*

Honorable Henry A. Politz, U.S. Circuit Judge for the Fifth Circuit, sitting by designation. 

 1We grant Evelio Rizo Sr.'s Motion to Adopt Issues of Co-Appellants, filed August 16, 1999. 

 2Felix and Lazaro are brothers. Abel is the son of Rizo Sr. 

 3The October 9 indictment was a second superseding indictment. The first indictment was handed

down on January 24, 1996, and a superseding indictment followed on May 31, 1996. None of the

appellants was charged in the first indictment, and, of the appellants, only Abel and Rizo Sr. were charged

in the first superseding indictment. We refer to the second superseding indictment throughout simply as

"the indictment." This second superseding indictment charged fifteen individuals in seventeen counts. It

charged the appellants as follows:

Count One—Conspiracy to possess cocaine, with intent to distribute, from June 25,

1987 to March 1995, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, all

in violation of 21 U.S.C. § 846 (Abel, Felix, Lazaro, and Rizo Sr.);

Count Two—Possession of cocaine, with intent to distribute, on June 29, 1992, in

UNITED STATES of America, Plaintiff-Appellee,

v.

Felix GALLEGO, a.k.a. Ica, Evelio Rizo Sr., Lazaro Gallego Jr., a.k.a. Gamba, Abel Rizo, DefendantsAppellants.

No. 97-5293.

United States Court of Appeals,

Eleventh Circuit.

April 13, 2001.

Appeals from the United States District Court for the Southern District of Florida. (No. 96-00075-CR-SH),

Shelby Highsmith, Judge. 

Before TJOFLAT, HILL and POLITZ*

, Circuit Judges.

TJOFLAT, Circuit Judge:

This case is an appeal by members of a drug conspiracy. Although the appellants raise a host of

issues on appeal,1

 the only claim that merits discussion are that their sentences violate Apprendi v. New

Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We affirm the convictions and sentences.

I.

Four appellants are before us in the instant appeal: Felix Gallego ("Felix"), Lazaro Gallego Jr.

("Lazaro"), Abel Rizo ("Abel"), and Evelio Rizo Sr. ("Rizo Sr.").2

 The appellants were indicted by a

Southern District of Florida grand jury on October 9, 1996, on charges of conspiracy, possession of cocaine,

robbery, and firearms violations.3 The indictment was sealed by order of the court.
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Abel);

Count Three—Obstruction or delay of commerce by robbery ("Hobbs Act robbery") on

June 29, 1992, in violation of 18 U.S.C. §§ 1951(a) and 2 (Abel);

Count Four—Using and carrying a firearm during the commission of a crime of

violence and drug trafficking crime on June 29, 1992, in violation of 18 U.S.C.

§§ 924(c) and 2 (Abel);

Count Five—Attempted Hobbs Act robbery on February 20, 1993, in violation of 18

U.S.C. §§ 1951(a) and 2 (Felix and Rizo Sr.);

Count Six—Using and carrying a firearm during the commission of a crime of violence

and drug trafficking crime on February 20, 1993, in violation of 18 U.S.C. §§

924(c) and 2 (Felix and Rizo Sr.);

Count Seven—Hobbs Act robbery in late 1992 or early 1993, in violation of 18 U.S.C.

§§ 1951(a) and 2 (Lazaro);

Count Eight—Attempted Hobbs Act robbery on April 30, 1993, in violation of 18

U.S.C. §§ 1951(a) and 2 (Abel, Felix, Lazaro, and Rizo Sr.);

Count Nine—Attempted Hobbs Act robbery on November 24, 1993, in violation of 18

U.S.C. §§ 1951(a) and 2 (Abel and Rizo Sr.);

Count Ten—Using and carrying a firearm during the commission of a crime of violence

and drug trafficking crime on November 24, 1993, in violation of 18 U.S.C. §§

924(c) and 2 (Abel and Rizo Sr.);

Count Eleven—Possession of cocaine, with intent to distribute, in March 1994, in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Rizo Sr.);

Count Fourteen—Hobbs Act robbery on November 9, 1994, in violation of 18 U.S.C.

