In the

United States Court of Appeals

For the Seventh Circuit

Nos. 98-3449, 98-3639, 98-3640,

98-3841, 00-1047/*

United States of America,

Plaintiff-Appellee,

v.

Desmond Cavender, a/k/a Grip, Demetrius

Campbell, a/k/a Ill, Solomon Montague,

a/k/a "C," a/k/a C-Man, a/k/a Chinaman, and

Milton Buchanan, a/k/a Romie, a/k/a Romeo,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Western Division.

No. 97 CR 50026--Philip G. Reinhard, Judge. 

Argued November 1, 1999--Decided October 3, 2000

 Before Easterbrook, Ripple, and Diane P. Wood, Circuit

Judges.

 Diane P. Wood, Circuit Judge. This case arose

from a major cocaine bust in Rockford, Illinois.

Appellants Milton Buchanan, Solomon Montague,

Desmond Cavender, and Demetrius Campbell were,

along with several others, indicted in December

of 1997 for their role in the conspiracy.

Cavender and Buchanan pleaded guilty to

particular charges, while Montague and Campbell

went to trial and were convicted by the jury. All

four have appealed, raising a variety of points

related to their convictions and sentences. One

serious evidentiary error has persuaded us that

we must reverse Campbell’s conviction; we find

the remainder of the arguments raised either

without merit, harmless, or waived, and we

therefore affirm the judgments entered against

Buchanan, Montague, and Cavender. 

I

 The defendants were involved in a sophisticated

business arrangement for the sale of crack

cocaine (more formally known to the law as

cocaine base) in the Rockford area. Along with

Bennie Griffith, who later turned state’s

evidence, they were the key players. According to
the grand jury’s indictment, the conspiracy began

as early as June 1994 and continued through July

1997, and it involved the distribution of

multiple kilograms of cocaine base. Some

participants purchased large quantities of the

drug, some cut and bagged it for distribution,

and others sold it from designated "spots" run by

the conspirators.

 At Campbell and Montague’s trial, the government

presented Griffith as its star witness. Griffith

explained that he began selling drugs with

Cavender and Buchanan in late 1994, and that

Montague joined the group in 1996. Griffith

testified that they all, at various points in

time, purchased large amounts of cocaine, and

hired workers to bag and sell it. He said that he

sold crack to Campbell beginning in 1996, and

that Campbell had told him that he was reselling

the drugs on the west side. Griffith identified,

through photos, several spots that the conspiracy

controlled and used as sales locations, including

various residences and the area around the Jane

Addams housing project. The government also

introduced 118 tapes of conversations into

evidence. The recorded conversations were all in

code and street slang, but Griffith deciphered

them for the jury (which otherwise would have had

little to no idea of what the people were talking

about).

 Two other cooperating government witnesses who

were former members of the conspiracy also

testified at trial. The first, James Perkins,

said that he engaged in several drug transactions

with Montague and Buchanan. Noah Miller, the

other, said that he worked mainly with Montague

dealing drugs, but he knew that others were

working with Montague. Miller offered his own

explanations of the recorded conversations for 11

of the 118 tapes. His definitions were in many

instances different from those Griffith had used-

-a discrepancy Griffith explained by saying that

the code he used in conversing with the

conspirators was his special language, not

general street slang. Miller identified his own

voice in all 11 tapes, and identified Montague’s

voice in some of them. 

 The remaining testimony came from various FBI

and police officers, who reported that they had

seen Montague, Buchanan, Cavender, and sometimes

Campbell in vehicles together at different times

driving to and from what Griffith had described

as the conspiracy’s drug spots. Three Rockford

police officers also testified that they found

some bags of crack in Montague’s pants one

evening near the Jane Addams housing project.

 The jury convicted Campbell on Count 1

(conspiracy to possess with intent to distribute
and to distribute cocaine base, in violation of

21 U.S.C. sec. 846), and Montague on Counts 1 and

16 (possession of cocaine base with intent to

distribute, in violation of 21 U.S.C. sec.

