2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-9-2001

USA v. Vazquez

Precedential or Non-Precedential:

Docket 99-3845

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Volume 1 of 2 

Filed October 9, 2001 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 99-3845 

UNITED STATES OF AMERICA 

v. 

ALEX VAZQUEZ, 

 Appellant. 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

District Judge: Sylvia H. Rambo 

(D.C. Crim. No. 98-00086-01) 

Originally Argued December 15, 2000 

Before: SCIRICA, FUENTES, and GARTH, Circuit Judges. 

Argued En Banc May 23, 2001 

Before: BECKER, Chief Judge, SLOVITER, MANSMANN, 

SCIRICA, NYGAARD, ALITO, ROTH, McKEE, RENDELL, 

BARRY, AMBRO, FUENTES, and GARTH, Circuit Judges . 

(Opinion Filed: October 9, 2001) 
 Martin C. Carlson 

 United States Attorney 

 Christy H. Fawcett 

 Assistant United States Attorney 

 Office of United States Attorney 

 Federal Building 

 228 Walnut Street 

 P.O. Box 11754 

 Harrisburg, Pennsylvania 17108 

 Michael R. Dreeban (argued) 

 Deputy Solicitor General 

 U.S. Department of Justice 

 Nina Goodman 

 Michael A. Rotker 

 Criminal Division 

 U.S. Department of Justice 

 601 D Street N.W., room 6206 

 Washington, D.C. 20530 

 Attorneys for Appellee 

 Peter Goldberger (argued) 

 Pamela A. Wilk 

 James H. Feldman, Jr. 

 50 Rittenhouse Place 

 Ardmore, Pennsylvania 19003-2276 

 Attorneys for Appellant 

 Shelley Stark 

 Federal Public Defender 

 Lisa B. Freeland (argued) 

 Assistant Federal Public Defender 

 415 Convention Tower 

 960 Penn Avenue 

 Pittsburgh, Pennsylvania 15222 

 Attorneys for Amicus Curiae 

 Leroy Campbell 

 Lisa Kemler 

 108 N. Alfred Street 

 Alexandria, Virginia 22315 

 Attorney for Amicus Curiae 

 National Association of Criminal 

 Defense Lawyers 

 2 
 Mary Price 

 General Counsel 

 1612 K Street N.W., suite 1400 

 Washington, D.C. 20006 

 Attorney for Amicus Curiae 

 Families Against Mandatory 

 Minimums Foundation 

 Clayton A. Sweeney, Jr. 

 1528 Walnut Street, suite 815 

 Philadelphia, Pennsylvania 

 19102-3604 

 Attorney for Amici Curiae 

 National Association of Criminal 

 Defense Lawyers, Pennsylvania 

 Association of Criminal Defense 

 Lawyers and Families Against 

 Mandatory Minimums Foundation 

OPINION OF THE COURT 

FUENTES, Circuit Judge: 

This appeal requires us to apply the Supreme Court's 

recent decision in Apprendi v. New Jersey, 530 U.S. 466 

(2000), to a drug conspiracy sentence. At sentencing, the 

trial court, adhering to established law and custom, itself 

decided the issue of drug quantity under a preponderance 

of the evidence standard. Based largely on this finding, the 

court sentenced appellant, Alex Vazquez, to a prison term 

of 292 months (24 years and 4 months), which exceeded, 

by over 4 years, the statutory maximum authorized by the 

jury's factual findings. Subsequently, the Supreme Court 

held in Apprendi that a criminal defendant's constitutional 

rights are violated when his prescribed statutory maximum 

penalties are increased by any fact, other than a prior 

conviction, that a jury does not find beyond a reasonable 

doubt. Id. at 490. Vazquez now challenges his sentence 

contending that, because the court did not submit the 

issue of drug quantity to the jury for determination, he 

must be resentenced in accordance with the default 20-year 

 3 
statutory maximum sentence that applies to cocaine 

offenses of unspecified drug quantity. 

Vazquez did not contest the drug quantity evidence at 

any stage of the proceedings. As a result, our review is for 

plain error. We conclude that Vazquez's sentence violated 

Apprendi, and therefore, the failure to submit drug quantity 

to the jury, and the imposition of a prison term in excess 

of 20 years, was erroneous. Nonetheless, because we

remain confident that a rational jury would have found, 

beyond a reasonable doubt, the drug quantities that the 

judge found, we conclude that Vazquez is not entitled to 

plain error relief and we will therefore affirm his sentence.1 

I. 

The relevant facts are largely undisputed. On February 

27, 1998, after a lengthy investigation, law enforcement 

authorities seized a quantity of powder cocaine and crack 

cocaine from a rooming house in Columbia, Pennsylvania. 

Vazquez's fingerprint was on one of the bags in which the 

cocaine had been stored. 

The next day, officers executed a search warrant at

Vazquez's residence. There, police seized a digital scale 

from Vazquez's bedroom, a key to the front door of the 

rooming house, and a stolen firearm. Thereafter, state law 

enforcement authorities and agents from the Federal

Bureau of Investigation ("FBI") interviewed a number of 

Vazquez's drug customers, including James Freeland, Brian 

Holmes, and Wayne Rice. All three gave statements 

implicating Vazquez and Francisco Algarin in a drug

dealing operation. Algarin was identified as a "runner" for 

the organization. 

_________________________________________________________________ 

1. The District Court had jurisdiction pursuant to 18 U.S.C. S 3231. This 

court has jurisdiction under 28 U.S.C. S 1291 and 18 U.S.C. S 3742(a). 

The parties originally argued this case before a merits panel of our 

court on December 15, 2000. However, given the importance of the 

Apprendi issue, we elected to consider the case en banc prior to the 

publication of the original three-judge panel opinion. See 3d Cir. I.O.P. 

9.4 (2000). 

 4 
On June 9, 1998, a grand jury for the Middle District of 

Pennsylvania issued an indictment charging Vazquez with 

conspiracy to possess and distribute "more than 5 kilos of 

cocaine" in violation of 21 U.S.C. SS 846 and 841, several 

related counts of obstruction of justice (including one under 

18 U.S.C. S 1503), and two counts of witness tampering. 

The indictment specifically charged a drug conspiracy 

involving "cocaine." Although it did not reference cocaine 

base or crack cocaine, it listed the following overt act: 

"stor[ing] approximately 859 grams of `crack' cocaine 

(cocaine base) and approximately 992 grams of cocaine 

powder in Room #2, 647 Union Street, Columbia, PA."

The trial evidence, which included testimony based on a 

forensic lab analysis, established that police seized 991 

grams of powder cocaine and 859 grams of crack cocaine 

from the Columbia rooming house.2 According to the 

testimony, Vazquez had given the drugs to his coconspirator, Algarin, for storage at the rooming house, and 

Vazquez's fingerprint was found on one of the bags in 

which the cocaine was stored. Also, a key to the front door 

of the rooming house was found on Vazquez's person.

Vazquez raised no objection to the testimony respecting 

drug quantity, and he presented no affirmative evidence at 

any time challenging the Government's evidence of drug 

quantity. Additionally, neither the Government nor Vazquez 

requested an instruction requiring the jury to find the 

quantity of drugs involved in his conspiracy offense, and 

the court gave no such instruction. The District Court's 

instructions concerning the drug conspiracy only required 

the jury to find that Vazquez conspired "to possess and 

distribute cocaine." Following deliberations, the jury 

convicted Vazquez of conspiracy to possess and distribute 

cocaine, as well as obstruction of justice. However, the jury 

acquitted Vazquez of a conspiracy to obstruct justice 

charge. In addition, the jury was unable to reach verdicts 

_________________________________________________________________ 

2. A discrepancy of 1 gram exists in the record as to the amount of 

powder cocaine. The trial testimony referred to 991 grams, while the 

District Court found the amount to be 992 grams. Because the 1 gram 

difference is of no substantive import in these proceedings, we will refer 

to the amount as 992 grams. 

 5 
on the two witness tampering counts; the District Court 

declared a hung jury as to those counts. 

At the sentencing hearing, the District Court adopted the 

factual findings and sentencing recommendations in the 

presentence report. The court determined, without objection 

and under a preponderance of the evidence standard, that, 

based on the trial evidence and the presentence report, 

Vazquez had been involved with 992 grams of powder 

cocaine and 859 grams of crack cocaine. The court 

therefore assigned Vazquez a base offense level of 36 in 

accordance with U.S.S.G. S 2D1.1's Drug Quantity Table. 

The District Court then applied two separate 2-level upward 

adjustments, the first for being an organizer/leader under 

U.S.S.G. S 3B1.1(c), and the second for attempted 

obstruction of justice under U.S.S.G. S 3C1.1. An adjusted 

offense level of 40 and a criminal history category of I 

resulted in a sentencing range of 292 to 365 months. The 

District Court ultimately sentenced Vazquez at the bottom 

of that range, the guideline minimum of 292 months, for 

the drug conspiracy, and to a concurrent term of 120 

months for the obstruction of justice charge. The court also 

imposed a 5-year supervised release term on the drug 

conspiracy count and a concurrent 3-year supervised

release term on the obstruction of justice charge. With 

regard to the drug conspiracy, the judgment of conviction 

stated that Vazquez was sentenced for a conspiracy in 

violation of 21 U.S.C. S 846, with the object of distributing 

more than 5 kilograms of cocaine in violation of 21 U.S.C. 

S 841(b)(1)(A).3 

II. 

We begin by explaining why Apprendi was violated in

Vazquez's case. Thereafter, because Vazquez did not contest 

the evidence of drug quantity before the District Court, we 

will analyze the parties' contentions under the plain error 

standard. 

_________________________________________________________________ 

3. Specifically, with regard to the drug conspiracy, the judgment of 

conviction identifies the "Title & Section" as"21 U.S.C. S 846," and 

describes the "Nature of Offense" as "Conspiracy to Possess and 

Distribute More Than Five Kilograms of Cocaine." 

 6 
A. 

Vazquez was indicted and tried for conspiracy to possess 

and distribute more than 5 kilograms of cocaine in violation 

of 21 U.S.C. SS 846 and 841. To explain the relationship 

between Apprendi and S 841, we will briefly review the 

Apprendi decision, and we will then detail how Apprendi 

was violated in this case. 

In Apprendi, the defendant had fired several shots into 

the home of an African-American family that had recently 

moved into a New Jersey neighborhood. 530 U.S. at 469. 

After his arrest, he reportedly stated that he did not know 

the occupants personally but did not want AfricanAmericans in his neighborhood. Id. at 469. He later, 

however, denied making such a statement. Id. at 469, 471. 

He pled guilty in state court to two counts of second-degree 

possession of a firearm for an unlawful purpose, each of 

which carried a sentencing range of 5 to 10 years. Id. at 

469-70. Subsequently, the prosecutor filed a motion to 

enhance the defendant's sentence pursuant to New Jersey's 

hate crime statute, which authorized an increased 

punishment for first-degree offenses based upon a trial 

judge's finding, by a preponderance of the evidence, that 

the defendant had committed the crime with a purpose to 

intimidate a person or group because of race. Id. at 470, 

491-92 (discussing N.J. Stat. Ann. S 2C:44-3(e) (West Supp. 

2000)). After a contested evidentiary hearing, the trial court 

found, by a preponderance of the evidence, that the

shooting was racially motivated and imposed a 12-year 

sentence on one of the second-degree counts. Id. at 471. 

The Supreme Court granted certiorari and reversed, 

holding that the New Jersey sentencing procedures violated 

the Due Process Clause of the Fourteenth Amendment. In 

doing so, the Court articulated a new rule of constitutional 

law: "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 (emphasis added). 

Further, with the exception for prior convictions, the Court 

endorsed the following concept: " `[I]t is unconstitutional for 

a legislature to remove from the jury the assessment of 

facts that increase the prescribed range of penalties to 

 7 
which a criminal defendant is exposed. It is equally clear 

that such facts must be established by proof beyond a 

reasonable doubt.' " Id. (quoting Jones v. United States, 526 

U.S. 227, 252-53 (1999) (Stevens, J., concurring)).

In Vazquez's case, drug quantity was neither submitted 

to the jury nor reflected in its verdict. Therefore, 

S 841(b)(1)(C) defines Vazquez's prescribed statutory 

maximum sentence as 20 years. We indicated in United 

States v. Williams, 235 F.3d 858 (3d Cir. 2000), petition for 

cert. filed, 69 U.S.L.W. 3763 (U.S. 2001), and we hold here, 

that an Apprendi violation only occurs if the drug quantity 

is not found by a jury beyond a reasonable doubt and the 

defendant's sentence under S 841 exceeds 20 years. 

In this case, the District Court sentenced Vazquez to 

more than 24 years' imprisonment, specifically 292 months. 

The court increased Vazquez's penalty based on its finding, 

by a preponderance of the evidence, that he had been 

involved with 992 grams of powder cocaine and 859 grams 

of crack cocaine. This nearly 2-kilogram quantity led to 

Vazquez's sentencing guideline range of 292 to 365 months, 

which ultimately resulted in his 292-month sentence. The 

Apprendi violation occurred when the judge, rather than 

the jury, determined drug quantity and then sentenced 

Vazquez to a more than 24-year sentence, a term in excess 

of his prescribed 20-year statutory maximum under 

S 841(b)(1)(C). Our sister courts of appeals have similarly 

applied Apprendi to S 841. E.g. , United States v. Hishaw, 

235 F.3d 565, 574-75 (10th Cir. 2000), cert. denied, 121 S. 

Ct. 2254 (2001); United States v. Doggett, 230 F.3d 160, 

164 (5th Cir. 2000), cert. denied, 121 S. Ct. 1152 (2001); 

United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir. 

2000); see also United States v. Rebmann, 226 F.3d 521, 

524-25 (6th Cir. 2000); United States v. Nordby , 225 F.3d 

1053, 1059 (9th Cir. 2000). 

B. 

We now turn to the consequences of the Apprendi 

violation. Vazquez's strongest argument is that his jury did 

not make a finding beyond a reasonable doubt as to drug 

quantity, and thus, he must be resentenced in accordance 

 8 
with S 841(b)(1)(C)'s 20-year maximum term. According to 

Vazquez, the District Court committed reversible error 

when it imposed a more than 24-year prison term based on 

its own drug quantity finding, which was conducted under 

the less demanding preponderance of the evidence 

standard. As we stated previously, Vazquez neither 

challenged the evidence of drug quantity nor objected to the 

court's failure to submit the issue to the jury. Moreover, he 

never argued that the sentencing court was constrained by 

the 20-year maximum found in S 841(b). Consequently, the 

plain error standard governs Vazquez's request for relief. 

See Fed. R. Crim. P. 52(b); Johnson v. United States, 520 

U.S. 461, 465-66 (1997). Under that standard, "before an 

appellate court can correct an error not raised at trial, there 

must be (1) error, (2) that is plain, and (3) that affect[s] 

substantial rights. 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." Johnson, 520 U.S. at 466-67 (internal

quotations and citations omitted); accord United States v. 

Olano, 507 U.S. 725, 732-36 (1993). 

1. 

