United States v. Santiago Gilberto Sanchez

[FMH] [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

Nos. 00-13347, 00-13447

________________________

D.C. Docket No. 98-00049-CR-HLM-4-5

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

IGNASIO MALDENALDO SANCHEZ,

SANTIAGO GILBERTO SANCHEZ,

Defendants-Appellants.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

Before ANDERSON, Chief Judge, and TJOFLAT, EDMONDSON, BIRCH,

DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, and WILSON,

Circuit Judges.

HULL, Circuit Judge:

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

2

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, ___ S. Ct. ___, 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

3

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.

I. PROCEDURAL BACKGROUND

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

4

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.

A. Sanchezes’ Indictment

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

1

Four other defendants were charged in the indictment, but this appeal involves only the

Sanchezes.

5

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

2

The motion quoted in full the now-famous footnote six from Jones v. United States, 526

U.S. 227 (1999), and in particular relied on its statement that “under the Due Process Clause of

the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact

(other than prior conviction) that increases the maximum penalty for a crime must be charged in

an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id. at 243 n.6; see

also infra Section II.A (discussing footnote six in Jones and Jones more generally).

3

The Supreme Court decided Jones on March 24, 1999 and Apprendi on June 26, 2000.

The present case exemplifies how, well before Apprendi, defendants in this circuit were

asserting that drug quantity under § 841 had to be charged in the indictment and decided by a

jury, even though prior circuit precedent repeatedly had held otherwise. See infra note 28. As

explained in United States v. Candelario, 240 F.3d 1300 (11th Cir.), cert. denied, 121 S. Ct. 2535

(2001), “[a] defendant may be deemed to have made a constitutional objection if his objection

6

B. Guilty Pleas and Rule 11 Colloquies

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

invokes Apprendi or Jones.” Id. at 1304 (citations omitted).

4

A sentence of ten years to life imprisonment, five years’ supervised release, and a

$4,000,000 fine – of which both defendants were advised – corresponds to § 841(b)(1)(A). A

7

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

sentence of five to forty years’ imprisonment, four years’ supervised release, and a $2,000,000

fine corresponds to § 841(b)(1)(B).

5

“A defendant who wishes to preserve appellate review of a non-jurisdictional defect

while at the same time pleading guilty can do so only by entering a ‘conditional plea’ in

accordance with [Federal Rule of Criminal Procedure 11(a)(2)].” United States v. Pierre, 120

F.3d 1153, 1155 (11th Cir. 1997) (quoting Fed. R. Crim. P. 11(a)(2)). Rule 11(a)(2) provides:

Conditional Pleas. With the approval of the court and the consent of the government, a

defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing

the right, on appeal from the judgment, to review of the adverse determination of any

specified pretrial motion. A defendant who prevails on appeal shall be allowed to

withdraw the plea.

Fed. R. Crim. P. 11(a)(2).

6

Ignasio Sanchez’s plea agreement stated, “Pursuant to Rule 11(a)(2), the defendant

reserves the right to appeal the District Court’s Order . . . denying the defendant’s motion to

Dismiss the Indictment . . . .”

7

We note that Santiago Sanchez’s reservation of his right to appeal this issue did not

comply with the requirements of Rule 11(a)(2), because it was not in writing. See Pierre, 120

F.3d at 1155 (noting that “[t]he conditional plea must be in writing and must be consented to by

the court and by the government”) (citing Fed. R. Crim. P. 11(a)(2)). Because the government

agreed to Santiago Sanchez’s oral reservation of his right to appeal this issue and because the

district court later granted Santiago Sanchez permission to do so, we, however, treat Santiago

Sanchez’s orally entered guilty plea as having properly reserved the right to appeal the denial of

8

C. Pre-Sentence Reports

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,

his motion to dismiss the indictment. Indeed, the prosecutor stated:

Your honor, the government’s not going to have an objection for the late adoption of the

motion by counsel for Santiago Sanchez, wouldn’t put on extra work for the government

to file its responsive brief. I would advise the court that, normally, when defendants

tender a plea of guilty, that such motions would be waived by the plea of guilty.

[Counsel for Ignasio Sanchez] had requested that he be allowed to retain that right to

appeal that issue, and that was specifically addressed in his [written] plea agreement for

Ignasio Sanchez. We consented to that in light of the fact the two defendants are brothers

or related and that there’s been a closeness in terms of the defense by the defendants; that

the government would be willing to permit, with the court’s permission, to allow

Santiago Sanchez, if he feels so inclined, to raise that issue on appeal in terms of failure

to allege any drug quantities in the indictment.

Only after the government agreed did the district court grant permission to Santiago Sanchez to

reserve the right to appeal this issue. We note, however, that the district court was not required

to do so.

8

At the time of the Sanchezes’ offenses, the penalty provisions applicable to a drug

offense involving methamphetamine and amphetamine required that the offense involve “100

grams or more of methamphetamine . . . or 1 kilogram or more of a mixture or substance

containing a detectable amount of methamphetamine,” or “10 grams or more of

9

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 §

methamphetamine . . . or 100 grams or more of a mixture or substance containing a detectable

amount of methamphetamine.” 21 U.S.C. §§ 841(b)(1)(A)(viii), 841(b)(1)(B)(viii) (1994). In

1998, Congress amended these provisions to require methamphetamine quantities of 50 to 500

grams, and 5 to 50 grams, respectively. See 21 U.S.C. §§ 841(b)(1)(A)(viii), 841(b)(1)(B)(viii)

(1998).

9

The drug quantities in the initial pre-sentence reports resulted in a base offense level of

38 for both defendants. The reports recommended a two-level increase for possession of a

weapon during the offense and a three-level reduction for acceptance of responsibility. Both

reports concluded that the Sanchezes’ total adjusted offense level was level 37 with a criminal

history of Category I. There was never any contention that either Sanchez had a prior drug

felony conviction.

10

Both amounts resulted in a base offense level of 34. The recommended two-level

increase for possession of a weapon and three-level reduction for acceptance of responsibility

resulted in an total adjusted offense level of 33, which, with a criminal history of Category I,

yielded a guideline range of 135 to 168 months.

11

The revised reports noted that a mandatory minimum penalty of five years’

imprisonment applied. Those reports also stated that the “Fine Guideline Range” was $17,500 to

$2,000,000 and that the term of “Supervised Release” was four years.

10

841(b)(1)(B), the revised reports did not specifically cite to that section of the

statute.

D. Sentencing

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

12

We note that the total of the drug quantities to which the Sanchezes pled guilty is

actually 2,901.6 kilograms. This slight error in arithmetic, however, would not change the base

offense level.

11

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.

13

The different custodial guideline ranges for the defendants resulted from Ignasio

Sanchez’s receiving a minor role adjustment. The Sanchezes’ drug quantities resulted in the

same base offense level of 32. The district court applied a two-level increase for firearm

possession, resulting in an offense level of 34. Regarding Ignasio Sanchez, the court then

applied a two-level reduction for playing a minor role in the offense and a three-level reduction

for acceptance of responsibility. These adjustments produced an offense level of 29, which with

a criminal history of Category I carried a guideline range for Ignasio Sanchez of 87 to 108

months. Regarding Santiago Sanchez, the court applied only a three-level reduction for

acceptance of responsibility. This adjustment produced an offense level of 31, which with a

criminal history of Category I carried a guideline range for Santiago Sanchez of 108 to 135

months.

12

Subsequently, both defendants timely appealed.14

II. DISCUSSION

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.

A. Jones v. United States

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

14

The record shows that the two pounds of methamphetamine agreed to in the sentencing

hearing was referenced in the pre-sentence reports as 907.2 grams of methamphetamine. (A

pound of methamphetamine equals 453.6 grams, so that two pounds equal 907.2 grams of

methamphetamine.) This 907.2 grams of methamphetamine is greater than the 500-grams

threshold required to trigger a sentence of not less than 10 years under 21 U.S.C. §

841(b)(1)(A)(viii). The government, however, never requested a mandatory minimum sentence

of 10 years, never made any objections to the sentences imposed, and has not cross appealed. At

the conclusion of the sentencing hearing, the government even affirmatively indicated that it had

“no exceptions.”

