In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-3932 & 99-3951

United States of America,

Plaintiff-Appellee,

v.

Nathan L. Hill and Cordell James,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 95 CR 730--Charles P. Kocoras, Judge.

Argued May 10, 2001--Decided June 5, 2001

 Before Posner, Easterbrook, and Diane P.

Wood, Circuit Judges.

 Easterbrook, Circuit Judge. Cordell James

and Nathan Hill have been sentenced to

life imprisonment. James, who was

convicted of a single count of conspiring

to distribute drugs, see 21 U.S.C.

sec.846, drew his sentence because of a

combination of his criminal record, the

scale of the operation (more than a ton

of cocaine), and his participation in the

murder of Robert Franklin. Hill received

a life sentence (and a fine exceeding $8

million) for operating a continuing

criminal enterprise, among other crimes.

See 21 U.S.C. sec.848.

 1. Both defendants contend that their

sentences violate the due process clause

because the jury did not conclude that

the evidence establishes beyond a

reasonable doubt the events that led to

the life terms. See Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348

(2000). But Apprendi does not help Hill,

because the maximum sentence for every

person convicted of violating sec.848 is

life. He insists that Apprendi governs

proof of events that determine the

minimum lawful sentence, but we rejected

that contention in United States v.

Smith, 223 F.3d 554, 562-66 (7th Cir.

2000). Although United States v. Flowal,

234 F.3d 932, 936-38 (6th Cir. 2000), is

at odds with Smith (of which the sixth
circuit apparently was unaware), we have

previously declined to reconsider the

holding of Smith and do not find in

Flowal any reason to do so. See United

States v. Hoover, 246 F.3d 1054, 1058

(7th Cir. 2001); United States v.

Williams, 238 F.3d 871, 876-77 (7th Cir.

2001). Flowal does not discuss McMillan

v. Pennsylvania, 477 U.S. 79 (1986),

which held that judges may find, by a

preponderance, facts that trigger

mandatory minimum penalties. Apprendi did

not overrule McMillan, see 530 U.S. at

487 n.13, yet, unless McMillan is to be

discarded, Flowal and its successors, see

United States v. Ramirez, 242 F.3d 348

(6th Cir. 2001); United States v.

Strayhorn, 2001 U.S. App. Lexis 10513 (6th

Cir. May 22, 2001), cannot be correct.

The sixth circuit is a minority of one,

while Smith has the support of at least

four other circuits--if any support on

top of McMillan were required. See United

States v. Harris, 243 F.3d 806 (4th Cir.

2001); United States v. Robinson, 241

F.3d 115, 122 (1st Cir. 2001); United

States v. Keith, 230 F.3d 784, 787 (5th

Cir. 2000); United States v. AguayoDelgado, 220 F.3d 926, 934 (8th Cir.

2000).

 James has a stronger claim in principle,

because any sentence over 30 years

depends on finding that a defendant with

a prior drug felony conviction (which

James has) conspired to distribute at

least 5 grams of crack or 500 grams of

cocaine hydrochloride. See 21 U.S.C.

sec.841(b)(1)(B). But James did not ask

at trial that the drug-quantity issue be

submitted to the jury, and he cannot

establish plain error given the volume of

cocaine he and his confederates

distributed. By convicting him, the jury

evinced its finding that James agreed to

distribute more than the statutory

threshold. James’s contention that he

wasn’t lawfully convicted of the

extensive conspiracy charged in the

indictment because, after Apprendi, each

quantity level is a separate offense, was

rejected in United States v. Brough, 243

F.3d 1078, 1079-80 (7th Cir. 2001). There

is just one drug-distribution offense,

defined by sec.841, and one drugconspiracy offense, defined by sec.846.

Quantity affects sentencing but does not

create separate crimes. (Otherwise
someone like James could be convicted of

three conspiracies for the same agreement

and course of conduct, with each

conviction representing the next plateau

of drugs sold--or maybe of six

conspiracies, if the organization

distributed both cocaine and heroin, or

nine conspiracies if it added marijuana

to the inventory.)

