 F.2d 975, 979 (11th Cir. 1988), this court reiterated that "a constructive amendment of a grand jury indictment is reversible error per se." Id. (emphasis in original).14

Because it is necessary to allege the requisite drug quantity in the indictment to sentence a defendant under § 841(b)(1)(A) or 841(b)(1)(B), it is clearly error to sentence the defendant in excess of 20 years under those provisions in the absence of such an allegation. By such a sentence, the court, in place of the grand jury, supplies the missing allegation in the indictment, and, in place of the petit jury, "finds" it as a "fact." This "fact" is "legally essential to the punishment to be inflicted," thereby increasing the penalty under § 841(b)(1)(A) or 841(b)(1)(B). Thus, by such a sentence the court is constructively amending the indictment in just as substantial a manner as that prohibited in Stirone, and thus, like in Stirone, the error is per se reversible. Because the court's sentence exceeds the jurisdiction established by the indictment, the erroneous sentence is not susceptible to harmless or plain error review on direct appeal, or procedural default on collateral review.

If the indictment has charged a violation of 21 U.S.C. § 841(a), alleging only some indeterminate drug quantity, the sentence for that crime is set out in § 841(b)(1)(C). Clearly the court has the jurisdiction or the power to sentence a convicted defendant under these allegations pursuant to this provision. However, any sentence "beyond the prescribed statutory maximum" of § 841(b)(1)(C) must necessarily be based on a "fact" not alleged in the indictment, namely drug quantity, that has "increas[ed] the penalty beyond the prescribed statutory maximum" and that is "legally essential to the punishment to be inflicted." See Apprendi, 560 U.S. at 490 n. 15. When drug quantity is not alleged in the indictment, such a sentence is invalid.15

III The Defendant's Fifth and Sixth Amendment Rights To Notice Also Require That, Where The Indictment Does Not Allege Drug Quantity, Sentences In Excess Of 20 Years Be Per Se Reversed

When the grand jury does return an indictment, due process requires that the indictment must provide a defendant with adequate notice of the crime with which he or she has been charged:

The criteria [for a valid indictment] are, first, whether the indictment contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, secondly, in case any other proceedings are taken against him for a similar offense whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

Russell, 369 U.S. at 763-764 (collecting cases) (internal quotations omitted). As our own Circuit has emphasized,

A grand jury indictment must set forth each essential element of the offense in order for the conviction to stand . . . . [T]he Sixth Amendment to the Constitution requires that every criminal defendant 'be informed of the nature and cause of the accusation.' Inclusion of the essential elements of an offense in an indictment provides the accused with the bare minimum of information necessary to meet this requirement . . . . [T]he Fifth Amendment guarantees the right of a grand jury indictment to each defendant to be prosecuted for an 'infamous,' or serious, crime. A grand jury can perform its function of determining probable cause and returning a true bill only if all elements of the offense are contained in the indictment.

United States v. Outler, 659 F.2d 1306, 1310 (5th Cir. Unit B 1981)16; see also United States v. Ramos, 666 F.2d 469, 474 (11th Cir. 1982) (an indictment is valid only "as long as those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute an offense under the laws of the United States").17 "[T]he language of the statute may be used . . . but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged." Hamling v. United States, 418 U.S. 87, 117-18 (1984).

Defects in the charging document compromise the defendant's Sixth Amendment guarantee requiring that any guilty plea be made with full and meaningful notice of the criminal charges lodged against him. How a defendant prepares to answer the charges brought against him and whether or not he will choose to enter a guilty plea is dictated by the contours of the charging document. Consider the example of a defendant charged with a drug crime of indeterminate quantity, who pleads guilty, and in his guilty plea, does not contest the government's allegations of a drug quantity which bring him within the increased range of § 841(b)(1)(A). Laboring under the justifiable but erroneous belief that the Government was not required to charge that quantity in the indictment, or prove it beyond a reasonable doubt to the jury in the first place, the defendant forewent his right to take the quantity issue to the jury. Such a waiver obviously cannot be deemed voluntary and intelligent, because the defendant's erroneous belief caused him to forego a fundamental constitutional right which he might otherwise have chosen to exercise. The exacting standard for guilty pleas, See Brady v. United States, 397 U.S. 742, 747-48 (1970) ("That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized"), mandates that any such waiver must not be deemed voluntary and intelligent. Thus, any sentence based on such a waiver violates a defendant's Sixth Amendment right to adequate notice of the charges against him upon which he can reasonably and knowledgeably base a defense or a plea.18

In sum, if this court were presented with a case in which a defendant received a sentence in excess of 20 years pursuant to § 841(b)(1)(A) or § 841(b)(1)(B) and the indictment did not allege the requisite drug quantity, I believe we would be required to vacate the sentence and remand for resentencing under § 841(b)(1)(C). Apprendi's requirement that drug quantity be alleged in the charging document establishes that the error would be jurisdictional to the extent that the court imposed a sentence in excess of that provided by § 841(b)(1)(C) and therefore reversible per se. The defendant would have to be resentenced within the 20 year maximum of § 841(b)(1)(C) . As a jurisdictional error, it cannot be waived by the defendant; it is not subject to harmless or plain error analysis on direct appeal; and it cannot be procedurally defaulted on collateral review. But because Ignasio and Santiago Sanchez received sentences below the statutory maximum of 20 years, I do not believe this court needed to reach any of these questions.19 I agree that their sentences created no Apprendi error and should be affirmed.