15

At the time that the grand jury in Jones returned the indictment, § 2119 read:

“Whoever, possessing a firearm as defined in section 921 of this title, takes a motor

vehicle that has been transported, shipped, or received in interstate or foreign commerce

from the person or presence of another by force and violence or by intimidation, or

attempts to do so, shall –

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined

under this title or imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of years up to

life, or both.”

13

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.” Id. at 229. 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.

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

Jones, 526 U.S. at 230 (quoting 18 U.S.C. § 2119 (1988 ed., Supp. V)). The Jones indictment

did not cite the statute’s three numbered subsections, and neither the indictment nor the jury

instructions mentioned the facts of “serious bodily injury” or “death.” Id. at 230-31. After the

jury found the defendant guilty, the pre-sentence report recommended a twenty-five year

sentence under § 2119(2) because a victim suffered “serious bodily injury” during the carjacking

offense. Id. at 231. The defendant objected, arguing that “serious bodily injury was an element

of the offense defined in part by § 2119(2), which had been neither pleaded in the indictment nor

proven before the jury.” Id. Over this objection, the district court sentenced the defendant to

twenty-five years’ imprisonment. Id.

14

jury.” Id. at 240 (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. 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.

B. Apprendi v. New Jersey

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

15

purpose, in violation of § 2C:39-4(a) of the New Jersey Statutes. Id. at 469-70.

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).

16

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.

17

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.

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. The Supreme Court noted that the answer to this

18

question was “foreshadowed” by its earlier opinion in Jones. Id. at 476.

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 (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 (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. 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).

19

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. 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.

The Court therefore reversed Apprendi’s 12-year sentence on the firearm offense.16

Id. at 497.

16

Apprendi challenged only his sentence and did not seek to withdraw his guilty plea or

attack his indictment. The Supreme Court ordered that the “judgment” of the state court be

reversed and that the case be “remanded for further proceedings not inconsistent with this

opinion.” Apprendi, 530 U.S. at 497. Thus, we read Apprendi as reversing only the defendant’s

sentence and not his conviction. This conclusion is supported by the fact that the indictment was

not at issue. Indeed, the Supreme Court expressly noted that “Apprendi has not here asserted a

constitutional claim based on the omission of any reference to sentence enhancement or racial

bias in the indictment.” Id. at 477 n.3. The Court noted that Apprendi relied “entirely on the

fact that the ‘due process of law’ that the Fourteenth Amendment requires the States to provide

to persons accused of crime encompasses the right to a trial by jury, and the right to have every

element of the offense proved beyond a reasonable doubt,” and it continued that the Fourteenth

Amendment “has not . . . been construed to include the Fifth Amendment right to ‘presentment

or indictment of a Grand Jury.’” Id. (citation omitted). Thus, the Court expressly did “not

address the indictment question separately.” Id.

20

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.

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 (citing Williams

21

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.” Id.

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 86-88.17 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

17

At issue in McMillan was Pennsylvania’s Mandatory Minimum Sentencing Act, 42 Pa.

Const. Stat. § 9712, which provided that anyone convicted in state court of certain enumerated

felonies was subject to a mandatory minimum sentence of five years’ imprisonment if the

sentencing judge found by a preponderance of the evidence that the defendant “visibly possessed

a firearm” during the commission of the offense. McMillan, 477 U.S. at 81. As the Supreme

Court explained, “The Act operates to divest the judge of discretion to impose any sentence of

less than five years for the underlying felony; it does not authorize a sentence in excess of that

otherwise allowed for that offense.” Id. at 81-82. The Act expressly provided that visible

possession was not an element of the crime. Id. at 81 n.1 (quoting Pa. Const. Stat. § 9712(b)).

The Supreme Court concluded that the terms of the Act did not violate the Due Process

Clause, thereby following its precedent that rejected the contention that “whenever a State links

the ‘severity of punishment’ to ‘the presence or absence of an identified fact’ the State must

prove that fact beyond a reasonable doubt.” Id. at 84 (quoting Patterson v. New York, 432 U.S.

197, 214 (1977)). The Court noted, “Section 9712, which comes into play only after the

defendant has been convicted of an enumerated felony, neither provides for an increase in the

maximum sentence for such felony nor authorizes a separate sentence; it merely requires a

minimum sentence of five years, which may be more or less than the minimum sentence that

might otherwise have been imposed.” Id. at 83.

22

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

23

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

18

In this regard, the Sanchezes also assert that the district court erred in applying the two-

level increase for firearm possession. Specifically, they contend that the firearm increase must

be proven beyond a reasonable doubt in light of Apprendi and that the testimony of the sole

government witness did not connect any weapons to the drug conspiracy. This argument lacks

merit. First, Apprendi does not apply to the Sentencing Guidelines. Second, the government’s

evidence satisfied its burden of proof. Sentencing Guideline § 2D1.1(b)(1) provides for a two-

level increase for possession of a firearm during the offense. The accompanying commentary

explains that this “adjustment should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1(b)(1), cmt. n.3.

“Once the prosecution has shown by a preponderance of the evidence that the firearm was

present at the site of the charged conduct, the evidentiary burden shifts to the defendant to show

that a connection between the firearm and the offense is clearly improbable.” United States v.

Hall, 46 F.3d 62, 63 (11th Cir. 1995). Here, Kenneth Green testified that he delivered guns to

the Sanchezes as partial payment for drugs and that later he took law enforcement authorities to a

storage center where he had stored four or five rifles and shotguns. The district court

specifically found Green’s testimony to be credible, and this finding was not clearly erroneous.

See id. (“We review findings of fact for clear error only.”).

24

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

C. The Federal Drug Statute

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

19

The Sanchezes emphasize certain language in Apprendi convenient for the contrary

position. See, e.g., Apprendi, 530 U.S. at 482-83 (“The historic link between verdict and

judgment and the consistent limitation on judges’ discretion to operate within the limits of the

legal penalties provided highlight the novelty of a legislative scheme that removes the jury from

the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding

the maximum he would receive if punished according to the facts reflected in the jury verdict

alone.”) (emphasis added); id. at 483 n.10 (“Put simply, facts that expose a defendant to a

punishment greater than that otherwise legally prescribed were by definition ‘elements’ of a

separate legal offense.”); id. at 494 (“Despite what appears to us the clear ‘elemental’ nature of

the factor here, the relevant inquiry is one not of form, but of effect – does the required finding

expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?”);

id. at 495 (“But it can hardly be said that the potential doubling of one’s sentence – from 10

years to 20 – has no more than a nominal effect.”). As discussed above, however, Apprendi’s

holding was itself limited to judge-decided facts that actually increased the defendant’s sentence

beyond the prescribed statutory maximum penalty. The opinion’s “exposure” language quoted

by the Sanchezes does not supercede Apprendi’s actual decision. See generally Crawford-El v.

Britton, 523 U.S. 574, 585 (1998) (“There is, of course, an important difference between the

holding in a case and the reasoning that supports that holding”).

25

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

20

Within broad constitutional limits, “[t]he definition of the elements of a criminal

offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely

creatures of statute.” Staples v. United States, 511 U.S. 600, 604 (1994) (internal quotation

marks omitted).

21

Conspiracy is made a separate offense by 21 U.S.C. § 846. That statute provides, “Any

person who attempts or conspires to commit any offense defined in this subchapter shall be

subject to the same penalties as those prescribed for the offense, the commission of which was

the object of the attempt or conspiracy.” 21 U.S.C. § 846. The “subchapter” to which this

conspiracy statute refers is 21 U.S.C. § 841. Thus, for simplification, we will discuss only § 841

in this opinion. Given that the penalties for a violation of § 846 track the penalties for a

violation of § 841(a), our discussion applies equally to both statutes.