841(a)(1)). Campbell received a life sentence, to

be followed by 10 years of supervised release,

and Montague received a life sentence along with

a concurrent 30 years of imprisonment on Count

16, also to be followed by 10 years of supervised

release. Cavender, who pleaded guilty to Count 1,

was sentenced to 312 months’ imprisonment

followed by eight years of supervised release.

Buchanan’s guilty plea covered both Count 1

(conspiracy), Counts 8, 9, 11, and 15

(distribution of cocaine base), and Count 17

(possession with intent to distribute cocaine

base). His sentence was for 420 months’

imprisonment followed by eight years of

supervised release.

II

 A. Impeachment of Griffith: Evidentiary

rulings 

 Griffith, as we have already noted, was the

linchpin of the government’s case at the trial.

Naturally, this meant that Campbell and Montague

had a strong interest in undermining him in front

of the jury, and the government had an equally

strong interest in demonstrating his credibility.

Toward the latter end, on direct examination

Griffith was asked about his drug use before he

left Chicago for Rockford and joined the

conspiracy. He insisted that he had neither used

nor sold any drugs during that time period:

Q: [Government’s attorney]: And when you were

in Chicago did you sell drugs?

A: No.

Q: Never?

A: No.

Q: Did you use drugs?

A: No.

On cross examination, he stuck to that story and

added that he had not dealt in drugs while he was

living in Chicago, in the following exchange:

Q: [Montague’s attorney]: Bennie, you testified

earlier you lived in Chicago, right?

A: That is correct.

Q: But in Chicago you didn’t deal any drugs,
right?

A: That is correct.

At least with respect to Griffith’s testimony on

direct examination about use (rather than

dealing), it is almost certain that he was lying.

In fact, Griffith had been convicted of a felony

in Chicago in 1994 for possession of a controlled

substance. After the exchange we have just noted,

Montague’s attorney attempted to impeach Griffith

by introducing evidence of that 1994 Chicago drug

possession conviction. The district court

sustained the government’s objection to the

evidence, and it was excluded from the trial.

Both Montague and Campbell objected. 

 On appeal, Campbell and Montague argue that

this ruling was in error. Montague argued that it

violated his Sixth Amendment confrontation

rights, and both claim that it misapplied Federal

Rules of Evidence 609(a) and 403. Normally, we

review a restriction on cross-examination only

for abuse of discretion. See United States v.

Graffia, 120 F.3d 706, 712 (7th Cir. 1997). The

exception arises when the restriction implicates

the criminal defendant’s Sixth Amendment right to

confront witnesses against her, in which case the

standard of review is de novo. See United States

v. Sasson, 62 F.3d 874, 882 (7th Cir. 1995).

 Under the Sixth Amendment, a criminal defendant

has the right to confront the witnesses against

her. U.S. Const. amend. VI. The exposure of a

witness’s motivations to lie is a proper and

important function of the constitutionally

protected right of cross-examination. See Sasson,

62 F.3d at 882. The right to cross-examine

adverse witnesses, however, is not absolute. See

id. The Confrontation Clause guarantees only an

opportunity to conduct a thorough and effective

cross-examination during which the defense has a

chance to discredit the witness, "not crossexamination that is effective in whatever way,

and to whatever extent, the defense might wish."

Delaware v. Fensterer, 474 U.S. 15, 20 (1985)

(per curiam). The district court retains wide

latitude to impose reasonable limits on the scope

and extent of cross-examination based on concerns

about things like harassment, prejudice,

confusion of the issues, or interrogation that is

repetitive or only marginally relevant. See

Delaware v. Van Arsdall, 475 U.S. 673, 679

(1986). 

 In this case, the district court’s decision not

to allow the defense to impeach Griffith did not

rise to the level of a Sixth Amendment violation.