The trial court committed error in Vazquez's case. As we 

explained above, the District Court violated Apprendi when 

it increased Vazquez's sentence beyond the prescribed 

statutory maximum, based on its own factual finding

concerning drug quantity, instead of submitting the issue 

to the jury for its determination. Further, Apprendi applies 

retroactively because Vazquez's direct appeal was pending 

at the time Apprendi was decided. See Griffith v. Kentucky, 

479 U.S. 314, 328 (1987) ("new rule[s] for the conduct of 

criminal prosecutions [are] to be applied retroactively to all 

cases . . . pending on direct review . . . , with no exception 

for cases in which the new rule constitutes a `clear break' 

with the past"); see also Johnson, 520 U.S. at 467.

2. 

As even the Government concedes, the Apprendi violation 

that occurred in Vazquez's case was plain. This second 

 9 
factor of the plain error standard is met if the error is 

"obvious" or "clear under current law." Olano, 507 U.S. at 

734. Clearly, had the Government tried Vazquez's case 

post-Apprendi, it would have been constitutional error for 

the District Court to impose a sentence exceeding the 20- 

year maximum in S 841(b)(1)(C) based on the court's

finding, by a preponderance of the evidence, as to drug 

quantity. Thus, the Apprendi violation is plain even though 

the District Court conducted Vazquez's proceedings 

correctly under the then applicable law. See Johnson, 520 

U.S. at 468 ("in a case such as this -- where the law at the 

time of trial was settled and clearly contrary to the law at 

the time of appeal," this second factor is satisfied if the 

error is obvious "by the time of appellate consideration"). 

3. 

Vazquez must next satisfy the third plain error factor, 

which asks whether his substantial rights were affected. 

Before resolving this issue, we will address several 

preliminary matters raised in the parties' arguments 

because our resolution of those matters will significantly 

affect how we conduct the substantial rights inquiry. First, 

we will consider whether an Apprendi violation should be 

deemed a sentencing error (as opposed to a trial error), or 

a combination of a trial and sentencing error. We conclude 

that the latter approach is more consonant with the

realities of Apprendi violations, as well as Supreme Court 

precedent. Second, we will consider whether an Apprendi 

violation is per se prejudicial because it constitutes a 

structural defect in the proceedings. If so, our plain error 

analysis would come to an end, and we would be compelled 

to grant Vazquez relief. We conclude that Apprendi 

violations do not constitute structural defects. Third, we 

will proceed to consider whether the Apprendi violation that 

occurred in Vazquez's case affected his substantial rights. 

We conclude that Vazquez's substantial rights were not 

affected. Fourth, we also hold that, even if Vazquez's 

substantial rights were affected, we decline to exercise our 

discretion to notice the Apprendi violation under the final 

plain error factor because the drug quantity evidence was 

overwhelming. Therefore, Vazquez is not entitled to plain 

 10 
error relief even though an Apprendi violation occurred 

during his criminal proceedings. 

Parenthetically, in addressing the substantial rights 

inquiry, we will rely on precedent applying Fed. R. Crim. P. 

52(a)'s harmless error standard, as well as Fed. R. Crim. P. 

52(b)'s plain error standard, each of which provides relief 

only if substantial rights are affected.4 The substantial 

rights inquiry under each provision is essentially identical, 

with the exception of the burden of proof. See Olano, 507 

U.S. at 734-35 (clarifying that Government has burden of 

proof under harmless error standard, while defendant has 

burden under plain error standard); Nordby, 225 F.3d at 

1060. Thus, we may properly rely upon both harmless and 

plain error precedent in deciding whether Vazquez has 

shown that the Apprendi violation affected his substantial 

rights. In this case, Vazquez has not carried his burden of 

proof. 

(a) 

The parties dispute the nature of Apprendi violations. 

Vazquez claims that the Apprendi violation that adversely 

affects the defendant's rights in most drug cases, including 

this one, is the sentencing decision, not any trial error. 

According to Vazquez, a properly conceived substantial 

rights inquiry, in the context of an Apprendi violation, 

requires an appellate court to ask whether it can say, 

beyond a reasonable doubt, that the sentence would have 

been the same absent the sentencing error, which occurred 

when a sentence was imposed in excess of the prescribed 

statutory maximum. See Nordby, 225 F.3d at 1060. Under 

Vazquez's approach, every Apprendi violation with respect 

to drug quantity in a cocaine case will automatically result 

in a resentencing in accordance with the 20-year maximum 

_________________________________________________________________ 

4. Rule 52 provides in full: 

 (a) Harmless Error. Any error, defect, irregularity or variance 

which 

 does not affect substantial rights shall be disregarded. 

 (b) Plain Error. Plain errors or defects affecting substantial 

rights 

 may be noticed although they were not brought to the attention 

 of the court. 

 11 
sentence under S 841(b)(1)(C), regardless of how conclusive 

the evidence is with regard to drug quantity. 

The Government advocates a different approach, urging 

us to recognize that an Apprendi violation involves not just 

a sentencing error but also a trial error. This approach 

emphasizes that, due to the Apprendi violation, drug 

quantity becomes an element of the offense which a jury 

has not determined beyond a reasonable doubt. See 

Apprendi, 530 U.S. at 494 n.19; Nordby, 225 F.3d at 1060. 

When we conduct plain error review under this paradigm, 

the substantial rights inquiry turns on whether we can say 

beyond a reasonable doubt that the sentence would have 

been the same absent the trial error, which occurred when 

drug quantity was not submitted for a jury determination. 

See Neder v. United States, 527 U.S. 1, 18 (1999) (in case 

of trial error resulting from failure to submit element to 

jury, substantial rights inquiry asks whether it is"clear 

beyond a reasonable doubt that a rational jury would have 

found the defendant guilty absent the error"); Sochor v. 

Florida, 504 U.S. 527, 540 (1992) (harmless error asks 

whether error " `did not contribute to the[sentence] 

obtained' ") (quoting Chapman v. California, 386 U.S. 18, 24 

(1967)). Thus, under the Government's approach, the

remedy for an Apprendi violation will depend upon the 

entire record, and no remedy may be available if the court 

determines that the evidence was sufficiently conclusive to 

support the sentence actually imposed. However, 

substantial rights will be affected if, for example,"the 

defendant contested the omitted element and raised 

evidence sufficient to support a contrary finding." Neder, 

527 U.S. at 19. 

We are persuaded that the Government's approach must 

prevail for two reasons. First, the Government's position 

better reflects the realities concerning the nature of 

Apprendi violations. In Apprendi, the Supreme Court

recognized a new constitutional right grounded in the Due 

Process Clause and the Sixth Amendment's notice and jury 

trial guarantees. See 530 U.S. at 476. Consistent with the 

Supreme Court's pronouncement of this new constitutional 

right, in an Apprendi violation, the sentencing error 

(imposing a sentence beyond the prescribed statutory 

 12 
maximum) is inextricably intertwined with a trial error 

(failing to submit an element of the offense to the jury). On 

the one hand, the trial error exists only because of the 

sentencing error. On the other hand, the sentencing error 

cannot occur without the trial error. Thus, an appropriate 

remedy must recognize that each Apprendi violation is both 

a trial and a sentencing error. But see United States v. 

Promise, ___ F.3d ___, No. 99-4737, 2001 WL 732389, at *5 

(4th Cir. June 29, 2001) (en banc) (concluding that

Apprendi violation results from error at sentencing and not 

in defendant's conviction). As a result, we properly consider 

the trial record on plain error review. Indeed, as the 

Supreme Court has stated: "Especially when addressing 

plain error, a reviewing court cannot properly evaluate a 

case except by viewing such a claim against the entire 

record." United States v. Young, 470 U.S. 1, 16 (1985). Our 

holding is consistent with decisions from the First, 5 Fifth,6 

Seventh,7 Eighth,8 Tenth,9 Eleventh,10 and District of 

_________________________________________________________________ 

5. See United States v. Patrick, 248 F.3d 11, 28 (1st Cir. 2001); United 

States v. Terry, 240 F.3d 65, 74-75 (1st Cir.), cert. denied, 121 S. Ct. 

1965 (2001). 

6. See United States v. Green, 246 F.3d 433, 436-37 (5th Cir. 2001); 

United States v. Slaughter, 238 F.3d 580, 583-84 (5th Cir.) (per curiam), 

cert. denied, 121 S. Ct. 2015 (2001). 

7. See United States v. Brough, 243 F.3d 1078, 1080 (7th Cir. 2001); 

United States v. Jackson, 236 F.3d 886, 888 (7th Cir. 2001) (per curiam); 

cf. United States v. Westmoreland, 240 F.3d 618, 634-35 (7th Cir. 2001) 

(considering trial evidence in holding that substantial rights affected). 

8. See United States v. Poulack, 236 F.3d 932, 938 (8th Cir. 2001), 

petition for cert. filed, No. 00-10546 (U.S. June 8, 2001); United States 

v. 

Anderson, 236 F.3d 427, 429-30 (8th Cir. 2001) (per curiam); cf. United 

States v. Butler, 238 F.3d 1001, 1005-06 (8th Cir. 2001) (considering 

trial evidence in holding that substantial rights affected). 

9. See Hishaw, 235 F.3d at 575-77. 

10. See United States v. Gallego, 247 F.3d 1191, 1196-97 (11th Cir. 

2001); United States v. Wims, 245 F.3d 1269, 1272-74 & nn.9-11 (11th 

Cir. 2001) (per curiam); United States v. Candelario, 240 F.3d 1300, 

1311-12 (11th Cir.), cert. denied, 121 S. Ct. 2535 (2001); United States 

v. Pease, 240 F.3d 938, 944 (11th Cir. 2001) (per curiam); United States 

v. Nealy, 232 F.3d 825, 829-30 (11th Cir. 2000); United States v. 

Swatzie, 228 F.3d 1278, 1282-83 (11th Cir. 2000), cert. denied, No. 00- 

9051, 2001 WL 291894 (U.S. June 29, 2001). 

 13 
Columbia11 Circuits, which, in reviewing Apprendi 

violations, have considered the trial evidence in determining 

whether substantial rights were affected. 

Second, we find the Government's approach is more 

consonant with Supreme Court precedent. In both Neder 

and Johnson, the Supreme Court confronted a failure to 

submit an element of the offense to the jury. The omitted 

element in each case was the materiality of a falsehood; a 

tax fraud in Neder and a perjury in Johnson. See 527 U.S. 

at 6-7; 520 U.S. at 463-65. The Court in Neder and

Johnson agreed that the error was of a constitutional 

dimension. See 527 U.S. at 12; 520 U.S. at 465 (citing 

United States v. Gaudin, 515 U.S. 506 (1995)). Further, 

each decision addressed whether substantial rights were 

affected; the Neder Court applied harmless error review, 

while the Johnson Court applied plain error review. See 527 

U.S. at 7-10; 520 U.S. at 466-67. The trial error presented 

here is comparable to the errors in both Neder and Johnson 

because in those cases the trial error resulted in a 

constitutional defect, necessitating an inquiry as to whether 

the defendant's substantial rights were affected. Thus, 

Neder and Johnson apply because we are presented with 

the same substantive issue, namely, the consequence of 

failing to submit to the jury an element of an offense. 

(b) 

Next, Vazquez argues that the Apprendi violation 

constitutes a structural defect in the proceedings. This 

issue is properly considered at this juncture during the 

course of our substantial rights inquiry. See Johnson, 520 

U.S. at 466 (no structural defect exception to Fed. R. Crim. 

P. 52(b)); id. at 468 (structural defect inquiry is relevant to 

substantial rights inquiry). Structural defects are"defects 

in the constitution of the trial mechanism" that affect "the 

framework within which the trial proceeds," with such a 

resulting impairment in the trial's function of determining 

guilt or innocence that " `no criminal punishment may be 

_________________________________________________________________ 

11. See United States v. Fields, 251 F.3d 1041, 1045 (D.C. Cir. 2001) 

(considering trial evidence in holding that substantial rights affected). 

 14 
regarded as fundamentally fair.' "12 Arizona v. Fulminante, 

499 U.S. 279, 309-10 (1991) (opinion of Rehnquist, C.J.) 

(quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986)). 

Structural defects lead to automatic reversals because they 

are per se prejudicial. See id. at 307-10 (opinion of 

Rehnquist, C.J.). 

We reject Vazquez's contention that Apprendi violations 

constitute structural defects. As we have already explained, 

Apprendi violations result in both trial and sentencing 

errors, albeit ones that rise to a constitutional dimension. 

However, the Supreme Court has instructed that "most 

constitutional errors can be harmless," and that guidance 

applies here. Fulminante, 499 U.S. at 306 (opinion of 

Rehnquist, C.J.); see also West v. Vaughn, 204 F.3d 53, 60 

n.7 (3d Cir. 2000), abrogated sub nom. on other grounds by 

Tyler v. Cain, 121 S. Ct. 2478 (2001). Trial errors resulting 

from a failure to submit an element of an offense to the jury 

are not structural defects, but instead, are subject to 

harmless or plain error analysis. That is, "an instruction 

that omits an element of the offense does not necessarily 

render a criminal trial fundamentally unfair or an 

unreliable vehicle for determining guilt or innocence." 

Neder, 527 U.S. at 9. Similarly, sentencing errors can also 

be harmless. See, e.g., Jones v. United States, 527 U.S. 

373, 402-05 (1999) (applying harmless error review to 

federal death sentence); United States v. Stevens, 223 F.3d 

239, 242-46 (3d Cir. 2000) (applying plain error review to 

sentencing judge's failure to assure that defendant had 

read and discussed presentence investigation report with 

his attorney), cert. denied, 121 S. Ct. 1157 (2001). Thus, we 

hold that an Apprendi violation is not a structural defect. 

As far as we are aware, our holding is in accord with every 

court of appeals decision that has addressed this issue. 

_________________________________________________________________ 

12. Examples of structural defects include: (1) the complete denial of 

counsel, see Gideon v. Wainwright, 372 U.S. 335 (1963); (2) a biased trial 

judge, see Tumey v. Ohio, 273 U.S. 510 (1927); (3) racial discrimination 

in the selection of a grand jury, see Vasquez v. Hillery, 474 U.S. 254 

(1986); (4) the denial of self-representation at trial, see McKaskle v. 

Wiggins, 465 U.S. 168 (1984); (5) the denial of a public trial, see Waller 

v. Georgia, 467 U.S. 39 (1984); and (6) defective reasonable doubt 

instructions, see Sullivan v. Louisiana, 508 U.S. 275 (1993). 

 15 
See, e.g., United States v. Smith, 240 F.3d 927, 930 & n.5 

(11th Cir. 2001) (per curiam); United States v. 

Westmoreland, 240 F.3d 618, 634 (7th Cir. 2001); 

Anderson, 236 F.3d at 429. 

(c) 

Having concluded that the Neder and Johnson 

frameworks apply to this case, and that Apprendi violations 

do not constitute structural defects, we address whether 

Vazquez's substantial rights were affected. During the 

course of this appeal, Vazquez has raised substantial rights 

arguments with regard to both his sentence and conviction. 

We will address each in turn. 

We assess Vazquez's challenge to his sentence by 

determining whether it would have been the same absent 

the failure to submit drug quantity for a jury determination. 

