In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2695

United States of America,

Plaintiff-Appellee,

v.

Jerome Brough,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 98-CR-222--C.N. Clevert, Judge.

Argued March 2, 2001--Decided March 22, 2001

 Before Cudahy, Easterbrook, and Rovner, Circuit

Judges.

 Easterbrook, Circuit Judge. After a bench trial,

Jerome Brough was convicted of conspiring to

distribute both heroin and crack cocaine, and he

was sentenced to life imprisonment. His main

appellate arguments arise from Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000)--

oddly, because Apprendi principally concerns the

division of responsibility between judge and

jury, while Brough agreed that all issues in his

case would be resolved by a judge. But Apprendi

affects the burden of persuasion as well as the

identity of the decisionmaker, so it has

potential bearing even when the defendant has

waived his entitlement to decision by a jury.

 Brough’s lead argument is that 21 U.S.C.

sec.841 is unconstitutional (and that all

conspiracy convictions under 21 U.S.C. sec.846

fail derivatively) because sec.841 does not

mention the burden of persuasion (or the

allocation of issues between judge and jury) and

does not identify sentencing considerations as

elements of the offense. Section 841(a),

captioned "Unlawful acts", provides:

Except as authorized by this subchapter, 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;
or (2) to create, distribute, or dispense, or

possess with intent to distribute or dispense, a

counterfeit substance.

Then sec.841(b), captioned "Penalties", says that

"any person who violates subsection (a) of this

section shall be sentenced as follows" and lays

out the minimum and maximum penalties for various

types and quantities of drugs, with adjustments

depending on whether the defendant has prior

drug-related convictions and whether the

activities caused death or serious injury. Until

Apprendi we took Congress at its caption and held

that only the elements specified in sec.841(a)

need be proved beyond a reasonable doubt to the

jury’s satisfaction; the penalty provisions in

sec.841(b) were to be administered by the

sentencing judge under the preponderance

standard. See United States v. Edwards, 105 F.3d

1179 (7th Cir. 1979), affirmed, 523 U.S. 511

(1998); United States v. Jackson, 207 F.3d 910

(7th Cir. 2000), remanded, 121 S. Ct. 376 (2000),

decision on remand, 236 F.3d 886 (7th Cir. 2001).

But United States v. Nance, 236 F.3d 820 (7th

Cir. 2000), holds that Apprendi requires a

different approach, and that all facts (other

than prior convictions) that set the maximum

possible punishment under sec.841(b) must be

established beyond a reasonable doubt to the

satisfaction of the same body that determines

culpability under sec.841(a). See also, e.g.

United States v. Patterson, No. 97-3159 (7th Cir.

Mar. 2, 2001); United States v. Westmoreland, No.

99-1491 (7th Cir. Feb. 15, 2001), and the opinion

on remand in Jackson. These constitutional

requirements are external to sec.841. It follows,

Brough believes, that sec.841 is unconstitutional

and cannot support any criminal punishment, for

courts are not supposed to rewrite criminal

statutes and sec.841 cannot be severed to produce

a constitutional rule.

 Brough’s argument is confused. Apprendi and

Nance do not establish that anything in sec.841

is unconstitutional or require its severance. If

Congress had specified that only judges may make

the findings required by sec.841(b), or that

these findings must be made by a preponderance of

the evidence, then sec.841 would create a

constitutional problem. But the statute does not

say who makes the findings or which party bears

what burden of persuasion. Instead the law

attaches effects to facts, leaving it to the

judiciary to sort out who determines the facts,

under what burden. It makes no constitutional

difference whether a single subsection covers

both elements and penalties, whether these are

divided across multiple subsections (as sec.841

does), or even whether they are scattered across
multiple statutes (see 18 U.S.C. sec.sec. 924(a),

1963). Apprendi holds that the due process

clauses of the fifth and fourteenth amendments

make the jury the right decisionmaker (unless the

defendant elects a bench trial), and the

reasonable-doubt standard the proper burden, when

a fact raises the maximum lawful punishment. How

statutes are drafted, or implemented, to fulfil

that requirement is a subject to which the

Constitution does not speak.

 Once the maximum penalty has been established

in a constitutional manner, the judge selects a

punishment using the preponderance standard. See

Edwards, 523 U.S. at 514-15. Thus we concluded in

Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000),

that if (for example) the indictment specifies

that the drug was cocaine or heroin, then any

penalty up to 20 years is lawful even if the jury

does not find a particular quantity, because 20

years is the maximum under sec.841(b)(1)(C) for

unlawfully distributing any detectable quantity

of any Schedule I or II controlled substance. See

also, e.g., Westmoreland, slip op. 27-28. Edwards

and Talbott demonstrate, and we now hold, that

there is no constitutional defect in the design

of sec.841, and that there is no impediment to

convictions under the statute as written. Accord,

United States v. Candelario, 2001 U.S. App. Lexis

1524 (11th Cir. Feb. 5, 2001), at *28 n.16.