The defense was allowed to put into evidence the

fact that Griffith had a conviction of some crime
on his record, and it was allowed to explain that

Griffith was profiting as a result of his

testimony by getting a lower sentence under his

plea agreement. Because the defense was able to

question Griffith about some of his potential

biases, and thus to introduce the idea that

Griffith might not be a reliable witness, this

situation differs from that in Van Arsdall, where

the defense was completely foreclosed from

presenting any evidence of a witness’s bias. See

id.

 This does not mean, however, that the exclusion

of the felony drug possession conviction was

inconsequential. To the contrary, Rule 609(a)(1)

of the Federal Rules of Evidence states that

"evidence that a witness other than an accused

has been convicted of a crime shall be admitted,

subject to Rule 403," if it was punishable by

imprisonment in excess of one year. (Emphasis

added.) Rule 403 codifies the court’s power to

exclude otherwise relevant evidence whose

probative value "is substantially outweighed by

the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by

considerations of undue delay, waste of time, or

needless presentation of cumulative evidence."

Thus, unless Rule 403 justified its exclusion,

the evidence of Griffith’s former conviction

should have been admitted.

 The government argues that there was such a

reason, because the evidence would have been

cumulative and a waste of time. We are hard

pressed to see what it was with which this

evidence cumulated. The only impeachment evidence

admitted at trial was some testimony indicating

that Griffith lied to an officer when he was

first arrested, and evidence that Griffith was

being compensated for testifying. The jury heard

absolutely nothing that would have hinted to them

that Griffith was lying to them right there as he

sat in the witness stand. The evidence of his

prior conviction would have strongly suggested at

a minimum that he had lied during his direct

examination, when he denied that he had used

drugs in Chicago. Splitting hairs, the government

argues that the evidence of his conviction for

possession would not truly have operated to

impeach him, because there is a difference

between possession and use. There may indeed be

a semantic difference between these two, but when

the shoe is on the other foot the government

frequently argues that a jury can infer use from

possession: people normally do not run the risk

of purchasing user quantities of controlled

substances just to put them on the shelf.

Further, Griffith also disavowed selling drugs.

In the real world, it is hard to imagine what

Griffith would have done with the drugs if he did

not either use or sell them. Had the evidence of
the conviction come in, the jury would have been

entitled to come to the reasonable conclusion

that Griffith had just lied to them. And if he

was willing to tell them a bald-faced lie on that

point, it might also have wondered what the rest

of his testimony was worth. Even though the

standard of review for this kind of evidentiary

ruling is abuse of discretion, we conclude in

this case that it was error to exclude the

evidence of Griffith’s narcotics conviction.

 B. Harmless Error

 This leads us to the government’s alternative

argument, which predictably enough is that, even

if the decision to exclude the conviction

evidence was error, it was harmless. A harmless

error, as Federal Rule of Criminal Procedure

52(a) tells us, is one that "does not affect

substantial rights," and it must be disregarded.

See United States v. Norwood, 798 F.2d 1094, 1098

(7th Cir. 1986). An error in the refusal to admit

evidence is harmless if the evidence of guilt was

overwhelming and the defendant was allowed to put

on a defense, even if that defense was not as

complete as the defendant might have preferred.

See United States v. King, 75 F.3d 1217, 1222

(7th Cir. 1996); United States v. Hanson, 994

F.2d 403, 407 (7th Cir. 1993). The problem with

the government’s harmless error argument in this

case is that Griffith was the prosecution’s key

witness. He was the only witness to connect all

of the defendants to each other. He was the only

witness to explain the meaning of all but 11 of

the 118 tapes admitted at trial. He set up the

time frame for the conspiracy, and he connected

the various drug "spots" to members of the

conspiracy. Evidence indicating that Griffith was

lying on the stand might well have caused the

jury to discount his testimony. We must therefore

examine carefully the remaining evidence in order

to determine whether the error was harmless. Upon

doing so, we are convinced that the case against

Montague was so strong that the error was indeed

harmless, but that without Griffith the case

against Campbell falls apart.

