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D ock e t 99-3845

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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

2Mary 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 sentencin g, the trial court, adhering to established law and custom , itself decided the issue of drug quantity under a preponde rance of the evidence standard. Based largely on this fin ding, the court sentenced appellant, Alex Vazquez, to a priso n term of 292 months (24 years and 4 months), which exceed ed, by over 4 years, the statutory maximum authorized b y the jury's factual findings. Subsequently, the Supreme Court held in Apprendi that a criminal defendant's consti tutional rights are violated when his prescribed statutory m aximum penalties are increased by any fact, other than a p rior conviction, that a jury does not find beyond a reas onable doubt. Id. at 490. Vazquez now challenges his sente nce contending that, because the court did not submit t he issue of drug quantity to the jury for determinatio n, he

must be resentenced in accordance with the default 20-year

3statutory 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 revi ew is for plain error. We conclude that Vazquez's sentence vi olated 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 fo und, beyond a reasonable doubt, the drug quantities that the judge found, we conclude that Vazquez is not entitl ed to plain error relief and we will therefore affirm his sentence.1

I.

The relevant facts are largely undisputed. On Febru ary 27, 1998, after a lengthy investigation, law enforc ement authorities seized a quantity of powder cocaine and crack cocaine from a rooming house in Columbia, Pennsylva nia. Vazquez's fingerprint was on one of the bags in whi ch 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, st ate law enforcement authorities and agents from the Federal Bureau of Investigation ("FBI") interviewed a numbe r 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 "run ner" for the organization.

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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 1 8 U.S.C. S 3742(a).

The parties originally argued this case before a me rits panel of our court on December 15, 2000. However, given the impo rtance of the Apprendi issue, we elected to consider the case en banc prior to the publication of the original three-judge panel opini on. See 3d Cir. I.O.P. 9.4 (2000).

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

Pennsylvania issued an indictment charging Vazquez with conspiracy to possess and distribute "more than 5 k ilos 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 tamper ing. The indictment specifically charged a drug conspira cy involving "cocaine." Although it did not reference cocaine base or crack cocaine, it listed the following over t act: "stor[ing] approximately 859 grams of `crack' cocai ne (cocaine base) and approximately 992 grams of cocai ne powder in Room #2, 647 Union Street, Columbia, PA."

The trial evidence, which included testimony based on a forensic lab analysis, established that police seiz ed 991 grams of powder cocaine and 859 grams of crack coca ine from the Columbia rooming house.2 According to thetestimony, Vazquez had given the drugs to his coconspirator, Algarin, for storage at the rooming ho use, and Vazquez's fingerprint was found on one of the bags in which the cocaine was stored. Also, a key to the fr ont door of the rooming house was found on Vazquez's person. Vazquez raised no objection to the testimony respec ting drug quantity, and he presented no affirmative evid ence at any time challenging the Government's evidence of d rug quantity. Additionally, neither the Government nor Vazquez requested an instruction requiring the jury to find the quantity of drugs involved in his conspiracy offens e, and the court gave no such instruction. The District Co urt's instructions concerning the drug conspiracy only re quired the jury to find that Vazquez conspired "to possess and distribute cocaine." Following deliberations, the j ury convicted Vazquez of conspiracy to possess and dist ribute cocaine, as well as obstruction of justice. However , the jury acquitted Vazquez of a conspiracy to obstruct justi ce charge. In addition, the jury was unable to reach v erdicts

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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. Be cause the 1 gram difference is of no substantive import in these pro ceedings, we will refer to the amount as 992 grams.

5on the two witness tampering counts; the District C ourt

declared a hung jury as to those counts.

At the sentencing hearing, the District Court adopt ed the factual findings and sentencing recommendations in the presentence report. The court determined, without o bjection and under a preponderance of the evidence standard, that, based on the trial evidence and the presentence rep ort, 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 Ta ble. The District Court then applied two separate 2-leve l upward adjustments, the first for being an organizer/leade r 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 a djusted 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 12 0 months for the obstruction of justice charge. The c ourt also imposed a 5-year supervised release term on the dru g 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 conv iction stated that Vazquez was sentenced for a conspiracy in violation of 21 U.S.C. S 846, with the object of di stributing 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 C ourt, we will analyze the parties' contentions under the pla in error

standard.

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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."

6A.

Vazquez was indicted and tried for conspiracy to po ssess and distribute more than 5 kilograms of cocaine in violation of 21 U.S.C. SS 846 and 841. To explain the relatio nship between Apprendi and S 841, we will briefly review the Apprendi decision, and we will then detail how Appr endi

was violated in this case.

In Apprendi, the defendant had fired several shots into the home of an African-American family that had rec ently moved into a New Jersey neighborhood. 530 U.S. at 4 69. After his arrest, he reportedly stated that he did not knowthe 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 seco nd-degree possession of a firearm for an unlawful purpose, ea ch 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 Je rsey's hate crime statute, which authorized an increased punishment for first-degree offenses based upon a t rial judge's finding, by a preponderance of the evidence , that the defendant had committed the crime with a purpos e to intimidate a person or group because of race. Id. a t 470, 491-92 (discussing N.J. Stat. Ann. S 2C:44-3(e) (We st 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-ye ar sentence on one of the second-degree counts. Id. a t 471.

The Supreme Court granted certiorari and reversed, holding that the New Jersey sentencing procedures v iolated

the Due Process Clause of the Fourteenth Amendment. In doing so, the Court articulated a new rule of const itutional law: "Other than the fact of a prior conviction, an y fact that increases the penalty for a crime beyond the prescr ibed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490 (emphasis ad ded). Further, with the exception for prior convictions, the Court endorsed the following concept: " `[I]t is unconsti tutional for a legislature to remove from the jury the assessmen t of facts that increase the prescribed range of penalti es to

7which a criminal defendant is exposed. It is equall y clear

that such facts must be established by proof beyond a reasonable doubt.' " Id. (quoting Jones v. United S tates, 526 U.S. 227, 252-53 (1999) (Stevens, J., concurring)).

In Vazquez's case, drug quantity was neither submit ted to the jury nor reflected in its verdict. Therefore

, S 841(b)(1)(C) defines Vazquez's prescribed statuto ry maximum sentence as 20 years. We indicated in Unite d States v. Williams, 235 F.3d 858 (3d Cir. 2000), pe tition for cert. filed, 69 U.S.L.W. 3763 (U.S. 2001), and we h old here, that an Apprendi violation only occurs if the drug quantity is not found by a jury beyond a reasonable doubt an d 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 bee n involved with 992 grams of powder cocaine and 859 g rams of crack cocaine. This nearly 2-kilogram quantity l ed 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 sentenc ed 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 s imilarly 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 , 2 25 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 accor dance

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

Vazquez, the District Court committed reversible er ror when it imposed a more than 24-year prison term bas ed 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 object ed to the court's failure to submit the issue to the jury. Mo reover, he never argued that the sentencing court was constrai ned 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 State s, 520 U.S. 461, 465-66 (1997). Under that standard, "befo re 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 seriousl y affect[s] the fairness, integrity, or public reputation of judici al proceedings." Johnson, 520 U.S. at 466-67 (internal quotations and citations omitted); accord United St ates 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 Appren di when it increased Vazquez's sentence beyond the prescrib ed statutory maximum, based on its own factual finding concerning drug quantity, instead of submitting the issue to the jury for its determination. Further, Apprend i applies retroactively because Vazquez's direct appeal was p ending at the time Apprendi was decided. See Griffith v. K entucky, 479 U.S. 314, 328 (1987) ("new rule[s] for the cond uct of criminal prosecutions [are] to be applied retroacti vely to all cases . . . pending on direct review . . . , with n o exception

for cases in which the new rule constitutes a `clea r break' with the past"); see also Johnson, 520 U.S. at 467.

2.

As even the Government concedes, the Apprendi viol ation that occurred in Vazquez's case was plain. This sec ond

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

"obvious" or "clear under current law." Olano, 507 U.S. at 734. Clearly, had the Government tried Vazquez's ca se post-Apprendi, it would have been constitutional er ror for the District Court to impose a sentence exceeding t he 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 eve n though the District Court conducted Vazquez's proceedings correctly under the then applicable law. See Johnso n, 520 U.S. at 468 ("in a case such as this -- where the l aw at the time of trial was settled and clearly contrary to t he law at the time of appeal," this second factor is satisfie d if the error is obvious "by the time of appellate consider ation").

3.

Vazquez must next satisfy the third plain error fac tor, which asks whether his substantial rights were affe cted. Before resolving this issue, we will address severa l preliminary matters raised in the parties' argument s because our resolution of those matters will signif icantly affect how we conduct the substantial rights inquir y. First, we will consider whether an Apprendi violation shou ld be deemed a sentencing error (as opposed to a trial er ror), or a combination of a trial and sentencing error. We c onclude that the latter approach is more consonant with the realities of Apprendi violations, as well as Suprem e Court precedent. Second, we will consider whether an Appr endi violation is per se prejudicial because it constitu tes a structural defect in the proceedings. If so, our pl ain error analysis would come to an end, and we would be comp elled to grant Vazquez relief. We conclude that Apprendi

violations do not constitute structural defects. Th ird, we will proceed to consider whether the Apprendi viol ation 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 Vazque z's substantial rights were affected, we decline to exe rcise our discretion to notice the Apprendi violation under t he final plain error factor because the drug quantity eviden ce was overwhelming. Therefore, Vazquez is not entitled to plain

10error relief even though an Apprendi violation occu rred

during his criminal proceedings.