We are confident that Vazquez's sentence would have been 

the same had the jury made the drug quantity finding. In 

his case, the evidence established beyond a reasonable 

doubt that Vazquez had been involved with 992 grams of 

powder cocaine and 859 grams of crack cocaine. Indeed, 

the sentencing judge, explaining that Vazquez's sentence 

was driven by the quantity of drugs involved, stated that 

"[t]he lab report which was admitted into evidence in this 

case substantiates the amount, and there has never been 

any question about the amount." 

In these circumstances, we can say without a doubt that 

Vazquez conspired to possess and/or distribute the 992 

grams of powder cocaine and 859 grams of crack cocaine 

the authorities found at the Columbia rooming house. 

Solely on the basis of the uncontested 992 grams of powder 

cocaine, Vazquez would have faced a statutory sentencing 

range of between 5 to 40 years. See 21 U.S.C. 

S 841(b)(1)(B)(ii)(II). Thus, the slightly more than 24-year 

sentence imposed here fell within the statutory limits 

applicable to a cocaine-only conspiracy given the drug 

amount established at trial. Cf. Edwards v. United States, 

523 U.S. 511, 515 (1998) (rejecting statutory and 

constitutional challenges to sentences because imposed 

incarceration terms "were within the statutory limits 

 16 
applicable to a cocaine-only conspiracy, given the quantities 

of that drug attributed to each petitioner"). 

Further, Vazquez's sentence would not have changed 

because the court would have considered the 859 grams of 

crack cocaine for sentencing guideline purposes under the 

Guidelines' relevant conduct provisions. See U.S.S.G. 

S 1B1.3 (1998); Edwards, 523 U.S. at 514; Williams, 235 

F.3d at 864. This fact would have led to the same guideline 

sentencing range of 292 to 365 months that the court 

actually applied to Vazquez. No Apprendi problem would 

then exist because the resulting 292-month sentence would 

be less than the 40-year statutory maximum sentence

under S 841(b)(1)(B)(ii)(II) to which Vazquez was exposed 

solely for his conspiracy offense involving 992 grams of 

powder cocaine. 

Vazquez's failure to dispute the amount of cocaine at trial 

or sentencing supports our conclusion that he cannot show 

an effect on his substantial rights. Indeed, he presented 

no challenge to, or affirmative evidence against, the 

Government's evidence of drug quantity. As a result, the 

sentencing judge stated that "there has never been any 

question about the [drug] amount." In a comparable 

situation, the Supreme Court observed: 

 [W]here a reviewing court concludes beyond a

 reasonable doubt that the omitted element was 

 uncontested and supported by overwhelming evidence, 

 such that the jury verdict would have been the same 

 absent the error, the erroneous instruction is properly 

 found to be harmless. We think it beyond cavil here 

 that the error "did not contribute to the verdict 

 obtained." 

Neder, 527 U.S. at 17 (quoting Chapman , 386 U.S. at 24). 

In addition to attacking his sentence, Vazquez relies upon 

Apprendi to challenge his conviction. Vazquez contends that 

his substantial rights were affected because, had the trial 

judge properly submitted drug quantity to the jury, he 

necessarily would have been acquitted because the 

evidence the Government presented at trial -- 992 grams of 

powder cocaine and 859 grams of crack cocaine -- did not 

support a more than 5-kilogram cocaine conspiracy, as 

 17 
alleged in the indictment. Vazquez also contends that his 

sentence cannot be upheld based upon the 992 grams of 

powder cocaine because doing so would create a material 

variance from the more than 5-kilogram drug quantity 

alleged in the indictment. See United States v. Balter, 91 

F.3d 427, 441 (3d Cir. 1996) (explaining that "[a] variance 

occurs when `the charging terms are unchanged, but the 

evidence at trial proves facts materially different from those 

alleged in the indictment' ") (quoting United States v. Castro, 

776 F.2d 1118, 1121 (3d Cir. 1985)); United States v. 

Crocker, 568 F.2d 1049, 1059 (3d Cir. 1977) (discussing 

variance concept). 

Vazquez's arguments are unavailing. The discrepancy

between the amount of cocaine stated in the indictment -- 

more than 5 kilograms -- and the amount of powder 

cocaine upon which we uphold Vazquez's sentence-- 992 

grams -- is, for purposes of the substantial rights inquiry, 

immaterial. It is immaterial because the indictment charged 

the 5-kilogram amount, and it is well settled that courts 

"may direct the entry of judgment for a lesser included 

offense when a conviction for a greater offense is reversed 

on grounds that affect only the greater offense." Rutledge v. 

United States, 517 U.S. 292, 306 (1996); accord Fed. R. 

Crim. P. 31(c); see also Schmuck v. United States, 489 U.S. 

705, 716 (1989) (adopting "elements approach" to resolving 

greater/lesser offense issues); cf. United States v. Frorup, 

963 F.2d 41, 42 (3d Cir. 1992) ("This court will uphold a 

jury verdict convicting a defendant of a lesser offense than 

the one charged if `the evidence would permit a jury 

rationally to find [the defendant] guilty of the lesser offense 

and acquit of the greater.' ") (quoting Keeble v. United 

States, 412 U.S. 205, 208 (1973)). Additionally, had the 

court submitted drug quantity to the jury to avoid an 

Apprendi issue, and had Vazquez argued to the jury that 

the evidence did not support a finding that the conspiracy's 

object concerned more than 5 kilograms of powder cocaine, 

the Government would have been entitled to a lesser

included offense instruction. See Frorup, 963 F.2d at 42 ("A 

jury instruction on [a] lesser included offense is allowable 

as long as there is some evidence to support the 

conviction."). 

 18 
4. 

Even if we were to assume that the Apprendi violation 

affected Vazquez's substantial rights, he cannot establish 

the final plain error factor, namely, that the violation 

seriously affected the fairness, integrity, or public 

reputation of judicial proceedings. In Johnson , the Supreme 

Court held that, when the evidence of an element wrongly 

taken from a jury "overwhelming[ly]" supports the trial 

court's finding with regard to that element, "there is no 

basis for concluding that the error `seriously affect[ed] the 

fairness, integrity or public reputation of judicial 

proceedings,' " and therefore, plain error relief is 

unavailable. See 520 U.S. at 470. 

The evidence at trial showed that Vazquez was the leader 

of a drug trafficking operation that distributed powder and 

crack cocaine in Lancaster County, Pennsylvania. Here, the 

Government presented overwhelming evidence that Vazquez 

conspired with others to possess and distribute a quantity 

of drugs sufficient to justify his sentence. As we previously 

noted, law enforcement officers seized about 992 grams of 

powder cocaine and 859 grams of crack cocaine from a 

rooming house. Vazquez had given the drugs to a coconspirator, Francisco Algarin, for storage. The key to the 

rooming house's front door was found on Vazquez's person. 

In addition, investigators found Vazquez's fingerprint on 

one of the bags in which the cocaine was stored. After the 

seizure, police interviewed three of Vazquez's drug

customers. All three described Vazquez as the leader of a 

drug dealing operation. The trial testimony directly tied 

Vazquez to a drug conspiracy with the co-conspirator, 

Algarin. On the basis of this evidence, including the 

undisputed evidence of drug quantity, a rational jury would 

certainly have found that Vazquez had conspired to possess 

or distribute no less than 992 grams of powder cocaine, 

almost twice the amount necessary to support his slightly 

more than 24-year sentence pursuant to S 841(b)(1)(B)'s 5- 

to-40-year sentencing range. 

Under these circumstances, the evidence concerning drug 

quantity was "overwhelming," and, as we explained in the 

preceding section, because Vazquez's sentence would not 

have changed absent the trial error, there is no reasonable 

 19 
basis upon which to conclude that the fairness, integrity, or 

public reputation of the judicial proceedings were seriously 

affected. Our holding is in accord with decisions from the 

First,13 Fifth,14 Seventh,15 Tenth,16 and Eleventh17 Circuits, 

in which panels considered the evidence adduced at trial 

and, under the fourth plain error factor, denied relief for 

Apprendi violations where the evidence was conclusive. Our 

holding is also in accord with a recent en banc decision of 

the Fourth Circuit.18 We therefore conclude that, in light of 

the undisputed evidence of drug quantity attributable to 

Vazquez and our determination that his sentence did not 

exceed the statutory maximum for the cocaine amount

introduced at trial, the fairness, integrity, or public 

reputation of judicial proceedings were not seriously 

affected even though an Apprendi violation occurred in his 

case.19 

_________________________________________________________________ 

13. See Terry, 240 F.3d at 74-75. 

14. See United States v. Miranda, 248 F.3d 434, 445-46 (5th Cir. 2001). 

15. See United States v. Robinson, 250 F.3d 527, 530-31 (7th Cir. 2001); 

United States v. Patterson, 241 F.3d 912, 913-15 (7th Cir.) (per curiam), 

petition for cert. filed, No. 00-10365 (U.S. May 30, 2001); United States 

v. Mietus, 237 F.3d 866, 875 (7th Cir. 2001); United States v. Nance, 236 

F.3d 820, 825-26 (7th Cir. 2000), petition for cert. filed, No. 00-9633 

(U.S. April 24, 2001). 

16. See United States v. Wilson, 244 F.3d 1208, 1220 n.7 (10th Cir. 

2001), petition for cert. filed, No. 00-10834 (U.S. June 25, 2001), and 

cert. denied, No. 00-10289, 2001 WL 606873 (U.S. June 29, 2001); 

United States v. Keeling, 235 F.3d 533, 539-40 (10th Cir. 2000), cert. 

denied, No. 00-10161, 2001 WL 578795 (U.S. June 25, 2001). 

17. See Swatzie, 228 F.3d at 1284. 

18. See Promise, 2001 WL 732389, at *8-10 & n.9. 

19. The Government presents the alternative argument that Vazquez 

should not prevail under the plain error standard because the District 

Court could have justified its 292-month sentence by imposing 

consecutive terms. According to the Government, even if Vazquez had 

been sentenced to S 841(b)(1)(C)'s 20-year maximum term of 

imprisonment on the drug conspiracy conviction, the District Court 

would have been required to impose a consecutive rather than 

concurrent sentence on the obstruction of justice conviction. See 18 

U.S.C. S 3584(a); U.S.S.G. S 5G1.2(d) (1998). Thus, the Government 

submits, because Vazquez would have been subject to the same 292- 

 20 
III. 

Vazquez also challenges the supervised release term that 

the District Court imposed. He contends that the court 

incorrectly applied the 5-year minimum term of supervised 

release under S 841(b)(1)(A), when the minimum term was 

actually 3 years under S 841(b)(1)(C). We note, however, 

that Vazquez did not raise this argument before the District 

Court and he did not brief and argue this issue before the 

panel that initially considered his appeal. Under these 

circumstances, we conclude that Vazquez has waived his 

right to pursue this issue here. See Atwater v. City of Lago 

Vista, 195 F.3d 242, 245 n.3 (5th Cir. 1999) (en banc), 

aff 'd 121 S. Ct. 1536 (2001); Travitz v. Northeast Dep't 

ILGWU Health & Welfare Fund, 13 F.3d 704, 711 (3d Cir. 

1994) ("When an issue is not pursued in the argument 

section of the brief, the appellant has abandoned and 

waived that issue on appeal."). But even if Vazquez had not 

waived the issue, there was no plain error because the 5- 

year supervised release term was clearly within the range 

that the court was authorized to impose under any of 

S 841(b)'s penalty provisions. 

IV. 

We have reviewed the additional points on appeal, which 

_________________________________________________________________ 

month term of imprisonment through the imposition of consecutive 

sentences on the conspiracy and obstruction of justice convictions, the 

Apprendi violation did not "affect[ ] the outcome of the district court 

proceedings." Olano, 507 U.S. at 734; see, e.g., Angle, 2001 WL 732124, 

at *3-4 (holding that substantial rights not violated because S 5G1.2(d) 

would have obligated court to achieve same sentence by imposing 

consecutive terms); Page, 232 F.3d at 544-45 (denying plain error relief 

to defendants convicted on multiple counts becauseS 5G1.2(d) required 

imposition of consecutive sentences to extent necessary to produce 

combined sentence within guideline sentencing range). 

We decline to address this contention because we have determined on 

other grounds that Vazquez has failed to establish that he is entitled to 

plain error relief. 

 21 
we identify in the margin and none of which require

extended discussion. We find them all to be without merit.20 

V. 

Accordingly, for the reasons that we have set forth above, 

we will affirm Vazquez's conviction and sentence. 

_________________________________________________________________ 

20. Vazquez asserts that (1) the District Court's pretrial 

disqualification 

of the attorneys he initially obtained, due to their alleged involvement 

in 

the charged obstruction of justice, violated his Sixth Amendment right to 

counsel of his choice; (2) his assigned pretrial counsel provided 

ineffective representation in failing to file a motion to suppress the key 

to the rooming house, and the District Court abused its discretion in 

denying as untimely a motion raising that issue that was filed shortly 

before trial by counsel that Vazquez had recently retained; (3) the 

District 

Court committed reversible error in denying his motion for a mistrial, 

and his subsequent motion for a new trial, which were based on alleged 

prejudice he suffered from the jury possibly having learned about his 

prior arrest for possession of a stolen firearm; and (4) the evidence is 

insufficient to support his conviction for obstruction of justice under 18 

U.S.C. S 1503. 

 22 
BECKER, Chief Judge, concurring, with whom Judge Ambro 

joins. 

Justice Frankfurter may not have been the first to 

observe that "[w]isdom too often never comes, and so one 

ought not to reject it merely because it comes too late," 

Henslee v. Union Planters Nat'l Bank & Trust Co., 335 U.S. 

595, 600 (1949) (Frankfurter, J., dissenting), but he was 

surely right in so declaring. Had he the occasion, he might 

also have observed that sometimes belated wisdom does not 

arrive until a doctrinal shift removes the obstacles to its 

revelation, thereby exposing the unstable foundation of that 

which had been uncritically accepted before. I believe this 

to be such a case. 

The doctrinal shift at work here emanates from Apprendi 

v. New Jersey, 530 U.S. 466 (2000), which held 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." Id. at 490. This holding in turn 

exposed the instability of our prior holding that under 21 

U.S.C. S 841 drug type and quantity are sentencing factors, 

requiring only proof by a preponderance of the evidence to 

a judge, instead of elements of the offense, which would 

require proof beyond a reasonable doubt to a jury. See, e.g., 

United States v. Gibbs, 813 F.2d 596, 600 (3d Cir. 1987). 

Today the Court partially retreats from our prior position 

in holding that, at least when drug quantity increases the 

statutory maximum penalty, it must, per Apprendi , be 

submitted to the jury and proved beyond a reasonable 

doubt. By not re-examining Gibbs and its progeny, however, 

the Court lets stand our interpretation of drug type and 

quantity as sentencing factors in all other instances. 

Indeed, by deciding this case on constitutional rather than 

statutory grounds, see opinion of the Court, ante, at 3, the 

Court implicitly signals that it is satisfied with our prior 

statutory construction of S 841, and will continue to apply 

it in cases where no constitutional -- i.e., Apprendi -- 

difficulty arises. Cf. Ashwander v. TVA, 297 U.S. 288, 346- 

47 (1936) (Brandeis, J., concurring) (articulating principle 

that cases should be decided on statutory grounds before 

reaching constitutional questions). 