 Montague was convicted on two counts of the

indictment: Count 16, which charged him with

possession of three grams of crack that three

police officers found on him one night at the

Jane Addams housing project, and Count 1, the

conspiracy charge. The conviction on Count 16 was

supported by testimony from all three of the

police officers who caught him red-handed. That

was ample standing alone, and thus any error

committed with respect to Griffith was harmless

for that conviction. Similarly, we find that

Montague’s conviction on Count 1 was supported by
overwhelming evidence, even disregarding

Griffith. A conspiracy conviction requires a

showing that a conspiracy existed (two or more

persons joined together for the purpose of

committing a criminal act) and that the charged

party knew of and intended to join the agreement.

See United States v. Gutierrez, 978 F.2d 1463,

1469 (7th Cir. 1992). The worst one can say is

that without Griffith, the precise time frame for

the conspiracy was less clear and the importance

of certain locations might not have been

established. But the key points were supported

through the testimony of James Perkins and Noah

Miller. Both of them testified that Montague

worked with Buchanan to run a drug conspiracy.

Perkins and Miller admitted to being members of

that conspiracy. They both claimed to have helped

exchange large amounts of money with large

amounts of crack, for and with Montague and

Buchanan. Miller explained 11 tapes linking

himself to Montague and drug sales. Perkins and

Miller’s testimony easily showed that a

conspiracy existed, and that Montague knew about

it and was an important part of it.

 Perkins and Miller had nothing to say about

Campbell, however. Perkins listed the individuals

whom he believed were the members of the

conspiracy he had joined, and his list did not

include Campbell. In fact, Perkins testified that

he had no dealings with Campbell. Miller said

that he had met with Campbell, but only on less

than five occasions. He speculated that Campbell

worked for Montague, but he was unable to come up

with any acts, statements, or reasoning to

support that belief. None of the tapes that

Miller translated for the court contained

Campbell’s voice. Once Griffith’s testimony is

excluded, the only evidence implicating Campbell

in the conspiracy is police testimony that

Campbell rode in a car with Montague a few times,

and Campbell’s admission that he is a crack

addict and sometimes bought drugs from Montague.

This is too slender a reed to show that Campbell

knew about any conspiracy between Montague and

Buchanan and anyone else, or that he

intentionally aided that conspiracy. 

 Perhaps, one might say, the independent evidence

against Montague would have bolstered Griffith’s

general credibility, and thus counteracted the

impeaching effect of the evidence of Griffith’s

lying that the jury should have heard. Maybe then

the jury might have decided to rely on Griffith’s

testimony connecting Campbell to the conspiracy

notwithstanding his demonstrated mendacity. But

such unfounded speculation is not enough to show

that Campbell’s substantial rights were not

affected by the exclusion of the evidence; he is

not required to prove his innocence beyond a
reasonable doubt to prevail on this point. The

jury should have heard the excluded testimony

about Griffith; the error in excluding it was

harmful to Campbell and requires the reversal of

his conviction. Compare Lindh v. Murphy, 124 F.3d

899, 902 (7th Cir. 1997) (finding a trial court’s

decision to restrict impeachment evidence of a

key witness to violate the defendant’s

Confrontation Clause rights).

III

 We need not tarry on the remaining claims the

various defendants raise. To make the opinion

easier to follow, we organize our consideration

of them defendant-by-defendant.

 A. Campbell

 Campbell argues that there was insufficient

evidence from which a jury could find that he was

a member of the conspiracy. We examine his

insufficiency claim, even though we have already

decided his conviction must be reversed, because

if inclusion of Griffith’s testimony could not

cure an insufficiency of evidence underlying

Campbell’s conviction, then he would be entitled

to acquittal and the government could not retry

him for the same crime.

 We may overturn a verdict due to insufficient

evidence only when the record contains no

evidence, regardless of how it is weighed, from

which the jury could find guilt beyond a

reasonable doubt. See United States v. Moore, 115

F.3d 1348, 1363 (7th Cir. 1997). With Griffith’s

testimony in the mix, as it would be on a retrial

(albeit with the impeaching evidence as well),

the evidence to convict Campbell was sufficient.

