1

Section 841(b)(1)(A) provides, in pertinent part: "In the case of a violation of [section 841(a)]

involving ... 5 kilograms or more of a mixture or substance containing a detectable amount of ... cocaine

... such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more

than life...." 

UNITED STATES of America, Plaintiff-Appellee,

v.

Miguel CAMACHO, Defendant-Appellant.

No. 99-14833

Non-Argument Calendar.

United States Court of Appeals,

Eleventh Circuit.

April 23, 2001.

Appeal from the United States District Court for the Southern District of Florida. (No. 99-00428-CR-DMM),

Donald M. Middlebrooks, Judge.

ON PETITION FOR REHEARING

Before TJOFLAT, BARKETT and HILL, Circuit Judges.

TJOFLAT, Circuit Judge:

Appellant Miguel Camacho filed a petition for rehearing in this case, arguing that under Apprendi

v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), this court should reconsider its opinion

affirming his conviction and either grant him a new trial or vacate his sentence and remand his case for

re-sentencing. Both Camacho and the Government were instructed to file supplemental briefings on the

Apprendi issue. We have reheard the case insofar as that issue is involved.

 Camacho was convicted of possession with the intent to distribute cocaine, in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2. At trial, Camacho stipulated that the seized cocaine was 89% pure and in total

weighed 39.77 kilograms. Camacho objected at sentencing (and in supplemental objections to the PreSentence Investigation Report ("PSI")) that the quantity of drugs attributable to him was an element of the

offense, relying upon Jones v. United States 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 1224 n. 6, 143 L.Ed.2d

311 (1999). The district court found Jones to be inapplicable and sentenced Camacho under the mandatory

minimum sentence provisions of 21 U.S.C. § 841(b)(1)(A)1

 to 120 months' imprisonment. Because Camacho

raised a constitutional objection in a timely fashion, he preserved the Apprendi issue for appeal and thus

receives the benefit of preserved error review. See United States v. Candelario, 240 F.3d 1300, 1306 (11th
 2

21 U.S.C. § 841(b)(1)(C) provides, in pertinent part: "In the case of a controlled substance in

schedule I or II ... such person shall be sentenced to a term of imprisonment of not more than 20 years." 

Cocaine is a schedule II drug. 21 U.S.C. § 812, Schedule II. 

 3Camacho also claims that Apprendi requires that his sentencing range should have been 37-46

months—the low end of the Sentencing Guidelines. We reject this claim because we have held that

Apprendi does not affect determinations under the Sentencing Guidelines. See United States v. Gallego, - -- F.3d ----, No. 97-5293 (11th Cir.2001). 

 4Camacho's sentence fell below the statutory maximum under any of the subsections of section 841(b)

[ten years to life; five to forty years; or zero to twenty years], regardless of the quantity of drugs for

which he was held responsible. 

Cir.2001). Preserved error review under Apprendi looks first to whether there was error and, if so, undertakes

a harmless error analysis. Id. at 1307.

 In his petition for rehearing, Camacho argues that, under Apprendi, because there was no jury

determination of drug quantity and because the indictment simply charged him with possession of a

"detectable amount" of cocaine, he could not be convicted and sentenced pursuant to the provisions of section

841(b)(1)(A)—which was applied by the district court. Rather, Camacho contends that 21 U.S.C. §

841(b)(1)(C),2

 which provides the maximum sentence established for possession with intent to distribute any

discernable amount of cocaine, regardless of quantity, is the only possible section under which he could be

sentenced.3

 In Apprendi, the Supreme 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." 120 S.Ct. at 2362-63. As the indictment in this case failed to allege drug

quantity, Camacho's sentence would be proper only if it met the requirements of section 841(b)(1)(C).