Parenthetically, in addressing the substantial righ ts 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 provide s relief only if substantial rights are affected.4 The subs tantial rights inquiry under each provision is essentially identical, with the exception of the burden of proof. See Olan o, 507 U.S. at 734-35 (clarifying that Government has burd en of proof under harmless error standard, while defendan t has burden under plain error standard); Nordby, 225 F.3 d at 1060. Thus, we may properly rely upon both harmless and plain error precedent in deciding whether Vazquez h as shown that the Apprendi violation affected his subs tantial rights. In this case, Vazquez has not carried his b urden of proof.

(a)

The parties dispute the nature of Apprendi violatio ns. Vazquez claims that the Apprendi violation that adv ersely 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 substant ial rights inquiry, in the context of an Apprendi viol ation, requires an appellate court to ask whether it can s ay, beyond a reasonable doubt, that the sentence would have been the same absent the sentencing error, which oc curred when a sentence was imposed in excess of the prescr ibed statutory maximum. See Nordby, 225 F.3d at 1060. Un der Vazquez's approach, every Apprendi violation with r espect to drug quantity in a cocaine case will automatical ly result in a resentencing in accordance with the 20-year ma ximum

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4. Rule 52 provides in full:

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

which does not affect substantial rights shall be disregarded.

(b) Plain Error. Plain errors or defects aff ecting substantial rights may be noticed although they were not brough t to the attention

of the court.

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

the evidence is with regard to drug quantity.

The Government advocates a different approach, urgi ng us to recognize that an Apprendi violation involves not just a sentencing error but also a trial error. This app roach emphasizes that, due to the Apprendi violation, dru g 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 parad igm, the substantial rights inquiry turns on whether we can say beyond a reasonable doubt that the sentence would h ave been the same absent the trial error, which occurre d when drug quantity was not submitted for a jury determin ation. See Neder v. United States, 527 U.S. 1, 18 (1999) ( in case of trial error resulting from failure to submit ele ment to jury, substantial rights inquiry asks whether it is "clear beyond a reasonable doubt that a rational jury woul d have found the defendant guilty absent the error"); Soch or v. Florida, 504 U.S. 527, 540 (1992) (harmless error a sks 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 t he entire record, and no remedy may be available if th e court determines that the evidence was sufficiently concl usive 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 mus t prevail for two reasons. First, the Government's po sition better reflects the realities concerning the nature of Apprendi violations. In Apprendi, the Supreme Court recognized a new constitutional right grounded in t he Due

Process Clause and the Sixth Amendment's notice and jury trial guarantees. See 530 U.S. at 476. Consistent w ith the Supreme Court's pronouncement of this new constitut ional right, in an Apprendi violation, the sentencing err or (imposing a sentence beyond the prescribed statutor y

12maximum) is inextricably intertwined with a trial e rror

(failing to submit an element of the offense to the jury). On the one hand, the trial error exists only because o f the sentencing error. On the other hand, the sentencing error cannot occur without the trial error. Thus, an appr opriate remedy must recognize that each Apprendi violation is both a trial and a sentencing error. But see United Stat es 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 properl y consider the trial record on plain error review. Indeed, as the Supreme Court has stated: "Especially when addressi ng plain error, a reviewing court cannot properly eval uate a case except by viewing such a claim against the ent ire record." United States v. Young, 470 U.S. 1, 16 (19 85). Our holding is consistent with decisions from the First , 5 Fifth,6 Seventh,7 Eighth,8 Tenth,9 Eleventh,10 and District of

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5. See United States v. Patrick, 248 F.3d 11, 28 (1 st Cir. 2001); United States v. Terry, 240 F.3d 65, 74-75 (1st Cir.), cer t. 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 (5 th 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 Ci r. 2001) (per curiam); cf. United States v. Westmoreland, 240 F.3d 618, 63 4-35 (7th Cir. 2001) (considering trial evidence in holding that substan tial 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 a ffected).

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

10. See United States v. Gallego, 247 F.3d 1191, 11 96-97 (11th Cir. 2001); United States v. Wims, 245 F.3d 1269, 1272-7 4 & nn.9-11 (11th Cir. 2001) (per curiam); United States v. Candelari o, 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 c uriam); United States v. Nealy, 232 F.3d 825, 829-30 (11th Cir. 2000); Un ited States v. Swatzie, 228 F.3d 1278, 1282-83 (11th Cir. 2000), c ert. denied, No. 00- 9051, 2001 WL 291894 (U.S. June 29, 2001).

13Columbia11 Circuits, which, in reviewing Apprendi

violations, have considered the trial evidence in d etermining whether substantial rights were affected.

Second, we find the Government's approach is more consonant with Supreme Court precedent. In both Ned er and Johnson, the Supreme Court confronted a failure to submit an element of the offense to the jury. The o mitted element in each case was the materiality of a false hood; a tax fraud in Neder and a perjury in Johnson. See 52 7 U.S. at 6-7; 520 U.S. at 463-65. The Court in Neder and Johnson agreed that the error was of a constitution al dimension. See 527 U.S. at 12; 520 U.S. at 465 (cit ing United States v. Gaudin, 515 U.S. 506 (1995)). Furt her, each decision addressed whether substantial rights were affected; the Neder Court applied harmless error re view, while the Johnson Court applied plain error review. See 527 U.S. at 7-10; 520 U.S. at 466-67. The trial error p resented 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. T hus, Neder and Johnson apply because we are presented wi th the same substantive issue, namely, the consequence of failing to submit to the jury an element of an offe nse.

(b)

Next, Vazquez argues that the Apprendi violation constitutes a structural defect in the proceedings. This issue is properly considered at this juncture durin g the course of our substantial rights inquiry. See Johns on, 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 af fect "the framework within which the trial proceeds," with su ch a resulting impairment in the trial's function of det ermining guilt or innocence that " `no criminal punishment m ay be

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11. See United States v. Fields, 251 F.3d 1041, 104 5 (D.C. Cir. 2001) (considering trial evidence in holding that substan tial rights affected).

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

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 beca use they are per se prejudicial. See id. at 307-10 (opinion of Rehnquist, C.J.).

We reject Vazquez's contention that Apprendi violat ions constitute structural defects. As we have already e xplained, Apprendi violations result in both trial and senten cing errors, albeit ones that rise to a constitutional d imension. However, the Supreme Court has instructed that "mos t constitutional errors can be harmless," and that gu idance 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 gro unds by Tyler v. Cain, 121 S. Ct. 2478 (2001). Trial errors resulting

from a failure to submit an element of an offense t o the jury are not structural defects, but instead, are subjec t to harmless or plain error analysis. That is, "an inst ruction

that omits an element of the offense does not neces sarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocen ce." 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 re view 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 wi th every court of appeals decision that has addressed this i ssue.

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12. Examples of structural defects include: (1) the complete denial of counsel, see Gideon v. Wainwright, 372 U.S. 335 (19 63); (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. Hi llery, 474 U.S. 254 (1986); (4) the denial of self-representation at tr ial, see McKaskle v. Wiggins, 465 U.S. 168 (1984); (5) the denial of a p ublic trial, see Waller v. Georgia, 467 U.S. 39 (1984); and (6) defective r easonable doubt instructions, see Sullivan v. Louisiana, 508 U.S. 2 75 (1993).

15See, e.g., United States v. Smith, 240 F.3d 927, 93 0 & 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 v iolations do not constitute structural defects, we address wh ether Vazquez's substantial rights were affected. During the course of this appeal, Vazquez has raised substanti al rights arguments with regard to both his sentence and conv iction.

We will address each in turn.

We assess Vazquez's challenge to his sentence by determining whether it would have been the same abs ent the failure to submit drug quantity for a jury dete rmination. We are confident that Vazquez's sentence would have been the same had the jury made the drug quantity findin g. In his case, the evidence established beyond a reasona ble doubt that Vazquez had been involved with 992 grams of powder cocaine and 859 grams of crack cocaine. Inde ed, the sentencing judge, explaining that Vazquez's sen tence was driven by the quantity of drugs involved, state d 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 coca ine 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 sente ncing range of between 5 to 40 years. See 21 U.S.C. S 841(b)(1)(B)(ii)(II). Thus, the slightly more tha n 24-year sentence imposed here fell within the statutory lim its applicable to a cocaine-only conspiracy given the d rug amount established at trial. Cf. Edwards v. United States, 523 U.S. 511, 515 (1998) (rejecting statutory and constitutional challenges to sentences because impo sed incarceration terms "were within the statutory limi ts

16applicable 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 gra ms of crack cocaine for sentencing guideline purposes und er 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 g uideline sentencing range of 292 to 365 months that the cour t actually applied to Vazquez. No Apprendi problem wo uld 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 e xposed solely for his conspiracy offense involving 992 gra ms of powder cocaine.

Vazquez's failure to dispute the amount of cocaine at trial or sentencing supports our conclusion that he canno t show an effect on his substantial rights. Indeed, he pre sented no challenge to, or affirmative evidence against, t he 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 wa s uncontested and supported by overwhelming ev idence, such that the jury verdict would have been t he same absent the error, the erroneous instruction is properly found to be harmless. We think it beyond cav il here

that the error "did not contribute to the ve rdict

obtained."