Griffith claimed that he sold crack to Campbell

from 1996 on, and that Campbell was reselling it

on the West Side. Griffith interpreted some of

the tapes to include Campbell discussing drug

sales with other members of the conspiracy. A

jury would be entitled, though not compelled, to

believe this account. If it did, a conviction

could stand. Campbell is therefore not entitled

to avoid a possible retrial. 

 B. Montague

 In his initial appeal (No. 98-3640), Montague

argues that his sentence should not have been

increased under U.S.S.G. sec. 2D1.1(b)(1) for

possession of a firearm or under U.S.S.G. sec.

3A1.3 for physical restraint of a victim. We

review factual determinations made at sentencing

for clear error. See United States v. Wade, 114

F.3d 103, 105 (7th Cir. 1997). A defendant’s
sentence may be enhanced under sec. 2D1.1(b)(1)

if the defendant possessed a firearm during the

commission of her offense, or if a co-conspirator

possessed the firearm while acting in furtherance

of the conspiracy and the co-conspirator’s

possession was reasonably foreseeable to the

defendant. See United States v. Vold, 66 F.3d

915, 920 (7th Cir. 1995); U.S.S.G. sec.

1B1.3(a)(1)(B). In one of the audio tapes

introduced into evidence, Griffith identified

himself and Montague as the speakers. He

explained that he said he had a .380, and

Montague responded "I know, I got something too."

Montague also referred to a "zero." Griffith said

that these statements referred to guns possessed

by both himself and Montague. The district court

(which, of course, was fully aware of the

potentially impeaching evidence which it did not

allow into the trial and was not constrained by

the formal rules of evidence at the sentencing

phase), acted within its discretion in finding

Griffith credible and in inferring from these

tapes that either Montague had possessed a

firearm in order to further the drug sale

conspiracy, or that Griffith possessed it and his

possession was reasonably foreseeable (in fact

actually known) to Montague. 

 We also find no error in the district court’s

two level enhancement of Montague’s sentence for

physical restraint of a victim during an offense

under sec. 3A1.3. Montague’s presentence report

stated that in March of 1996, Cavender and

Buchanan tried to restrain a drug supplier whom

they were trying to rob, and that they bound the

supplier’s girlfriend with duct tape. The

district court relied on the presentence report

in determining that sec. 3A1.3 should apply.

Montague argues that this reliance was error, but

he is wrong. A sentencing judge may consider a

wide variety of information that would be

inadmissible at trial. See United States v.

Agyemang, 876 F.2d 1264, 1271 (7th Cir. 1989).

District judges routinely rely on the information

contained in presentence reports, which they are

entitled to do as long as the report relied on

bears the requisite indicia of reliability. See

United States v. Hall, 212 F.3d 1016, 1023 (7th

Cir. 2000). Montague points to nothing that would

indicate that the information in this report

failed that test. 

 Montague next argues that he was not involved

in the incident of physical restraint. However,

just as in the gun possession enhancement, if the

act of restraint was committed by a

co-conspirator in furtherance of the conspiracy,

and if the act was reasonably foreseeable to

Montague, then it may be considered relevant

conduct for purposes of Montague’s sentencing.
See U.S.S.G. sec.sec. 1B1.3(a)(1)(A) & (B). The

district court did not clearly err when it

decided that Cavender and Buchanan’s restraint of

the drug supplier’s girlfriend was both

reasonably foreseeable to Montague and undertaken

in furtherance of the conspiracy’s goal of

possessing and distributing drugs.