§§ 1951(a) and 2 (Rizo Sr.);

Count Sixteen—Possession of cocaine, with intent to distribute, on December 31, 1994,

in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Lazaro).

Because the other eleven individuals named in the indictment are not before us, we address

neither those individuals nor any counts of the indictment charging only those individuals. 

The appellants were allegedly members of a group, comprised of more than fifteen individuals, that

carried out home invasions and robberies to obtain money, drugs, and other valuable items from persons

believed to be drug traffickers. Such robberies are generally known as "rip-offs." The usual modus operandi

was for a member of the group (the "santo") to obtain information about other individuals who sold narcotics.

(The santo would receive a larger portion of the robbery proceeds for his role in the offense.) The santo

would report the information to Rizo Sr. and his son Evelio Rizo Jr. ("Evelito"). Next, the santo would make

a couple of small, controlled drug purchases from the targeted victim while other members were conducting

surveillance to obtain information about where the victim kept the drugs and drug proceeds (the
 4

Jerry Dean Crespo and Leonardo Cuellar went to trial with the appellants. Crespo was convicted of

Counts One and Sixteen; Cuellar was convicted of Counts One, Five, Six, Eight, Nine, Ten, Fourteen,

and Fifteen (attempted Hobbs Act robbery on November 25, 1994). Crespo and Cuellar initially took

appeals with the appellants, but subsequently dropped their appeals.

Of the remaining nine members of the fifteen indicted conspirators, three entered guilty

pleas before trial, two were arrested after the trial, and four (including Evelito) are fugitives. 

 5Rule 29 provides that the district court "shall order the entry of judgment of acquittal ... if the

evidence is insufficient to sustain a conviction." Fed.R.Crim.P. 29(a). The court had reserved decision

on Rizo Sr.'s motion for judgment of acquittal until after the jury verdict, pursuant to Fed.R.Crim.P.

29(b). 

 6None of the four appellants raised a constitutional objection at or before sentencing based on the

requirement that the jury must determine the quantity of drugs beyond a reasonable doubt. See generally

United States v. Candelario, 240 F.3d 1300 (11th Cir.2001). 

"stash-house"). Once the stash-house was identified, members would conduct the rip-off by posing as police

officers and forcibly robbing the victims by raiding the stash-house, often at gunpoint. Proceeds of the rip-off

were taken back to the Rizos' home in Hialeah, Florida, where Evelito and Rizo Sr. would tally the robbery

proceeds and distribute them to members of the group. If any member of the group was arrested, the group

would post bond and hire counsel to ensure that the member would not cooperate with authorities and would

not provide incriminating information about the group.

Abel and Rizo Sr. were arrested on June 3 and July 10, 1996, respectively, pursuant to the first

superseding indictment. On November 15, 1996, they entered pleas of not guilty to the charges in the second

superseding indictment. Felix was arrested on October 29, 1996, and Lazaro was arrested on November 6,

1996. They also pleaded not guilty. The four appellants went to trial, along with two others.4

 A jury found

the appellants guilty as charged (except Rizo Sr., who was acquitted on Count Eleven, a possession count).

The district court subsequently dismissed Counts Six and Ten (firearms counts) against Rizo Sr., pursuant

to Fed.R.Crim.P. 29.5 The court denied all other motions by the appellants for acquittals or new trials.

Thereafter, the court imposed the following sentences: Abel received 468 months' imprisonment, Felix

received 324 months' imprisonment, and Lazaro and Rizo Sr. each received life imprisonment. Each

appellant also was sentenced to five years' supervised release.

II.

 The appellants contend that their sentences violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.