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

In addition to attacking his sentence, Vazquez reli es upon Apprendi to challenge his conviction. Vazquez conte nds that his substantial rights were affected because, had t he trial judge properly submitted drug quantity to the jury, he necessarily would have been acquitted because the evidence the Government presented at trial -- 992 g rams of powder cocaine and 859 grams of crack cocaine -- di d not support a more than 5-kilogram cocaine conspiracy, as

17alleged in the indictment. Vazquez also contends th at his

sentence cannot be upheld based upon the 992 grams of powder cocaine because doing so would create a mate rial variance from the more than 5-kilogram drug quantit y alleged in the indictment. See United States v. Bal ter, 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 State s v. Castro, 776 F.2d 1118, 1121 (3d Cir. 1985)); United States v. Crocker, 568 F.2d 1049, 1059 (3d Cir. 1977) (discus sing variance concept).

Vazquez's arguments are unavailing. The discrepancy

between the amount of cocaine stated in the indictm ent -- more than 5 kilograms -- and the amount of powder cocaine upon which we uphold Vazquez's sentence-- 9 92 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 incl uded offense when a conviction for a greater offense is reversed on grounds that affect only the greater offense." R utledge 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 re solving greater/lesser offense issues); cf. United States v . Frorup, 963 F.2d 41, 42 (3d Cir. 1992) ("This court will up hold a jury verdict convicting a defendant of a lesser off ense than the one charged if `the evidence would permit a jur y rationally to find [the defendant] guilty of the le sser offense and acquit of the greater.' ") (quoting Keeble v. U nited States, 412 U.S. 205, 208 (1973)). Additionally, ha d 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 con spiracy's object concerned more than 5 kilograms of powder co caine,

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.").

184.

Even if we were to assume that the Apprendi violati on affected Vazquez's substantial rights, he cannot es tablish the final plain error factor, namely, that the viol ation seriously affected the fairness, integrity, or publ ic reputation of judicial proceedings. In Johnson , th e Supreme Court held that, when the evidence of an element wr ongly taken from a jury "overwhelming[ly]" supports the t rial court's finding with regard to that element, "there is no basis for concluding that the error `seriously affe ct[ed] the fairness, integrity or public reputation of judicia l proceedings,' " and therefore, plain error relief i s unavailable. See 520 U.S. at 470.

The evidence at trial showed that Vazquez was the l eader of a drug trafficking operation that distributed po wder and crack cocaine in Lancaster County, Pennsylvania. He re, the Government presented overwhelming evidence that Vaz quez conspired with others to possess and distribute a q uantity of drugs sufficient to justify his sentence. As we previously noted, law enforcement officers seized about 992 gr ams of powder cocaine and 859 grams of crack cocaine from arooming house. Vazquez had given the drugs to a coconspirator, Francisco Algarin, for storage. The ke y to the rooming house's front door was found on Vazquez's p erson. In addition, investigators found Vazquez's fingerpr int on one of the bags in which the cocaine was stored. Af ter the seizure, police interviewed three of Vazquez's drug customers. All three described Vazquez as the leade r of a drug dealing operation. The trial testimony directl y tied Vazquez to a drug conspiracy with the co-conspirato r, Algarin. On the basis of this evidence, including t he undisputed evidence of drug quantity, a rational ju ry would certainly have found that Vazquez had conspired to possess or distribute no less than 992 grams of powder coca ine, almost twice the amount necessary to support his sl ightly 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 i n the preceding section, because Vazquez's sentence would not have changed absent the trial error, there is no re asonable

19basis upon which to conclude that the fairness, int egrity, or

public reputation of the judicial proceedings were seriously affected. Our holding is in accord with decisions f rom the First,13 Fifth,14 Seventh,15 Tenth,16 and Eleventh1 7 Circuits, in which panels considered the evidence adduced at trial and, under the fourth plain error factor, denied re lief for Apprendi violations where the evidence was conclusi ve. Our holding is also in accord with a recent en banc de cision of the Fourth Circuit.18 We therefore conclude that, i n light of the undisputed evidence of drug quantity attributab le 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 pu blic reputation of judicial proceedings were not serious ly affected even though an Apprendi violation occurred in his

case.19

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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, 53 0-31 (7th Cir. 2001); United States v. Patterson, 241 F.3d 912, 913-15 (7 th 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); Unite d 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, 122 0 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. Ju ne 29, 2001); United States v. Keeling, 235 F.3d 533, 539-40 (10t h 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 argumen t that Vazquez should not prevail under the plain error standard b ecause the District Court could have justified its 292-month sentence b y imposing consecutive terms. According to the Government, eve n 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 ra ther than concurrent sentence on the obstruction of justice c onviction. 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-

20III.

Vazquez also challenges the supervised release term that the District Court imposed. He contends that the co urt incorrectly applied the 5-year minimum term of supe rvised release under S 841(b)(1)(A), when the minimum term was actually 3 years under S 841(b)(1)(C). We note, how ever, that Vazquez did not raise this argument before the District Court and he did not brief and argue this issue bef ore the panel that initially considered his appeal. Under t hese circumstances, we conclude that Vazquez has waived his right to pursue this issue here. See Atwater v. Cit y of Lago Vista, 195 F.3d 242, 245 n.3 (5th Cir. 1999) (en ba nc), aff 'd 121 S. Ct. 1536 (2001); Travitz v. Northeast Dep't ILGWU Health & Welfare Fund, 13 F.3d 704, 711 (3d C ir. 1994) ("When an issue is not pursued in the argumen t section of the brief, the appellant has abandoned a nd 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 o f S 841(b)'s penalty provisions.

IV.

We have reviewed the additional points on appeal, w hich

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month term of imprisonment through the imposition o f consecutive sentences on the conspiracy and obstruction of just ice convictions, the Apprendi violation did not "affect[ ] the outcome o f the district court proceedings." Olano, 507 U.S. at 734; see, e.g., An gle, 2001 WL 732124, at *3-4 (holding that substantial rights not violat ed because S 5G1.2(d) would have obligated court to achieve same sentence by imposing consecutive terms); Page, 232 F.3d at 544-45 (denyi ng plain error relief to defendants convicted on multiple counts becauseS 5G1.2(d) required imposition of consecutive sentences to extent neces sary to produce combined sentence within guideline sentencing range ).

We decline to address this contention because we ha ve determined on other grounds that Vazquez has failed to establish that he is entitled to plain error relief.

21we 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.

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20. Vazquez asserts that (1) the District Court's p retrial disqualification of the attorneys he initially obtained, due to thei r alleged involvement

in the charged obstruction of justice, violated his Si xth Amendment right to counsel of his choice; (2) his assigned pretrial co unsel provided ineffective representation in failing to file a mot ion to suppress the key to the rooming house, and the District Court abused its discretion in denying as untimely a motion raising that issue tha t was filed shortly before trial by counsel that Vazquez had recently r etained; (3) the

District Court committed reversible error in denying his mot ion for a mistrial, and his subsequent motion for a new trial, which we re based on alleged prejudice he suffered from the jury possibly having learned about his prior arrest for possession of a stolen firearm; an d (4) the evidence is insufficient to support his conviction for obstruct ion of justice under 18

U.S.C. S 1503.

22BECKER, Chief Judge, concurring, with whom Judge Am bro

joins.

Justice Frankfurter may not have been the first to observe that "[w]isdom too often never comes, and s o one ought not to reject it merely because it comes too late," Henslee v. Union Planters Nat'l Bank & Trust Co., 3 35 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 do es not

arrive until a doctrinal shift removes the obstacle s to its revelation, thereby exposing the unstable foundatio n of that which had been uncritically accepted before. I beli eve this

to be such a case.

The doctrinal shift at work here emanates from Appr endi 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 bey ond a reasonable doubt." Id. at 490. This holding in tu rn exposed the instability of our prior holding that u nder 21 U.S.C. S 841 drug type and quantity are sentencing factors, requiring only proof by a preponderance of the evid ence 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 p osition in holding that, at least when drug quantity increa ses the statutory maximum penalty, it must, per Apprendi , be submitted to the jury and proved beyond a reasonabl e doubt. By not re-examining Gibbs and its progeny, h owever, the Court lets stand our interpretation of drug typ e and quantity as sentencing factors in all other instanc es. Indeed, by deciding this case on constitutional rat her 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., Appren di -- difficulty arises. Cf. Ashwander v. TVA, 297 U.S. 2 88, 346- 47 (1936) (Brandeis, J., concurring) (articulating principle that cases should be decided on statutory grounds b efore reaching constitutional questions).