22

Similarly, § 841(a)(2) makes it “unlawful for any person knowingly or intentionally . . .

to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit

substance.” 21 U.S.C. § 841(a)(2). Again, while for simplification we focus on § 841(a)(1), our

discussion applies equally to § 841(a)(2).

Likewise, while we discuss in this opinion methamphetamine and amphetamine, our

discussion applies equally to any drug meeting the definition of a “controlled substance” as set

forth in the statute. Specifically, the statute provides, “The term ‘controlled substance’ means a

drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B

of this subchapter.” 21 U.S.C. § 802(6). Those schedules are contained in 21 U.S.C. § 812(c),

and the drugs included in each schedule share certain characteristics. For example, the statute

provides that the inclusion of a drug on Schedule II – on which methamphetamine and

amphetamine, the drugs involved in this case, are included – requires “findings” that:

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has a currently accepted medical use in treatment in the

United States or a currently accepted medical use with severe restrictions.

26

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).

(C) Abuse of the drug or other substances may lead to severe psychological or physical

dependence.

21 U.S.C. § 812(b)(2).

23

Although the indictment here charged “quantities” of two controlled substances,

specifically, methamphetamine and amphetamine, an indictment charging simply possession

with intent to distribute “a controlled substance” equally charges some drug type and amount.

27

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).

24

One estimate is that if the factors in § 841(b) are treated as elements of an offense for

constitutional purposes, and not sentencing factors as clearly enacted by Congress, then this

analysis results in approximately 350 different offenses based on these factors. See United

States v. Promise, 255 F.3d 150, 175 (4th Cir. 2001) (en banc) (stating a “rough estimation” that

“some 350 separate offenses” would exist in § 841 under “an interpretation of that provision that

deems the facts in subsection (b) to be elements of the § 841(a) offenses”) (Luttig, J.,

concurring).

28

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

25

Section 841(b)(1)(D), referred to in § 841(b)(1)(C), governs offenses involving certain

amounts of marijuana and other drugs and provides for a maximum term of imprisonment of five

years in the absence of a prior conviction for a felony drug offense. 21 U.S.C. § 841(b)(1)(D);

see infra note 37.

26

We have described § 841(b)(1)(C) as a “catchall provision.” United States v. Trout, 68

F.3d 1276, 1280 (11th Cir. 1995). Other circuits have adopted the same terminology. See

United States v. Houle, 237 F.3d 71, 79 (1st Cir.) (“Section 841(b)(1)(C), the statutory catchall[,]

authorizes a term of imprisonment for a schedule I or II narcotic, such as cocaine, without

reference to drug quantity, of ‘not more than 20 years.’”), cert. denied, 121 S. Ct. 2234 (2001);

United States v. Allison, 953 F.2d 870, 873 (5th Cir. 1992) (stating that § 841(b)(1)(C) “is a

more lenient catchall provision for all Schedule II drugs not addressed in” §§ 841(b)(1)(A) or

841(b)(1)(B)), opinion amended on other grounds, 986 F.2d 896 (5th Cir. 1993); United States v.

Marshall, 908 F.2d 1312, 1322 (7th Cir. 1990) (describing § 841(b)(1)(C) as “the catchall

statute”).

27

In contrast, other federal statutes that were the subject of the Supreme Court’s attention

in recent cases lack this bifurcated structure, clear dichotomy, and indisputable congressional

intent. See Jones, 526 U.S. at 235 (construing the carjacking statute); Castillo v. United States,

530 U.S. 120, 124-25, 131 (2000) (construing 18 U.S.C. § 924(c)(1) (1988 ed., Supp. V), and

noting that “Congress placed the element ‘uses or carries a firearm’ and the word ‘machinegun’

29

D. Circuit Precedent Prior to Apprendi

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

in a single sentence, not broken up with dashes or separated into subsections” and that this

structure indicated that “Congress intended that the firearm type-related words . . . refer[red] to

an element of a separate, aggravated crime”).

28

See, e.g., United States v. Rutherford, 175 F.3d 899, 906 (11th Cir. 1999) (concluding

that to prove completely the elements of an offense under § 841(a), the government need not

prove that a particular controlled substance was involved in the offense conduct, it need only

show that some controlled substance was involved); United States v. Mejia, 97 F.3d 1391, 1392-

93 (11th Cir. 1996) (“To sustain a conviction for possession of cocaine with intent to distribute,

the government must prove beyond a reasonable doubt that the defendant knowingly possessed

the cocaine and that he intended to distribute it.”); United States v. Perez, 960 F.2d 1569, 1574

(11th Cir. 1992) (“The rule that has developed in this circuit . . . is that the weight or quantity of

a controlled substance is not an element of the offense that must be included in a § 841(a)(1)

indictment.”); United States v. Gomez, 905 F.2d 1513, 1514 (11th Cir. 1990) (“[I]t is well-

settled that to sustain a conviction for possession with intent to distribute a controlled substance,

it need not be proved that the defendant had knowledge of the particular drug involved, as long

as he knew he was dealing with a controlled substance.”); United States v. Williams, 876 F.2d

1521, 1525 (11th Cir. 1989) (“A violation of section 841(a)(1) occurs when the government

proves beyond a reasonable doubt that a defendant possessed and intended to distribute a

‘controlled substance,’ regardless of whether that substance is cocaine or cocaine base.”); United

States v. Smith, 840 F.2d 886, 888 (11th Cir. 1988) (noting that the express language of § 841(a)

“puts no quantity requirement on the amount of controlled substance possessed”), abrogated on

other grounds, Gozlon-Peretz v. United States, 498 U.S. 395 (1991); United States v. Simmons,

725 F.2d 641, 643 (11th Cir. 1984) (“The statute makes it a crime for a person to possess with

intent to distribute a controlled substance . . . . [T]he crime can be proved without any

consideration of the amount involved . . . .”).

30

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

29

Indeed, in our circuit, defendants were raising the due process issue long before Jones

and Apprendi were decided. In United States v. Perez, 960 F.2d 1569, 1574 (11th Cir. 1992), we

summarized some of our decisions starting in 1984 that involved defendants’ challenges to the

enhanced penalties in § 841(b) based on the failure of the indictment to allege a specific drug

quantity. Those decisions, however, focused on whether the specific allegation of drug quantity

was needed in the indictment in order to give the defendant fair notice of the government’s intent

to seek enhanced penalties, rather than on whether the jury was required to make that

determination beyond a reasonable doubt. Subsequently, beginning in 1990, our decisions began

to address not only whether a specific drug quantity must be alleged in the indictment to give the

defendant notice of the enhanced penalties but also whether it must be proven to a jury beyond a

reasonable doubt. See United States v. Cross, 916 F.2d 622, 623-24 (11th Cir. 1990).

30

Our reading of the statute was consistent with that of every other circuit to address the

issue. See United States v. Promise, 255 F.3d 150, 176 (4th Cir. 2001) (en banc) (listing cases

and observing, “[s]ignificantly, even in the wake of Jones, which raised the spectre of a

constitutional limitation on the legislative power to define offenses, and thus would have

prompted a more searching, cautious statutory interpretation, every single court still held that

Congress intended the facts in section 841(b) to be sentencing factors”) (Luttig, J., concurring);

id. at 167 (Niemeyer, J., concurring) (noting that “no court reached a different conclusion in

interpreting this statute”).

31

The defendant in Hester was sentenced to a twenty-year mandatory minimum sentence,

and this Court affirmed. See Hester, 199 F.3d at 1288-89. On October 16, 2000, the Supreme

Court summarily vacated the judgment and remanded the case “for further consideration in light

of” Apprendi. Hester v. United States, 121 S. Ct. 336 (2000) (mem.). Hester remains pending in

this Court.