 2. The district judge declined to give

Instruction 1.09 from the Federal

Criminal Jury Instructions of the Seventh

Circuit (1999). This instruction reads:

You may find the testimony of one witness

or a few witnesses more persuasive than

the testimony of a larger number. You

need not accept the testimony of the

larger number of witnesses.

Hill called only two witnesses, including

himself, and James called none, so there

was an imbalance in the number of

witnesses presented. (The trial lasted

seven weeks, and the prosecution had

plenty of witnesses.) Defendants seek a

new trial at which this instruction will

be given.

 The premise of defendants’ argument is

that every instruction in Seventh Circuit

Federal Jury Instructions: Criminal must

be given on request. That misunderstands

the function of a pattern book. It offers

model instructions for occasions when

they are appropriate but does not

identify those occasions; the need for an

instruction must be determined

independently. An instruction such as

1.09 might be called for if one side’s

lawyer argued that his client should

prevail because he produced more

witnesses. Then the judge should tell the

jury, perhaps along the lines of

Instruction 1.09, that this is not true,

that quality of evidence counts more than

quantity. No one in this case made a

quantity-over-quality pitch, however, so

there was no need for an antidote.

 Even when a lawyer tries to mislead

jurors about the significance of how many

witnesses have testified, Instruction

1.09 leaves something to be desired:

reasons. It tells jurors that they "may"

do one thing and "need not" do the

opposite, but that just states the

obvious. Of course jurors "may" find the

testimony of a single witness more
persuasive. Any juror who did not think

that to begin with is unfit to serve.

When should jurors find the testimony of

one witness more persuasive? That’s what

matters, and Instruction 1.09 does

nothing to furnish the answer. The

underlying principle is that quality

alone should govern the verdict; ten

weasels are no more persuasive than one.

That’s a thought that district judges

could convey directly--though again the

point is obvious, so usually it is best

left to the jurors’ good sense. Why

insult jurors’ intelligence?

 Jury instructions tend to be long and

full of tedious boilerplate. When the

judge emulates Polonius and recites

gravely what jurors already know, their

attention may wander and they could miss

something that really matters. It is best

to keep the instructions concise, which

is achieved by omitting nostrums and

leaving inferences to arguments of

counsel. United States v. Sblendorio, 830

F.2d 1382, 1392-94 (7th Cir. 1987).

Unless it is necessary to give an

instruction, it is necessary not to give

it, so that the important instructions

stand out and are remembered.

Instructions that include reasons are

those most likely to make the cut for

utility. See United States v. Cook, 102

F.3d 249, 251-52 (7th Cir. 1996); United

States v. Austin, 215 F.3d 750, 752 (7th

Cir. 2000). For example, the Federal

Judicial Center’s Pattern Criminal Jury

Instructions (1987) include the advice

not to "make any decisions simply because

there were more witnesses on one side

than on the other" as part of a more

comprehensive instruction (No. 23)

labeled "General Considerations in

Evaluating Witnesses’ Testimony". This

instruction reminds jurors of several

features that make testimony stronger and

treats the quantity advice as a corollary

to the principle that quality matters.

Instruction 1.09 is less useful. Because

nothing hindered the parties from

covering this point in closing arguments

if they deemed it important, the omission

was sensible.

 3. With the aid of standby counsel,

both defendants represented themselves at

trial. James (but not Hill) contends on

appeal that he was deprived of the

assistance of counsel guaranteed by the

sixth amendment. To any person not
steeped in the intricacies of criminal

practice, this contention would be

unintelligible. James made enough money

from his activities to afford a lawyer,

but when he pleaded poverty the court

appointed one for him. Counsel

represented James diligently until

shortly before trial, when James decided

that counsel had not performed to his

(unrealistic) expectations and demanded a

different lawyer. After the district

judge told James that he would not

appoint another counsel at public expense

(especially when a change of lawyers

likely would delay the trial), James

decided to go it alone. The judge threw

cold water on this proposal, but James

persisted, and the judge allowed James to

conduct his own defense. Even then, the

judge insisted that James’s former lawyer

remain in court as standby counsel to

provide assistance on request. How could

someone who had, but then fired, a

competent lawyer--and who enjoyed full

access to the services of that lawyer

throughout the trial, and could have used

them on discovering that the intricacies

of trial were too much for a high school

dropout--contend that he has been

"deprived" of his constitutional right

"to have the Assistance of Counsel for

his defence"?