23It has become clear to me, however, upon reconsider ing

S 841 in light of Apprendi, that our prior statutor y construction ought to be abandoned altogether. I su bmit 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 (199 5) ("[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 rea sonable doubt."). Concomitantly, I believe that drug type a nd quantity should not be treated as element-like fact ors 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, C ongress's intent to make drug type and quantity elements of a S 841 offense is evident from the statute's legislative h istory. It is also evident from the structure of S 841, which, wh en interpreted according to the canons of construction used by the Supreme Court to distinguish between offense el ements and sentencing factors, indicates that Congress int ended for drug type and quantity to be elements of an off ense. The doctrine of constitutional doubt, which requires th at "constitutionally doubtful constructions be avoided where `fairly possible,' " Miller v. French , 530 U.S. 32 7, 336 (2000) (quoting Communication Workers v. Beck, 487 U.S. 73 5, 762 (1988)), buttresses the statutory interpretatio n I offer. Finally, on a practical level, I note that requirin g drug type and quantity to be proved to the jury beyond a reas onable doubt would not cause problems in the prosecution a nd trial processes; indeed, in the wake of Apprendi , federal courts throughout the nation are easily accommodati ng 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 w as not an element of a S 841 offense, this court has noted that "[w]hile Congress could have enacted separate statu tes

24criminalizing the distribution of particular contro lled

substances, it did not do so." United States v. Lew is, 113 F.3d 487, 491 (3d Cir. 1997). Similarly, at least o ne federal appellate judge has concluded that drug type and qu antity are not elements because "[i]t is simply not credib le to hold that Congress knowingly and intentionally fashioned some 350 offenses in section 841." United States v. Prom ise, 255 F.3d 150, 175 (4th Cir. 2001) (Luttig, J., concurri ng in the judgment). The legislative history of S 841, howeve r, points to the opposite conclusion.

Congress enacted the original version of S 841 as p art 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 d rug 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 law s which

have come about under different circumstances and w ith entirely separate and diverse histories"); id. at 3 3,304 (statement of Rep. Rogers) (explaining how the CSA" would consolidate all of the Federal drug laws into one a ct . . . to enable more efficient administration of the laws"). Recognizing that enacting separate statutes for eac h 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 violati on of what is now S 841(a) (manufacture, distribute, etc. ) could be prosecuted with respect to the different drug ty pes. See, e.g., United States v. Grandison, 783 F.2d 1152, 11 56 (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 operati ve 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 refle ct that Congress intended quantity to function as an e lement

25with respect to marijuana offenses; they state,"Ind ividuals

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 1 3 (1980); S. Rep. No. 96-916, at 14 (1980) (emphasis added). As evidenced by the language used in 21 U.S.C. S 85 1, which was passed as part of the original CSA in 197 0, Pub. L. No. 91-513, S 411, 84 Stat. 1269, Congress can b e presumed to have been aware of the traditional lega l distinction between conviction and sentencing at th e time it adopted these quantity thresholds. See 21 U.S.C. S 851(b) (noting that the proceedings to establish prior con victions shall be undertaken by the court "after conviction but before pronouncement of sentence").

In 1984 Congress again amended the CSA to account f or drug quantity for illegal substances other than mar ijuana. See S. Rep. No. 98-225, at 255 (1983) (noting that, with the exception of marijuana, the prior CSA did not speci fically account for drug quantity). Thus, according to the Senate Report, Congress created "a new subparagraph (A) un der section 841(b)(1) that would provide, for offenses involving large amounts of particularly dangerous drugs, high er penalties than those now provided under section 841 ." Id. at 258 (emphasis added). The use of the plural "off enses" 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, crea ted new subparagraphs (b)(1)(A) and (b)(1)(B) and inclu ded mandatory minimum sentences for offenses under thos e subparagraphs. See Narcotics Penalties and Enforcem ent Act of 1986, Pub. L. No. 99-570, S 1002, 100 Stat. 3207-2. The legislative record indicates that during its di scussion of the proposed amendments, Congress understood that prosecutors would be required to introduce evidence of drug quantity during trial in order to obtain a con viction. See H. R. Rep. No. 99-845, at 12 (1986) (explaining that Congress had been informed by U.S. Attorneys that t hey would be able to meet the evidentiary burden for pr oving quantity to the jury).

26Furthermore, the record reflects that Congress did not

consider subparagraph (a) to lay out all of the ele ments 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, fo r instance, specifically notes that "[a] person convi cted 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 1 9 (emphasis added). Again, as noted above, Congress c an be presumed to have been aware of the traditional lega l distinction between conviction and sentencing. If C ongress had intended for the drug types and quantities list ed 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 t hose subparagraphs.

Immediately following the 1986 amendments, the Just ice Department itself, which had been consulted by Cong ress throughout the amendment process, see H. R. Rep. No . 99- 845, at 12 (1986), seemed to conclude that drug typ e and quantity were elements of separate offenses defined in S 841(b). See Handbook on the Anti-Drug Abuse Act o f 1986, at 20-21 (Dep't of Justice Mar. 1987) ("1986 Handbook"). Notably, the 1986 Handbook repeatedly referred to "convictions" under the subparagraphs o f S 841(b)(1), which lay out the penalties for the di fferent drug types and quantities. Id. at 3-4, 6-7. Most im portantly, the Department "recommend[ed] that where the enhanc ed and mandatory minimum penalty provisions of 21 U.S. C. SS 841(b)(1) and 960(b), as amended, are based on t he kind and quantity of drug involved in particular offense s . . . both the kind and the quantity of the drug be specified in the indictment and proven at trial." Id. at 20 (third e mphasis added). I acknowledge that the Department only "recommend[ed]" such an approach, and that it later retreated from this position. See, e.g., United Sta tes v. Jenkins, 866 F.2d 331 (10th Cir. 1989). But the fac t that it expressed this view in its initial "bible" on the c ritical 1986 drug law, obviously written after high-level delibe rations and at a time when vision was not clouded by subseq uent events and perceptions, seems to me very persuasive

.

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

do in adding drug type and quantity in the 1980, 19 84, and 1986 amendments is also informative. Specifically, Congress never expressly denoted drug type and quan tity as sentencing factors to be determined by the judge and not the jury. See United States v. Brough, 243 F.3d 107 8, 1079 (7th Cir. 2001) ("[T]he statute [S 841] does not sa y who makes the findings or which party bears what burden of persuasion."). In contrast, in the aforementionedS 851, which covers proceedings to establish prior convict ions for sentence-enhancement purposes, the statute expressl y 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) (emp hasis added). My point is further advanced by reference t o the now-repealed Dangerous Special Drug Offender Senten cing provision of the original CSA, which created senten cing factors. See Pub. L. No. 91-513, S 409, 84 Stat. 12 42, 1266- 69 (1970) (repealed 1984). Under that provision, pr ior felon status was to be assessed by a judge after convicti on using a preponderance-of-the-evidence standard. See id. a t 1267.

In sum, Congress's failure to include drug type and quantity within its express sentence-enhancement provisions indicates its intent to treat these fact ors as elements of a crime. See United States v. McQuilkin , 78 F.3d 105, 108 (3d Cir. 1996) ("It is a canon of statutor y construction that the inclusion of certain provisio ns implies the exclusion of others.") ("inclusio unius est exc lusio alterius").

B. Nomenclature and Structure of the Statute

In construing drug type and quantity as sentencing factors rather than elements, this court, as well a s the other courts of appeals, have relied on the presenc e 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 sist er courts has noted that this approach "took Congress at its caption," Brough, 243 F.3d at 1079, a close examination revea ls that the caption was never really Congress's at all. The original version of the CSA passed by Congress and signed by the

28President did not affix the label "Unlawful Acts" t o 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 w ere these captions added in any of the subsequent amendments to the CSA. Rather, these section headin gs can be traced to the Office of the Federal Register , National Archives and Records Services, which added a refere nce to "penalties" as a margin note to the predecessor of S 841(b) in the Statutes at Large simply for user convenienc e. 84 Stat. 1261 (1970). Unfortunately, when the CSA was reproduced in the United States Code, the margin no tes were converted into subsection headings by the codi fication committee, but have never been officially adopted b y the Congress, and, therefore, do not have the force of law. See U.S.C. at vii (1994 & Supp. V 1999) (noting that Ti tle 21 has never been officially codified).

Even if the subsection titles had been officially a dopted by Congress, we would be wrong to ascribe to subsec tion (b)'s "Penalties" label the talismanic power to ind icate that drug type and quantity are sentencing factors rathe r 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 Act s," this subsection alone does not define a complete offense because it includes no punishment. A jury verdict f inding only that the defendant had committed the acts desc ribed in subsection (a), without more, would not render t he defendant guilty of a crime requiring any ascertain able punishment. Compare Almendarez-Torres v. United Sta tes, 523 U.S. 224 (1998) (construing 8 U.S.C. S 1326(b)( 2) as a sentencing factor where an earlier portion of the s tatute -- S 1326(a) -- already provided for specific penaltie s), with Jones v. United States, 526 U.S. 227 (1999) (constr uing the provisions of 18 U.S.C. S 2119(2)-(3) as elements w here the prefatory statutory text did not provide for penalt ies but only described prohibited conduct).

Furthermore, the wide variation in penalties for th e manufacture and distribution of different combinati ons of

29drug type and quantity counsels in favor of constru ing

these factors as elements. In two recent cases, Jon es and Castillo, the Supreme Court observed that the degre e 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. I n 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 fire arm used by the defendant was a sentencing factor for the judge to determine. In rejecting this argument, the Court de emed it important that the mandatory penalty for using or c arrying a machinegun was "six times more severe" than the p enalty for using or carrying a mere "firearm," such as a p istol, thereby demonstrating Congress's intent to make eac h of these a "separate crime." 530 U.S. at 127.