2348, 147 L.Ed.2d 435 (2000). They did not raise timely constitutional objections on the Apprendi issues,6

and we therefore review their Apprendi claims for plain error. See United States v. Candelario, 240 F.3d
 7

Abel was sentenced at an offense level of 35 and a criminal history category of I. His sentences,

when cumulated, mandated 468 months' imprisonment. In addition to the concurrent terms of 168

months' imprisonment for Counts One and Two, Abel received 60 months' imprisonment on each of

Counts Three, Eight, and Nine; 60 months' imprisonment on Count Four; and 240 months' imprisonment

on Count Ten. The sentences for Counts One, Two, Three, Eight, and Nine were to run concurrently; the

sentences for Counts Four and Ten were to run consecutively to each other and consecutive to the

concurrent sentences on the other counts. (Counts Four and Ten were firearm counts, which meant the

sentences on those counts had to be imposed consecutively, pursuant to 18 U.S.C. § 924(c)(1)(D)(ii) and

U.S.S.G. § 5G1.2.) Terms of three years' supervised release were imposed on each of Counts Three, Four,

Eight, Nine, and Ten; all supervised release terms were to run concurrently. 

 821 U.S.C. § 841(b)(1)(C) reads, in pertinent part:

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

1300, 1303-06 (11th Cir.2001). The four prongs of plain error review are: (1) there must be error; (2) the

error must be plain; (3) the error must affect the appellant's substantial rights; and (4) the error must

"seriously affect[ ] the fairness, integrity, or public reputation of judicial proceedings." Johnson v. United

States, 520 U.S. 461, 467, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997); see also Fed.R.Crim.P. 52(b);

United States v. Swatzie, 228 F.3d 1278, 1281 (11th Cir.2000). Before we may correct an error that was not

timely raised, all four prongs must be satisfied. See Candelario, 240 F.3d at 1309.

A.

Abel received concurrent sentences of 168 months' imprisonment on Count One (conspiracy to

possess and distribute cocaine, in violation of 21 U.S.C. § 846) and Count Two (possession of cocaine, with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2). He also received concurrent

terms of five years' supervised release on these counts.7

 The Supreme Court established in Apprendi, 120 S.Ct. at 2362-63, that "any fact [other than a prior

conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt." Applying Apprendi 's constitutional principle

to drug cases proceeding under 21 U.S.C. § 841, we have held that the quantity of drugs must be charged in

the indictment and proven to a jury beyond a reasonable doubt if a defendant is to be sentenced under a

penalty provision of 21 U.S.C. § 841 (such as section 841(b)(1)(A) or section 841(b)(1)(B)) that contains a

quantity amount. United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir.2000). If an indictment contains

no allegation of drug quantity and the jury convicts but fails to make a quantity determination, a defendant

is subject to the penalties prescribed in 21 U.S.C. § 841(b)(1)(C), which requires a sentence of not more than

twenty years' imprisonment for possession of an unspecified quantity of cocaine.8

 Id. at 1327.
imprisonment of not more than 20 years .... [and if] any person commits such a violation

after a prior conviction for a felony drug offense has become final, such person shall be

sentenced to a term of imprisonment of not more than 30 years....

Cocaine is a schedule II drug. 21 U.S.C. § 812, Schedule II. 21 U.S.C. § 841(b)(1)(A) provides a

penalty of ten years to life imprisonment for possession of at least 5 kilograms of cocaine. 21

U.S.C. § 841(b)(1)(B) provides a penalty of five to forty years' imprisonment for possession of at

least 500 grams, but less than 5 kilograms, of cocaine. 