 No one could doubt that James acted

voluntarily. The judge and prosecutor did

not threaten him with sanctions if he

elected the assistance of counsel, and he

did not choose self-representation as the

only way to be rid of an ineffective

lawyer. What gives some color to James’s

position, however, is the proposition

that, for a right as important as

counsel, voluntariness is not enough. The

decision must meet the standards of

waiver--which means that it must be

knowing and intelligent. See, e.g.,

Faretta v. California, 422 U.S. 806, 835

(1975), referring with approval to

Johnson v. Zerbst, 304 U.S. 458, 464-65

(1938). Usually the difference between

voluntariness and waiver is demonstrable

knowledge of the right being surrendered

and a formal decision to forego that

right. Compare Schneckloth v. Bustamonte,

412 U.S. 218 (1973) (holding that a

consent to search is voluntary if

uncoerced, even though the suspect has

not been told of a right to say no), with

Miranda v. Arizona, 384 U.S. 436 (1966)

(holding that during custodial

interrogation waiver of the privilege
against compulsory self-incrimination is

possible only if the suspect is told

explicitly of certain entitlements).

 Waiver does not depend on astute (or

even rudimentary) understanding of how

rights can be employed to best advantage.

Defendants routinely plead guilty,

waiving oodles of constitutional rights,

in proceedings where the rights are named

but not explained. For example, the judge

will tell the defendant that the plea

waives the right to a jury trial but will

not describe how juries work, when they

are apt to find a prosecutor’s case

insufficient, why the process of

formulating and giving jury instructions

creates issues for appeal, and so on.

Judges will mention the right to confront

one’s accusers without describing how

cross-examination can be used to

undermine a witness’s testimony. One

could say that without such details the

defendant’s choice is "unintelligent,"

but that would impose unrealistic demands

on the judicial system (and impute an

unrealistic degree of knowledge to a

monosyllabic answer to the query "Do you

understand all that?"). It is enough that

the judge not mis-inform the parties

about the legal requirements. See Bousley

v. United States, 523 U.S. 614 (1998).

James does not say that he was

misinformed about his entitlements.

Proceedings where guilty pleas are taken

are subject to the requirement that all

waivers be knowing and intelligent, see

Boykin v. Alabama, 395 U.S. 238, 243-44

(1969), so if the right-naming (but not

right-explaining) protocol under Fed. R.

Crim. P. 11 suffices (as it does) for

waiver of jury trial and confrontation,

then a similar approach should suffice

for waiver of the right to counsel.

 The contention that "knowing and

intelligent" means something different

when a defendant elects selfrepresentation than when the same

defendant elects a bench trial (or waives

another constitutional right) has its

genesis in Faretta, which held that the

Constitution gives defendants a right to

be free of unwanted legal services at

trial. (And only at trial. See Martinez

v. Court of Appeal, 528 U.S. 152 (2000).)

Faretta constitutionalized, and thus

extended to the states, an entitlement

long recognized in federal courts by

virtue of statute. See 28 U.S.C.
sec.1654. Toward the end of its opinion

in Faretta the Court remarked, 422 U.S.

at 835: "Although a defendant need not

himself have the skill and experience of

a lawyer in order competently and

intelligently to choose selfrepresentation, he should be made aware

of the dangers and disadvantages of selfrepresentation, so that the record will

establish that ’he knows what he is doing

and his choice is made with eyes open’",

quoting from Adams v. United States ex

rel. McCann, 317 U.S. 269, 279 (1942).

 From this statement of preference

("should" is not "must") has grown a

jurisprudence demanding more and more

extensive advice and warnings to impress

on the defendant the drawbacks of

dispensing with counsel. E.g., United

States v. Avery, 208 F.3d 597 (7th Cir.