 23 
It has become clear to me, however, upon reconsidering 

S 841 in light of Apprendi, that our prior statutory 

construction ought to be abandoned altogether. I submit 

that drug type and quantity are always elements of an 

offense under S 841, and therefore must always be 

submitted to the jury for proof beyond a reasonable doubt. 

See United States v. Gaudin, 515 U.S. 506, 510 (1995) 

("[C]riminal convictions [must] rest upon a jury 

determination that the defendant is guilty of every element 

of the crime with which he is charged, beyond a reasonable 

doubt."). Concomitantly, I believe that drug type and 

quantity should not be treated as element-like factors only 

when they increase the prescribed statutory maximum

penalty. 

In reaching this conclusion, I am guided primarily by the 

intent of Congress in drafting S 841. In my view, Congress's 

intent to make drug type and quantity elements of aS 841 

offense is evident from the statute's legislative history. It is 

also evident from the structure of S 841, which, when 

interpreted according to the canons of construction used by 

the Supreme Court to distinguish between offense elements 

and sentencing factors, indicates that Congress intended 

for drug type and quantity to be elements of an offense. The 

doctrine of constitutional doubt, which requires that 

"constitutionally doubtful constructions be avoided where 

`fairly possible,' " Miller v. French , 530 U.S. 327, 336 (2000) 

(quoting Communication Workers v. Beck, 487 U.S. 735, 

762 (1988)), buttresses the statutory interpretation I offer. 

Finally, on a practical level, I note that requiring drug type 

and quantity to be proved to the jury beyond a reasonable 

doubt would not cause problems in the prosecution and 

trial processes; indeed, in the wake of Apprendi , federal 

courts throughout the nation are easily accommodating this 

requirement. Nor, as I will explain below, would it require 

overturning large numbers of convictions. 

I. Congress's Intent 

A. Legislative History 

In support of our prior conclusion that drug type was not 

an element of a S 841 offense, this court has noted that 

"[w]hile Congress could have enacted separate statutes 

 24 
criminalizing the distribution of particular controlled 

substances, it did not do so." United States v. Lewis, 113 

F.3d 487, 491 (3d Cir. 1997). Similarly, at least one federal 

appellate judge has concluded that drug type and quantity 

are not elements because "[i]t is simply not credible to hold 

that Congress knowingly and intentionally fashioned some 

350 offenses in section 841." United States v. Promise, 255 

F.3d 150, 175 (4th Cir. 2001) (Luttig, J., concurring in the 

judgment). The legislative history of S 841, however, points 

to the opposite conclusion. 

Congress enacted the original version of S 841 as part of 

the Controlled Substances Act ("CSA") of 1970, Pub. L. No. 

91-513, S 401, 84 Stat. 1242, 1260-62. In doing so,

Congress's intent was to unify in a single statute what was 

at that time a "plethora of legislation" creating drug 

offenses in diverse public health and revenue acts. H. R. 

Rep. No. 91-1444, in 1970 U.S.C.C.A.N. 4566, 4571; see 

also 116 Cong. Rec. 33,299-300 (1970) (statement of Rep. 

Springer) (describing the CSA as "a comprehensive 

approach" to the "big[ ] problem" of "many drug laws which 

have come about under different circumstances and with 

entirely separate and diverse histories"); id. at 33,304 

(statement of Rep. Rogers) (explaining how the CSA"would 

consolidate all of the Federal drug laws into one act . . . to 

enable more efficient administration of the laws").

Recognizing that enacting separate statutes for each type of 

drug would have been a needless legislative burden,

Congress opted for the more efficient double-axis 

prosecution scheme, under which each act in violation of 

what is now S 841(a) (manufacture, distribute, etc.) could 

be prosecuted with respect to the different drug types. See, 

e.g., United States v. Grandison, 783 F.2d 1152, 1156 (4th 

Cir. 1986) (holding that, at least for the purposes of double 

jeopardy, "Congress intended the possession of each

scheduled substance to be a separate offense"). 

Congress first included drug quantity as an operative fact 

in determining penalties for marijuana manufacture and 

distribution in its 1980 amendments to the CSA. See Infant 

Formula Act of 1980, Pub. L. No. 96-359, S 8(c)(2), 94 Stat. 

1190, 1194. Both the House and Senate Reports reflect 

that Congress intended quantity to function as an element 

 25 
with respect to marijuana offenses; they state,"Individuals 

convicted of trafficking in over 1,000 pounds would be 

subject to a maximum 15 year prison sentence and/or a 

maximum $125,000 fine." H. R. Rep. No. 96-936, at 13 

(1980); S. Rep. No. 96-916, at 14 (1980) (emphasis added). 

As evidenced by the language used in 21 U.S.C. S 851, 

which was passed as part of the original CSA in 1970, Pub. 

L. No. 91-513, S 411, 84 Stat. 1269, Congress can be 

presumed to have been aware of the traditional legal 

distinction between conviction and sentencing at the time it 

adopted these quantity thresholds. See 21 U.S.C. S 851(b) 

(noting that the proceedings to establish prior convictions 

shall be undertaken by the court "after conviction but 

before pronouncement of sentence"). 

In 1984 Congress again amended the CSA to account for 

drug quantity for illegal substances other than marijuana. 

See S. Rep. No. 98-225, at 255 (1983) (noting that, with the 

exception of marijuana, the prior CSA did not specifically 

account for drug quantity). Thus, according to the Senate 

Report, Congress created "a new subparagraph (A) under 

section 841(b)(1) that would provide, for offenses involving 

large amounts of particularly dangerous drugs, higher 

penalties than those now provided under section 841." Id. 

at 258 (emphasis added). The use of the plural "offenses" 

indicates Congress's intention to create within the single 

statute a multitude of separate crimes depending on drug 

type and quantity. 

The last relevant major changes to the CSA occurred in 

1986 when Congress, using the internal structure of

subparagraph (b)(1)(A) of the 1984 amendments, created 

new subparagraphs (b)(1)(A) and (b)(1)(B) and included 

mandatory minimum sentences for offenses under those 

subparagraphs. See Narcotics Penalties and Enforcement 

Act of 1986, Pub. L. No. 99-570, S 1002, 100 Stat. 3207-2. 

The legislative record indicates that during its discussion of 

the proposed amendments, Congress understood that 

prosecutors would be required to introduce evidence of 

drug quantity during trial in order to obtain a conviction. 

See H. R. Rep. No. 99-845, at 12 (1986) (explaining that 

Congress had been informed by U.S. Attorneys that they 

would be able to meet the evidentiary burden for proving 

quantity to the jury). 

 26 
Furthermore, the record reflects that Congress did not 

consider subparagraph (a) to lay out all of the elements of 

a S 841 offense; rather, Congress deemed drug type and 

quantity essential elements of a crime as specified in 

subparagraphs (b)(1)(A) & (B). The House Report, for 

instance, specifically notes that "[a] person convicted under 

those subparagraphs [(b)(1)(A) & (B)] shall not be eligible for 

parole until the individual has served the minimum 

sentences required by such subparagraphs." Id. at 19 

(emphasis added). Again, as noted above, Congress can be 

presumed to have been aware of the traditional legal 

distinction between conviction and sentencing. If Congress 

had intended for the drug types and quantities listed in 

S 841(b)(1)(A) & (B) to be sentencing factors, the 

accompanying legislative record would have referred to a 

person sentenced -- rather than convicted-- under those 

subparagraphs. 

Immediately following the 1986 amendments, the Justice 

Department itself, which had been consulted by Congress 

throughout the amendment process, see H. R. Rep. No. 99- 

845, at 12 (1986), seemed to conclude that drug type and 

quantity were elements of separate offenses defined in 

S 841(b). See Handbook on the Anti-Drug Abuse Act of 

1986, at 20-21 (Dep't of Justice Mar. 1987) ("1986 

Handbook"). Notably, the 1986 Handbook repeatedly 

referred to "convictions" under the subparagraphs of 

S 841(b)(1), which lay out the penalties for the different 

drug types and quantities. Id. at 3-4, 6-7. Most importantly, 

the Department "recommend[ed] that where the enhanced 

and mandatory minimum penalty provisions of 21 U.S.C. 

SS 841(b)(1) and 960(b), as amended, are based on the kind 

and quantity of drug involved in particular offenses . . . both 

the kind and the quantity of the drug be specified in the 

indictment and proven at trial." Id. at 20 (third emphasis 

added). I acknowledge that the Department only 

"recommend[ed]" such an approach, and that it later

retreated from this position. See, e.g., United States v. 

Jenkins, 866 F.2d 331 (10th Cir. 1989). But the fact that it 

expressed this view in its initial "bible" on the critical 1986 

drug law, obviously written after high-level deliberations 

and at a time when vision was not clouded by subsequent 

events and perceptions, seems to me very persuasive. 

 27 
In addition to what Congress did, what Congress did not 

do in adding drug type and quantity in the 1980, 1984, and 

1986 amendments is also informative. Specifically, 

Congress never expressly denoted drug type and quantity 

as sentencing factors to be determined by the judge and not 

the jury. See United States v. Brough, 243 F.3d 1078, 1079 

(7th Cir. 2001) ("[T]he statute [S 841] does not say who 

makes the findings or which party bears what burden of 

persuasion."). In contrast, in the aforementionedS 851, 

which covers proceedings to establish prior convictions for 

sentence-enhancement purposes, the statute expressly 

provides that "the court shall after conviction but before 

pronouncement of sentence" make its determination 

regarding prior conviction. 21 U.S.C. S 851(b) (emphasis 

added). My point is further advanced by reference to the 

now-repealed Dangerous Special Drug Offender Sentencing 

provision of the original CSA, which created sentencing 

factors. See Pub. L. No. 91-513, S 409, 84 Stat. 1242, 1266- 

69 (1970) (repealed 1984). Under that provision, prior felon 

status was to be assessed by a judge after conviction using 

a preponderance-of-the-evidence standard. See id. at 1267. 

In sum, Congress's failure to include drug type and

quantity within its express sentence-enhancement 

provisions indicates its intent to treat these factors as 

elements of a crime. See United States v. McQuilkin, 78 F.3d 

105, 108 (3d Cir. 1996) ("It is a canon of statutory 

construction that the inclusion of certain provisions implies 

the exclusion of others.") ("inclusio unius est exclusio 

alterius"). 

B. Nomenclature and Structure of the Statute 

In construing drug type and quantity as sentencing 

factors rather than elements, this court, as well as the 

other courts of appeals, have relied on the presence of the 

labels "Unlawful Acts" and "Penalties" preceding 

subsections (a) and (b) of the statute. See, e.g., United 

States v. Lewis, 113 F.3d 487, 490-91 (3d Cir. 1997). This 

approach is deeply flawed. Although one of our sister courts 

has noted that this approach "took Congress at its caption," 

Brough, 243 F.3d at 1079, a close examination reveals that 

the caption was never really Congress's at all. The original 

version of the CSA passed by Congress and signed by the 

 28 
President did not affix the label "Unlawful Acts" to S 841(a) 

or "Penalties" to S 841(b). See CSA, Pub. L. No. 91-513, 

1970 U.S.C.C.A.N. (84 Stat. 1260-62) 1466-68. Nor were 

these captions added in any of the subsequent 

amendments to the CSA. Rather, these section headings 

can be traced to the Office of the Federal Register, National 

Archives and Records Services, which added a reference to 

"penalties" as a margin note to the predecessor of S 841(b) 

in the Statutes at Large simply for user convenience. 84 

Stat. 1261 (1970). Unfortunately, when the CSA was 

reproduced in the United States Code, the margin notes 

were converted into subsection headings by the codification 

committee, but have never been officially adopted by the 

Congress, and, therefore, do not have the force of law. See 

U.S.C. at vii (1994 & Supp. V 1999) (noting that Title 21 

has never been officially codified). 

Even if the subsection titles had been officially adopted 

by Congress, we would be wrong to ascribe to subsection 

(b)'s "Penalties" label the talismanic power to indicate that 

drug type and quantity are sentencing factors rather than 

elements of separate crimes. See Castillo v. United States, 

530 U.S. 120, 125 (2000) (noting that the mere fact that a 

statutory section is entitled "Penalties" does not indicate 

whether that section creates sentencing factors or entirely 

new crimes for "[t]he title alone does not tell us which are 

which"). Although S 841(a) is entitled"Unlawful Acts," this 

subsection alone does not define a complete offense

because it includes no punishment. A jury verdict finding 

only that the defendant had committed the acts described 

in subsection (a), without more, would not render the 

defendant guilty of a crime requiring any ascertainable 

punishment. Compare Almendarez-Torres v. United States, 

523 U.S. 224 (1998) (construing 8 U.S.C. S 1326(b)(2) as a 

sentencing factor where an earlier portion of the statute -- 

S 1326(a) -- already provided for specific penalties), with 

Jones v. United States, 526 U.S. 227 (1999) (construing the 

provisions of 18 U.S.C. S 2119(2)-(3) as elements where the 

prefatory statutory text did not provide for penalties but 

only described prohibited conduct). 

Furthermore, the wide variation in penalties for the 

manufacture and distribution of different combinations of 

 29 
drug type and quantity counsels in favor of construing 

these factors as elements. In two recent cases, Jones and 

Castillo, the Supreme Court observed that the degree to 

which the commission of a proscribed act increases the 

maximum penalty reflects Congress's intent to make the 

particular act an element or a sentencing factor. In Castillo, 

the Government argued that under 18 U.S.C. S 924(c), 

which prohibits the use or carrying of a firearm in relation 

to a crime of violence, the particular type of firearm used by 

the defendant was a sentencing factor for the judge to 

determine. In rejecting this argument, the Court deemed it 

important that the mandatory penalty for using or carrying 

a machinegun was "six times more severe" than the penalty 

for using or carrying a mere "firearm," such as a pistol, 

thereby demonstrating Congress's intent to make each of 

these a "separate crime." 530 U.S. at 127. 

Likewise, in Jones, the Court considered"serious bodily 

injury" an element of the crime of carjacking rather than a 

sentencing factor under 18 U.S.C. S 2119 in large part 

because it increased the authorized penalty by two-thirds. 

526 U.S. at 243. The Court worried that leaving such 

consequential determinations to a judge rather than the 

jury would relegate the jury to the role of "low-level 

gatekeeping," resulting in "the erosion of the jury's 

function." Id. at 244. Such a diminution of the jury's role, 

the Court cautioned in language foreshadowing Apprendi, 

"would merit Sixth Amendment concern." Id. at 248.1 

_________________________________________________________________ 

1. In Almendarez-Torres v. United States, 523 U.S. 224 (1998), a case 

that preceded Jones and Castillo, the Supreme Court construed a 

provision of immigration law that increased the maximum prison term 

for a deported alien who has illegally reentered the country from two to 

twenty years if his initial deportation was subsequent to an aggravated 

felony conviction. Despite the tenfold increase in maximum prison time, 

the Court construed the provision as a sentencing factor rather than an 

element in large part because recidivism "is a traditional, if not the 

most 

traditional, basis for a sentencing court's increasing an offender's 

sentence." Id. at 243. The Court again limited the breadth of this holding 

a year later in Jones when it noted that Almendarez-Torres "rested in 

substantial part on the tradition of regarding recidivism as a sentencing 

factor, not as an element. . . ." 526 U.S. at 249. The Court's refusal to 

consider prior conviction an element in Almendarez-Torres despite the 

 30 
Applying the lessons of Castillo and Jones, it seems clear 

to me that S 841 establishes multiple offenses based on the 

elements of drug type and quantity. The maximum 

penalties authorized by the statute vary greatly depending 

on type and quantity of the controlled substance. For 

example, assuming no prior convictions, the maximum

penalty for the distribution of a schedule V substance of 

any quantity is one year, see S 841(b)(3), while the 

maximum penalty for the distribution of more than 500 

grams of cocaine not resulting in any death or serious 

bodily injury is forty years. See S 841(b)(1)(B)(ii)(II). Even 

within the same drug type, penalties can vary significantly 

by quantity alone. Compare, e.g., S 841(b)(1)(B)(vii) 

(providing a maximum of forty years imprisonment for a 

violation of subsection (a) involving "100 kilograms or more 

of a mixture or substance containing a detectable amount 

of marijuana" for a defendant with no prior convictions), 

with S 841(b)(1)(D) (providing a maximum of five years 

imprisonment "[i]n the case of less than 50 kilograms of 

marihuana [sic]" for a defendant with no prior convictions). 