31

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

32

We determined in Hester that the language used in footnote six “allow[ed] two plausible

readings of Jones.” Hester, 199 F.3d at 1291. The first was that “footnote six means exactly

what it says,” thus resulting in “a broad rule” that we presciently observed “would have

sweeping implications for factors that Congress has traditionally considered sentencing

considerations, not elements of the crime.” Id. at 1291-92. The alternative, and narrower,

reading was that “when a court finds a statute and its legislative history unclear,” as the Supreme

Court found regarding the federal carjacking statute at issue in Jones, the court “should err in

favor of the defendant and consider an element of the offense any factor which increases the

maximum penalty for the offense.” Id. We adopted this latter, narrower reading of Jones,

concluding that the Jones Court proceeded with the statutory analysis “only because it first found

Congress’ intent ambiguous.” Id. at 1292.

33

We noted also that other circuits had, at that time, “adopted the narrower reading of

Jones,” a reading that the Tenth Circuit deemed a “‘more reasonable reading of Jones, one that

anchors its holdings to its facts, i.e., the statutory provision involved.’” Hester, 199 F.3d at 1292

(quoting United States v. Eads, 191 F.3d 1206, 1213-14 (10th Cir. 1999), cert. denied, 530 U.S.

1231 (2000)).

32

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

34

In this case, the government does not ask that we construe § 841(b) as prescribing an

overall statutory maximum sentence of life imprisonment for all § 841(a) violations, a view

recently endorsed by four judges of the Fourth Circuit. See United States v. Promise, 255 F.3d

150, 169-70 (4th Cir. 2001) (en banc) (“As a consequence of th[e] indisputable congressional

definition of the section 841 offenses, . . . the statutory maximum sentence for commission of

these offenses, and therefore the punishment authorized by the jury’s verdict of guilt of a section

841 offense, is life imprisonment, plus fine, with the actual sentence imposed dependent upon

judicial findings of the presence or absence of the various sentencing factors, including drug

amount and type, identified in section 841(b).”) (Luttig, J., concurring); see also id. at 165

(Wilkinson, C.J., concurring); id. at 167-68 (Niemeyer, J., concurring); id. at 186 (Gregory, J.,

concurring). This approach, which we have adopted when permitted by the plain statutory

language, effectively immunizes § 841 from any Apprendi problem. See United States v.

Pounds, 230 F.3d 1317, 1319 (11th Cir. 2000) (holding in a case involving 18 U.S.C. § 924(c)(1)

that “Apprendi is inapplicable under the present facts because every conviction under §

924(c)(1)(A) carries with it a statutory maximum sentence of life imprisonment, regardless of

what subsection the defendant is sentenced under”), cert. denied, 121 S. Ct. 1631 (2001).

33

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

35

Because Apprendi announced a new rule of constitutional law, we apply it to criminal

cases pending on direct review. See Griffith v. Kentucky, 479 U.S. 314, 322 (1987). This is

especially true here, as the Sanchezes timely raised the issues decided by Apprendi not only in

this Court but in the district court as well.

34

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, ___ 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

36

In United States v. Shepard, 235 F.3d 1295 (11th Cir. 2000), cert. denied, ___ S. Ct.

___, No. 00-10410 (Oct. 1, 2001), we utilized a slightly different approach to reach the same

result, stating that there was Apprendi error but concluding that because the defendant’s sentence

“falls within the authorized range, we find no prejudice.” Id. at 1297. In United States v.

Candelario, 240 F.3d 1300 (11th Cir.), cert. denied, 121 S. Ct. 2535 (2001), we discussed

Shepard and pointed out:

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. Shepard thus stands only for the proposition, along with Gerrow,

that “there 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.”

Id. at 1308 n.11 (quoting Gerrow, 232 F.3d at 834) (internal citation omitted). To resolve any

doubt, however, we hereby limit Shepard’s holding to the above proposition and reject its

prejudice-based analysis. When a sentence for a § 841 offense does not exceed the prescribed

statutory maximum under § 841(b)(1)(C), Apprendi is irrelevant.

35

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

37

The only exception involves quantities of marijuana, hashish, hashish oil, and the other

drugs specified in § 841(b)(1)(D), for which the maximum sentence is five years’ imprisonment.

See 21 U.S.C. § 841(b)(1)(D). The same rules discussed in this opinion, however, also apply to

those cases, with the only difference being that the prescribed statutory maximum penalty is five

years’ imprisonment.

36

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

38

All but one of the seven circuits to consider the issue have decided that Apprendi does

not invalidate the imposition of a mandatory minimum sentence under §§ 841(b)(1)(A) or

841(b)(1)(B), as long as the sentence does not exceed the statutory maximum sentence under

§ 841(b)(1)(C). See United States v. Rodgers, 245 F.3d 961, 965-68 (7th Cir. 2001); United

States v. Harris, 243 F.3d 806, 809 (4th Cir. 2001); United States v. Robinson, 241 F.3d 115, 122

(1st Cir. 2001), cert. denied, ___ S. Ct. ___, No. 00-10411 (Oct. 1, 2001); United States v.

Garcia-Sanchez, 238 F.3d 1200, 1201 (9th Cir. 2001); United States v. Keith, 230 F.3d 784, 787

(5th Cir. 2000), cert. denied, 121 S. Ct. 1163 (2001); United States v. Aguayo-Delgado, 220 F.3d

926, 933-34 (8th Cir.), cert. denied, 531 U.S. 1026 (2000). But see United States v. Ramirez,

242 F.3d 348, 351-52 (6th Cir. 2001); United States v. Flowal, 234 F.3d 932, 936-38 (6th Cir.

2000).

39

See infra note 50.

37

III. THE SANCHEZES’ CLAIMS

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 Ҥ

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

38

“§ 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.

39

A. Motion to Dismiss the Indictment

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

40

This Court has indicated that when a defendant pleads guilty and accepts the drug

quantity determination contained in the pre-sentence report or agrees to drug quantity at

sentencing or in his plea colloquy, he waives any right to appeal his sentence on the basis of

Apprendi, regardless of what sentence is ultimately imposed. See United States v. Walker, 228

F.3d 1276, 1278 n.1 (11th Cir. 2000) (affirming the defendant’s life sentence, noting that “[i]n

Apprendi, the Supreme Court required that during a jury trial, the government must be made to

prove and the jury convict on the factual evidence necessary for a sentence enhancement beyond

the statutory maximum” and concluding that since the defendant “pled guilty in this case and

accepted the contents of the PSI, he lost any right to appeal on the basis of this argument”), cert.

denied, 121 S. Ct. 1408 (2001). This is so because a defendant’s stipulation as to drug quantity

serves to waive the right to a jury trial on that issue, even when that drug quantity results in a

sentence in excess of the otherwise applicable statutory maximum. Indeed, just as the

defendant’s guilty plea to a substantive offense serves as the equivalent to a jury’s finding

beyond a reasonable doubt of that defendant’s guilt, so does a stipulation to a specific drug

quantity – whether as part of a written plea agreement, part of a jury trial, or at sentencing –

serve as the equivalent of a jury finding on that issue, since the stipulation takes the issue away

from the jury.

Accordingly, in prior cases in which defendants pled guilty to violating § 841, we have

affirmed sentences that violated Apprendi when there was agreement about the drug quantity.

See United States v. Pease, 240 F.3d 938, 944 (11th Cir. 2001) (affirming the defendant’s thirty-

year sentence where he admitted in both his plea agreement and plea colloquy that he had

accepted delivery of three kilograms of cocaine); United States v. Gallego, 247 F.3d 1191, 1200

(11th Cir. 2001) (affirming the defendant’s life sentence when his counsel stated “there is no

question but that [the defendant] had the ten kilograms of cocaine, he pled guilty to possessing

the ten kilograms of cocaine”). Similarly, we have affirmed sentences that violated Apprendi

when the defendant elected to go to trial but where evidence of drug quantity was uncontested.