2000); United States v. Sandles, 23 F.3d

1121 (7th Cir. 1994); United States v.

Moya-Gomez, 860 F.2d 706 (7th Cir. 1988).

The Federal Judicial Center’s Benchbook

for U.S. District Court Judges sec.1.02

(4th ed. 1996, with 2000 revisions)

propounds 15 questions. This litany is a

means of discouraging selfrepresentation, which courts find

inimical to well-functioning trials as

well as hazardous to defendants’ chances

of success. But we doubt that any list

can be mandated. Faretta adopted the

waiver standard of Johnson v. Zerbst,

which noted that the determination

"whether there has been an intelligent

waiver of the right to counsel must

depend, in each case, upon the particular

facts and circumstances surrounding that

case, including the background,

experience, and conduct of the accused."

304 U.S. at 464. That standard can be met

without a demonstration that the accused

has a deep understanding of how counsel

could assist him. After all, Godinez v.

Moran, 509 U.S. 389 (1993), holds that

any person competent to stand trial is

able to waive counsel, and the competence

standard is met by persons who are barely

able to understand the proceedings, let

alone recognize how lawyers navigate the

legal shoals.

 Let us inquire, then, whether James knew

"what he [was] doing and [made] his

choice . . . with eyes open." On October

20, 1997, the district court appointed

John Meyer to represent James. Fifteen

months later, at a status conference
devoted to selection of a trial date,

James first expressed dissatisfaction:

James: May I say something?

Court: Yes.

James: I don’t want him [Meyer] working

on my case.

Court: Well--

James: I want him off my case. I don’t

want him working on my case.

Court: I do not--what is the reason for

that?

James: I don’t trust him.

Court: I am here to set the case for

trial. You have been in custody.

James: We don’t agree--

Court: What?

James: We don’t agree on certain things.

That’s all.

Court: Is this--

Mr. Meyer: Judge, this is the first I

have heard of it. I tried to visit Mr.

James last week and he refused a visit.

But I have not had a chance to discuss

this matter with him. But if he wants new

counsel, of course, I have no objection.

Court: Well, I am not going to willynilly grant a request that is presented

for the first time. I mean, if--what I

will let you do is this: I would like you

to discuss it with Mr. Meyer.

James: There is nothing to discuss with

him.

After pending motions had been discussed,

the parties took up the setting of a

trial date, and the conference continued:

Court: I am going to set the case for

March 15th. I think that is both workable

and sufficiently out there for you all to

be ready. And anything anyone wants to

bring to my attention by way of counsel,

I will ask you to do that in writing and

file it with the Court.

Mr. Meyer: Judge, in that regard, I will

visit with Mr. James in the Marshal’s
lockup after our court appearance and if

he directs me to do so, I will file a

motion to withdraw then.

James: You can do that now. I’m not

talking to you about nothin’.

Court: Talk to Mr. Meyer. There is no

reason for you to mistrust him because I

have known him for a long time and he is

a very honorable lawyer. In fact, I used

to work with him in another lifetime. . .

. And I will tell you this, Mr. James: He

is a very effective defense lawyer. I

mean, he fights very hard for his

clients. So, for you to come up with--you

know, there naturally may be differences

between a client and a lawyer on how to

proceed; but, the idea that he would

somehow not be faithful to your case is

absolutely ridiculous, from what I know

of Mr. Meyer. He is a very, very

honorable and able defense lawyer, but

that is my opinion. Okay. March 15th it

is.

 On January 22, 1999, three days after

the status conference, Meyer filed a

motion to withdraw as counsel, stating

that he had conferred with James, who

"reiterated that he did not trust counsel

and further stated that he would refuse

to cooperate with counsel in the defense

of this case." On February 2 the court

postponed the trial for two weeks, until

March 29. On February 17 the district

court held a status conference to take up

once again James’s objections to his

lawyer. The court addressed a letter it

had received from James. Although the

letter has not been made a part of the

record, it is apparent that it concerned

James’s renewed request for a different

lawyer:

Court: Mr. James, I have looked at your

request for new counsel and considered it

and I have also looked at some legal

authorities and considered the whole

state of the case; and, I guess my first

question to you is: In what way are you

claiming that Mr. Meyer has not done

right by you in his representation of

you, since you first mentioned that to

me, I think, perhaps less than a month

ago and it was Mr. Meyer--I recall Mr.