I believe that these dramatic differences in the severity of 

punishment further signal Congress's intent to make drug 

type and quantity elements of the several offenses 

established under S 841. 

II. Constitutional Doubt 

Undergirding my interpretation of S 841 is the timehonored maxim that "constitutionally doubtful 

constructions should be avoided where `fairly possible.' " 

Miller v. French, 530 U.S. 327, 336 (2000) (quoting

Communications Workers v. Beck, 487 U.S. 735, 762 

(1988)). To be sure, a statutory construction ofS 841 that 

requires proving drug type and/or quantity to the jury 

beyond a reasonable doubt only when either factor 

_________________________________________________________________ 

tenfold increase in penalty, therefore, ought not to be considered in 

tension with its approach to statutory construction in Jones and Castillo, 

for, as the Court subsequently made clear in Apprendi, sentence 

enhancements for prior conviction are sui generis. See Apprendi, 530 

U.S. at 490 (announcing the Apprendi rule as applying to "any fact that 

increases the penalty beyond the prescribed statutory maximum" except 

"the fact of a prior conviction"). 

 31 
increases the maximum statutory penalty avoids 

constitutional doubt. See, e.g., United States v. Brough, 243 

F.3d 1078, 1080 (7th Cir. 2001). In choosing between that 

construction and the one offered here, however, we ought to 

be guided by a realistic appraisal of Congress's intent, for 

although it is our duty to "strain to construe legislation so 

as to save it against constitutional attack," we"must not 

and will not carry this to the point of perverting the 

purpose of a statute . . .' or judicially rewriting it." Aptheker 

v. Secretary of State, 378 U.S. 500, 515 (1964) (quoting 

Scales v. United States, 367 U.S. 203, 211 (1961)).

Although I believe that the legislative history and

statutory structure indicate that drug type and quantity are 

elements of a S 841 offense, it is possible that Congress 

intended them to be sentencing factors for the judge to 

determine. See United States v. Buckland, 259 F.3d 1157, 

2001 U.S. App. LEXIS 17867 (9th Cir. Aug. 9, 2001) (reaffirming, despite Apprendi, an earlier holding finding drug 

type and quantity always to be sentencing factors for the 

judge to determine, thereby rendering S 841 

unconstitutional). It strains credulity, however, to assert 

that Congress intended for type and quantity to be treated 

as sentencing factors in some cases and as elements in 

others. I know of no statute written in such a manner, nor 

am I aware of any statutes construed this way. See also 

Promise, 255 F.3d at 185 (Luttig, J., concurring in the 

judgment) ("Either facts that affect the sentence a

defendant receives are elements or they are not; they are 

not elements for some purposes and not for others."). 

Furthermore, in this case we cannot assume that 

Congress might have adopted such an unusual approach 

simply to avoid an Apprendi violation. See Rust v. Sullivan, 

500 U.S. 173, 191 (1991) (explaining that the canon of 

constitutional doubt "is followed out of respect for 

Congress, which we assume legislates in the light of 

constitutional limitations"). Congress enacted the most 

recent relevant structural changes to S 841 in 1986; the 

Supreme Court issued its Apprendi decision just last year. 

Indeed, Congress has not amended S 841 at all since the 

Apprendi decision. The constitutional limitation of Apprendi 

perforce did not exist at any time at which Congress wrote 

 32 
or re-wrote S 841. Although we can never be entirely certain 

of what Congress did intend in draftingS 841, we can be 

sure that Congress did not intend to designS 841 to fit 

precisely within the contours of a constitutional rule that 

did not yet exist. It is much more likely that Congress 

intended for drug type and quantity always to be elements 

of a S 841 offense. I would, therefore, overrule our prior 

cases -- e.g., United States v. Lewis, 113 F.3d 487 (3d Cir. 

1997); United States v. Chapple, 985 F.2d 729 (3d Cir. 

1993); United States v. Gibbs, 813 F.2d 596 (3d Cir. 1987) 

-- that hold to the contrary. 

III. Administrability 

While the foregoing discussion explicates my position, it 

is necessary that I respond to the suggestion that"the sky 

will fall" if my interpretation prevails. Requiring the 

prosecution to prove drug type and quantity to the jury 

beyond a reasonable doubt will not needlessly complicate 

the trial process. See Promise, 255 F.3d at 157 n.6 ("It will 

not be unduly difficult for juries to determine whether an 

offense involved a specific threshold drug quantity."). Since 

Apprendi, federal district courts have proceeded in this 

manner, submitting special interrogatories to the jury for 

determination of drug type and quantity, and many have 

been operating in this manner since Jones. In the Appendix 

to this opinion I attach an example of a special 

interrogatory on drug quantity prepared by the Office of the 

United States Attorney for the Eastern District of 

Pennsylvania and used without incident or problem by the 

judges of the district court since Jones. Furthermore, in 

some state systems, juries have been routinely performing 

this function for at least five years. See Promise, 255 F.3d 

at 157 n.6 (citing State v. Virgo, 947 P.2d 923, 926 (Ariz. 

Ct. App. 1997); State v. Moore, 698 A.2d 1259, 1264 (N.J. 

Super. Ct. App. Div. 1997)). 

Nor will requiring drug type and quantity to be proved to 

the jury unduly burden the defendant. Justice Breyer and 

others have objected to the interpretation I offer because it 

"could easily place the defendant in the awkward (and 

conceivably unfair) position of having to deny he committed 

the crime yet offer proof about how he committed it, e.g., `I 

did not sell drugs, but I sold no more than 500 grams.' " 

 33 
Apprendi, 530 U.S. at 557 (Breyer, J., dissenting); see also 

United States v. Buckland, 259 F.3d 1157, 2001 U.S. App. 

LEXIS 17867, at *29-30 (9th Cir. Aug. 9, 2001) (quoting 

same). However, if drug quantity were classified as a 

sentencing factor for which preponderance of the evidence 

is the burden of proof, the defendant would lose the 

advantage of forcing the government to prove this oftdisputed fact beyond a reasonable doubt.2 

Even if the defendant would be advantaged by having the 

issue decided by a judge rather than a jury, as Justice 

Breyer contends, such is not the system envisioned by our 

Constitution. That system puts its faith in the fairness of a 

trial by a jury of one's peers. See Apprendi, 530 U.S. at 498 

(Scalia, J., concurring) ("[I]t is not arguable that, just 

because one thinks [having a judge determine the facts that 

affect the length of a sentence] is a better system, it must 

_________________________________________________________________ 

2. Moreover, it seems to me that the kind of scenario feared by Justice 

Breyer is often intrinsic to criminal statutes in which penalties vary 

according to different elements. In Castillo, the Court concluded that the 

type of weapon used in violation of 18 U.S.C. S 924(c), which prohibits 

the use or carrying of a "firearm" in relation to a crime of violence, was 

an element of an offense under the statute. In an opinion written by 

Justice Breyer himself, the Court noted: 

 [I]nasmuch as the prosecution's case underS 924(c) usually will 

 involve presenting a certain weapon (or weapons) to the jury and 

 arguing that the defendant used or carried that weapon during a 

 crime of violence within the meaning of the statute, the evidence 

is 

 unlikely to enable a defendant to respond both (1) "I did not use 

or 

 carry any firearm," and (2) "even if I did, it was a pistol, not a 

 machinegun." 

530 U.S. at 128. I fail to see any principled distinction between S 924(c) 

and the position in which the defendant would be placed under my 

interpretation of S 841. In either case, the defendant might be forced, as 

a matter of trial strategy, to choose between denying the commission of 

the crime outright and admitting a lesser amount of wrongdoing in order 

to receive a shorter sentence. Perhaps Justice Breyer's distinction is 

that 

under S 924(c), the prosecution will present to the jury a tangible, 

discrete object -- the weapon -- whereas in the drug context, the 

prosecution will present only a plastic bag of powder or pills, whose type 

and quantity may not be readily apparent to the jury. Such a distinction, 

I submit, is too slender a reed upon which to hinge the determination of 

element or sentencing factor. 

 34 
be, or is even more likely to be, the system envisioned by a 

Constitution that guarantees trial by jury."). 

Additionally, I do not believe that my construction of 

S 841 will result in the overturning of the myriad 

convictions obtained where drug type and/or quantity were 

not proved to the jury beyond a reasonable doubt, thereby 

imposing huge burdens on the court system. Any appeal 

from such a conviction is likely to be reviewed under the 

plain error standard. Evidenced by the decision of this 

court today, plain error analysis will rarely result in the 

overturning of a conviction. Most of the other courts of 

appeals engaging in plain error review have similarly 

declined to exercise their discretion to reverse convictions 

that have violated Apprendi by not proving drug type and 

quantity to the jury beyond a reasonable doubt. See cases 

cited in opinion of the Court, ante, at 20 nn.14-18. Even 

under the harmless error standard, the evidence of drug 

quantity adduced at trial, as the cases I have seen in the 

last decade suggest, is usually so overwhelming as to have 

not affected the defendant's substantial rights. See, e.g., 

United States v. Lawson, 2001 U.S. App. LEXIS 18153, at 

*4 (4th Cir. Aug. 10, 2001) (per curiam).3 

IV. Conclusion 

Construing S 841 in the manner explained, I nonetheless 

join the judgment of the Court because I believe, as set 

forth in Section II.B of the Court's opinion, that the failure 

to submit drug quantity to the jury did not affect Vazquez's 

_________________________________________________________________ 

3. In this case, the indictment alleged drug type and quantity, so 

Vazquez cannot (and does not) raise the argument that the failure to 

allege drug type and quantity in the indictment raises different issues on 

review than failure to prove these factors to a jury beyond a reasonable 

doubt. Cf. United States v. Gonzalez, 259 F.3d 355, 361 (5th Cir. 2001) 

(noticing plain error where drug quantity was not included in the 

indictment for a S 841 offense because "the district court lacks the 

jurisdiction to impose a sentence exceeding the statutory maximum of 

the offense alleged in the indictment"); cf. also United States v. Tran, 

234 

F.3d 798, 809 (2d Cir. 2000) (reversing conviction where the indictment 

failed to allege "all of the material elements of an offense" without 

requiring any showing of prejudice by the defendant because the district 

court lacked jurisdiction to convict the defendant of an offense not 

properly charged). 

 35 
substantial rights and that, even if it did, it did not 

seriously affect the fairness, integrity, or public reputation 

of judicial proceedings. 

 36 
APPENDIX 

8. Drug case special interrogatories and verdict form re 

 quantity 

COUNT 1 (Conspiracy) 

____________________ Guilty 

____________________ Guilty 

Jury Interrogatory Number One -- Count 1 (Conspiracy) 

If you find the defendant guilty of the conspiracy charged 

in Count 1, please answer the following question: 

-- Do you unanimously agree, by proof beyond a 

reasonable doubt, that the quantity of cocaine base

("crack") which was distributed and/or intended to be 

distributed as part of the conspiracy was 50 grams or 

more? 

 _______ Yes 

 _______ No 

If your answer to this question is "yes," that concludes 

Jury Interrogatory Number One. Do not go on to the next 

question on this page. Proceed to Count 2 of this verdict 

form. 

If your answer to this question is "no," please answer the 

following question: 

-- Do you unanimously agree, by proof beyond a 

reasonable doubt, that the quantity of cocaine base

("crack") which was distributed and/or intended to be 

distributed as part of the conspiracy was five (5) grams or 

more? 

 _______ Yes 

 _______ No 

COUNT 2 (Distribution) 

___________________ Guilty 

 37 
___________________ Not Guilty 

Jury Interrogatory Number Two -- Count 2 (Distribution) 

If you find the defendant guilty of the distribution 

charged in Count 2, please answer the following question: 

-- Do you unanimously agree, by proof beyond a 

reasonable doubt, that the quantity of cocaine base

("crack") which was distributed was 50 grams or more? 

 _______ Yes 

 _______ No 

If your answer to this question is "yes," that concludes 

Jury Interrogatory Number Two. Do not go on to the next 

question on this page. 

If your answer to this question is "no," please answer the 

following question: 

-- Do you unanimously agree, by proof beyond a 

reasonable doubt, that the quantity of cocaine base

("crack") which was distributed was five (5) grams or more? 

 _______ Yes 

 _______ No 

 JURY FOREPERSON 

 38 
Volume 2 of 2 

 39 
SLOVITER, Circuit Judge, dissenting, with whom Judges 

Mansmann, Nygaard, and McKee join, and with whom 

Judges Roth and Rendell join as to Part I. 

The majority's opinion is based on the following logic: 

Vazquez was convicted after a jury trial of conspiracy to 

possess and distribute more than 5 kilograms of cocaine in 

violation of 21 U.S.C. SS 846 and 841 respectively; the jury 

was instructed to find whether Vazquez conspired to

possess and distribute cocaine but was not instructed to 

find the quantity of cocaine involved; following the Supreme 

Court's opinion in Apprendi v. New Jersey, 530 U.S. 466 

(2000), a jury is required to find beyond a reasonable doubt 

any fact that increases the prescribed range of penalties to 

which the defendant is exposed by the jury's verdict; in this 

case the jury's verdict exposed Vazquez to sentencing under 

S 841(b)(1)(C) for which the maximum penalty is 20 years 

(240 months) imprisonment; the trial judge, applying a 

preponderance of the evidence standard, determined that 

Vazquez had been involved with 992 grams of powder 

cocaine and 859 grams of crack cocaine and therefore 

sentenced Vazquez to 292 months imprisonment; this 

constituted a violation of Apprendi, but the court will affirm 

because Vazquez didn't contest the amount of drugs at 

trial, and the court is confident that the jury would have 

made the same determination that the trial judge made, so 

the Apprendi violation was not plain error. 

There are many bases on which one might take issue 

with the logic of the majority's opinion, but I begin by 

approaching the majority's opinion on its own terms. That 

requires consideration of whether the Apprendi violation 

can meet the plain error inquiry. 

I. 

A. 

The Apprendi Decision 

Apprendi, who had fired several shots into the home of 

an African-American family, was charged in state court 

 40 
with, inter alia, two counts of second-degree possession of 

a firearm for an unlawful purpose and one count of thirddegree unlawful possession of an antipersonnel bomb. 