See United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000) (holding that a preserved

Apprendi error was harmless where the evidence of drug quantity was “undisputed” such that

“no reasonable jury could have rationally concluded that Defendant was guilty of the substantive

offense . . . but that the amount of [crack] cocaine possessed was less than” the five grams

necessary for sentencing him to the penalty range in § 841(b)(1)(B), and thus affirming the

defendant’s thirty-two-year sentence); Gallego, 247 F.3d at 1198-99 (affirming a defendant’s life

sentence when he admitted in an objection to the pre-sentence report and at sentencing that he

personally possessed four kilograms of cocaine during the offense, and affirming another

40

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.

1. Standard of Review

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

defendant’s life sentence when there was “undisputed testimony” that 326 kilograms of cocaine

were involved in the offense); United States v. Wims, 245 F.3d 1269, 1272-74 (11th Cir. 2001)

(affirming the defendant’s concurrent sentences of forty years and life imprisonment when he did

not contest drug quantity); United States v. Candelario, 240 F.3d 1300, 1311-12 (11th Cir.)

(affirming the defendant’s sentence where, based on the testimony of the sole witness, “no

reasonable jury could have concluded that Candelario was guilty of the substantive offense . . . ,

but that the amount was less than five grams”), cert. denied, 121 S. Ct. 2535 (2001); United

States v. Swatzie, 228 F.3d 1278, 1283 (11th Cir. 2000) (affirming the defendant’s life sentence

because there was “no serious dispute that [he] possessed at least 5 gm of cocaine base, enough

for the increased statutory maximum, and no evidentiary basis existed for the jury reasonably to

have found that [the defendant] possessed drugs with intent to distribute, but did not possess both

cocaine base and powder at least in the amounts the authorities bagged at [the defendant]’s

house”), cert. denied, 121 S. Ct. 2600 (2001). We reaffirm all of the actual holdings in those

decisions.

41

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

41

There is no separate category of structural error apart from constitutional error. The

only question is whether any constitutional errors under Apprendi rise to the level of structural

error. Structural error occurs only in “a very limited class of cases,” Johnson v. United States,

520 U.S. 461, 468 (1997), and “necessarily render[s] a trial fundamentally unfair.” Rose v.

Clark, 478 U.S. 570, 577 (1986).

42

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

42

Ultimately, Nealy determined that the jury-instruction error was harmless but that the

defendant abandoned the indictment issue by not raising it in his initial brief. Because the

Sanchezes timely raised the indictment issue and their conditional plea agreements preserved the

issue for appellate review, we address the standard of review applicable to that issue in the

Apprendi context. In United States v. Swatzie, 228 F.3d 1278 (11th Cir. 2000), cert. denied, 121

S. Ct. 2600 (2001), we emphasized that the error at issue in Neder was “in material respects

indistinguishable from error under Apprendi.” Id. at 1283.

43

Neder explained that “‘most constitutional errors can be harmless.’” 527 U.S. at 8

(quoting Fulminante, 499 U.S. at 306). “[I]f the defendant had counsel and was tried by an

impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may

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

have occurred are subject to harmless-error analysis.” Id. (quoting Rose v. Clark, 478 U.S. 570,

579 (1986)). The list in Neder of structural errors not subject to harmless-error review is a short

one. See id. (mentioning complete denial of counsel, biased trial judge, racial discrimination in

grand jury selection, denial of self-representation at trial, denial of public trial, and defective

reasonable doubt instruction as structural errors).

44

For the reasons outlined in more detail in McCoy and Cromartie, we disagree with the

position in Judge Barkett’s concurring opinion and conclude that Apprendi error based on failure

to allege a specific drug quantity does not constitute a jurisdictional defect in a § 841 indictment

even if the defendant has been sentenced in excess of twenty years under § 841(b)(1)(A) or §

841(b)(1)(B).

45

See also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (describing

subject matter jurisdiction as “the courts’ statutory or constitutional power to adjudicate the

case”); Escareno v. Carl Nolte Sohne GmbH & Co., 77 F.3d 407, 412 (11th Cir. 1996) (noting

that a jurisdictional defect is one that “strip[s] the court of its power to act and make[s] its

judgment void”).

44

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

46

Our application of plain error review in the indictment context is consistent with our

practice in other Apprendi cases, centering on the failure to submit an element to the jury, where

we also applied harmless or plain error analysis based on the timing of the objection. See United

States v. Gallego, 247 F.3d 1191, 1198-2001 (11th Cir. 2001) (affirming life sentences); United

States v. Wims, 245 F.3d 1269, 1272 (11th Cir. 2001) (affirming life sentence); United States v.

Candelario, 240 F.3d 1300, 1311 (11th Cir.) (affirming 360-month sentence), cert. denied, 121 S.

Ct. 2535 (2001); United States v. Pease, 240 F.3d 938, 943 (11th Cir. 2001) (affirming thirty-

year sentence); United States v. Smith, 240 F.3d 927, 930 (11th Cir. 2001) (affirming thirty-year

sentence); United States v. Swatzie, 228 F.3d 1278, 1282-83 (11th Cir. 2000) (affirming life

sentence), cert. denied, 121 S. Ct. 2600 (2001). Our approach is consistent with decisions from

other circuits. See, e.g., United States v. Vazquez, ___ F.3d ___, No. 99-3845 (3d Cir. Oct. 9,

2001) (stating that “Apprendi violations do not constitute structural defects,” affirming the

defendant’s 292-month sentence under plain error review, and listing in footnotes 5-10 other

circuits’ decisions also applying plain error review).

45

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

47

But see United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999) (concluding in a

Hobbs Act case where the indictment failed to state the required mens rea that “if properly

challenged prior to trial, an indictment’s complete failure to recite an essential element of the

charged offense is not a minor or technical flaw subject to harmless error analysis, but a fatal

flaw requiring dismissal of the indictment”); United States v. Spinner, 180 F.3d 514, 516 (3d Cir.

1999) (interstate commerce element). While the Second Circuit has held that the failure to

include the type of firearm in a 18 U.S.C. § 924(c) indictment is jurisdictional error not subject

to plain error review, see United States v. Tran, 234 F.3d 798, 806-09 (2d Cir. 2000), that issue

is being addressed en banc. See United States v. Thomas, 248 F.3d 76, 78 (2d Cir. 2001) (en

banc) (order asking the parties to brief whether Tran’s reasoning was “sound”).

48

For the reasons set forth in detail in these opinions, we do not believe that the Supreme

Court’s decision in Stirone v. United States, 361 U.S. 212 (1960), which discussed the interstate

commerce requirement under the Hobbs Act, dictates a contrary result. See Prentiss, 256 F.3d at

984 n.11; Mojica-Baez, 229 F.3d at 310. Furthermore, Stirone was decided before Chapman v.

California, 386 U.S. 18, 22 (1967), in which the Supreme Court first stated that some

46

Sanchezes’ Apprendi-based challenge to their indictment.

2. The Sanchezes’ 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

constitutional errors could be deemed harmless.

Additionally, the Sanchezes rely on United States v. Tomeny, 144 F.3d 749 (11th Cir.

1998), but that decision is inapposite. The issue there was whether the statute under which the

defendants were indicted was preempted by another statute, not whether the indictment failed to

allege an element of the charged offense. Also, this Court ultimately affirmed the defendants’

convictions based on the indictment.

47

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

49

Although the Sanchezes preserved the indictment issue for appellate review, many

defendants making a similar argument have not. Under our precedent, “[a] contention that the

indictment lacked sufficient specificity is waived . . . if the defendant fails to raise it before

entering a guilty plea.” United States v. Pease, 240 F.3d 938, 942 (11th Cir. 2001) (citing Fed.