Meyer saying this was the first time he

had ever heard of any dissatisfaction

expressed? So, my question to you is:

What is your complaint about Mr. Meyer?
James: Well, in the letter it says what

my complaint is. That’s why. He talked

about me coming to see you--

Court: About pleading guilty, you

mean?

James: Pleading guilty and talking about

Mr. Hill. He don’t talk about nothing

about my defense.

* * *

Court: And you do not want to follow that

course?

James: Right, I don’t.

Court: Well, he did not say you had to

follow that course.

James: That is true, but I don’t want to

hear that.

Judge Kocoras informed James that it is

appropriate for a defense lawyer to

discuss a plea with a client as a

potential option and that James should

not assume that a lawyer who raises the

possibility of a guilty plea is a poor

advocate. James was unmoved:

James: But I don’t want him on my case.

Court: You don’t want him on your case?

James: No.

Court: Well, this case has been a long

time in the pipeline. He has been

representing you for a long time. He is a

very able lawyer.

James: He hasn’t been coming to see me.

Court: Pardon me?

James: I don’t know what is going on.

Court: What do you mean you do not know

what is going on?

James: He hasn’t been coming to see me

for--I can count on my fingers how many

times he came over to the [prison] to see

me.

Court: Well, I think at some point you

said five times.

James: He’s got too many people he’s
helping out. So, I prefer he helped them

out.

Court: Well, he is appointed in this

case. You do not have a right to have an

attorney appointed that you want, rather

than who is available to represent you. I

know he--Mr. Meyer himself--was rather

surprised that you had taken the

position, and even he requested that--

James: That is the decision I choose.

Court: Pardon me?

James: That is the decision I choose.

Court: That is the decision you choose

and here is the decision I choose: I do

not think you have made out any basis for

me to appoint a different lawyer. This

case has been pending a long time. You

have been in custody a long time. The

other two defendants have been in custody

a long time. We have continued the trial

date regularly for everybody to get ready

for trial. And I do not think it is in

the interests of justice to continue it

any more. And I do not think, quite

frankly, there is a basis to believe that

Mr. Meyer cannot adequately represent

you. And, so, I am going to decline your

request to have a different lawyer

appointed to represent you.

James: I’ll represent myself, then.

Court: Well, that is your choice. I think

that is quite foolish, if I may say so.

James: That is what I’ll do.

Court: I think Mr. Meyer would ably

represent you. But we are too long in the

game to get a new lawyer to review all of

this material. We have had--there is, I

think, material from two different

trials--is that not right--for discovery

purposes.

Government: Yes, Judge.

Court: And to put in a new lawyer now is

to delay this case for probably, who

knows. Six to nine months to a year.

Following that statement, Judge Kocoras

asked James whether he understood the

ramifications of his decision. The judge

stated, among other things, that:
James’s decision to represent himself

was his right,

James’s decision was "foolish,"

the "stakes are very high,"

the court "discouraged that choice,"

"there are disadvantages in a person who

is not a lawyer in representing himself,"

it "is not a wise decision to represent

yourself,"

James "would be better served to have

Mr. Meyer represent [him],"

"just because you are representing

yourself, we are not going to change

[the] rules of evidence or any trial

rules just because you are not skilled or

learned in the law;" and

"the admissibility or inadmissibility of

evidence does not change just because you

are representing yourself."

The prosecutor chimed in with some

additional advice, which the district

judge seconded:

"that choice does not give him any

particular rights or privileges at the

[prison where he was incarcerated]",

"he will be faced with numerous burdens

and roadblocks to defending himself,"

"he will still be bound by the rules of

evidence and procedure and that there

will be no leeway just because he is

representing himself."

When James would not budge from his

position, the judge relieved Meyer but

appointed him as standby counsel to allow

James "to avail himself of Mr. Meyer’s

professional abilities and skills." Meyer

was present and available at trial to

assist James and, in fact, assisted him.