 921 U.S.C. § 841(b)(1)(C) requires a supervised release term of "at least 3 years in addition to such

term of imprisonment." Abel's sentences of five years' supervised release on Counts One and Two are not

plain error. See Gerrow, 232 F.3d at 835 (holding that a term of more than three years' supervised release

under 21 U.S.C. § 841(b)(1)(C) does not meet the "plain" requirement of plain error review, but declining

to decide whether 18 U.S.C. § 3583 provides the maximum term of supervised release for a defendant

sentenced under 21 U.S.C. § 841(b)(1)(C)); see also United States v. Pratt, 239 F.3d 640, 646-48 (4th

Cir.2001) (holding that a sentence of five years' supervised release under 21 U.S.C. § 841(b)(1)(C) is not

error at all, because section 841(b)(1)(C) provides for "at least 3 years" of supervised release and 18

U.S.C. § 3583 does not provide otherwise); United States v. Heckard, 238 F.3d 1222, 1236-37 (10th

Cir.2001) (same); United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.2000) (same). But see

United States v. Meshack, 225 F.3d 556, 578 (5th Cir.2000) (holding that 18 U.S.C. § 3583 limits a

sentence of supervised release imposed under 21 U.S.C. § 841(b)(1)(C) to a term of three years). 

 10Felix was also sentenced to 240 months' imprisonment on Counts Five and Eight and 60 months

imprisonment on Count Six. The terms of imprisonment were to be served concurrently on all except

Count Six, which was a consecutive sentence. (Count Six was a firearm count, which meant that the

sentence on that count had to be imposed consecutively, pursuant to 18 U.S.C. § 924(c)(1)(D)(ii) and

U.S.S.G. § 5G1.2.) This meant that Felix's sentences combined to total 384 months' imprisonment. The

district court sentenced Felix based on an offense level of 40 and a criminal history category of I.

Supervised release terms of three years were set as to Counts Five, Six, and Eight. All supervised release

terms were to run concurrently. 

 We have held, however, 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." United States v. Gerrow, 232 F.3d 831, 834 (11th Cir.2000); cf. Candelario, 240

F.3d at 1306 ("[T]here is an error if the defendant's sentence exceeds the maximum sentence allowed by a

statute without regard to quantity."). In the instant case, Abel's sentences of 168 months' imprisonment on

Counts One and Two fall below the twenty year maximum prescribed by section 841(b)(1)(C). There is

therefore no error under Apprendi.9

B.

Count One of the indictment charged Felix with conspiracy to possess and distribute cocaine, in

violation of 21 U.S.C. § 846. The jury convicted Felix and the district court sentenced him, pursuant to 21

U.S.C. § 841(b)(1)(A), to a term of 324 months' imprisonment and five years' supervised release on Count

One.10

 Felix satisfies the first two prongs of plain error review. His sentence of 324 months' imprisonment
 11At trial, Jorge Gonzalez (a co-conspirator who had pleaded guilty) testified that Felix was in actual

possession of four kilograms of cocaine during this rip-off. He further testified that an additional fifty

kilograms of cocaine were obtained during the rip-off. Felix only conceded possession of four kilograms

of cocaine, and we therefore rely upon that number. (Felix stated in his objections to the PSI and at

sentencing that his base offense level should be calculated on the basis of four kilograms of cocaine. The

defense arrived at this amount because it was the lowest quantity that Felix was "alleged to have

personally possessed" (emphasis added).) 

 1221 U.S.C. § 841(b)(1)(B) requires a supervised release term of "at least 4 years in addition to such

term of imprisonment." Felix's sentence of five years' supervised release on Count One is not plain error. 

See Gerrow, 232 F.3d at 835. 

 13Lazaro was also sentenced on Counts Seven and Eight to concurrent terms of 240 months'

imprisonment; these sentences were to run concurrently with the life sentences on Counts One and

Sixteen. Concurrent three year terms of supervised release were set as to Counts Seven and Eight. The

district court sentenced Lazaro based on an offense level of 44 and a criminal history category of III. 

exceeds the maximum of twenty years' imprisonment prescribed by section 841(b)(1)(C). This error is plain.

See Candelario, 240 F.3d at 1309 (holding that an Apprendi error in a drug case is plain on direct appeal).