Under New Jersey law, a second-degree offense carries a 

penalty range of 5 to 10 years of imprisonment. After 

Apprendi pleaded guilty to these counts pursuant to a plea 

agreement, the prosecutor, as permitted by that agreement, 

filed a motion to enhance Apprendi's sentence under New 

Jersey's hate crime statute which authorized an enhanced 

sentence upon the finding of a trial judge, by a 

preponderance of the evidence, that the defendant 

committed the crime with a purpose to intimidate a person 

or group because of race. See N.J. Stat. Ann. S 2C:44-3(e) 

(West Supp. 1999-2000). Based on Apprendi's own 

statements made after his arrest, the trial court found that 

the shooting was racially motivated and sentenced him to 

12 years of imprisonment. Apprendi appealed his sentence 

through the New Jersey courts, contending that the Due 

Process Clause requires that racial bias be proven to a jury 

beyond a reasonable doubt, but they upheld the enhanced 

sentence. 

The United States Supreme Court reversed. In reaching 

its conclusion, the Court noted among the "constitutional 

protections of surpassing importance" the provision of the 

Fourteenth Amendment that liberty can be deprived only 

with due process and the Sixth Amendment guarantee of a 

trial by jury, which entitle the defendant to a jury 

determination that s/he is guilty of every element of the 

crime beyond a reasonable doubt. Apprendi, 530 U.S. at 

476. The Court cited to its earlier decision in In re Winship, 

where it stated: "the Due Process Clause protects the 

accused against conviction except upon proof beyond a 

reasonable doubt of every fact necessary to constitute the 

crime with which he is charged." Id. at 477 (quoting In re 

Winship, 397 U.S. 358, 364 (1970)) (brackets omitted). 

The Apprendi Court examined the historical 

underpinnings of these principles and, while recognizing 

that discretion had been accorded to trial judges in their 

sentencing decisions, reasoned that such discretion cannot 

deprive a defendant at the time of sentencing "of 

protections that have, until that point, unquestionably 

attached." Id. at 484. 

 41 
Finding that the New Jersey statutory scheme under 

which a judge may enhance the punishment based on a

finding by a preponderance of the evidence violated due 

process, the Court held that "[o]ther than the fact of a prior 

conviction, any fact that increases the penalty for a crime 

beyond the prescribed statutory maximum must be 

submitted to a jury, and proved beyond a reasonable

doubt." Id. at 490. In doing so, the Court rejected New 

Jersey's argument that racial bias was only a sentencing 

factor and not an element of the crime, stating:"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 494. 

B. 

Vazquez's Sentence 

The count of the Superseding Indictment on which 

Vazquez was tried and found guilty, and which is at issue 

here, charges him with conspiracy to possess with intent to 

distribute, and to distribute, more than 5 kilos of cocaine in 

violation of 21 U.S.C. S 841, and, following the setting forth 

of 10 paragraphs constituting the Overt Acts, states, "All in 

violation of Title 21 United States Code, Section 846." 

Section 841(a) is entitled "Unlawful acts" and provides 

that "it shall be unlawful for any person knowingly or 

intentionally -- (1) to manufacture, distribute, or dispense, 

or possess with intent to manufacture, distribute, or 

dispense, a controlled substance." Section 841(a) does not 

prescribe penalties. It is S 841(b), entitled"Penalties," that 

prescribes the range of penalties for certain quantities of 

controlled substances. Under S 841(b)(1)(A)(iii), the sentence 

for a defendant convicted of violating S 841(a) with 50 

grams or more of a mixture containing cocaine base (i.e., 

crack cocaine) is not less than 10 years of imprisonment 

and no more than life. The sentence under S 841(b)(1)(B)(iii) 

for a defendant with 5 grams or more of a mixture 

containing cocaine base is not less than 5 years and not 

more than 40 years of imprisonment. Section 841(b)(1)(C), 

 42 
often referred to as the catch all provision, contains no 

drug quantity requirement and provides a maximum 

possible sentence of 20 years of imprisonment. 

The majority concedes that S 841(b)(1)(C) "defines 

Vazquez's prescribed statutory maximum sentence as 20 

years." Maj. Op. at 8. The majority then states:"The 

Apprendi violation occurred when the judge, rather than 

the jury, determined drug quantity and then sentenced 

Vazquez to a more than 24-year sentence." Maj. Op. at 8. 

Surprisingly, it does not remand so that Vazquez can be 

resentenced to a sentence that does not exceed the 

maximum authorized by the statute. Instead, it devises a 

rationale to affirm the sentence that was arrived at in an 

unconstitutional manner. 

I do not understand why the majority's disposition is 

appropriate, necessary, or just. I note that in Apprendi, the 

Supreme Court, after finding that the procedure that led 

to the enhancement of Apprendi's sentence was 

unconstitutional, reversed and remanded. Of course,

Apprendi came to the Court from the New Jersey Supreme 

Court, not from a federal court, but I see no justification in 

Apprendi itself for us to do anything different with a District 

Court judgment. 

The majority, however, after noting that Vazquez did not 

challenge the evidence of drug quantity or object to the 

court's failure to submit the issue to the jury, 1 sustains the 

sentence that was unconstitutionally enhanced by applying 

the plain error standard. Under Rule 52(b) of the Federal 

_________________________________________________________________ 

1. Because Apprendi was decided after Vazquez's conviction and 

sentence, it is understandable that Vazquez did not timely object in the 

District Court either before or after the instruction on the ground that 

drug quantity should be submitted to the jury. In United States v. Nance, 

236 F.3d 820, 823-24 (7th Cir. 2000), the court considering a similar 

question stated that because of earlier indications, primarily the opinion 

of the Supreme Court in Jones v. United States , 526 U.S. 227 (1999), the 

defendant could have argued that the quantity of the drugs should have 

been charged in the indictment and proved beyond a reasonable doubt. 

As a result, the court concluded it would review for plain error. Nance, 

236 F.3d at 825. In light of the position I take, I need not consider 

whether the Jones decision provided a sufficient basis to forewarn 

criminal defendants that an objection was called for. 

 43 
Rules of Criminal Procedure, "[p]lain errors or defects 

affecting substantial rights may be noticed although they 

were not brought to the attention of the court." In United 

States v. Olano, 507 U.S. 725 (1993), the Supreme Court 

explained that there must be (1) "error," (2) that is "plain," 

and (3) that "affect[s] substantial rights." Id. at 732 

(quotation marks omitted). The appellate court will then 

have discretion to correct such an error if it (4)"seriously 

affect[s] the fairness, integrity or public reputation of 

judicial proceedings." Id. (quotation marks omitted). 

The majority agrees that in sentencing Vazquez, the court 

committed error and that it was plain. It concludes that the 

error was harmless because Vazquez cannot show that the 

error affected his substantial rights. The majority bases 

that conclusion on its determination that the evidence 

established that Vazquez sold more than 5 grams, which is 

sufficient to carry a statutory maximum penalty under 21 

U.S.C. S 841(b)(1)(B)(iii) of 40 years imprisonment, more 

than the 24 plus years to which he was sentenced. The 

majority states that based on its consideration of the 

evidence "we can say without a doubt that Vazquez 

conspired to possess and/or distribute the 992 grams of 

powder cocaine and 859 grams of crack cocaine the 

authorities found at the Columbia rooming house." Maj. 

Op. at 16. Therefore, the majority concludes that the 

Apprendi error did not affect Vazquez's substantial rights. 

Completing its plain error inquiry, the majority holds that 

even if the Apprendi violation affected Vazquez's substantial 

rights, he cannot establish the fourth factor, i.e., that the 

error seriously affected the fairness, integrity, or public 

reputation of judicial proceedings. The majority so holds 

because, it says, Vazquez was the leader of a drug 

trafficking operation that distributed cocaine in Lancaster 

County, and a rational jury would certainly have found that 

he conspired to possess and distribute more than the 

amount necessary to support a "slightly more than 24-year 

sentence pursuant to S 841(b)(1)(B)'s 5-to-40-year 

sentencing range." Maj. Op. at 19. 

 44 
C. 

The Substantial Rights Inquiry 

I agree with the majority that there was error in 

sentencing Vazquez and that it was plain. I disagree that 

the error did not affect Vazquez's substantial rights. Under 

the plain error inquiry, "the error must have been 

prejudicial: It must have affected the outcome of the district 

court proceedings." Olano, 507 U.S. at 734. It is the 

defendant who bears the burden of persuasion. See id. 

Vazquez's sentence to more than 24 years imprisonment, 

which exceeds the statutory maximum of 20 years 

imprisonment under S 841(b)(1)(C) authorized by the jury 

verdict, clearly affects Vazquez's substantial rights. An error 

that will cause a defendant to spend four plus years more 

in prison than statutorily authorized by the jury's verdict 

necessarily adversely affects the defendant's substantial 

rights. 

I find it curious that the majority never acknowledges 

that additional time in prison could affect substantial 

rights. In other contexts, courts of appeals have not 

hesitated to conclude that an error resulting in an increase 

in the defendant's sentence affected the defendant's 

substantial rights. See, e.g., United States v. Anderson, 201 

F.3d 1145, 1152 (9th Cir. 2000) ("An error that results in 

a longer sentence undoubtedly affects substantial rights."); 

United States v. Martinez-Rios, 143 F.3d 662, 676 (2d Cir. 

1998) (finding clerical error which increased defendant's 

sentence by several months to affect substantial rights). 

Indeed, the Supreme Court recently held in Glover v. United 

States, 531 U.S. 198 (2001), that an increase in a 

defendant's sentence of at least six months was prejudicial 

in relation to an ineffective assistance of counsel claim 

under Strickland v. Washington, 466 U.S. 668 (1984). Of 

relevance here, the Court noted that "any amount of actual 

jail time has Sixth Amendment significance." Glover, 531 

U.S. at 203; see also United States v. Knight , No. 99-5642 

(3d Cir. Sept. 6, 2001) (holding application of an incorrect 

sentencing guideline range affected substantial rights and 

was plain error even though sentence was also within 

correct range). 

 45 
In Apprendi violation cases, numerous courts have 

recognized that extra prison time affects substantial rights. 

In United States v. Nordby, the Ninth Circuit stated that 

"[f]ive additional years of imprisonment were imposed 

beyond that authorized by this verdict, which easily affected 

[defendant's] substantial rights." 225 F.3d 1053, 1060 (9th 

Cir. 2000). It reiterated that holding the following year in 

United States v. Buckland, 2001 WL 893440, *9, reh'g en 

banc granted, 2001 WL 1091167 (9th Cir. 2001) ("Imposing 

a sentence that is seven years more than the maximum 

sentence constitutionally permitted under the facts as 

found by the jury undoubtedly `seriously affect[s] the 

fairness, integrity or public reputation of judicial 

proceedings.' "). Morever, the Tenth Circuit in United States 

v. Jones, 235 F.3d 1231 (10th Cir. 2000), recognized that it 

"regularly has found reversible error when the sentence 

imposed by the district court exceeded the statutory 

maximum penalty applicable to the offense of conviction." 

Id. at 1238. Even courts that did not ultimately reverse on 

the basis of an Apprendi error have recognized that prison 

sentences in excess of the applicable maximum affect 

substantial rights. See United States v. Promise , 255 F.3d 

150, 150, 160-61 (4th Cir. 2001); see also United States v. 

Mietus, 237 F.3d 866, 875 (7th Cir. 2001) (assuming that 

Apprendi error that increased defendant's sentence by over 

7 years affected his substantial rights); Nance , 236 F.3d at 

825-26 (same).2 

Because the majority opinion would leave intact a 

sentence beyond the statutory maximum that was not 

based on a jury finding under the beyond-a-reasonabledoubt standard, thereby ignoring established constitutional 

principles, I cannot see how the effect could be other than 

to impugn the "fairness, integrity and public reputation" of 

the judicial process. The fact that the majority condones a 

process by which a judge usurped a determination within 

the jury's province strikes at the reputation of the judicial 

_________________________________________________________________ 

2. In affirming the sentences, these courts shifted the inquiry from the 

effect on substantial rights to the discretionary question referred to in 

Olano, which was whether the error was one that"seriously affect[ed] the 

fairness, integrity or public reputation of judicial proceedings," 507 

U.S. 

at 732. 

 46 
proceedings here. Cf. Apprendi, 530 U.S. at 498 (Scalia, J. 

concurring) ("Judges, it is sometimes necessary to remind 

ourselves, are part of the State . . . . The founders of the 

American Republic were not prepared to leave [criminal 

justice] to the State, which is why the jury-trial guarantee 

was one of the least controversial provisions of the Bill of 

Rights. It has never been efficient; but it has always been 

free.") (parenthesis omitted). 

In determining that Vazquez's substantial rights were not 

affected, the majority relies on the Supreme Court's 

decisions in Johnson v. United States, 520 U.S. 461 (1997), 

and Neder v. United States, 527 U.S. 1 (1999), where the 

Court held that erroneous jury instructions did not require 

reversal. However, the substantial rights inquiry in those 

cases was not the same as it is here. 

In Johnson, the trial judge had instructed the jury that 

the materiality of the statements was an issue for the judge 

and not the jury to decide, and the defendant did not object 

to this instruction. Johnson, 520 U.S. at 463. After 

Johnson's conviction, the Supreme Court decided United 

States v. Gaudin, 515 U.S. 506 (1995), which held that the 

materiality of a false statement must be decided by a jury. 

Johnson, 520 U.S. at 463. The Supreme Court held that 

Johnson had not established the fourth prong of the plain 

error standard -- that the error seriously affected the 

fairness, integrity or public reputation of judicial 

proceedings. In so holding, the Court noted that the 

evidence supporting materiality was overwhelming and that 

the defendant presented no plausible argument that her 

false statements under oath were not material. See id. at 

470. 

In Neder, the error was similar, i.e., the trial court's 

failure to charge the jury on the materiality of the false 

statements or omissions for which the defendant was

convicted. The defendant in Neder had objected to the 

instruction, so the Court's discussion on prejudice was in 

the context of a harmless error analysis. See 527 U.S. at 6- 

7, 15. The Court held there was overwhelming evidence of 

the materiality of the statements, and hence the omission 

of the charge was harmless error. See id. at 16-20.

 47 
In neither case was the sentence at issue; rather the 

issue was whether to uphold or reverse the jury's verdict of 

guilt. Here, we must decide whether an increase in prison 

time as a result of the error affects the defendant's 

substantial rights. As a result, those cases are inapposite 

here. 

Instead of affirming the sentence on the ground that 

Vazquez's substantial rights were not affected, as the 

majority does, I would follow the disposition recently 

reached by some of our sister circuits who, after finding an 

Apprendi error in sentencing the defendant, vacated the 

sentence and remanded for resentencing within the 

statutory maximum sentence authorized by the jury 

verdict. See, e.g., United States v. Martinez , 253 F.3d 251, 

255-56 (6th Cir. 2001) (vacating the defendants' sentences 

and remanding for resentencing because the sentences 

exceeded the maximum sentence authorized by the jury 

verdict by 12 and 15 years respectively); United States v. 