James could have asked Meyer to take over

at any time, but through the end of the

trial James stuck to his decision and

served as his own lawyer. Only now does

he insist that the district judge did not

do enough to enlighten him about the

risks he was assuming.

 James behaved in a pig-headed fashion.
It is hard to imagine that by quoting

from sec.1.02 of the Benchbook or

expatiating about the drawbacks of selfrepresentation ("a fool for a client. .

.") the district judge could have talked

him out of his decision. The Benchbook

includes questions such as: "Do you

understand that the U.S. Sentencing

Commission has issued sentencing

guidelines that will affect your sentence

if you are found guilty?" and "Do you

understand that the Federal Rules of

Evidence govern what evidence may or may

not be introduced at trial and that, in

representing yourself, you must abide by

those rules?" "Yes" answers to these

questions do not evince understanding of

the complexities that lie ahead. Lists do

not convey knowledge or change minds. It

is hard to imagine any defendant with

even modest resolve responding: "Oh, now

that I know that something called the

’Sentencing Guidelines’ exists, I see the

foolishness of representing myself." No

one supposes that the judge must explain

how the Guidelines work, for the validity

of a waiver does not depend on possession

of a legal education. As Johnson, Adams,

and Faretta show, the question is not

whether the district judge used a checkoff list but whether the defendant

understood his options. All a judge can

do as a practical matter--all a judge

need do as a legal matter--is ensure that

the defendant knows his rights and avoids

hasty decisions. Often asking the

Benchbook questions may ensure that the

defendant has his eyes open, but we do

not read any of this court’s decisions to

hold that the litany is prescribed in

every case or that advice about any

particular disadvantage of selfrepresentation is essential; such a

reading would put us at odds with the

Supreme Court.

 In or out of the criminal justice

system, people freely assume risks that

they do not fully understand. Anyone who

chooses a profession or a spouse, or

decides to have children, takes chances

subject to more variables than the mind

can juggle. Yet we do not call these

decisions unintelligent; venturing into

the unknown with a sketchy idea of what

lies ahead may be the wisest choice even

when the odds are beyond calculation.

Spelunkers, base jumpers, and investors

likewise brave exposure to unexpected and

unforeseeable events. James was in the
same position--and he knew it, having had

some experience with the legal process

while racking up prior convictions. After

being told that he must comply with all

rules of evidence and procedure, James

was asked whether he understood and

answered: "A little bit." That shows a

sound appreciation of his position (James

did not pretend that he had a legal

education) rather than lack of

intelligent choice. If James was about to

face hazards he could not fully

understand, his election was nonetheless

valid because he knew that he was in

uncharted waters. James could and did

make a knowing and intelligent waiver.

"[T]he competence that is required of a

defendant seeking to waive his right to

counsel is the competence to waive the

right, not the competence to represent

himself." Moran, 509 U.S. at 399

(emphasis in original, footnote omitted).

 Even with the aid of counsel on appeal,

and the benefit of hindsight (having

labored through the trial), James does

not contend that there was any missing

bit of knowledge that, if conveyed, would

have led him to change his mind in

February 1999. He really wants another

crack at acquittal, not a more informed

initial decision. Cf. United States v.

Frazier-El, 204 F.3d 553, 559 (4th Cir.

2000). Section 1654 and Faretta require

courts to respect a litigant’s demand for

self-determination at the most critical

moment in the criminal process. That

right is not honored if judges must

depict self-representation in such

unremittingly scary terms that any

reasonable person would refuse. (If a

reasonable person would welcome counsel,

then does insisting on selfrepresentation demonstrate incompetence

to make the decision? To say this,

however, would be to abolish the right of

self-representation.) James knew and

stood on his rights and, having received

his due, cannot complain. A defendant

bullied or frightened into acquiescing in

a lawyer that he would rather do without

would be in a much better position to say

that the choice was not made knowingly or

intelligently.

 4. Defendants present a number of other

arguments. All have been considered, but

none requires discussion.
Affirmed

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In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2432

United States of America,

Plaintiff-Appellant,

v.