R. Crim. P. 12(b)(2)). While entry of a guilty plea does not act as a waiver of the objection that

the indictment failed to charge any offense at all, id. at 942-43, such a scenario is usually not

presented by an indictment charging a § 841 drug offense. This is so because an indictment

charging a drug offense under § 841 but failing to state a specific drug quantity does charge a

complete federal offense under § 841.

48

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

50

Other circuits have adopted a similar approach. See, e.g., United States v. Robinson,

241 F.3d 115, 119 (1st Cir. 2001) (“No Apprendi violation occurs when the district court

sentences a defendant below the default statutory maximum, even though drug quantity,

determined by the court under a preponderance-of-the-evidence standard, influences the length

49

We also recognize that, prior to this en banc decision, our circuit precedent

of the sentence imposed.”), cert. denied, ___ S. Ct. ___, No. 00-10411 (Oct. 1, 2001); United

States v. Williams, 235 F.3d 858, 863 (3d Cir. 2000) (“First and foremost, though the District

Court’s finding regarding the amount of drugs substantially increased the possible statutory

maximum sentence under 21 U.S.C. § 841(b)(1), we hold that Apprendi is not applicable to [the

defendant’s] sentence, because the sentence actually imposed (seven years and one month) was

well under the original statutory maximum of 20 years.”), cert. denied, ___ S. Ct. ___, No. 00-

1771 (Oct. 1, 2001); United States v. Obi, 239 F.3d 662, 667 (4th Cir. 2001) (concluding that a

sentence of 200 months’ imprisonment “does not offend the standards set forth in Apprendi,

despite the fact that [the defendant’s] sentence is based, in part, on factual findings of drug

quantity made by the sentencing judge by a preponderance of the evidence”), cert denied, ___ S.

Ct. ___, No. 00-9843 (Oct. 1, 2001); United States v. Doggett, 230 F.3d 160, 165-66 (5th Cir.

2000) (“As [the defendant’s] sentence of 235 months falls short of this statutory maximum [of

240 months as provided in § 841(b)(1)(C)], his claim fails. [The defendant’s] sentence was not

enhanced beyond the statutory maximum by a factor not contained in the indictment or

submitted to the jury. . . . The decision in Apprendi was specifically limited to facts which

increase the penalty beyond the statutory maximum, and does not invalidate a court's factual

finding for the purposes of determining the applicable Sentencing Guidelines.”), cert. denied,

121 S. Ct. 1152 (2001); United States v. Jones, 245 F.3d 645, 649 (7th Cir. 2001) (“[B]ecause

[the defendant’s] sentence was forty-eight months below the statutory maximum for a defendant

who has a prior felony drug conviction, Apprendi is inapplicable . . . .”); United States v.

Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.) (“If the non-jury factual determination only

narrows the sentencing judge’s discretion within the range already authorized by the offense of

conviction, such as with the mandatory minimums applied to [the defendant], then the governing

constitutional standard is provided by McMillan . . . . [B]ecause [the defendant’s sentences] are

within the statutory range authorized by § 841(b)(1)(C) without reference to drug quantity, [they

are] permissible under Apprendi . . . even where the drug quantity was not charged in the

indictment or found by the jury to have been beyond a reasonable doubt.”), cert. denied, 121 S.

Ct. 600 (2000); United States v. Garcia-Sanchez, 238 F.3d 1200, 1201 (9th Cir. 2001) (noting in

a case involving a sentence of 121 months, “Apprendi has no application here. Apprendi dealt

with the consideration of facts in sentencing enhancement beyond the statutory maximum. In the

instant case, the sentence imposed was nine years and eleven months below the statutory

maximum.”); United States v. Thompson, 237 F.3d 1258, 1262 (10th Cir.) (noting in a case

involving a 121-month sentence, “[B]ecause the indictment set forth all the necessary elements

of a crime as defined by 21 U.S.C. § 841(a) and 21 U.S.C. § 846, and because the minimum

statutory range (within which [the defendant] was sentenced) does not specify a drug amount,

neither the indictment nor the conviction was defective. . . . [W]here the sentence is fully

supported, as it is in this case, by allegations in the indictment which are subsequently proven

beyond a reasonable doubt, there can be no violation of Apprendi.”), cert. denied, 121 S. Ct.

1637 (2001); see also United States v. Fields, 251 F.3d 1041, 1043-44 (D.C. Cir. 2001)

(“Apprendi does not apply to sentencing findings that elevate a defendant’s sentence within the

applicable statutory limits. In other words, Apprendi does not apply to enhancements under the

Sentencing Guidelines when the resulting sentence remains within the statutory maximum.”)

(citation omitted).

50

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

51

Rogers appears to have assumed that compliance with Apprendi requires that drug

quantity be subjected to this full procedural triumvirate, including being charged in the

indictment. Indeed, we stated in a case involving concurrent sentences of forty years and life

imprisonment that Rogers “required” that the indictment specify drug quantity. United States v.

Wims, 245 F.3d 1269, 1272 n.6 (11th Cir. 2001) (citing Rogers, 228 F.3d at 1327). Other cases

in this circuit echoed this sentiment, generally attributing it to Rogers. See United States v.

Gallego, 247 F.3d 1191, 1196-97 (11th Cir. 2001); United States v. Candelario, 240 F.3d 1300,

1306 (11th Cir.), cert. denied, 121 S. Ct. 2535 (2001); United States v. Pease, 240 F.3d 938, 943

(11th Cir. 2001); United States v. Shepard, 235 F.3d 1295, 1297 (11th Cir. 2000), cert. denied,

___ S. Ct. ___, No. 00-10410 (Oct. 1, 2001); United States v. Gerrow, 232 F.3d 831, 834 (11th

Cir. 2000), cert. denied, ___ S. Ct. ___, No. 00-9373 (Oct. 1, 2001); cf. United States v. Swatzie,

228 F.3d 1278, 1282 (11th Cir. 2000) (assuming arguendo that a failure to charge drug quantity

in the indictment and submit it to a jury constituted Apprendi error, in part because the

51

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

indictment issue was not adequately briefed), cert. denied, 121 S. Ct. 2600 (2001).

Rogers expanded Apprendi in this regard, because neither Jones nor Apprendi held that a

congressionally enacted sentencing factor must also be alleged in the indictment. The

government argues that this expansion is not inevitable. Under the government’s view, a fact

such as drug quantity that increases a sentence beyond a default maximum does not in all

respects equate to a “traditional element”; it is, rather, “the functional equivalent of an element

of a greater offense than the one covered by the jury’s guilty verdict.” Apprendi, 530 U.S. at 494

n.19. Drug quantity in § 841 thus may occupy an ambiguous place somewhere in the middle of a

hazy spectrum marked by traditional “elements” on one end and “sentencing factors” on the

other, two endpoints that themselves represent a “constitutionally novel and elusive distinction.”

Id. at 494. The government can find comfort in at least one of our cases, which suggested that if

an indictment did not charge a specific drug quantity but “the evidence established a drug

quantity that would authorize a sentence under section 841(b)(1)(A) or (B), the Government

would be entitled to a special jury verdict specifying the quantity of drugs.” United States v.

Candelario, 240 F.3d 1300, 1305 n.7 (11th Cir.), cert. denied, 121 S. Ct. 2535 (2001).

According to the government, in sum, drug quantity is an “element lite” that is not subject to the

indictment requirement, but still must be submitted to the jury and proven beyond a reasonable

doubt.

We are not persuaded, and we thus preserve our precedent in Rogers and its progeny to

this limited effect. Of course, our holding with respect to the Sanchezes’ motion to dismiss the

indictment shows that drug quantity, even in Rogers-like cases, is not a “traditional element” in

the sense that a failure to allege it could entitle the defendant to dismissal of a § 841 indictment.

Instead, as outlined in this opinion, the omission of that element would first have to be

established and then, if shown, would be reviewed for harmless or plain error, depending on the

timing of the objection. See supra section III.A.1.