 Felix fails, however, to satisfy the third prong of plain error review because he is unable to carry his

burden of demonstrating that the error affected his substantial rights. As he admitted in an objection to the

Pre-Sentence Investigation Report ("PSI") and at the sentencing hearing, Felix personally possessed four

kilograms of cocaine during a rip-off in October 1993.11 Therefore, a minimum quantity of four kilograms

was not in controversy. Four kilograms of cocaine exceeds the threshold amount necessary for sentencing

under 21 U.S.C. § 841(b)(1)(B), which requires a finding of at least 500 grams of cocaine. Because section

841(b)(1)(B) prescribes a sentencing range of five to forty years' imprisonment, and because Felix's sentence

of 324 months' imprisonment is less than forty years, we find that Felix's substantial rights were not violated

by the error in his sentencing.12 See United States v. Pease, 240 F.3d 938, 944 (11th Cir.2001). We need not

visit the fourth prong of plain error review since Felix has not satisfied the third prong. See Candelario, 240

F.3d at 1312.

C.

Lazaro was sentenced on Count One (conspiracy to possess and distribute cocaine, in violation of

21 U.S.C. § 846) and Count Sixteen (possession of cocaine, with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2) to concurrent life sentences.13 Concurrent terms of five years' supervised

release were also set for these counts.

Lazaro satisfies the first two prongs of plain error review. His sentences of life imprisonment exceed

the maximum of twenty years' imprisonment prescribed by 21 U.S.C. § 841(b)(1)(C), and the error is plain.
 14This testimony came from Jorge Gonzalez. See supra note 11. Gonzalez testified that he was

present during this rip-off and then testified as to the quantity involved. Additionally, Carlos Gustavo De

La Teja (another co-conspirator who had pleaded guilty) testified for the prosecution that the amount was

325 kilograms, and that Lazaro received 25 kilograms as his share of the rip-off. He further testified that

Lazaro and Jerry Dean Crespo (a co-defendant) sold him 14 kilograms that they had received from the

rip-off. 

 15Lazaro did object to the attribution of 326 kilograms to him from the rip-off at issue, but he based

his objection solely on the unreliability of the witnesses who testified as to drug quantity. He did not

offer any contrary testimony on quantity. Rather, Lazaro only put on alibi testimony by four defense

witnesses (including Lazaro himself). The alibi was that Lazaro was at a New Year's Eve party the entire

evening (from 6:00 P.M. to 2:00 A.M.), which would have rendered it impossible for him to be involved

in the rip-off. 

 16Count Sixteen was listed as overt act number 33 in Count One of the indictment. Further, Count

One alleged that on December 31, 1994, Lazaro (and others) possessed 326 kilograms of cocaine in the

robbery as part of the conspiracy. Count One also alleged, as overt act number 36, that Lazaro and Jerry

Dean Crespo delivered approximately 13 kilograms of cocaine to Carlos Gustavo De La Teja. See supra

note 14. 

 Lazaro fails to satisfy the third prong of plain error review—his substantial rights were not affected.

Count Sixteen was based on a rip-off that occurred on December 31, 1994. The only testimony at trial

relating to an amount involved in the rip-off was that 326 kilograms of cocaine were obtained. Of these 326

kilograms, Lazaro personally received twenty-five kilograms for his active role in the rip-off.14 Lazaro did

not object to or contest this amount at trial, and he did not put on any contrary testimony (either at trial or at

sentencing) as to a different amount.15 Given the undisputed testimony that 326 kilograms of cocaine were

involved in Count Sixteen, we find that there was no way the jury could convict on Count Sixteen and yet

determine that the quantity involved was less than five kilograms of cocaine. 21 U.S.C. § 841(b)(1)(A)

authorizes a sentence of ten years to life imprisonment for possession of five kilograms or more of cocaine.

Because the jury must have found at least five kilograms on Count Sixteen, Lazaro's substantial rights were

not affected by a sentence of life imprisonment on Count Sixteen, pursuant to section 841(b)(1)(A). See

United States v. Wims, --- F.3d ----, No. 98-3684 (11th Cir.2001).