Likewise, in Jones, the Court considered"serious bo dily injury" an element of the crime of carjacking rathe r than a sentencing factor under 18 U.S.C. S 2119 in large p art because it increased the authorized penalty by two- thirds. 526 U.S. at 243. The Court worried that leaving suc h consequential determinations to a judge rather than the jury would relegate the jury to the role of "low-le vel gatekeeping," resulting in "the erosion of the jury 's function." Id. at 244. Such a diminution of the jur y's role, the Court cautioned in language foreshadowing Appre ndi,

"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 max imum prison term for a deported alien who has illegally reentered th e country from two to twenty years if his initial deportation was subsequ ent to an aggravated felony conviction. Despite the tenfold increase in maximum prison time, the Court construed the provision as a sentencing f actor rather than an element in large part because recidivism "is a trad itional, if not the

most traditional, basis for a sentencing court's increas ing 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 reci divism 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

30Applying the lessons of Castillo and Jones, it seem s clear

to me that S 841 establishes multiple offenses base d on the elements of drug type and quantity. The maximum penalties authorized by the statute vary greatly de pending on type and quantity of the controlled substance. F or example, assuming no prior convictions, the maximum penalty for the distribution of a schedule V substa nce of any quantity is one year, see S 841(b)(3), while th e maximum penalty for the distribution of more than 5 00 grams of cocaine not resulting in any death or seri ous bodily injury is forty years. See S 841(b)(1)(B)(ii )(II). Even within the same drug type, penalties can vary signi ficantly by quantity alone. Compare, e.g., S 841(b)(1)(B)(vi i) (providing a maximum of forty years imprisonment fo r a violation of subsection (a) involving "100 kilogram s or more of a mixture or substance containing a detectable a mount of marijuana" for a defendant with no prior convict ions), with S 841(b)(1)(D) (providing a maximum of five ye ars imprisonment "[i]n the case of less than 50 kilogra ms of marihuana [sic]" for a defendant with no prior conv ictions).

I believe that these dramatic differences in the se verity 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 time honored maxim that "constitutionally doubtful constructions should be avoided where `fairly possi ble.' " 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 8 41 that requires proving drug type and/or quantity to the j ury beyond a reasonable doubt only when either factor

___________________________________________________ ______________

tenfold increase in penalty, therefore, ought not t o be considered in tension with its approach to statutory construction in Jones and Castillo, for, as the Court subsequently made clear in Appren di, sentence enhancements for prior conviction are sui generis. See Apprendi, 530 U.S. at 490 (announcing the Apprendi rule as applyi ng to "any fact that increases the penalty beyond the prescribed statuto ry maximum" except "the fact of a prior conviction").

31increases the maximum statutory penalty avoids

constitutional doubt. See, e.g., United States v. B rough, 243 F.3d 1078, 1080 (7th Cir. 2001). In choosing betwee n that construction and the one offered here, however, we ought to be guided by a realistic appraisal of Congress's in tent, for although it is our duty to "strain to construe legi slation so as to save it against constitutional attack," we"mu st 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) (qu oting 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 qua ntity are elements of a S 841 offense, it is possible that Co ngress intended them to be sentencing factors for the judg e 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 fin ding drug type and quantity always to be sentencing factors f or the judge to determine, thereby rendering S 841 unconstitutional). It strains credulity, however, t o 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 mann er, 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; th ey 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 approac h 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 fo r Congress, which we assume legislates in the light o f constitutional limitations"). Congress enacted the most recent relevant structural changes to S 841 in 1986 ; the Supreme Court issued its Apprendi decision just las t 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 Congres s wrote

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

of what Congress did intend in draftingS 841, we ca n be sure that Congress did not intend to designS 841 to fit precisely within the contours of a constitutional r ule that did not yet exist. It is much more likely that Cong ress intended for drug type and quantity always to be el ements of a S 841 offense. I would, therefore, overrule ou r prior cases -- e.g., United States v. Lewis, 113 F.3d 487 (3d Cir. 1997); United States v. Chapple, 985 F.2d 729 (3d C ir. 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 positi on, 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 compl icate the trial process. See Promise, 255 F.3d at 157 n.6 ("It will not be unduly difficult for juries to determine whe ther an offense involved a specific threshold drug quantity ."). Since Apprendi, federal district courts have proceeded in this manner, submitting special interrogatories to the j ury for determination of drug type and quantity, and many h ave been operating in this manner since Jones. In the A ppendix to this opinion I attach an example of a special interrogatory on drug quantity prepared by the Offi ce of the United States Attorney for the Eastern District of Pennsylvania and used without incident or problem b y the judges of the district court since Jones. Furthermo re, in some state systems, juries have been routinely perf orming this function for at least five years. See Promise, 255 F.3d at 157 n.6 (citing State v. Virgo, 947 P.2d 923, 92 6 (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 pro ved to the jury unduly burden the defendant. Justice Breye r and others have objected to the interpretation I offer because it "could easily place the defendant in the awkward (a nd conceivably unfair) position of having to deny he c ommitted the crime yet offer proof about how he committed it , e.g., `I did not sell drugs, but I sold no more than 500 gra ms.' "

33Apprendi, 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) (quo ting same). However, if drug quantity were classified as a sentencing factor for which preponderance of the ev idence is the burden of proof, the defendant would lose th e advantage of forcing the government to prove this o ftdisputed 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 Jus tice Breyer contends, such is not the system envisioned by our Constitution. That system puts its faith in the fai rness 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 tha t, just because one thinks [having a judge determine the fa cts that affect the length of a sentence] is a better system , it must

___________________________________________________ ______________

2. Moreover, it seems to me that the kind of scenar io feared by Justice Breyer is often intrinsic to criminal statutes in w hich penalties vary according to different elements. In Castillo, the C ourt 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 o pinion 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 weap ons) to the jury and arguing that the defendant used or carried t hat weapon during a crime of violence within the meaning of the statute, the evidence

is unlikely to enable a defendant to respond bo th (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 disti nction between S 924(c) and the position in which the defendant would be pl aced under my interpretation of S 841. In either case, the defend ant might be forced, as a matter of trial strategy, to choose between denyi ng the commission of the crime outright and admitting a lesser amount of wrongdoing in order to receive a shorter sentence. Perhaps Justice Brey er's distinction is

that under S 924(c), the prosecution will present to the jury a tangible, discrete object -- the weapon -- whereas in the dru g context, the prosecution will present only a plastic bag of powd er or pills, whose type and quantity may not be readily apparent to the jur y. Such a distinction, I submit, is too slender a reed upon which to hinge the determination of element or sentencing factor.

34be, or is even more likely to be, the system envisi oned 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 quantit y were not proved to the jury beyond a reasonable doubt, t hereby imposing huge burdens on the court system. Any appe al from such a conviction is likely to be reviewed und er the plain error standard. Evidenced by the decision of this court today, plain error analysis will rarely resul t in the overturning of a conviction. Most of the other cour ts of appeals engaging in plain error review have similar ly

declined to exercise their discretion to reverse co nvictions that have violated Apprendi by not proving drug typ e 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. Se e, 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 nonethe less join the judgment of the Court because I believe, a s 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 a nd quantity, so Vazquez cannot (and does not) raise the argument th at the failure to allege drug type and quantity in the indictment rai ses different issues on review than failure to prove these factors to a jur y 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 i ncluded in the

indictment for a S 841 offense because "the distric t court lacks the jurisdiction to impose a sentence exceeding the sta tutory maximum of the offense alleged in the indictment"); cf. also U nited 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 a n 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).

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

seriously affect the fairness, integrity, or public reputation of judicial proceedings.

36APPENDIX

8. Drug case special interrogatories and verdict fo rm re quantity

COUNT 1 (Conspiracy)

____________________ Guilty

____________________ Guilty

Jury Interrogatory Number One -- Count 1 (Conspirac y)

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 conc ludes Jury Interrogatory Number One. Do not go on to the next question on this page. Proceed to Count 2 of this v erdict

form.

If your answer to this question is "no," please ans wer 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 (Distribut ion)

If you find the defendant guilty of the distributio n charged in Count 2, please answer the following que stion:

-- Do you unanimously agree, by proof beyond a reasonable doubt, that the quantity of cocaine base ("crack") which was distributed was 50 grams or mor e?

_______ Yes

_______ No

If your answer to this question is "yes," that conc ludes Jury Interrogatory Number Two. Do not go on to the next question on this page.

If your answer to this question is "no," please ans wer 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

38Volume 2 of 2

39SLOVITER, Circuit Judge, dissenting, with whom Judg es

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 lo gic: Vazquez was convicted after a jury trial of conspir acy to possess and distribute more than 5 kilograms of coc aine 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 instruct ed to find the quantity of cocaine involved; following th e Supreme Court's opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000), a jury is required to find beyond a reasona ble doubt any fact that increases the prescribed range of pen alties to which the defendant is exposed by the jury's verdic t; in this case the jury's verdict exposed Vazquez to sentenci ng under S 841(b)(1)(C) for which the maximum penalty is 20 years (240 months) imprisonment; the trial judge, applyin g 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 therefor e 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 wou ld have made the same determination that the trial judge ma de, 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 beg in by approaching the majority's opinion on its own terms . That requires consideration of whether the Apprendi vio lation 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 co urt

40with, inter alia, two counts of second-degree posse ssion 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 carri es a penalty range of 5 to 10 years of imprisonment. Aft er Apprendi pleaded guilty to these counts pursuant to a plea agreement, the prosecutor, as permitted by that agr eement, filed a motion to enhance Apprendi's sentence under New Jersey's hate crime statute which authorized an enh anced 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 f ound that the shooting was racially motivated and sentenced h im to 12 years of imprisonment. Apprendi appealed his sen tence 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 enha nced

sentence.