52

Although Rogers added a third procedural protection of charging drug quantity in the

indictment, we hasten to specify that drug quantity need be alleged only in the narrow

circumstances described above in which Apprendi’s jury-submission and reasonable-doubt

requirements apply – that is, when the sentence imposed exceeds the maximum in

§ 841(b)(1)(C). Drug quantity need not be alleged when it has effects that Apprendi’s doctrine

does not reach, such as mandatory minimum sentences, guideline sentencing calculations, and

sentences at or below the otherwise applicable maximum in § 841(b)(1)(C).

52

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,

53

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

53

This Court previously suggested that the imposition of a mandatory minimum sentence

based on a judge-made factual determination does not violate Apprendi. See United States v.

Pounds, 230 F.3d 1317, 1319-20 (11th Cir. 2000), cert. denied, 121 S. Ct. 1631 (2001). In

Pounds, the defendant was sentenced to the mandatory minimum sentence of ten years under 18

U.S.C. § 924(c)(1)(A)(iii), based on the sentencing court’s finding that his co-defendant had

discharged a firearm. Pounds, 230 F.3d at 1318. This Court affirmed the sentence, holding on

the basis of the statutory text that the discharge of a firearm was a sentencing factor and not an

element of the offense. Id. at 1319. Furthermore, this Court noted that Apprendi did not alter

this result, stating, “The discharge of a firearm does not increase the maximum possible penalty

of life under § 924(c)(1)(A); rather, it increases only the mandatory minimum penalty.” Id.

Thus, consistent with the analysis in this en banc opinion, our decision in Pounds, and the

holdings of the majority of circuits, we hereby overrule the holding about mandatory minimum

sentences in United States v. Camacho, 248 F.3d 1286, 1289 (11th Cir. 2001) (concluding that,

because the district court sentenced the defendant to the mandatory minimum of ten years’

imprisonment under § 841(b)(1)(A), it “necessarily used section 841(b)(1)(A) for sentencing,”

and concluding that this constituted error). We also reject Camacho’s adoption of “Rogers

error,” a concept that Camacho conceded “went beyond Apprendi” and would hold as error any

sentence obtained when the court utilized drug quantities in §§ 841(b)(1)(A) and 841(b)(1)(B)

that were not charged in the indictment and proven to a jury beyond a reasonable doubt,

regardless of the actual sentence imposed.

We preserve, however, that portion of Camacho which reaffirmed the principle that “a

defendant may obtain re-sentencing under Apprendi only if the sentence he actually receives

exceeds the maximum allowable sentence he should have received under section 841(b)(1)(C),

i.e., twenty years’ imprisonment, without regard to quantity.” Camacho, 248 F.3d at 1288 (citing

Gerrow, 232 F.3d at 834). Applying this rule, the Camacho Court stated that “[b]ecause

Camacho’s sentence of 120 months’ imprisonment was less than the twenty year maximum

prescribed by section 841(b)(1)(C), there is arguably no Apprendi error, even though the court

utilized a mandatory minimum when sentencing Camacho,” id. at 1289 (emphasis added)

(footnote omitted), but concluded that “[r]egardless of whether there is Apprendi error, there is

error in Camacho’s sentence under” Rogers. Id. We now clarify that nothing was “arguabl[e]”

about the lack of Apprendi error in Camacho’s sentence. Because Camacho was sentenced

below twenty years, Apprendi did not apply to his case.

54

§ 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

54

In Rogers, the defendant actually received a thirty-year prison sentence, and this Court

found, under the particular circumstances of that case, that the defendant’s prescribed statutory

maximum sentence was twenty years under § 841(b)(1)(C). We observe, however, that a thirty-

year sentence is permitted under § 841(b)(1)(C) when a defendant’s prior felony drug conviction

is properly shown.

55

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.

B. Plea Colloquies

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).

1. Standard of Review

55

Accordingly, in United States v. Candelario, 240 F.3d 1300 (11th Cir.), cert. denied,

121 S. Ct. 2535 (2001), we stated that a “constitutional objection for Apprendi purposes is timely

if a defendant makes the objection at sentencing.” Id. at 1304 (citations omitted).

56

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).

2. Rule 11

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

56

Although Rule 11(h), entitled “Harmless Error,” provides that “[a]ny variance from the

procedures required by this rule which does not affect substantial rights shall be disregarded,”

Fed. R. Crim. P. 11(h), such review does not supercede the plain error standard of review. See

Quinones, 97 F.3d at 475 (“We see no reason why the plain error rule should not apply in the

Rule 11 context, though we recognize that many non-technical deviations from Rule 11 will

constitute plain error.”).

57

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.

58

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.

59

3. Elements of the Offense

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

57

The Sanchezes’ conditional plea agreements did not preserve the right to appeal any

error in their plea colloquies, nor did they ever move to withdraw their pleas in the district court.

60

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

58

Our precedent strongly implies that naming a number is not the only way of alleging

drug quantity in the indictment. See United States v. Nealy, 232 F.3d 825, 830 & n.5 (11th Cir.

2000) (stating “that the indictment likely only needs to reference the statute” but finding that the

defendant abandoned the indictment issue and affirming his thirty-two-year sentence) (citing

United States v. Fern, 155 F.3d 1318, 1325 (11th Cir. 1998)); Fern, 155 F.3d at 1325 (“If an

indictment specifically refers to the statute on which the charge was based, the reference to the

statutory language adequately informs the defendant of the charge.”) (citing United States v.

Stefan, 784 F.2d 1093, 1101-02 (11th Cir. 1986)); see also United States v. Wims, 245 F.3d

1269, 1272 n.6 (11th Cir. 2001) (affirming concurrent sentences of forty years and life

61

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. 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

imprisonment and stating that “by alleging violations of section 841(b)(1)(A), the indictment

served [the defendant] with notice that the Government was charging him with possessing (or

conspiring to possess) at least five kilograms of a mixture containing a detectable amount of

cocaine or at least fifty grams of a mixture containing cocaine base”). Because the Sanchezes’

challenges to their guilty pleas lack merit even if they were misadvised, we need not imagine

here or resolve all the ways in which an indictment may adequately allege drug quantity.

59

At the time of the defendant’s plea colloquy in 1959, § 1201(a) provided, in pertinent

part:

Whoever knowingly transports in interstate . . . commerce, any person who has been

unlawfully . . . kidnaped . . . and held for ransom . . . shall be punished (1) by death if the

kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so

recommend, or (2) by imprisonment for any term of years or for life, if the death penalty

is not imposed.

Brady, 397 U.S. at 743 n.1 (quoting 18 U.S.C. § 1201(a)).

60

The habeas court found that Brady changed his plea upon learning that his co-defendant

would plead guilty and would be available to testify against him. Id. at 745.

62

voluntary. Id. at 743 n.2 (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.

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

61

While the Supreme Court’s opinion indicates that Brady alleged that the district court

did not comply with Rule 11 in its plea colloquy, neither that opinion nor the circuit court

opinion under review indicate what advice the district court gave concerning the possible

penalties. The Supreme Court’s opinion does state that “Brady’s counsel advised him that

§ 1201(a) empowered the jury to impose the death penalty.” Brady, 397 U.S. at 756.

Nonetheless, its discussion centered on whether the subsequent change in the law rendered the

guilty plea invalid.

62

In Jackson, the Supreme Court concluded that the death penalty provision of § 1201(a)

“impose[d] an impermissible burden upon the exercise of a constitutional right.” Jackson, 390

U.S. at 572. Specifically, the Court observed that under § 1201(a), “the defendant who abandons

the right to contest his guilt before a jury [i.e., by pleading guilty] is assured that he cannot be

executed; the defendant ingenuous enough to seek a jury acquittal stands forewarned that, if the

jury finds him guilty and does not wish to spare his life, he will die.” Id. at 581. The Court

further noted that “[t]he inevitable effect of any such provision, is of course, to discourage

assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth

Amendment right to demand a jury trial.” Id. (footnote omitted). The Supreme Court

concluded, “Whatever the power of Congress to impose a death penalty for violation of the

Federal Kidnaping Act, Congress cannot impose such a penalty in a manner that needlessly

penalizes the assertion of a constitutional right.” Id. at 583 (citing Griffin v. California, 380 U.S.