Apprendi strongly affects how sec.841 is

implemented; as we concluded in Nance and

Westmoreland, a post-Apprendi indictment should

specify, and the trier of fact must be instructed

to determine, not only the elements of the

offense, which appear in sec.841(a), but also the

events listed in sec.841(b) on which the

prosecutor relies to establish the maximum

sentence. But even if the trier of fact does not

find any particular drug or quantity, a convicted

defendant still faces some penalty--if only the

one year for distributing the least serious of

the drugs on Schedule V. 21 U.S.C. sec.841(b)(3).

See United States v. Norby, 225 F.3d 1053, 1058

(9th Cir. 2000). Brough cannot take advantage of

that low maximum, however, because the indictment

charged him with distributing not only more than

50 grams of crack cocaine but also more than one

kilogram of heroin, each enough to authorize life

in prison if proved beyond a reasonable doubt. 21

U.S.C. sec.841(b)(1)(A)(i), (iii).

 The evidence was quite sufficient to show guilt

beyond a reasonable doubt; we reject Brough’s

attack on the district judge’s finding of

culpability. But the judge, acting before

Apprendi, found the kinds and quantities of drugs

involved by a preponderance of the evidence

rather than beyond a reasonable doubt. Brough did

not ask the judge to do otherwise, so we must
decide whether the court’s conclusion is plain

error. See Nance, Westmoreland, Patterson, and

the opinion on remand in Jackson. Brough’s

argument has some appeal, because when imposing

sentence the judge expressed skepticism about the

veracity of the witnesses whose testimony he

credited; maybe the judge would find the drugquantity evidence sufficient at the preponderance

standard but not enough to suppress a reasonable

doubt. Yet the same judge convicted Brough, on

the testimony of these same witnesses, and

concluded on the basis of evidence received at

the sentencing hearing that Brough conspired to

distribute at least 2,000 grams of crack cocaine,

40 times the amount that Congress deemed

sufficient to support life imprisonment. Would a

judge who thought that a preponderance of the

evidence demonstrates distribution of 2,000 grams

have thought that a much smaller quantity had not

been established beyond a reasonable doubt? That

is very unlikely, and for a simple reason. Agents

seized 37 grams of crack at the end of this

conspiracy, which lasted for four years. If 37

grams was in stock on a single day, is it

conceivable that, during the remaining 1,460 days

of the conspiracy, Brough and his confederates

handled no more than 12 grams of crack in total?

No, it is not conceivable. A judge willing to

credit the evidence of the 37-gram seizure, and

to find guilt beyond a reasonable doubt, would

have been bound to determine beyond a reasonable

doubt that the conspirators distributed at least

an additional 13 grams of crack during the

conspiracy’s lifetime. That is enough to

establish that a penalty under sec.841(b)(1)(A)

is not plain error.

 As for heroin: Because Brough’s conviction for

distributing cocaine is itself enough to

authorize a sentence of life imprisonment, it is

unnecessary to decide whether the evidence of

heroin quantity is equally compelling. Even if

the sentence for distributing heroin were cut

down to the 20-year maximum authorized for a

smidgen of that drug, see 21 U.S.C.

sec.841(b)(1)(C), Brough’s aggregate sentence

would be unaffected, for the Sentencing

Guidelines instruct the district judge to use the

maximum available for the most serious count (and

consecutive sentences if necessary) to achieve

the total punishment appropriate to the

convictions and all relevant conduct. U.S.S.G.

sec.5G1.2. The concurrent sentence doctrine makes

it unnecessary to consider the maximum term that

could have been imposed for a conviction that

does not augment the total punishment. Although

the $100 special assessment means that a court

must consider every challenge to the propriety of

a conviction, see Ray v. United States, 481 U.S.

736 (1987), we have done this by holding that

Brough’s convictions are valid. There is no need
to go further and consider matters that do not

affect the total sentencing package.

 This conclusion also makes it unnecessary to

rely on a possibility raised by the prosecutor at

oral argument: that even 5 grams of crack

suffice, because Brough has a prior conviction

for a drug felony. In the district court the

prosecutor gave notice of this conviction under

21 U.S.C. sec.851, and Apprendi does not overrule

the holding of Almendarez-Torres v. United

States, 523 U.S. 224 (1998), that penalty

enhancements based on recidivism need not be

established beyond a reasonable doubt. See 120 S.

Ct. at 2362. The drugs seized, coupled with the

conviction, expose Brough to life in prison.

Bafflingly, the United States did not mention

this in its brief on appeal, and Brough says that

a recidivism enhancement therefore has been

forfeited. Maybe so, but a defendant who

forfeited his own contentions and must urge plain

error is not in the best position to complain

about the prosecutor’s oversight. Brough’s prior

conviction reinforces our conclusion that no

miscarriage of justice has occurred. Had Apprendi

been decided before the district court imposed

sentence, the effect of his prior conviction

would have held center stage. A remand could not

lead to a lower sentence.

Affirmed