Normally, a defendant may obtain re-sentencing under Apprendi only if the sentence he actually receives

exceeds the maximum allowable sentence he should have received under section 841(b)(1)(C), i.e., twenty

years' imprisonment, without regard to quantity. United States v. Gerrow, 232 F.3d 831, 834 (11th Cir.2000)

("[T]here is no error, plain or otherwise, under Apprendi where the term of imprisonment is within the

statutory maximum set forth in § 841(b)(1)(C) for a cocaine offense without regard to drug quantity."). The

reason that Gerrow states that there is "no error ... under Apprendi" for sentences less than twenty years'

imprisonment is because we construe the sentence as a section 841(b)(1)(C) sentence (notwithstanding what

the district court may have called it). Because Camacho's sentence of 120 months' imprisonment was less

than the twenty year maximum prescribed by section 841(b)(1)(C),4

 there is arguably no Apprendi error, even
 5

The reason that there may not be error under Apprendi is that Apprendi expressly retained McMillan

v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), which lends approval to mandatory

minimum sentences. 120 S.Ct. at 2361 n. 13 ("We do not overrule McMillan."). Other circuits have split

on whether imposition of a mandatory minimum sentence violates Apprendi. Compare United States v.

Ramirez, 242 F.3d 348, 351-52 (6th Cir.2001) (holding in a section 841 case that, in light of Apprendi,

"[a]ggravating factors ... that increase the penalty from a nonmandatory minimum sentence to a

mandatory minimum sentence, or from a lesser to a greater minimum sentence, are now elements of the

crime to be charged and proved") with United States v. Rodgers, --- F.3d ----, No. 00-1030 (7th Cir.2001)

(holding in a section 841 case that Apprendi does not apply to mandatory minimum sentences because

McMillan is still good law), United States v. Harris, 243 F.3d 806 (4th Cir.2001) (holding that mandatory

minimums do not violate Apprendi ), United States v. Robinson, 241 F.3d 115, 122 (1st Cir.2001) (same),

United States v. Keith, 230 F.3d 784, 787 (5th Cir.2000) (per curiam) (same), and United States v.

Aguayo-Delgado, 220 F.3d 926, 934 (8th Cir.2000) (same). While this circuit has intimated that

mandatory minimums are not violative of Apprendi, see United States v. Pounds, 230 F.3d 1317, 1319

(11th Cir.2000), we have not explicitly ruled on the issue. We decline to do so now based on the fact that

Camacho's sentence runs afoul of United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir.2000). 

 6Camacho was sentenced according to a base offense level of 30 and a criminal history category of II.

Had Camacho been sentenced under section 841(b)(1)(C), the applicable Guideline range would have

been 108-135 months. However, because the district court employed the mandatory minimum of section

841(b)(1)(A), the court reduced Camacho's Guideline range to 120-135 months. The district court then

sentenced Camacho to the bottom end of that reduced range. 

though the court utilized a mandatory minimum when sentencing Camacho.5

 Regardless of whether there is Apprendi error, there is error in Camacho's sentence under United

States v. Rogers, 228 F.3d 1318, 1327 (11th Cir.2000). Rogers, decided prior to Gerrow, went beyond

Apprendi to hold that "drug quantity in section 841(b)(1)(A) and section 841(b)(1)(B) cases must be charged

in the indictment and proven to a jury beyond a reasonable doubt." This principle of Rogers is violated by

Camacho's sentence in a way that Gerrow does not contemplate. By sentencing Camacho to the mandatory

minimum sentence (through narrowing the Guideline range),6

 the district court necessarily used section

841(b)(1)(A) for sentencing; we cannot employ any legal fiction to think otherwise. Rather, we must say

that there is no doubt that the district court applied the regime of section 841(b)(1)(A) when sentencing

Camacho. This is error under this circuit's precedent in Rogers, because quantity was not charged in the

indictment and proven to the jury.

 Because Camacho objected to the imposition of a sentence based upon section 841(b)(1)(A), he

preserved the error for our review. See Candelario, 240 F.3d at 1306. This means that, under Candelario

and Fed.R.Crim.P. 52(a), we must determine whether the error was harmless. An error is harmless unless the

record "contains evidence that could rationally lead to a contrary finding." Candelario, 240 F.3d at 1308

(quoting Neder v. United States, 527 U.S. 1, 18-19, 119 S.Ct. 1827, 1838-39, 144 L.Ed.2d 35 (1999)). For

example, in United States v. Nealy, 232 F.3d 825, 830 (11th Cir.2000), we held that a preserved Apprendi
 7

A "Rogers error" occurs when a defendant in a section 841 case is sentenced on the basis of drug

quantity and the sentence cannot logically be construed as a section 841(b)(1)(C) sentence. 