The United States Supreme Court reversed. In reachi ng its conclusion, the Court noted among the "constitu tional protections of surpassing importance" the provision of the Fourteenth Amendment that liberty can be deprived o nly with due process and the Sixth Amendment guarantee of a trial by jury, which entitle the defendant to a jur y 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 t he accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constit ute the crime with which he is charged." Id. at 477 (quotin g In re Winship, 397 U.S. 358, 364 (1970)) (brackets omitte d).

The Apprendi Court examined the historical underpinnings of these principles and, while recogn izing that discretion had been accorded to trial judges i n their sentencing decisions, reasoned that such discretion cannot deprive a defendant at the time of sentencing "of protections that have, until that point, unquestion ably

attached." Id. at 484.

41Finding 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 sente ncing factor and not an element of the crime, stating:"th e 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 guilt y 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 i ntent to distribute, and to distribute, more than 5 kilos of cocaine in violation of 21 U.S.C. S 841, and, following the se tting forth of 10 paragraphs constituting the Overt Acts, state s, "All in violation of Title 21 United States Code, Section 8 46."

Section 841(a) is entitled "Unlawful acts" and prov ides 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) d oes not prescribe penalties. It is S 841(b), entitled"Penal ties," that prescribes the range of penalties for certain quant ities of controlled substances. Under S 841(b)(1)(A)(iii), t he sentence for a defendant convicted of violating S 841(a) wit h 50 grams or more of a mixture containing cocaine base (i.e., crack cocaine) is not less than 10 years of impriso nment 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 an d not more than 40 years of imprisonment. Section 841(b)( 1)(C),

42often referred to as the catch all provision, conta ins 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:"Th e Apprendi violation occurred when the judge, rather than the jury, determined drug quantity and then sentenc ed Vazquez to a more than 24-year sentence." Maj. Op. at 8. Surprisingly, it does not remand so that Vazquez ca n be

resentenced to a sentence that does not exceed the maximum authorized by the statute. Instead, it devi ses a rationale to affirm the sentence that was arrived a t in an

unconstitutional manner.

I do not understand why the majority's disposition is appropriate, necessary, or just. I note that in App rendi, the Supreme Court, after finding that the procedure tha t led to the enhancement of Apprendi's sentence was unconstitutional, reversed and remanded. Of course, Apprendi came to the Court from the New Jersey Supr eme Court, not from a federal court, but I see no justi fication in Apprendi itself for us to do anything different wit h a District Court judgment.

The majority, however, after noting that Vazquez di d not challenge the evidence of drug quantity or object t o the court's failure to submit the issue to the jury, 1 sustains the sentence that was unconstitutionally enhanced by ap plying the plain error standard. Under Rule 52(b) of the F ederal

___________________________________________________ ______________

1. Because Apprendi was decided after Vazquez's con viction and sentence, it is understandable that Vazquez did not timely object in the

District Court either before or after the instructi on on the ground that drug quantity should be submitted to the jury. In U nited States v. Nance, 236 F.3d 820, 823-24 (7th Cir. 2000), the court con sidering a similar question stated that because of earlier indications , primarily the opinion of the Supreme Court in Jones v. United States , 52 6 U.S. 227 (1999), the defendant could have argued that the quantity of th e drugs should have been charged in the indictment and proved beyond a reasonable doubt. As a result, the court concluded it would review fo r 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 ba sis to forewarn criminal defendants that an objection was called fo r.

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

affecting substantial rights may be noticed althoug h they were not brought to the attention of the court." In United States v. Olano, 507 U.S. 725 (1993), the Supreme C ourt 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 reputat ion 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 evide nce established that Vazquez sold more than 5 grams, wh ich is sufficient to carry a statutory maximum penalty und er 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. T he 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 gram s of powder cocaine and 859 grams of crack cocaine the authorities found at the Columbia rooming house." M aj. Op. at 16. Therefore, the majority concludes that t he Apprendi error did not affect Vazquez's substantial rights.

Completing its plain error inquiry, the majority ho lds that even if the Apprendi violation affected Vazquez's s ubstantial rights, he cannot establish the fourth factor, i.e. , that the error seriously affected the fairness, integrity, o r 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 L ancaster County, and a rational jury would certainly have fo und that he conspired to possess and distribute more than th e amount necessary to support a "slightly more than 2 4-year sentence pursuant to S 841(b)(1)(B)'s 5-to-40-year sentencing range." Maj. Op. at 19.

44C.

The Substantial Rights Inquiry

I agree with the majority that there was error in sentencing Vazquez and that it was plain. I disagre e that the error did not affect Vazquez's substantial righ ts. Under the plain error inquiry, "the error must have been prejudicial: It must have affected the outcome of t he district court proceedings." Olano, 507 U.S. at 734. It is t he defendant who bears the burden of persuasion. See i d. Vazquez's sentence to more than 24 years imprisonme nt, 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 righ ts. An error that will cause a defendant to spend four plus year s more in prison than statutorily authorized by the jury's verdict necessarily adversely affects the defendant's subst antial rights.

I find it curious that the majority never acknowled ges that additional time in prison could affect substan tial rights. In other contexts, courts of appeals have n ot 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. And erson, 201 F.3d 1145, 1152 (9th Cir. 2000) ("An error that res ults in a longer sentence undoubtedly affects substantial r ights."); United States v. Martinez-Rios, 143 F.3d 662, 676 ( 2d Cir. 1998) (finding clerical error which increased defen dant's sentence by several months to affect substantial ri ghts). 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 pre judicial

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 rig hts and was plain error even though sentence was also withi n correct range).

45In Apprendi violation cases, numerous courts have

recognized that extra prison time affects substanti al rights. In United States v. Nordby, the Ninth Circuit state d that "[f]ive additional years of imprisonment were impos ed beyond that authorized by this verdict, which easil y affected [defendant's] substantial rights." 225 F.3d 1053, 1 060 (9th Cir. 2000). It reiterated that holding the followin g year in United States v. Buckland, 2001 WL 893440, *9, reh' g en banc granted, 2001 WL 1091167 (9th Cir. 2001) ("Imp osing a sentence that is seven years more than the maximu m sentence constitutionally permitted under the facts as found by the jury undoubtedly `seriously affect[s] the fairness, integrity or public reputation of judicia l proceedings.' "). Morever, the Tenth Circuit in Uni ted States v. Jones, 235 F.3d 1231 (10th Cir. 2000), recognize d that it "regularly has found reversible error when the sent ence imposed by the district court exceeded the statutor y maximum penalty applicable to the offense of convic tion." Id. at 1238. Even courts that did not ultimately re verse on the basis of an Apprendi error have recognized that prison sentences in excess of the applicable maximum affec t substantial rights. See United States v. Promise , 255 F.3d 150, 150, 160-61 (4th Cir. 2001); see also United S tates 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 , 2 36 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-reasonab ledoubt standard, thereby ignoring established consti tutional principles, I cannot see how the effect could be ot her than to impugn the "fairness, integrity and public reput ation" of the judicial process. The fact that the majority co ndones a process by which a judge usurped a determination wi thin the jury's province strikes at the reputation of th e judicial

___________________________________________________ ______________

2. In affirming the sentences, these courts shifted the inquiry from the effect on substantial rights to the discretionary q uestion referred to in Olano, which was whether the error was one that"ser iously affect[ed] the fairness, integrity or public reputation of judicia l proceedings," 507

U.S.

at 732.

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

concurring) ("Judges, it is sometimes necessary to remind ourselves, are part of the State . . . . The founde rs of the American Republic were not prepared to leave [crimi nal justice] to the State, which is why the jury-trial guarantee was one of the least controversial provisions of th e Bill of Rights. It has never been efficient; but it has alw ays been free.") (parenthesis omitted).

In determining that Vazquez's substantial rights we re 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), wher e the Court held that erroneous jury instructions did not require reversal. However, the substantial rights inquiry i n 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 n ot object to this instruction. Johnson, 520 U.S. at 463. Afte r Johnson's conviction, the Supreme Court decided Uni ted States v. Gaudin, 515 U.S. 506 (1995), which held t hat the materiality of a false statement must be decided by a jury. Johnson, 520 U.S. at 463. The Supreme Court held th at Johnson had not established the fourth prong of the plain error standard -- that the error seriously affected the fairness, integrity or public reputation of judicia l proceedings. In so holding, the Court noted that th e evidence supporting materiality was overwhelming an d 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 co urt's failure to charge the jury on the materiality of th e false

statements or omissions for which the defendant was convicted. The defendant in Neder had objected to t he 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 eviden ce of the materiality of the statements, and hence the om ission of the charge was harmless error. See id. at 16-20.

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

issue was whether to uphold or reverse the jury's v erdict 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 in apposite

here.