609 (1965)). The Court further decided, however, that the unconstitutionality of the death

penalty provision did not invalidate the entire statute, and it thus upheld the remainder of the

statute after excising the death penalty provision. See id. at 591 (“Thus the infirmity of the death

penalty clause does not require the total frustration of Congress’ basic purpose – that of making

interstate kidnaping a federal crime. By holding the death penalty clause of the Federal

Kidnaping Act unenforceable, we leave the statute an operative whole, free of any constitutional

objection.”).

63

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.

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 (citation omitted) (emphasis added). The Supreme Court concluded that

64

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.

Id. at 754-55.63

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.

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

63

The Supreme Court in Brady found support for this conclusion in Jackson itself, stating,

“The Court made it clear in Jackson that it was not holding § 1201(a) inherently coercive of

guilty pleas: ‘the fact that the Federal Kidnaping Act tends to discourage defendants from

insisting upon their innocence and demanding trial by jury hardly implies that every defendant

who enters a guilty plea to a charge under the Act does so involuntarily.’” Brady, 397 U.S. at

746-47 (quoting Jackson, 390 U.S. at 583).

65

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. 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

64

Indeed, even if the Sanchezes had been misadvised about the maximum possibly

penalty under the law as it existed at the time of their plea colloquy, their guilty pleas would not

be invalid. In United States v. Woodall, 438 F.2d 1317 (5th Cir. 1971) (en banc), the defendant

challenged his guilty pleas to two related indictments on the ground that he had been incorrectly

advised that the trial judge would pyramid the sentences rather than consider them as graduated

penalties for a single offense. Id. at 1327. We upheld the pleas, stating:

Isolating all other facts that could influence a defendant in determining to enter a

plea of guilty, the court is of the opinion that even if [the defendant] had been told

that the district judge could pyramid the maximum sentences under each of the

separate counts of the two indictments to which he pled, this factor would not

invalidate his plea. The probability such information would have influenced [the

defendant] not to change his plea so far outweighs the possibility that the prospect

of stiffer punishment may have caused the change, that we refuse to consider the

latter as relevant.

Id. at 1329.

66

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

C. Sentences

65

The Sanchezes’ reliance on United States v. Brown, 117 F.3d 471 (11th Cir. 1997),

does not help them. The defendant Brown was informed that willfulness was not an element of

his crime, based on the then-applicable law in our circuit. Fourteen months after Brown pled

guilty, the Supreme Court overruled our precedent in that regard. Id. at 473 (citing Ratzlaf v.

United States, 510 U.S. 135 (1994)). The defendant moved to vacate his conviction and sentence

on the ground that he had been misinformed of a critical element of his offense. Id. at 474. The

district court denied the motion, id., but this Court reversed and remanded. Id. at 480. We

stated, “Because the misinformation [the defendant] was given about one of the critical elements

of the charge against him caused him to plead guilty, it necessarily follows that his guilty plea

was not voluntary in a constitutional sense.” Id. at 477. We decided that Brady did not require a

different result, noting that the defendant in Brown misapprehended the elements of his offense,

while the defendant in Brady misapprehended the possible penalties. See id. at 478 (“Unlike

Brady’s strategic miscalculations, Brown’s misapprehension concerning the critical elements of

his charged offense substantially undermines the reliability of this plea. Brown has never

admitted all the elements of the crime with which he was charged.”).

66

Although the Sanchezes were advised about the mandatory minimum sentences in

§ 841(b), they were not misadvised about them, as Apprendi does not affect mandatory minimum

sentences under § 841(b). See supra notes 38, 53.

67

This result is consistent with other cases in which we have decided that a district court’s

failure to inform a defendant that he faces a specified term of supervised release or to inform the

defendant of the effect of supervised release is harmless error where the sentence is well below

the sentence that the defendant was informed that he faced. See United States v. Bejarano, 249

F.3d 1304, 1306 n.1 (11th Cir. 2001).

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

68

Thus, we review their argument for plain error. See United States v. Candelario, 240

F.3d 1300, 1306 (11th Cir.) (“If the defendant either does not raise the constitutional objection or

does not raise it in a timely fashion, he is entitled only to plain error review.”), cert. denied, 121

S. Ct. 2535 (2001).

69

In United States v. Gerrow, 232 F.3d 831 (11th Cir. 2000), cert. denied, ___ S. Ct. ___,

No. 00-9373 (Oct. 1, 2001), we addressed a similar challenge and concluded that the district

court did not commit plain error in imposing a supervised release term of five years. That

conclusion was based primarily on the facts that there was no Supreme Court or Eleventh Circuit

precedent and that the circuits were split on the issue, under which circumstances “‘there can be

no plain error in regard to that issue.’” Id. at 835 (quoting United States v. Aguillard, 217 F.3d

1319, 1321 (11th Cir. 2000)). While Gerrow suggested that there was no error under any

standard of review by noting that the majority of circuits resolved the issue against the

defendants, we now clarify that there is no error at all in a supervised release term of four years

for an offense where the term of imprisonment is governed by § 841(b)(1)(C).

68

“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

69

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

70

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.

IV. CONCLUSION

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

70

But see Suveges v. United States, 7 F.3d 6, 10 & n.6 (1st Cir. 1993) (indicating that a

term of supervised release imposed pursuant to § 841(b)(1)(C) is limited to three years); United

States v. Kelly, 974 F.2d 22, 25 (5th Cir. 1992) (same).

71

To the extent that the Sanchezes rely on the fact of their four-year terms of supervised

release to demonstrate that they were “sentenced under” § 841(b)(1)(B), that argument fails

because of our conclusion that a term of supervised release of four years is in fact authorized by

§ 841(b)(1)(C).

71

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 §

72

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, ___ 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

73

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.

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

72

In response to the statement in Judge Tjoflat’s concurring opinion that this case is not

en banc worthy because the Apprendi answer is obvious, we note that it was not obvious (1) to

the Sanchezes (or their counsel) who, notwithstanding their guilty pleas, preserved the right to

challenge the absence of drug quantity in their indictments as part of their plea agreements and

have pressed their contention that there is Apprendi error requiring reversal of their convictions

and sentences; (2) to the Sanchez panel whose opinion followed Rogers and Shepard, but

ultimately found no prejudice and any error was harmless; or (3) to “All Federal Public and

Community Defenders within the Eleventh Circuit Court of Appeals” and the “National

Association of Criminal Defense Lawyers and Families Against Mandatory Minimums

Foundation” who filed Amicus Curiae briefs supporting the Sanchezes’ requests for reversal of

their convictions and sentences based in part on their readings of Apprendi, Rogers, and

Camacho. For example, as noted in one Amicus Curiae brief, “[p]anels of this court have split

on the question of what effect Apprendi has on § 841’s type- and amount-base provisions.” That

brief then contrasts the approach taken in Gerrow versus that in Rogers and Camacho. We heard

this case en banc precisely (1) because of the need to clarify in our circuit the impact of

Apprendi on drug convictions, sentences, and plea colloquies, especially where a §§ 846, 841

indictment does not allege drug quantity, and (2) because it involves issues of exceptional

importance affecting a plethora of criminal cases.

74

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

1

Rule 35 of the Federal Rules of Appellate Procedure advises that an en banc hearing “is

not favored . . . unless (1) [it] is necessary to secure or maintain uniformity of the court’s

decisions; or (2) the proceeding involves a question of exceptional importance.” Fed. R. Appl.

Pro. 35. This appeal satisfies neither test. Therefore, the court should vacate the order taking

this case for rehearing en banc as improvidently granted.

75

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 in

This text is long and has been trimmed here. Open the source document for the complete record.