 8Camacho's stipulation as the quantity and purity of cocaine reads as follows:

The United States of America by and through its undersigned assistant United

States Attorney and the defendant Miguel Camacho stipulate to the following:

The substance admitted into evidence as government's exhibit 3 is a mixture or

substance containing a detectible amount of cocaine hydrochloride. The net weight of

the substance is 39.77 kilograms, and the concentration or strength of the cocaine

hydrochloride is 89 percent. 

error was harmless where the evidence about drug quantity was "undisputed," such that "no reasonable jury

could have rationally concluded that Defendant was guilty of the substantive offense ... but that the amount

of [crack] cocaine possessed" was less than the five grams necessary for sentencing under section

841(b)(1)(B). See also United States v. Gallego, --- F.3d ----, No. 97-5293 (11th Cir.2001) (finding, on plain

error review, no effect on substantial rights because of overwhelming evidence about drug quantity); United

States v. Wims, --- F.3d ----, No. 98-3684 (11th Cir.2001) (same); Candelario, 240 F.3d at 1311-1312 (same);

United States v. Pease, 240 F.3d 938 (11th Cir.2001) (same); United States v. Swatzie, 228 F.3d 1278 (11th

Cir.2000) (same).

 Based on this reasoning that says that an Apprendi error is harmless (or has no effect on substantial

rights) when there is undisputed testimony about drug quantity, it necessarily follows that a Rogers error7

 is

harmless in a case where the defendant stipulated to drug quantity. At trial, Camacho stipulated to the

quantity of drugs involved in his crime—39.77 kilograms.8

 The stipulation took the issue away from the jury,

and the jury's guilty verdict on the substantive offense rested upon the quantity to which Camacho stipulated.

The stipulation thus acts as the equivalent of a jury finding on drug quantity. Therefore, due to the effect of

the stipulation, the imposition of Camacho's sentence under section 841(b)(1)(A) was error—but harmless

error. See United States v. Jackson, 240 F.3d 1245, 1249 (10th Cir.2001) ("Having been read the stipulation

... no reasonable jury could have rationally concluded [the defendant] was guilty of the charged offenses ...

but that the amount of cocaine possessed was less than [that required for an increased sentence]."); United

States v. White, 240 F.3d 127, 134 (2d Cir.2001) (holding that a stipulation as to drug quantity, combined

with a failure to object at trial to the court's failure to submit quantity to the jury, is harmless error); United

States v. Champion, 234 F.3d 106, 110 (2d Cir.2000) ("[E]ven if the district court erred by arrogating to itself

the quantity-determining function [rather than submitting the issue to the jury], any such error was surely
 1

If there been no stipulation, and the prosecution had presented evidence of quantity, including chain

of custody from seizure to testing, qualifications of those involved in testing, accuracy of the scales used

to determine quantity, etc., and Camacho had, without objection, disputed credibility of these witnesses,

offered evidence of little weight, etc., a special verdict by the jury that the material was cocaine weighing

39.77 kilograms would have been no more than the equivalent of the stipulation. 

harmless [as,] [u]nder the stipulation, a jury could not have found differently."); cf. United States v. Poulack,

236 F.3d 932, 938 (8th Cir.2001) (holding that a stipulation waives a right to a jury determination on drug

quantity, but stating that even if it was error it would not have affected the defendant's substantial rights

because the jury would have found the stipulated amount).

Based on the foregoing, the court adheres to our original judgment. Camacho's conviction and

sentence are

AFFIRMED.

HILL, Circuit Judge, concurring specially:

I concur in the judgment; the conviction and sentence are affirmed.

As I see it, there was no error under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000), and I conclude that there is, in any case, no institutional reason for the court to devote

its time and talent to find out if there was error.

I acknowledge that the indictment did not charge a quantity of drugs sufficient to the provisions of

21 U.S.C. § 841(b)(1)(A). But it did not make a contrary charge. As was the practice before Apprendi, it

charged merely the violation of § 841(a)(1), without specifying one of the subparagraphs (A), (B), or (C), of

§ 841(b)(1). Therefore, at trial before the jury, Camacho could have—successfully, I apprehend—objected

to an attempt by the prosecutor to prove any quantity beyond a "detectable amount." Large quantity would

have been immaterial and obviously prejudicial.