Instead of affirming the sentence on the ground tha t Vazquez's substantial rights were not affected, as the majority does, I would follow the disposition recen tly reached by some of our sister circuits who, after f inding 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' se ntences and remanding for resentencing because the sentence s exceeded the maximum sentence authorized by the jur y verdict by 12 and 15 years respectively); United St ates v. Ray, 250 F.3d 596, 603 (8th Cir. 2001) (remanding f or resentencing because the defendant's 97 month sente nce 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 a nd remanding for sentencing because the sentence excee ded by four months the maximum that could be imposed without a jury determination of an element of the c rime); 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 b y 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); U nited States v. Nordby, 225 F.3d 1053, 1060 (9th Cir. 200 0) (remanding for resentencing because "[f]ive additio nal years of imprisonment were imposed beyond that authorized by this verdict, which easily affected [defendant's] s ubstantial rights."). Although not every court that has found an Apprendi violation followed the course of these cas es, I believe that course is the one demanded by justice.

48II.

In reaching its conclusion to affirm Vazquez's sent ence, the majority rejects Vazquez's argument that the Ap prendi

error was a structural defect. Structural defects a re per se prejudicial and pretermit the substantial rights in quiry. Johnson v. United States, 520 U.S. 461, 468 (1997). The majority reasons that "Apprendi violations result i n 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 constitution al errors can be harmless; that both trial errors and sentencing errors have been subjected to harmless o r plain error analysis; and that therefore "an Apprendi vio lation is not a structural defect." Maj. Op. at 15.

I believe the majority's syllogism is flawed and th at the issue of an Apprendi violation as a structural defe ct merits more analysis than has been given to it in the case s, including even those cases that have reversed sente nces 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 co uld be harmless, it also recognized that there are some constitutional errors that are not subject to harml ess error analysis. Chief Justice Rehnquist referred to them in Arizona v. Fulminante, 499 U.S. 279 (1991), as invo lving rights "so basic to a fair trial that their infract ion can never be treated as harmless error." Id. at 308 (quoting Chapman, 386 U.S. at 23). Structural defects occur in a limi ted class of cases, such as where there has been a complete d enial of counsel, see Gideon v. Wainwright, 372 U.S. 335 (1963), a biased trial judge, see Tumey v. Ohio, 273 U.S. 5 10 (1927), unlawful exclusion of grand jurors of defen dant'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. Georg ia, 467 U.S. 39 (1984), or a defective reasonable-doubt instruct ion to the jury, see Sullivan v. Louisiana, 508 U.S. 275 ( 1993).

Such errors have been termed "structural" because e ach involves a "defect affecting the framework within w hich the trial proceeds, rather than simply an error in the trial

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

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

Perhaps the Sullivan case best illustrates a struct ural error. As explained in Justice Scalia's opinion for a unanimous Court, a constitutionally defective reaso nabledoubt instruction violated the Sixth Amendment righ t to trial by jury, a right that is " `fundamental to th e American scheme of justice.' " 508 U.S. at 277 (quoting Dunc an 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 consti tutional standards. Justice Scalia began his discussion why such an error was not amenable to harmless-error analysi s with the principle that the most important element in th e Sixth Amendment right to trial by jury is "the right to h ave the jury, rather than the judge, reach the requisite fi nding of `guilty.' " Id. He continued, "although a judge may direct a verdict for the defendant if the evidence is legall y 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]ar mlesserror review looks . . . to the basis on which `the jury actually rested its verdict.' " Id. at 279 (altera tion in original) (quoting Yates v. Evatt, 500 U.S. 391, 40 4 (1991)). The inquiry "is not whether, in a trial that occurr ed 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 wa s never in fact rendered -- no matter how inescapable the f indings to support that verdict might be -- would violate t he jurytrial guarantee." Id.

It appears that the majority in this case rejects t he possibility that the Apprendi violation was a struc tural defect by reliance on the Supreme Court's decisions in Johnson and Neder. Johnson had argued that the erro r, the

50failure to instruct the jury that it must decide th e

materiality of the false statements, was a structur al defect and therefore outside the scope of Rule 52(b). The Johnson Court stated that "[i]t is by no means clear" wheth er 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 wh at a properly charged jury might have done." Id. The Co urt then noted that the failure to submit materiality to the jury "can just as easily be analogized to improperly instruct ing the jury on an element of the offense, an error which i s 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 struc tural

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 h eld

that various trial errors were not structural defec ts. Among those were cases dealing with improperly instructin g 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. 2 63 (1989), and erroneous mandatory rebuttable presumpt ions, see Yates v. Evatt, 500 U.S. 391 (1991). Similarly, it noted that the Court had previously held that harmless-er ror analysis applies to the erroneous admission of evid ence in violation of the Fifth Amendment's guarantee agains t 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 defe ct because it "[did] not necessarily render a criminal trial

51fundamentally unfair or an unreliable vehicle for

determining guilt or innocence." Neder, 527 U.S. at 9 (emphasis omitted). That is, "where a reviewing cou rt concludes beyond a reasonable doubt that the omitte d element was uncontested and supported by overwhelmi ng evidence, such that the jury verdict would have bee n 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 erro r here

was the failure to submit an element of the offense to the jury, then there would be no basis to argue that th e error in this case was a structural defect. However, I be lieve that an Apprendi error is an error of a different dimens ion.

There were at least two constitutional violations i dentified in Apprendi. One dealt with the issue of the respec tive roles of the jury and judge. See Apprendi, 530 U.S. at 47 7. The other dealt with the standard of proof, the require ment that the government prove a criminal defendant guilty be yond a reasonable doubt. See id. at 478. It is arguable th at after Neder, a trial error that enables a judge, rather t han a jury,

to determine one of the elements of the offense is not a structural defect, although Justice Scalia's dissen t in Neder persuades me (albeit not a majority of the Court) t hat 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 a lso the failure to object to its deprivation at the point w here 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 e ven if Vazquez waived his jury trial right by failing to c ontest the trial court's arrogation of the jury's obligation t o decide drug quantity, an element of the crime, this case i s unlike both Johnson and Neder because an Apprendi violatio n also implicates the right to be convicted under a beyond -areasonable-doubt standard.3

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3. As the Neder majority observed, appellate inquir y 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

52Nothing in either Johnson or Neder, or any other ca se 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 failu re, I believe, is comparable to the structural defect in the constitutionally deficient beyond-a-reasonable-doub t

instruction found in Sullivan. The Due Process Clau se, Sullivan explains, requires that the prosecution pe rsuade the factfinder "beyond a reasonable doubt" of the f acts necessary to establish all elements of the offense. 508 U.S. at 277-78. If there is no jury verdict finding peti tioner 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. a t 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 a ction, or

else directed verdicts for the State would be susta inable on appeal." Id.

In Apprendi, the Court discussed separately the two rights -- the one that requires trial by jury and"t he companion right to have the jury verdict based on p roof beyond a reasonable doubt." 530 U.S. at 478. The Co urt commented, "The `demand for a higher degree of pers uasion in criminal cases was recurrently expressed from an cient times, [though] its crystallization into the formul a "beyond

a reasonable doubt" seems to have occurred as late as 1798. It is now accepted in common law jurisdiction s 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

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insofar as [it] block[s] setting aside convictions for small errors or

defects that have little, if any likelihood of having chang ed 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 co nsideration 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 materia lity, 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.

53J. Wigmore, Evidence S 2497 (3d ed.1940)." Id. (quo ting In

re Winship, 397 U.S. 358, 361 (1970)). Apprendi rea ffirmed the pronouncement in Winship that "the`reasonable d oubt' 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 err ors that

it has found to be structural the defective reasona ble-doubt

instruction in Sullivan. It did so in Johnson and i t 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 mad e 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 suffic ient tosustain 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 en tire 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., th e sentence, and I see no reason why the same structural defect analysis that applies in the other cases which the Court agr ees defy harmless-error review would not apply to the senten ce. I believe that the majority opinion undermines, indee d nullifies, the long tradition in American constitut ional criminal jurisprudence that it is the jury, rather than the judge, that must determine the offense for which th e defendant has been sentenced and that it must so fi nd beyond a reasonable doubt.4 I would therefore hold that we

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4. Justice Scalia closes his Neder dissent with the following quote from Blackstone,

However convenient [intrusions on the jury r ight] 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 t he price that all free nations must pay for their liberty in more s ubstantial matters;

that

54must remand for a new sentencing hearing.5

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these inroads upon this sacred bulwark of th e nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may g radually increase and spread to the utter disuse of juries in ques tions of the most

momentous concern.

Neder, 527 U.S., at 39-40 (quoting 4 Blackstone, Co mmentaries *350).

5. Although I believe that Chief Judge Becker's con currence may have much to commend it, it is not the rationale adopted by the majority opinion. I would therefore leave the question of th e interpretation of the relevant drug statutes for decision in another case where the defendant's sentence is not inconsistent with the teaching of A pprendi, as the government concedes in this case.

55RENDELL, 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 A pprendi

and Williams.

In Apprendi, the Supreme Court held that the New Je rsey statutory scheme "cannot stand," because, after the jury convicted the defendant of a second degree offense, the statute allowed a judge to impose punishment identi cal to what New Jersey provides for crimes of the first de gree, provided that the judge found, by a preponderance o f the evidence, that the defendant's purpose for unlawful ly possessing the weapon was to intimidate his victim on the basis of a particular characteristic the victim pos sessed. 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 c ertain threshold, namely, the maximum sentence allowable f or the

crime of which the defendant was convicted. 235 F.3 d at

863.