 Neither were Lazaro's substantial rights affected by a sentence of life imprisonment on Count One

(conspiracy). The jury's conviction on Count Sixteen necessarily subsumes the conviction on Count One for

Apprendi review purposes, for the possession which constituted Count Sixteen was a part of the conspiracy.16

Therefore, a finding of at least five kilograms on Count Sixteen suffices as a finding of at least five kilograms

on Count One. Lazaro's substantial rights were thus not affected by a sentence of life imprisonment on Count
 17Because we find that sentencing under section 841(b)(1)(A) was proper, we hold that Lazaro's terms

of five years' supervised release are proper. See 21 U.S.C. § 841(b)(1)(A) (requiring that the court impose

"at least 5 years" of supervised release when a defendant possesses five or more kilograms of cocaine). 

 18The district court also imposed sentences of 240 months' imprisonment on Counts Five, Eight, Nine,

and Fourteen; all sentences were to run concurrently. Sentences of three years' supervised release were

imposed on each of these other five counts; all supervised released terms were to run concurrently. Rizo

Sr.'s offense level was 46 and his criminal history category was I. 

One, pursuant to section 841(b)(1)(A).17

Because Lazaro fails to satisfy the third prong of plain error review, we need not visit the fourth

prong.

D.

1.

Rizo Sr. was sentenced to a term of life imprisonment on Count One (conspiracy to possess and

distribute cocaine, in violation of 21 U.S.C. § 846). The court also imposed a term of five years' supervised

release for Count One.18

Rizo Sr. satisfies the first two prongs of plain error review. His sentence of life imprisonment

exceeds the maximum of twenty years' imprisonment prescribed by 21 U.S.C. § 841(b)(1)(C). This error is

plain.

 Rizo Sr. fails, however, to satisfy the third prong of plain error review, for his substantial rights were

not affected by the error. The indictment charged, as the first overt act in furtherance of the conspiracy, that

Rizo Sr. drove a car "containing ten (10) packages of cocaine wrapped in duct tape" in Salem County, New

Jersey on June 25, 1987. The ten packages each contained one kilogram of cocaine. Rizo Sr. pleaded guilty

in New Jersey state court to possession of these ten kilograms of cocaine, which were confiscated in a traffic

stop. Counsel for Rizo Sr. conceded at closing argument, "[The prosecutor] is right, there is no question but

that [Rizo Sr.] had the ten kilograms of cocaine, he pled guilty to possessing the ten kilograms of cocaine."

Because these ten kilograms of cocaine from the New Jersey conviction constituted part of the conspiracy

charged in Count One, the jury necessarily found more than five kilograms of cocaine in connection with

Count One. 21 U.S.C. § 841(b)(1)(A), which authorizes a sentence of ten years to life imprisonment, requires

a finding of at least five kilograms of cocaine. Because the jury found that more than five kilograms of

cocaine were involved in Count One, Rizo Sr.'s substantial rights were not affected by a sentence of life
 19We would affirm Rizo Sr.'s sentence even if this ten kilogram quantity were not a part of the

conspiracy. Although more than 150 kilograms of cocaine were attributed to Rizo Sr. at sentencing as

part of the relevant conduct, none of the other counts for which he was convicted carried drug quantities

as necessary components of the jury's verdict. Therefore, without the ten kilogram amount that we have

deemed a necessary part of Count One, the district court could have properly sentenced Rizo Sr. to a

maximum of only twenty years' imprisonment on Count One. However, this would not be grounds for

reversal, notwithstanding the court's imposition of a life sentence, because the error would not have

affected Rizo Sr.'s substantial rights. This is because, on remand, the district court would be obligated

under the Sentencing Guidelines to sentence Rizo Sr. to a combined term of imprisonment that comports

with his "total punishment." U.S.S.G. § 5G1.2 ("Sentencing on Multiple Counts of Conviction"). ("Total

punishment" is the "combined length of the sentences," which is "determined by the adjusted combined

offense level." U.S.S.G. § 5G1.2, Commentary.) If the maximum sentence for Count One was twenty