 Last, Montague complains in appeal No. 00-1047

that the district court erred in refusing to

grant a motion for new trial under Rule 33 of the

Federal Rules of Criminal Procedure that he filed

on December 17, 1999, approximately 18 months

after the jury returned its verdict on June 19,

1998. His motion argued that he was entitled to

a new trial because the district court

constructively amended the indictment under which

he was being tried when it permitted the excision

of a reference to the Vice Lords gang just before

the case was sent to the jury. There are many

reasons why this argument is unavailing. The

easiest one is the one on which the district

court relied: Rule 33 contains time limits for

filing motions for new trial, and Montague missed

his. A motion for new trial based on newly

discovered evidence may be filed within three

years of the verdict, but an allegation of a

constructive amendment to the indictment that

occurred during the trial is hardly "newly

discovered evidence." Otherwise, the Rule states

that the motion "may be made only within 7 days

after the verdict . . . ." Many times seven days

had passed before Montague presented this point

to the district court, and the court had no

choice but to refuse to consider it.

 C. Cavender

 Cavender presents two arguments on appeal: 1)

that the district court erred in denying his

motion to vacate his guilty plea, and 2) that the

court erred when it added three points to his

criminal history based on a past firearms

conviction. Cavender moved to withdraw his guilty

plea because the preliminary sentence

calculations described in his plea agreement were

lower than the actual sentence he received. The

discrepancy arose because the government was

unaware of his prior juvenile convictions when

the plea agreement was drafted. Cavender says

that the attorney representing him in the

juvenile proceedings told him that those

convictions could not be used against him in the

future. Cavender therefore decided not to tell

either the government or his current attorney

about the convictions, and they were not factored

into the sentence proposed in his plea agreement.
 While Federal Rule of Criminal Procedure 32(d)

permits withdrawal of a plea upon a showing by

the defendant of any fair and just reason, a

defendant has no absolute right to withdraw a

guilty plea. See United States v. McFarland, 839

F.2d 1239, 1241 (7th Cir. 1988). The decision to

permit a plea withdrawal rests within the

discretion of the district court, and we will

reverse that decision only if the court abused

that discretion. See United States v. Knorr, 942

F.2d 1217, 1219 (7th Cir. 1991). There was no

abuse of discretion here. Usually, where the

sentencing calculations in a plea agreement are

described as "preliminary," the later imposition

of a higher sentence does not violate the plea

agreement. See id. at 1220. Nor does it provide

the defendant with a "fair and just" reason to

withdraw his guilty plea. See id. Cavender’s plea

agreement specifically said that the guideline

calculations were "preliminary in nature," and

explained that the probation office would conduct

its own investigation in order to come to a final

calculation. The government did not deliberately

mislead Cavender. (If anyone was engaged in

misleading behavior, it was Cavender, who would

have been well advised to be more forthcoming

with his own lawyer at the very least.) The court

was well within its discretion to deny his motion

to withdraw his guilty plea. 

 Cavender’s second claim is that the district

court should not have added three points to his

criminal history for his prior firearms

conviction under U.S.S.G. sec. 4A1.1. He argues

that the prior conviction was equivalent to

possessing a firearm in furtherance of the

conspiracy, which was already factored into his

sentence in a two level upward departure under

U.S.S.G. sec. 2D1.1(b)(1). We need not delve into

the merits of this argument, because Cavender has

waived the right to make it. A defendant may

waive her right to appeal as part of a written

plea agreement, see United States v. Woolley, 123

F.3d 627, 631 (7th Cir. 1997), and Cavender did.

His plea agreement stated that the "defendant

knowingly waives the right to appeal any sentence

imposed within the maximum provided . . . or the

manner in which that sentence was determined."

The court questioned Cavender to ensure that he

understood the unambiguous waiver and its effect

of precluding him from appealing the sentencing

decision for any reason. Cavender swore in open

court that he did understand it, and that is the

end of the matter.

 D. Buchanan

 Buchanan’s challenges to the constitutionality

of his sentence and indictment are easily
dismissed as well. His argument that the

Sentencing Guidelines are unconstitutional is

foreclosed by Mistretta v. United States, 488

U.S. 361, 371 (1989). His argument that his

sentence violates the Eighth Amendment’s

prohibition against cruel and unusual punishment

because his sentence was longer than that of his

co-defendants also fails. First of all, while the

severe disproportionality in sentencing may lead

to an Eighth Amendment violation, see Solem v.