Tuan Steward,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 99-30215--G. Patrick Murphy, Chief Judge.

Argued November 9, 2000--Decided June 5, 2001

 Before Fairchild, Easterbrook, and Manion,

Circuit Judges.

 Fairchild, Circuit Judge. Steward was

charged with possession with intent to

distribute cocaine base, crack, in

violation of 21 U.S.C. sec. 841(a)(1).

The jury acquitted him of that charge,

but found him guilty of the lesser

offense of possession of crack. The court

sentenced him to 21 months’ imprisonment.

The government had sought imprisonment in

the range of 110 to 137 months and

appealed. We affirm.

 A citizen of Alton reported to police

that someone, later identified as Demond

Spruill, had been dealing in drugs all

afternoon, operating a black Ford Escort.

When a customer arrived in the area he

would enter the car with Spruill, the

vehicle would proceed a couple of blocks

while the transaction apparently

occurred, and the passenger would then
exit the vehicle. Later police officers

made a traffic stop of the vehicle.

Spruill was the driver, and Steward the

passenger. Officer Rathgeb approached

from the driver’s side, and Officer Lane

from the front. Lane noticed that Steward

had a piece of yellow paper in his hand

and something else which he moved toward

his mouth. Lane ran to the passenger’s

side of the car, reached inside and

applied pressure to Steward’s throat,

trying to get him to spit out the

substance. Steward dropped the yellow

piece of paper, and Lane saw him drop

something else from his left hand. On

cross-examination Lane testified that in

his experience it is common for people to

carry crack in a folded piece of paper

because they don’t want it to get pushed

into the bottom of their pocket. Officer

Rathgeb testified that he saw Steward

successfully swallow an object and drop a

yellow piece of paper. He saw Steward

drop a clear plastic baggy with his left

hand. It fell on the seat and later onto

the console. He later found that the

baggy contained three other plastic

baggies, each containing a substance he

believed to be crack cocaine. The parties

later stipulated that it contained 8

grams of crack.

 A government witness testified that 8

grams would amount to 40 doses and the

prosecutor argued that Steward had bought

40 doses of crack and that quantity was

evidence that he intended to sell it to

others. The same witness testified on

cross-examination that the three

individual packages contained smaller

rocks, and a purchaser could have picked

out his rock. Defense counsel argued that

Steward got into the car with Spruill,

who handed him the bag. Steward picked

out the rock he wanted and put it in his

little piece of paper. The police appear

and Steward puts the rock in his mouth to

get rid of it, and gives the bag back to

its owner, Spruill.

 The jury convicted of possession on a

verdict form referring to crack, but not

stating a quantity. As Judge Murphy

remarked at sentencing, the defense

theory was that Steward was a mere buyer,

a user, and "the jury thought that was

the case also."

 21 U.S.C. sec. 844(a) contains a number

of authorizations of terms of
imprisonment for simple knowing or

intentional possession of controlled

substances. These are not separated into

paragraphs. We have held that the third

sentence creates a separate crime of

possession of crack, which is not a

lesser included offense of possession

with intent to distribute a controlled

substance. United States v. Hill, 196

F.3d 806, 808 (7th Cir. 1999). The

earlier sentences provide terms of

imprisonment for possession of controlled

substances which vary in length according

to prior convictions of drug offenses. If

applied to Steward, with apparently more

than two such convictions, the maximum

imprisonment would be 3 years. We note

that the court’s instruction concerning

the use of the verdict form as to the

lesser offense of possession of crack

appears to have been suggested by

defendant, the point that the form of

verdict should have called for a finding

on possession of a controlled substance,

rather than of crack, has not been argued

here, and it may well be that Steward

waived any such claim. The maximum term

for possession of a controlled substance

would be 3 years.

 Steward did argue at sentencing that

under the third sentence of sec. 844 the

amount of crack possessed should have

been charged and submitted to the jury. 

Apprendi v. New Jersey, 120 S. Ct. 2348

(2000), had not been decided at the time

of trial, but trial counsel relied on

Jones v. United States, 526 U.S. 227

(1999). Judge Murphy rejected the

argument that the amounts of crack set

forth in sec. 844 were elements of the

offense rather than sentencing factors.