Ray, 250 F.3d 596, 603 (8th Cir. 2001) (remanding for 

resentencing because the defendant's 97 month sentence of 

imprisonment exceeded the statutory maximum of 60 

months); United States v. Velazquez, 246 F.3d 204, 218-19 

(2d Cir. 2001) (vacating the defendant's sentence and 

remanding for sentencing because the sentence exceeded 

by four months the maximum that could be imposed 

without a jury determination of an element of the crime); 

United States v. McWaine, 243 F.3d 871, 875-76 (5th Cir. 

2001) (vacating the sentence and remanding for 

resentencing because the defendant's life sentence exceeded 

the 20-year statutory maximum sentence authorized by the 

jury); United States v. Jones, 235 F.3d 1231, 1238 (10th 

Cir. 2000) (remanding for resentencing because the actual 

sentence of 30 years exceeded the 20-year statutory

maximum sentence authorized by the jury verdict); United 

States v. Nordby, 225 F.3d 1053, 1060 (9th Cir. 2000) 

(remanding for resentencing because "[f]ive additional years 

of imprisonment were imposed beyond that authorized by 

this verdict, which easily affected [defendant's] substantial 

rights."). Although not every court that has found an 

Apprendi violation followed the course of these cases, I 

believe that course is the one demanded by justice.

 48 
II. 

In reaching its conclusion to affirm Vazquez's sentence, 

the majority rejects Vazquez's argument that the Apprendi 

error was a structural defect. Structural defects are per se 

prejudicial and pretermit the substantial rights inquiry. 

Johnson v. United States, 520 U.S. 461, 468 (1997). The 

majority reasons that "Apprendi violations result in both 

trial and sentencing errors, albeit ones that rise to a 

constitutional dimension," Maj. Op. at 15; that the

Supreme Court has instructed that most constitutional 

errors can be harmless; that both trial errors and 

sentencing errors have been subjected to harmless or plain 

error analysis; and that therefore "an Apprendi violation is 

not a structural defect." Maj. Op. at 15. 

I believe the majority's syllogism is flawed and that the 

issue of an Apprendi violation as a structural defect merits 

more analysis than has been given to it in the cases, 

including even those cases that have reversed sentences 

imposed in violation of Apprendi and remanded for 

resentencing. 

In Chapman v. California, 386 U.S. 18 (1967), even 

though the Court held that constitutional errors could be 

harmless, it also recognized that there are some 

constitutional errors that are not subject to harmless error 

analysis. Chief Justice Rehnquist referred to them in 

Arizona v. Fulminante, 499 U.S. 279 (1991), as involving 

rights "so basic to a fair trial that their infraction can never 

be treated as harmless error." Id. at 308 (quoting Chapman, 

386 U.S. at 23). Structural defects occur in a limited class 

of cases, such as where there has been a complete denial 

of counsel, see Gideon v. Wainwright, 372 U.S. 335 (1963), 

a biased trial judge, see Tumey v. Ohio, 273 U.S. 510 

(1927), unlawful exclusion of grand jurors of defendant's 

race, see Vazquez v. Hillery, 474 U.S. 254 (1986), denial of 

self-representation, see McKaskle v. Wiggins, 465 U.S. 168 

(1984), denial of public trial, see Waller v. Georgia, 467 U.S. 

39 (1984), or a defective reasonable-doubt instruction to 

the jury, see Sullivan v. Louisiana, 508 U.S. 275 (1993). 

Such errors have been termed "structural" because each 

involves a "defect affecting the framework within which the 

trial proceeds, rather than simply an error in the trial 

 49 
process itself." Johnson, 520 U.S. at 468 (quoting Arizona v. 

Fulminante, 499 U.S. 279, 310 (1991)). 

Perhaps the Sullivan case best illustrates a structural 

error. As explained in Justice Scalia's opinion for a 

unanimous Court, a constitutionally defective reasonabledoubt instruction violated the Sixth Amendment right to 

trial by jury, a right that is " `fundamental to the American 

scheme of justice.' " 508 U.S. at 277 (quoting Duncan v. 

Louisiana, 391 U.S. 145, 149 (1968)). 

Sullivan was convicted by a jury following a charge that 

defined a reasonable doubt in terms of "a grave 

uncertainty," a definition that did not meet constitutional 

standards. Justice Scalia began his discussion why such 

an error was not amenable to harmless-error analysis with 

the principle that the most important element in the Sixth 

Amendment right to trial by jury is "the right to have the 

jury, rather than the judge, reach the requisite finding of 

`guilty.' " Id. He continued, "although a judge may direct a 

verdict for the defendant if the evidence is legally 

insufficient to establish guilt, he may not direct a verdict for 

the State, no matter how overwhelming the evidence." Id. 

(emphasis added). 

Having established the constitutional principle, he then 

considered whether the Court could uphold the jury verdict 

on the basis of harmless error, stating that "[h]armlesserror review looks . . . to the basis on which `the jury 

actually rested its verdict.' " Id. at 279 (alteration in 

original) (quoting Yates v. Evatt, 500 U.S. 391, 404 (1991)). 

The inquiry "is not whether, in a trial that occurred without 

the error, a guilty verdict would surely have been rendered, 

but whether the guilty verdict actually rendered in this trial 

was surely unattributable to the error." Id. "That must be 

so, because to hypothesize a guilty verdict that was never 

in fact rendered -- no matter how inescapable the findings 

to support that verdict might be -- would violate the jurytrial guarantee." Id. 

It appears that the majority in this case rejects the 

possibility that the Apprendi violation was a structural 

defect by reliance on the Supreme Court's decisions in 

Johnson and Neder. Johnson had argued that the error, the 

 50 
failure to instruct the jury that it must decide the 

materiality of the false statements, was a structural defect 

and therefore outside the scope of Rule 52(b). The Johnson 

Court stated that "[i]t is by no means clear" whether the 

failure to submit an element of the offense to the jury was 

a structural error. 520 U.S. at 469. It continued,"Sullivan 

v. Louisiana, the case most closely on point, held that the 

erroneous definition of `reasonable doubt' vitiated all of the 

jury's findings because one could only speculate what a 

properly charged jury might have done." Id. The Court then 

noted that the failure to submit materiality to the jury "can 

just as easily be analogized to improperly instructing the 

jury on an element of the offense, an error which is subject 

to harmless-error analysis, as it can be to failing to give a 

proper reasonable-doubt instruction altogether." Id. 

(citations omitted). The Court did not resolve this question 

because it affirmed the conviction notwithstanding the error 

on the ground that Johnson had not established the fourth 

prong of the plain error standard. Id. at 469-70. 

In Neder, the Court undertook the analysis of structural 

defects it avoided in Johnson. The Court considered and 

rejected the defendant's argument that the error-- the trial 

court's omission of an element of the offense from the jury 

instruction -- was a structural defect. 527 U.S. at 8-15. 

The Court reviewed the numerous cases in which it held 

that various trial errors were not structural defects. Among 

those were cases dealing with improperly instructing the 

jury on an element of the offense, see California v. Roy, 

519 U.S. 2 (1996), erroneous mandatory conclusive 

presumptions, see Carella v. California, 491 U.S. 263 

(1989), and erroneous mandatory rebuttable presumptions, 

see Yates v. Evatt, 500 U.S. 391 (1991). Similarly, it noted 

that the Court had previously held that harmless-error 

analysis applies to the erroneous admission of evidence in 

violation of the Fifth Amendment's guarantee against selfincrimination, see Arizona v. Fulminante, 499 U.S. 279 

(1991), and the erroneous exclusion of evidence in violation 

of the Sixth Amendment right to confront witnesses, see 

Delaware v. Van Arsdall, 475 U.S. 673 (1986). 

The error in Neder's case was not a structural defect 

because it "[did] not necessarily render a criminal trial 

 51 
fundamentally unfair or an unreliable vehicle for 

determining guilt or innocence." Neder, 527 U.S. at 9 

(emphasis omitted). That is, "where a reviewing court 

concludes beyond a reasonable doubt that the omitted 

element was uncontested and supported by overwhelming 

evidence, such that the jury verdict would have been the 

same absent the error, the erroneous instruction is properly 

found to be harmless." Id. at 17. 

Therefore, if the majority is correct that the error here 

was the failure to submit an element of the offense to the 

jury, then there would be no basis to argue that the error 

in this case was a structural defect. However, I believe that 

an Apprendi error is an error of a different dimension. 

There were at least two constitutional violations identified 

in Apprendi. One dealt with the issue of the respective roles 

of the jury and judge. See Apprendi, 530 U.S. at 477. The 

other dealt with the standard of proof, the requirement that 

the government prove a criminal defendant guilty beyond a 

reasonable doubt. See id. at 478. It is arguable that after 

Neder, a trial error that enables a judge, rather than a jury, 

to determine one of the elements of the offense is not a 

structural defect, although Justice Scalia's dissent in Neder 

persuades me (albeit not a majority of the Court) that it 

should be so regarded. 

In his Neder opinion, Justice Scalia characterized 

Johnson as standing "for the proposition that, just as the 

absolute right to trial by jury can be waived, so also the 

failure to object to its deprivation at the point where the 

deprivation can be remedied will preclude automatic

reversal." Neder, 527 U.S. at 35. Following Justice Scalia's 

reading of Johnson in Neder, one might argue that even if 

Vazquez waived his jury trial right by failing to contest the 

trial court's arrogation of the jury's obligation to decide 

drug quantity, an element of the crime, this case is unlike 

both Johnson and Neder because an Apprendi violation also 

implicates the right to be convicted under a beyond-areasonable-doubt standard.3 

_________________________________________________________________ 

3. As the Neder majority observed, appellate inquiry into "whether the 

record contains evidence that could rationally lead to a contrary finding 

with respect to the omitted element . . . . `serve[s] a very useful 

purpose 

 52 
Nothing in either Johnson or Neder, or any other case of 

which I am aware, justifies treating the failure to apply the 

beyond-a-reasonable-doubt standard to drug quantity as 

anything other than a structural defect. That failure, I 

believe, is comparable to the structural defect in the 

constitutionally deficient beyond-a-reasonable-doubt 

instruction found in Sullivan. The Due Process Clause, 

Sullivan explains, requires that the prosecution persuade 

the factfinder "beyond a reasonable doubt" of the facts 

necessary to establish all elements of the offense. 508 U.S. 

at 277-78. If there is no jury verdict finding petitioner guilty 

beyond a reasonable doubt, "[t]he most an appellate court 

can conclude is that a jury would surely have found

petitioner guilty beyond a reasonable doubt." Id. at 280. 

"That," said the Court in Sullivan,"is not enough." Id. And 

further, "[t]he Sixth Amendment requires more than 

appellate speculation about a hypothetical jury's action, or 

else directed verdicts for the State would be sustainable on 

appeal." Id. 

In Apprendi, the Court discussed separately the two

rights -- the one that requires trial by jury and"the 

companion right to have the jury verdict based on proof 

beyond a reasonable doubt." 530 U.S. at 478. The Court 

commented, "The `demand for a higher degree of persuasion 

in criminal cases was recurrently expressed from ancient 

times, [though] its crystallization into the formula "beyond 

a reasonable doubt" seems to have occurred as late as 

1798. It is now accepted in common law jurisdictions as 

the measure of persuasion by which the prosecution must 

convince the trier of all the essential elements of guilt.' " C. 

McCormick, Evidence S 321, pp. 681-682 (1954); see also 9 

_________________________________________________________________ 

insofar as [it] block[s] setting aside convictions for small errors or 

defects 

that have little, if any likelihood of having changed the result of the 

trial.' " Neder, 527 U.S. at 19 (quoting Chapman v. California, 386 U.S. 

18, 22 (1967)). At the conclusion of its rejection of the structural error 

claim, the Court observed: "Reversal without any consideration of the 

effect of the error upon the verdict would send the case back for retrial 

-- a retrial not focused at on the issue of materiality, but on contested 

issues on which the jury was properly instructed." Id. at 15. In Vazquez's 

case, there would be no retrial, only a remand for resentencing. 

 53 
J. Wigmore, Evidence S 2497 (3d ed.1940)." Id. (quoting In 

re Winship, 397 U.S. 358, 361 (1970)). Apprendi reaffirmed 

the pronouncement in Winship that "the`reasonable doubt' 

standard among common-law jurisdictions `reflect[s] a 

profound judgment about the way in which law should be 

enforced and justice administered.' " Id. (quoting Winship, 

397 U.S. at 361-62) (quotation omitted). 

In the Supreme Court cases discussing structural 

defects, the Court consistently lists among the errors that 

it has found to be structural the defective reasonable-doubt 

instruction in Sullivan. It did so in Johnson and it did so in 

Neder. See Neder, 527 U.S. at 8; Johnson, 520 U.S. at 469. 

In contrast, in Vazquez's case, the trial judge made the 

finding of drug quantity by a preponderance of the 

evidence. It is the majority that first applies the beyond-areasonable-doubt standard to drug quantity. 

While it is true that the jury made findings sufficient to 

sustain a S 841(b)(1)(C) verdict under a beyond-areasonable-doubt standard, it did not so find as to the 

amount of drugs under any other provision of S 841(b). It is 

this defect, which, while it did not "infect the entire trial 

process," Brecht v. Abrahamson, 507 U.S. 619, 630 (1993), 

as most structural defects have done, infected the portion 

of the criminal proceedings at issue here, i.e., the sentence, 

and I see no reason why the same structural defect analysis 

that applies in the other cases which the Court agrees defy 

harmless-error review would not apply to the sentence. I 

believe that the majority opinion undermines, indeed 

nullifies, the long tradition in American constitutional 

criminal jurisprudence that it is the jury, rather than the 

judge, that must determine the offense for which the 

defendant has been sentenced and that it must so find 

beyond a reasonable doubt.4 I would therefore hold that we 

_________________________________________________________________ 

4. Justice Scalia closes his Neder dissent with the following quote from 

Blackstone, 

 However convenient [intrusions on the jury right] may appear at 

 first, (as doubtless, all arbitrary powers, well executed, are the 

most 

 convenient,) yet let it be again remembered that delays and little 

 inconveniences in the forms of justice are the price that all free 

 nations must pay for their liberty in more substantial matters; 

that 

 54 
must remand for a new sentencing hearing.5 

_________________________________________________________________ 

 these inroads upon this sacred bulwark of the nation are 

 fundamentally opposite to the spirit of our constitution; and that, 

 though begun in trifles, the precedent may gradually increase and 

 spread to the utter disuse of juries in questions of the most 

 momentous concern. 

Neder, 527 U.S., at 39-40 (quoting 4 Blackstone, Commentaries *350). 

5. Although I believe that Chief Judge Becker's concurrence may have 

much to commend it, it is not the rationale adopted by the majority 

opinion. I would therefore leave the question of the interpretation of the 

relevant drug statutes for decision in another case where the defendant's 

sentence is not inconsistent with the teaching of Apprendi, as the 

government concedes in this case. 

 55 
RENDELL, Circuit Judge, dissenting. 

I agree with Part I of Judge Sloviter's dissent. I write 

separately to express my view that the majority has written 

a new chapter in the book of plain error review of 

sentencing, and, I further suggest, has rewritten Apprendi 

and Williams. 