Helm, 463 U.S. 277, 290 (1983), there is no

constitutional guarantee of proportionality in

non-capital cases. See Harmelin v. Michigan, 501

U.S. 957, 965 (1991). Second, whether Buchanan’s

sentence is "disproportionate" to those of his

co-defendants is not a pertinent question to ask,

because we have a system of individualized

sentencing which takes into account factors other

than the type of crime, such as the criminal

history of the particular defendant and the

specific circumstances of the crime. See, e.g.,

Solem, 463 U.S. at 291. The difference between

Buchanan’s and his co-conspirators’ sentences

stems from the differences in their criminal

histories and personal backgrounds, not from an

Eighth Amendment violation. Compare United States

v. McMutuary, 217 F.3d 477 (7th Cir. 2000)

(rejecting justified disparities among codefendants as a normal ground for departures);

United States v. Hamzat, Nos. 97-1987 et al., 217

F.3d 494 (7th Cir. 2000) (same). Buchanan next

raises the often-rejected argument (which we

reject again here) that the higher sentencing

range for cocaine base versus cocaine powder

violates the Fifth Amendment’s guarantee of equal

protection. See, e.g., United States v. Booker,

73 F.3d 706, 710 (7th Cir. 1996).

 Finally, Buchanan claims that he was denied due

process because his indictment under 21 U.S.C.

sec.sec. 846 and 841 did not list the specific

quantity of cocaine base which he was ultimately

convicted of possessing. Elements of an offense,

unlike mere sentencing factors, must be charged

in the indictment, submitted to a jury, and

proven by the government. See Apprendi v. New

Jersey, 120 S. Ct. 2348 (2000); Castillo v.

United States, 120 S. Ct. 2090 (2000); Jones v.

United States, 526 U.S. 227, 232 (1999). In an

opinion handed down before Apprendi and Castillo

were decided, we concluded that the quantity of

a drug is a sentencing factor which need not be

included in an indictment charging a sec. 841

violation. See United States v. Jackson, 207 F.3d

910, 920 (7th Cir. 2000).

 We have no occasion here to consider whether

Jackson should be reconsidered in light of the

more recent decisions from the Supreme Court. We

note, however, that different subsections of 21
U.S.C. sec. 841(b) carry different maximum prison

terms, which was the point that the Court

emphasized in Apprendi, where it held that "any

fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a

reasonable doubt." 120 S. Ct. at 2362-63. So, for

example, sec. 841(b)(1)(A) specifies quantities

of various drugs that lead to sentences of 10

years to life (unless death or serious bodily

injury result, in which case the minimum is 20

years); sec. 841(b)(1)(B), which deals with

lesser quantities, calls for a sentence of 5 to

40 years (again with an exception for death or

serious bodily injury); sec. 841(b)(1)(C) has a

normal maximum of 20 years, and sec. 841(b)(1)(D)

has a normal maximum of five years. In this case,

however, the indictment charged that the

defendants had handled "multiple kilograms of

mixtures containing cocaine base," and this was

the evidence put before the jury. That is all

Apprendi would have required, and so even

assuming that Apprendi requires us to reconsider

Jackson, any error in this case was harmless. We

stress that we are making no ruling today that

Jackson is wrong; we reserve that question for a

future case in which it will make a difference.

IV

 We Reverse the judgment against Demetrius

Campbell, and we Affirm the convictions and

sentences of Desmond Cavender, Solomon Montague,

and Milton Buchanan.

/* Appeal No. 00-1047 was filed after oral argument

in the first four consolidated cases. We have

concluded that it should be treated as a

successive appeal under Internal Operating

Procedure 6(b), and this panel has accordingly

added it to the other cases. After reviewing the

briefs in No. 00-1047, we have concluded that

additional oral argument is unnecessary. The case

is therefore submitted on the briefs. See Fed. R.

App. P. 34(a).