But Camacho did not object. Indeed, he assisted the government by entering into—and consenting

to the publication to the jury of—a stipulation that the quantity of cocaine involved was large—39.77

kilograms. This stipulation was not entered into at sentencing, after conviction, and presented to the judge.

It was entered into during trial, when the jury was present to determine facts. In short it was put to the jury

by agreement. When the jury convicted Camacho, they convicted him of violating § 841(a)(1), and of

unlawful conduct involving the quantity provided for in § 841(b)(1)(A).1

Although § 841(b)(1)(A) was not alleged in the indictment, the element of the crime for which it

provides, was, as Apprendi requires, proven beyond a reasonable doubt to the jury. No error.
 2

Nearly two decades ago, the Supreme Court dealt with this sort of issue in Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), when it reversed this circuit's en banc decision in

Washington v. Strickland, 693 F.2d 1243 (11th Cir.1982). Strickland was a death penalty habeas corpus

case in which the petitioner alleged that his trial counsel had been inadequate in certain particulars. Our

majority en banc opinion wrestled with the issue of whether counsel had been ineffective for having

failed in the stated particulars. Id. A dissent found the district judge's approach better; finding that the

claimed defective performances by trial counsel to have had no harmful effect upon petitioner's trial, the

district judge found no reason to "grade the paper" of the lawyer. There was no reason to analyze

adequacy or inadequacy vel non. Id. at 1288. The Supreme Court found this approach preferable stating

"[i]n particular, a court need not determine whether counsel's performance was deficient before examining

the prejudice suffered by the defendant as a result of the alleged deficiencies ... If it is easier to dispose of

an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." 

Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

The same reasoning applies here. The panel majority and this separate concurring

opinion debate error vel non. Both agree that it makes no difference as Camacho suffered no

prejudice. Id. Then, why have I written to support my opinion that there was no error? Hard to

say. 

 3Were we to undertake a cyclopaedia analysis of Apprendi and this case, we might as an academic

exercise elaborate on the claimed error, itself. The sentence here does not exceed the maximum available,

regardless of quantity of contraband, under § 841(b)(1)(C), however § 841(b)(1)(A) provides for a

mandatory minimum sentence not included in (C). So far it appears that six circuits have held that this

doesn't implicate Apprendi at all. See United States v. Robinson, 241 F.3d 115 (1st Cir.2001); United

States v. Harris, 243 F.3d 806 (4th Cir.2001); United States v. Keith, 230 F.3d 784 (5th Cir.2000); 

United States v. Williams, 238 F.3d 871 (7th Cir.2001); United States v. Rodgers, --- F.3d ----, No. 00-

1030 (7th Cir. Apr. 5, 2001); United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir.2000); United

At the point in the trial when the stipulation was proposed to be published to the jury, Camacho could

have, but did not, object. Thus, this element of the crime—quantity—was tried by consent before the jury.

Without further elaboration, I feel that this implied clarification—not a change from one charge to

a different one—of the indictment would not rise to the level of an unlawful amendment of the indictment,

but was a mere variance of which we may take notice without condemnation. See generally 3 Charles Alan

Wright, Federal Practice and Procedure § 516.

I feel that, by consent and agreement, the parties treated the indictment as having charged the

elements necessary and suffered the proof of them.

Even so, I cannot see why we are debating whether there was error under these circumstances. What

Camacho asserts as error, two of us conclude was harmless error and one of us opines that it was not error

at all. The reason we all agree to affirm is not dependent upon error vel non. We affirm because, whatever

label we place on the occurrence, Camacho is not entitled to any relief.2

We assume that district judges apprehend, via Apprendi, the need of indictment and proof to the jury,

and therefore our need to investigate this sort of claimed error will soon end. We are not undertaking to

crystalize a body of law for future guidance. We should instead just decide cases.3
States v. Rios-Araiza, No. 00-50132 (9th Cir. Feb. 15, 2001) (unpublished decision). One circuit is to the

contrary. See United States v. Ramirez, 242 F.3d 348 (6th Cir.2001); United States v. Flowal, 234 F.3d

932 (6th Cir.2000).

In this case the circuit split is of academic interest. Whether error or not, Camacho's

sentence is affirmed. 

The panel majority's finding of harmlessness brings us all together in the correct judgment. The

sentence is affirmed.