years, consistent with 21 U.S.C. § 841(b)(1)(C), then the district court would have to fashion Rizo Sr.'s

sentences consecutively (rather than concurrently) until it could produce a "combined sentence equal to

the total punishment." U.S.S.G. § 5G1.2(d). Rizo Sr.'s offense level of 46 (and criminal history category

of I) dictate mandatory life imprisonment, thereby requiring the district court to impose consecutive

sentences sufficient to equal life imprisonment. Because consecutive sentences combining to equal life

imprisonment are effectively the same as one sentence of life imprisonment (served with some lesser,

concurrent sentences), Rizo Sr.'s substantial rights would not be affected if we affirmed the sentence on

Count One. See United States v. Sturgis, 238 F.3d 956, 960-61 (8th Cir.2001) (holding that there was not

plain error, notwithstanding Apprendi, in a sentence that exceeded the statutory maximum without regard

to drug quantity due to a lack of "prejudice," since the district court, on remand, would have to impose the

same "total punishment" through imposing consecutive sentences pursuant to U.S.S.G. § 5G1.2(d)); 

United States v. White, 238 F.3d 537, 543 (4th Cir.2001) (same); United States v. Page, 232 F.3d 536,

544-45 (6th Cir.2000) (same). 

 20Because we find that sentencing under section 841(b)(1)(A) was proper, Rizo Sr.'s term of five

years' supervised release was also proper. See supra note 17. 

 21We also reject Rizo Sr.'s contention that the district court improperly adjusted his offense level four

levels for his role as a leader or organizer in the offense, pursuant to U.S.S.G. § 3B1.1(a). Given the

overwhelming evidence of Rizo Sr.'s coordination of the rip-off scheme, the district court's determination

that he was a leader or organizer was not clear error. See United States v. Rodriguez De Varon, 175 F.3d

930, 938 (11th Cir.1999) (en banc). 

imprisonment.19

Because Rizo Sr.'s substantial rights were not affected by the error in his sentencing, we need not

address the fourth prong of plain error review.20

2.

 Rizo Sr. also asserts that Apprendi requires the jury to determine whether he was a leader or

organizer for purposes of sentencing. Because we have held that Apprendi does not apply to relevant conduct

under the Guidelines, United States v. Maldenaldo Sanchez, 242 F.3d 1294, 1299 (11th Cir.2001), we hold

that there was no Apprendi error in the district court's failure to require the jury to determine whether Rizo

Sr. was a leader or organizer.21 See United States v. Jackson, 240 F.3d 1245, 1249 (10th Cir.2001) (holding

that Apprendi does not alter a district court's ability to adjust a defendant's offense level for role in the offense,

pursuant to U.S.S.G. § 3B1.1); United States v. Caba, 241 F.3d 98, 101 (1st Cir.2001) (same).
 22The appellants waived the issue of the district court's need to recuse itself by failing to raise it at the

first available opportunity. See Bivens Gardens Office Bldg., Inc. v. Barnett Banks of Florida, Inc., 140

F.3d 898, 913 (11th Cir.1998). Rizo Sr.'s contention that the district court failed to conduct an adequate

McLain hearing (United States v. McLain, 823 F.2d 1457 (11th Cir.1987)) regarding his lawyer's

continuing representation fails because Rizo Sr. validly waived his right to conflict-free counsel. The

appellants' objections based upon the sufficiency of the evidence fail because the evidence was not

insufficient as a matter of law and the evidence supported the convictions. The appellants' contentions

that the district court abused its discretion in various evidentiary rulings at trial are meritless. Finally,

there was no error in the Government's closing argument, particularly since the allegedly prejudicial

references were merely rebuttal to inflammatory defense comments during closing. 

III.

 The appellants raise a number of other issues, all of which fail.22 Because there was no error in the

appellants' convictions, and because any errors in their sentencing did not affect their substantial rights, the

convictions and sentences are

AFFIRMED.

HILL, Circuit Judge, concurs in the result.