I submit that we ignore the teachings of both of th ese cases in issuing the majority opinion today. I say this because we are advocating the judicial determinatio n of the proof that supports a certain sentence, contrary to the specific dictates of Apprendi, and we are forgettin g 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

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1. 18 U.S.C. S 3742(f)(1) provides:

(f) Sentence and disposition--If the court o f appeals determines

that the sentence--

(1) was imposed in violation of law or impos ed as a result of an incorrect application of the sentencing guid elines, the court shall remand the case for further sentencing proce edings with such instructions as the court considers appropri ate. . ..

Id.

56under the microscope of plain error review, we have had

little difficulty noticing an error and remanding c ases for resentencing where substantial rights were affected and the integrity of our system had been undermined by ille gal

sentences.2

Today, we are not requiring a new sentencing procee ding, nor are we even saying that a new trial should occu r, which could arguably follow from the logic and language o f Apprendi. Rather, we search for a way to uphold an offensive, unconstitutional sentence, although ther e is no intimation in Apprendi that such a sentence can eve r be countenanced, in the first instance, let alone pres erved by the jurists' view of what may have occurred.

The majority's discussion of the "substantial right s" or "prejudice" inquiry that we must make under plain e rror review does not focus on the tenor and logic of the Supreme Court's opinion in Apprendi,3 but, rather, it reach es 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 ap propriate

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2. For example, we previously have addressed senten cing errors such as those implicated by a trial court's improper guidel ine calculation, and have found that such mistakes are sufficiently prej udicial 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 le vel `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 signifi cantly higher Guideline sentencing range, certainly is an error that seriou sly 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] subs tantial rights." This

is the same language employed in Rule 52(a), and in most cases it means that the error must have been prejudicial: I t must have affected

the outcome of the judicial proceedings.

507 U.S. at 734 (alteration in original) (quoting F ed. R. Crim. P. 52(b)).

57exercise. 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 Appren di and the instant case.4 Thus, the Court's method of anal ysis in those cases cannot be so easily imported into this distinctly

different situation.

In Johnson, the error at issue was the district cou rt's failure, in a perjury prosecution, to submit the is sue of materiality of the false statements to the jury. 52 0 U.S. at 467. Rather than having the jury decide that issue, the district court instructed the jury that it had dete rmined 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 cou rt committed plain error in failing to submit the issu e of materiality to the jury, and that the error "render ed 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 corr ection under the last prong of Olano because there was "overwhelming" and "uncontroverted" evidence that t he statement was material, and thus, the "fairness, in tegrity or public reputation of the judicial proceedings" woul d not be seriously affected by its failure to correct the er ror. Id. at 470. The Court expressly noted the fact that correc ting the error in such a case would yield the opposite resul t because it would require "the reversal of a conviction." Id

.

Neder involved the same error -- the failure to sub mit the element of materiality to the jury -- and the Court there determined that the error was subject to harmless e rror review. 527 U.S. at 8-9. In conducting its harmless error/prejudice inquiry, the Court applied the foll owing test

in view of the nature of the error at issue: "wheth er it

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4. The majority states that we are presented with a combination of trial and sentencing errors. I am not sure what that mean s, and the majority has provided no supporting authority for its new ca tegory of error. Maj. Op. at 12. Clearly, we have a sentencing error, pro bably due to someone's error at trial -- most likely, the govern ment's -- but I submit that there is no argument that the District Court a ctually committed error during the trial itself, and there has been n o request for a new

trial

on that basis.

58appears beyond a reasonable doubt that the error

complained of did not contribute to the verdict ob tained." Id. at 15 (emphasis added). The Court answered that question by reference to the trial record, and conc luded that "no jury could reasonably find" that the defen dant's

actions were not material. Id. at 16.

Based on the Court's analysis in Neder, the majorit y pretends to ask the same question in assessing prej udice 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 err or as having occurred at sentencing, and given the questi on asked in Neder (if we really are to draw on Neder a s a guide), the appropriate question to ask in assessin g the third element of the plain error analysis under Ola no is whether, in the context of the sentencing proceedin gs, it appears beyond a reasonable doubt that the Apprendi error complained of -- sentencing a defendant to a greate r 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 harmles s error analysis and asking whether, in the context of the sentencing proceedings, a sentencing error " `was h armless beyond a reasonable doubt' in that `it did not cont ribute to the sentence obtained' ") (quoting Chapman v. Calif ornia, 386 U.S. 18, 24 (1967)); Richmond v. Lewis, 506 U.S . 40, 49 (1992) (explaining when a sentencing error occur s, such as consideration of invalid aggravating circumstanc e, harmless error review requires courts to "actually perform a new sentencing calculus, if the sentence is to st and"); Parker v. Dugger, 498 U.S. 308, 319 (1991) (describ ing harmless error analysis in the context of sentencin g 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, 7 53 (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 bee n 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 statu tory

59maximum for the offense for which he was convicted, he

would have received less prison time than he actual ly received. Thus, his substantial rights were affecte d.

Similarly, in assessing whether we should correct t he error under the last prong of Olano, the issue is n ot, as it was in Johnson, whether the trial proofs indicate t hat the fairness and integrity of the trial proceedings wo uld not be impugned by the fact that judge rather than the jur y made the determination at issue, given the strength of t he evidence. Rather, given the language and logic of A pprendi,

we should ask whether the error affected the senten cing in a way that affects the fairness and integrity of th e judicial proceedings. And, unlike the situation presented in Johnson, our correction of the error would not resu lt in the reversal of a conviction; rather, the remedy for th e 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 App rendi sentencing error,5 but also the public reputation o f judicial

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5. As Judge Sloviter's dissent points out, several of our sister circuits have recognized that an Apprendi violation constitu tes an error that affects a defendant's substantial rights. E.g. , Un ited 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 senten ce that is seven years more than the maximum sentence constitutional ly permitted under the facts as found by the jury undoubtedly se riously affects the fairness, integrity or public reputation of the jud icial proceedings.") (internal quotation marks omitted); United States v . Maynie, ___ F.3d ___, 2001 WL 856142, at *8 (8th Cir. July 30, 2001) (fin ding "that greater, and improper, infringement of defendants' liberty s ubstantially 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 maxi mum 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 st atutory 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).

60proceedings is affected by the sentencing of a defe ndant to

more prison time than the maximum permissible based on the crime charged and the jury's verdict. In Appren di, 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 appea l from a guilty plea entered in New Jersey state court. Th us, we must speculate from its language precisely what the Court really would do in a situation such as this. But th e language in Apprendi does not make this a difficult

exercise. There the Court referenced the differenti al in sentencing between what Apprendi would have receive d without the finding of a biased purpose, and what h e could receive with it, stating that it was "more than a n ominal effect." Apprendi, 530 U.S. at 495. The Court then stated: "Both in terms of absolute years behind bars, and b ecause of the more severe stigma attached, the differentia l here is unquestionably of constitutional significance." 6 I d. It concluded its opinion by stating that "[t]he New Je rsey procedure challenged in this case is an unacceptabl e departure from the jury tradition that is an indisp ensable 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 ha ve 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 woul d have found the necessary element or sentencing fa ctor beyond a reasonable doubt, then the jury's a ctual

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6. As an aside, I should note that by concentrating on our divergence from Apprendi and Williams, I do not downplay the c onstitutional significance of the fact that Vazquez was never ind icted for the crime for which he has been sentenced. As eloquently stated b y Judge Motz in her powerful partial dissent in United States v. Promis e, 255 F.3d 150 (4th Cir. 2001), the end result of the Apprendi violatio n meant that "the district court sentenced [the defendant] as if he h ad been indicted and convicted of a far more serious offense, imposing o n[him] ten more years of imprisonment than the offense for which he was a ctually indicted and convicted permits." Id. at 189 (Motz, J., concurrin g in part, dissenting

in part).

61finding on that element, and its verdict, is not such an

indispensable part of our criminal justice s ystem. In such circumstances, the otherwise unconstitu tional sentence may nevertheless stand.

I believe the tone and language of Apprendi preclud e any such reading. In fact, the very language of Apprend i quoted by the majority seems to negate this idea. Maj. Op. at 7-8 (stating that the Court in Apprendi "endorsed the f ollowing concept: `It is unconstitutional for the legislatur e to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal d efendant is exposed. It is equally clear that such facts mus t be established by proof beyond a reasonable doubt.' ") (quoting Apprendi, 530 U.S. at 490) (internal quotation mark s omitted).

If we follow the logic of the majority, the governm ent can charge and convict a defendant of manslaughter, but sentence him for murder, and, as long as the govern ment 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 w ith the jury's verdict. That result is not what Johnson an d Neder stand for, nor is it what the Supreme Court envisio ned. 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 Appr endi, the Supreme Court noted disapprovingly, "Indeed, the ef fect 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 disse nt in

Part I.

However I disagree with Judge Sloviter's conclusion that the error is structural, because it is, again, a se ntencing

error. It did not occur until the sentence exceedin g the maximum allowed was pronounced. The error did not "infect the entire trial process" and "unnecessaril y render [the] trial fundamentally unfair." Neder, 527 U.S. at 8. I can find no Supreme Court opinion that suggests that a

62sentencing error can be "structural." In fact, Judg e 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 determi ne the

offense. While that is the nature of the discussion in Apprendi, because it focuses on the statutory schem e, in light of Williams, that is not the nature of the er ror before

us. What kind of error is it if a defendant is sent enced to a term greater than the maximum allowable for that offense? I submit that it is a sentencing error, th at 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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