In Apprendi, the Supreme Court held that the New Jersey 

statutory scheme "cannot stand," because, after the jury 

convicted the defendant of a second degree offense, the 

statute allowed a judge to impose punishment identical to 

what New Jersey provides for crimes of the first degree, 

provided that the judge found, by a preponderance of the 

evidence, that the defendant's purpose for unlawfully 

possessing the weapon was to intimidate his victim on the 

basis of a particular characteristic the victim possessed. 

530 U.S. at 491-92. In Williams, we determined that an 

Apprendi error will only be found to have occurred if the 

judge actually imposes a sentence that is above a certain 

threshold, namely, the maximum sentence allowable for the 

crime of which the defendant was convicted. 235 F.3d at 

863. 

I submit that we ignore the teachings of both of these 

cases in issuing the majority opinion today. I say this 

because we are advocating the judicial determination of the 

proof that supports a certain sentence, contrary to the 

specific dictates of Apprendi, and we are forgetting that, in 

Williams, our analysis was based upon our view that an 

Apprendi error is a sentencing error, not an error that 

occurs at trial. I submit that the majority opinion writes a 

new chapter regarding plain error analysis in the 

sentencing context, because the law as it presently exists 

requires resentencing in the event that a sentence has been 

imposed in violation of the law, 18 U.S.C. S 3742,1 and even 

_________________________________________________________________ 

1. 18 U.S.C. S 3742(f)(1) provides: 

 (f) Sentence and disposition--If the court of appeals determines 

 that the sentence-- 

 (1) was imposed in violation of law or imposed as a result of an 

 incorrect application of the sentencing guidelines, the court shall 

 remand the case for further sentencing proceedings with such 

 instructions as the court considers appropriate. . .. 

Id. 

 56 
under the microscope of plain error review, we have had 

little difficulty noticing an error and remanding cases for 

resentencing where substantial rights were affected and the 

integrity of our system had been undermined by illegal 

sentences.2 

Today, we are not requiring a new sentencing proceeding, 

nor are we even saying that a new trial should occur, which 

could arguably follow from the logic and language of 

Apprendi. Rather, we search for a way to uphold an 

offensive, unconstitutional sentence, although there is no 

intimation in Apprendi that such a sentence can ever be 

countenanced, in the first instance, let alone preserved by 

the jurists' view of what may have occurred. 

The majority's discussion of the "substantial rights" or 

"prejudice" inquiry that we must make under plain error 

review does not focus on the tenor and logic of the Supreme 

Court's opinion in Apprendi,3 but, rather, it reaches out and 

follows the reasoning of Johnson and Neder. However, in 

doing so, the majority overlooks the fact that the Supreme 

Court in Apprendi never alludes to Johnson or Neder, and 

we, in Williams, never intimated that this is an appropriate 

_________________________________________________________________ 

2. For example, we previously have addressed sentencing errors such as 

those implicated by a trial court's improper guideline calculation, and 

have found that such mistakes are sufficiently prejudicial to warrant 

relief under the plain error standard. E.g., United States v. Felton, 55 

F.3d 861, 869 n.3 (3d Cir. 1995) ("This circuit and others have found 

that the miscalculation of a defendant's offense level `certainly is error 

that seriously affect[s] [the defendant's] rights, and so amounts to plain 

error.' ") (quoting United States v. Pollen, 978 F.2d 78, 90 (3d Cir. 

1992) 

(alteration in original); Pollen, 978 F.2d at 90 ("The district court's 

improper calculation . . . , resulting in a significantly higher Guideline 

sentencing range, certainly is an error that seriously affected 

[defendant's] substantial rights and so amounts to plain error."). 

3. As the Supreme Court explained in Olano : 

 The third and final limitation on appellate authority under Rule 

 52(b) is that the plain error "affec[t] substantial rights." This 

is the 

 same language employed in Rule 52(a), and in most cases it means 

 that the error must have been prejudicial: It must have affected 

the 

 outcome of the judicial proceedings. 

507 U.S. at 734 (alteration in original) (quoting Fed. R. Crim. P. 52(b)). 

 57 
exercise. I submit that we were right in not doing so, since 

Johnson and Neder involved trial errors rather than

sentencing errors such as that implicated in Apprendi and 

the instant case.4 Thus, the Court's method of analysis in 

those cases cannot be so easily imported into this distinctly 

different situation. 

In Johnson, the error at issue was the district court's 

failure, in a perjury prosecution, to submit the issue of 

materiality of the false statements to the jury. 520 U.S. at 

467. Rather than having the jury decide that issue, the 

district court instructed the jury that it had determined 

that the defendant's statements were material, and the 

defendant did not object to the instruction as such. On 

appeal, the defendant claimed that the district court 

committed plain error in failing to submit the issue of 

materiality to the jury, and that the error "rendered her 

conviction invalid" under Supreme Court precedent. Id. at 

464. The Supreme Court rejected that argument, and found 

that the error, while "plain," did not warrant correction 

under the last prong of Olano because there was 

"overwhelming" and "uncontroverted" evidence that the 

statement was material, and thus, the "fairness, integrity or 

public reputation of the judicial proceedings" would not be 

seriously affected by its failure to correct the error. Id. at 

470. The Court expressly noted the fact that correcting the 

error in such a case would yield the opposite result because 

it would require "the reversal of a conviction." Id. 

Neder involved the same error -- the failure to submit the 

element of materiality to the jury -- and the Court there 

determined that the error was subject to harmless error 

review. 527 U.S. at 8-9. In conducting its harmless

error/prejudice inquiry, the Court applied the following test 

in view of the nature of the error at issue: "whether it 

_________________________________________________________________ 

4. The majority states that we are presented with a combination of trial 

and sentencing errors. I am not sure what that means, and the majority 

has provided no supporting authority for its new category of error. Maj. 

Op. at 12. Clearly, we have a sentencing error, probably due to 

someone's error at trial -- most likely, the government's -- but I submit 

that there is no argument that the District Court actually committed 

error during the trial itself, and there has been no request for a new 

trial 

on that basis. 

 58 
appears beyond a reasonable doubt that the error 

complained of did not contribute to the verdict obtained." 

Id. at 15 (emphasis added). The Court answered that

question by reference to the trial record, and concluded 

that "no jury could reasonably find" that the defendant's 

actions were not material. Id. at 16. 

Based on the Court's analysis in Neder, the majority 

pretends to ask the same question in assessing prejudice to 

the defendant, but it actually asks a different one:"whether 

[the sentence] would have been the same absent the failure 

to submit drug quantity for a jury determination." Maj. Op. 

at 16. However, given that I view the Apprendi error as 

having occurred at sentencing, and given the question 

asked in Neder (if we really are to draw on Neder as a 

guide), the appropriate question to ask in assessing the 

third element of the plain error analysis under Olano is 

whether, in the context of the sentencing proceedings, it 

appears beyond a reasonable doubt that the Apprendi error 

complained of -- sentencing a defendant to a greater term 

of imprisonment than that permitted under the law--

contributed to the sentence obtained. E.g., Sochor v. 

Florida, 504 U.S. 527, 540 (1992) (applying harmless error 

analysis and asking whether, in the context of the 

sentencing proceedings, a sentencing error " `was harmless 

beyond a reasonable doubt' in that `it did not contribute to 

the sentence obtained' ") (quoting Chapman v. California, 

386 U.S. 18, 24 (1967)); Richmond v. Lewis, 506 U.S. 40, 

49 (1992) (explaining when a sentencing error occurs, such 

as consideration of invalid aggravating circumstance, 

harmless error review requires courts to "actually perform 

a new sentencing calculus, if the sentence is to stand"); 

Parker v. Dugger, 498 U.S. 308, 319 (1991) (describing 

harmless error analysis in the context of sentencing 

proceedings as requiring a determination of whether the 

sentencing error "would have made no difference to the 

sentence"); Clemons v. Mississippi, 494 U.S. 738, 753 

(1990) (stating that harmless error analysis in the context 

of sentencing proceedings must ask whether "it was beyond 

a reasonable doubt that the sentence would have been the 

same" had there been no sentencing error). Plainly, the 

answer is "yes," because if the District Court had not 

sentenced Vazquez to more than the prescribed statutory 

 59 
maximum for the offense for which he was convicted, he 

would have received less prison time than he actually 

received. Thus, his substantial rights were affected. 

Similarly, in assessing whether we should correct the 

error under the last prong of Olano, the issue is not, as it 

was in Johnson, whether the trial proofs indicate that the 

fairness and integrity of the trial proceedings would not be 

impugned by the fact that judge rather than the jury made 

the determination at issue, given the strength of the 

evidence. Rather, given the language and logic of Apprendi, 

we should ask whether the error affected the sentencing in 

a way that affects the fairness and integrity of the judicial 

proceedings. And, unlike the situation presented in

Johnson, our correction of the error would not result in the 

reversal of a conviction; rather, the remedy for the 

unconstitutionally imposed sentence is a remand for

resentencing in accordance with the jury's verdict.

Clearly, one cannot read Apprendi without realizing that, 

not only are substantial rights affected by the Apprendi 

sentencing error,5 but also the public reputation of judicial 

_________________________________________________________________ 

5. As Judge Sloviter's dissent points out, several of our sister circuits 

have recognized that an Apprendi violation constitutes an error that 

affects a defendant's substantial rights. E.g. , United States v. 

Buckland, 

___ F.3d. ___, 2001 WL 893440, at *9, reh'g en banc granted, 2001 WL 

1091167 (9th Cir. Aug. 9, 2001) ("Imposing a sentence that is seven 

years more than the maximum sentence constitutionally permitted 

under the facts as found by the jury undoubtedly seriously affects the 

fairness, integrity or public reputation of the judicial proceedings.") 

(internal quotation marks omitted); United States v. Maynie, ___ F.3d ___, 

2001 WL 856142, at *8 (8th Cir. July 30, 2001) (finding "that greater, 

and improper, infringement of defendants' liberty substantially affected 

their rights"); United States v. Miranda, 248 F.3d 434, 444 (5th Cir. 

2001) ("Because Appellants were sentenced to serve between 20-30 years 

of incarceration--considerably longer than the maximum sentences 

available pursuant to the jury determination under the federal drug 

offense statute, . . . the error clearly affected . . . substantial 

rights."); 

United States v. Noble, 246 F.3d 946, 955 (7th Cir. 2001) (concluding 

that "[t]he Apprendi error substantially prejudiced Noble's rights by 

extending his sentence 10 years in excess of the statutory maximum"); 

United States v. Page, 232 F.3d 536, 544 (6th Cir. 2000) (stating that 

"[t]here is no doubt that imposing additional years of imprisonment 

beyond that authorized by a jury's verdict affects a defendant's 

substantial rights"), cert. denied, 121 S.Ct. 2002 (2001). 

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proceedings is affected by the sentencing of a defendant to 

more prison time than the maximum permissible based on 

the crime charged and the jury's verdict. In Apprendi, the 

focus was on New Jersey's statutory scheme, and the Court 

was not faced with having to apply Fed. R. Crim. P. 52(b) 

because the issue came before the Court on an appeal from 

a guilty plea entered in New Jersey state court. Thus, we 

must speculate from its language precisely what the Court 

really would do in a situation such as this. But the 

language in Apprendi does not make this a difficult

exercise. There the Court referenced the differential in 

sentencing between what Apprendi would have received 

without the finding of a biased purpose, and what he could 

receive with it, stating that it was "more than a nominal 

effect." Apprendi, 530 U.S. at 495. The Court then stated: 

"Both in terms of absolute years behind bars, and because 

of the more severe stigma attached, the differential here is 

unquestionably of constitutional significance." 6 Id. It 

concluded its opinion by stating that "[t]he New Jersey 

procedure challenged in this case is an unacceptable 

departure from the jury tradition that is an indispensable 

part of our criminal justice system." Id. at 497. 

To my mind, in order to read Apprendi in a way that

would be what the majority holds today, we would have to 

read into, or add to, the Court's closing statement the 

following: 

 Of course, on the other hand, if reasonable jurists can 

 determine from the record that the jury would have 

 found the necessary element or sentencing factor 

 beyond a reasonable doubt, then the jury's actual 

_________________________________________________________________ 

6. As an aside, I should note that by concentrating on our divergence 

from Apprendi and Williams, I do not downplay the constitutional 

significance of the fact that Vazquez was never indicted for the crime for 

which he has been sentenced. As eloquently stated by Judge Motz in her 

powerful partial dissent in United States v. Promise, 255 F.3d 150 (4th 

Cir. 2001), the end result of the Apprendi violation meant that "the 

district court sentenced [the defendant] as if he had been indicted and 

convicted of a far more serious offense, imposing on[him] ten more years 

of imprisonment than the offense for which he was actually indicted and 

convicted permits." Id. at 189 (Motz, J., concurring in part, dissenting 

in 

part). 

 61 
 finding on that element, and its verdict, is not such an 

 indispensable part of our criminal justice system. In 

 such circumstances, the otherwise unconstitutional 

 sentence may nevertheless stand. 

I believe the tone and language of Apprendi preclude any 

such reading. In fact, the very language of Apprendi quoted 

by the majority seems to negate this idea. Maj. Op. at 7-8 

(stating that the Court in Apprendi "endorsed the following 

concept: `It is unconstitutional for the legislature to remove 

from the jury the assessment of facts that increase the 

prescribed range of penalties to which a criminal defendant 

is exposed. It is equally clear that such facts must be 

established by proof beyond a reasonable doubt.' ") (quoting 

Apprendi, 530 U.S. at 490) (internal quotation marks 

omitted). 

If we follow the logic of the majority, the government can 

charge and convict a defendant of manslaughter, but

sentence him for murder, and, as long as the government 

produced evidence at trial that would support that 

sentence, we would not notice or correct the error under 

Rule 52(b) and require resentencing in accordance with the 

jury's verdict. That result is not what Johnson and Neder 

stand for, nor is it what the Supreme Court envisioned. 

E.g., United States v. Promise, 255 F.3d 150, 190 (4th Cir. 

2001) (Motz, J., concurring in part, dissenting in part). If 

anything, it is just the opposite. In fact, in Apprendi, the 

Supreme Court noted disapprovingly, "Indeed, the effect of 

New Jersey's sentencing `enhancement' here is 

unquestionably to turn a second-degree offense into a firstdegree offense under the state's own criminal code." 530 

U.S. at 494. 

For these reasons, I join in Judge Sloviter's dissent in 

Part I. 

However I disagree with Judge Sloviter's conclusion that 

the error is structural, because it is, again, a sentencing 

error. It did not occur until the sentence exceeding the 

maximum allowed was pronounced. The error did not 

"infect the entire trial process" and "unnecessarily render 

[the] trial fundamentally unfair." Neder, 527 U.S. at 8. I can 

find no Supreme Court opinion that suggests that a 

 62 
sentencing error can be "structural." In fact, Judge Sloviter 

appears to fall somewhat into the trial error trap of Neder 

and Johnson in her discussion in Part II, when she speaks 

of the need for the jury, not the judge, to determine the 

offense. While that is the nature of the discussion in 

Apprendi, because it focuses on the statutory scheme, in 

light of Williams, that is not the nature of the error before 

us. What kind of error is it if a defendant is sentenced to 

a term greater than the maximum allowable for that 

offense? I submit that it is a sentencing error, that it is 

constitutional, not structural, and that the error is plain in 

any event. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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