Apprendi was decided before briefs were

filed on appeal, but appellate counsel

did not mention it or the Jones point in

his brief or at oral argument, except on

inquiry by members of the panel. We

consider a claim on the effect of

Apprendi waived.

 In paragraph 22 of the PSR, the

probation officer computed a base offense

level of 26 by assuming, incorrectly,

that Steward had been convicted of

possession of more than 5 grams of

cocaine base, and applying U.S.S.G. sec.

2D1.1. Together with Criminal History

Category V (not in dispute), this leads

to a sentencing range of 110-137 months.

There was clearly an error here in that
the Statutory Index for 21 U.S.C. sec.

844(a) leads to Guideline 2D2.1, which in

(a) provides a base offense level of 8 if

the substance is crack. Subsection

(b)(1), Cross References, provides that

"If the defendant is convicted of

possession of more than 5 grams of

[crack], apply sec. 2D1.1 . . . as if the

defendant had been convicted of

possession . . . with intent to

distribute." Although it is theoretically

possible that one could be convicted of

possessing 8 grams intending only

personal use, the proof and contention in

this case make it very clear, as the

trial judge recognized, that the jury

convicted Steward of possession of only

the small amount he swallowed. The 5-gram

condition for applying U.S.S.G. sec.

2D1.1 was clearly not met.

 In paragraph 17 of the PSR, the

probation officer stated "it appears that

the defendant’s relevant conduct involved

the possession of crack cocaine that he

swallowed (quantity unknown) and the

cocaine base in the form of crack cocaine

(8.0 grams) that he admittedly had in his

possession." Steward objected. The

government argued at sentencing that

Steward exercised control over the

package when he dropped it in an attempt

to hide it, and this was relevant

conduct. Judge Murphy made oral findings

that the defendant’s contact with the

drugs was momentary and that the

government has not shown by a

preponderance of the evidence that he

ever had possession of the entire amount.

He later made written findings that

Steward was merely purchasing the small

amount of crack which he put in his mouth

when the police approached. He noted

evidence that Steward was only one of

Spruill’s customers and found that

Steward possessed less than 1 gram of

crack.

 In this court, the government argued

again that Steward’s holding of the

package in his left hand, however

fleetingly, the resulting control over

it, and dropping it in hope of

concealment established possession of it.

Steward had cited United States v.

Kitchen, 57 F.3d 516 (7th Cir. 1995),

dealing with possession in the sense of

criminal culpability, and reversing a

conviction. Judge Murphy made several

oral references to comments in Kitchen
concerning lack of evidence "that the

drug transaction was in any sense certain

or complete." The government argues that

Judge Murphy’s finding that Steward did

not possess the 8-gram package was

clearly erroneous because these

references showed his belief that he

could not find possession without finding

ownership. Kitchen surely does not stand

for that proposition, and it is clear to

us that Judge Murphy did not base his

finding on it, but rather on his

conclusion that Steward held the package

only momentarily, and for the purpose of

selecting the crack he desired to

purchase.

 The probation officer included Steward’s

handling and dropping the 8-gram package

as relevant conduct. It is not clear

whether he understood that the jury had

convicted Steward of possession of less

than 5 grams. His reference to an

admission by Steward of possession of the

package could only be based on a highly

ambiguous reference by Steward to "that

dope." Neither the probation officer nor

government counsel explain how, where the

conviction was for possession of 5 grams

or less, the handling, or even

possession, of the 8-gram package would

factor into the computation of the base

offense level. U.S.S.G. sec. 2D2.1

clearly calls for a base offense level of

8 unless the defendant is convicted of

possession of more than 5 grams.

Presumably uncharged possession could

augment the drug quantity under U.S.S.G.

sec. 2D1.1(a)(3), after a conviction of

possession of more than 5 grams, but

nothing in the Guidelines suggests that

where the conviction is for 5 grams or

less, uncharged possession can be used to

make up the difference.

 The judgment is affirmed.