United States v. Ignasio Maldenaldo Sanchez , 242 F.3d 1294 ( 2001 )


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                 IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                       FOR THE ELEVENTH CIRCUIT      U.S. COURT OF APPEALS
                        ________________________       ELEVENTH CIRCUIT
                                                         OCTOBER 17, 2001
                              No. 00-13347              THOMAS K. KAHN
                        ________________________             CLERK
    
    
                    D.C. Docket No. 98-00049-CR-HLM-4-5
    
    UNITED STATES OF AMERICA,
    
                                                   Plaintiff-Appellee,
    
        versus
    
    IGNASIO MALDENALDO SANCHEZ,
    
                                                   Defendant-Appellant.
    
                         ______________________
    
                              No. 00-13447
                         ______________________
    
                   D. C. Docket No. 98-00049-CR-06-HLM-4
    
    
    UNITED STATES OF AMERICA,
    
                                                   Plaintiff-Appellee,
    
        versus
    
    SANTIAGO GILBERTO SANCHEZ,
                                                   Defendant-Appellant.
                               ________________________
    
                       Appeals from the United States District Court
                           for the Northern District of Georgia
                             _________________________
    
                                    (October 17, 2001)
    
    Before ANDERSON, Chief Judge, and TJOFLAT, EDMONDSON, BIRCH,
    DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON,
    Circuit Judges.
    
    HULL, Circuit Judge:
    
          Defendants-Appellants Ignasio Maldenaldo Sanchez and Santiago Gilberto
    
    Sanchez (“the Sanchezes”) appeal their convictions and sentences after pleading
    
    guilty to a single-count indictment that charged them with conspiracy to distribute
    
    and to possess with intent to distribute methamphetamine and amphetamine, in
    
    violation of 21 U.S.C. §§ 841, 846. They challenge their convictions and sentences
    
    primarily based on Apprendi v. New Jersey, 
    530 U.S. 466
     (2000). A panel of this
    
    Court affirmed. See United States v. Sanchez, 
    242 F.3d 1294
     (11th Cir. 2001).
    
    Relying on United States v. Rogers, 
    228 F.3d 1318
     (11th Cir. 2000), the panel
    
    concluded that “in light of Apprendi, drug quantity is an element of the offense that
    
    must be charged in the indictment.” Sanchez, 242 F.3d at 1298 (citing Rogers, 228
    
    F.3d at 1324). The panel opinion repeated Rogers’s statement that “‘drug quantity
    
    in sections 841(b)(1)(A) and 841(b)(1)(B) cases must be charged in the indictment
    
    
                                              2
    and proven to a jury beyond a reasonable doubt.’” Id. (quoting Rogers, 228 F.3d at
    
    1327). Because the indictment did not allege a specific drug quantity, the panel
    
    opinion found that both defendants’ plea colloquies were “technically inadequate.”
    
    Id. The panel opinion held, however, that there was “no prejudice” because, inter
    
    alia, the Sanchezes’ sentences fell below the maximum penalty permitted under 21
    
    U.S.C. § 841(b)(1)(C). Id. at 1300.
    
          We subsequently sua sponte vacated the panel opinion and, by vote of a
    
    majority of the judges in active service, ordered that the case be reheard en banc.
    
    See United States v. Sanchez, 
    247 F.3d 1306
     (11th Cir. 2001). We address en
    
    banc: whether, in light of Apprendi, drug quantity is now always an element of an
    
    offense under § 841 that must be charged in the indictment, submitted to a jury,
    
    and proven beyond a reasonable doubt; whether the district court properly denied
    
    the Sanchezes’ motion to dismiss the indictment; whether the district court’s drug
    
    quantity findings under § 841(b)(1)(B) and utilization of that sentencing scheme,
    
    which exposed the Sanchezes to enhanced sentences under that section but did not
    
    result in an actual term of imprisonment beyond the otherwise applicable
    
    maximum penalty in § 841(b)(1)(C), violated Apprendi; whether Apprendi applies
    
    to the Sanchezes’ § 841 indictment, guilty pleas, convictions, and sentences given
    
    that the district court’s drug quantity findings did not increase their ultimate
    
    
                                               3
    sentences beyond the otherwise applicable maximum penalty in § 841(b)(1)(C); in
    
    this regard, whether we should adopt the analyses of Apprendi’s impact on § 841
    
    cases in United States v. Rogers, 
    228 F.3d 1318
     (11th Cir. 2000) and United States
    
    v. Camacho, 
    248 F.3d 1286
     (11th Cir. 2001), or the analyses in United States v.
    
    Gerrow, 
    232 F.3d 831
     (11th Cir. 2000), cert. denied, ___ S. Ct. ___, No. 00-9373
    
    (Oct. 1, 2001), and other circuits’ decisions finding that Apprendi does not apply
    
    unless a judge-made determination of drug quantity increases a defendant’s
    
    sentence beyond the otherwise applicable maximum penalty in § 841(b)(1)(C);
    
    whether Apprendi rendered the Sanchezes’ plea colloquies inadequate under Rule
    
    11 and their guilty pleas unintelligent or involuntary if the court advised them
    
    about the higher statutory maximum penalties under §§ 841(b)(1)(A) and
    
    841(b)(1)(B); whether terms of supervised release for § 841 convictions are
    
    controlled by 21 U.S.C. § 841(b)(1)(C) or 18 U.S.C. § 3583(b)(2) and whether the
    
    Sanchezes’ four-year terms violated Apprendi; and what is the proper standard of
    
    review for each issue.
    
          After such review and for the reasons discussed herein, we see no error,
    
    under Apprendi or otherwise, in the Sanchezes’ indictment, plea colloquies,
    
    convictions, or sentences. We therefore affirm their convictions and their
    
    sentences.
    
    
                                              4
          This opinion proceeds as follows. In Part I, we review the proceedings in
    
    the district court. In Part II, we review the Supreme Court’s decisions in Jones v.
    
    United States, 
    526 U.S. 227
     (1999) and Apprendi. We then discuss the federal
    
    drug statute, our precedent construing that statute, and Apprendi’s effect on both.
    
    In Part III, we address the Sanchezes’ challenges to their indictment, guilty pleas,
    
    and sentences, along with the corresponding standards of review. In Part IV, we
    
    summarize our conclusions.
    
                           I. PROCEDURAL BACKGROUND
    
          In the district court, the Sanchezes challenged not only their sentences but
    
    also their indictment and convictions based on Jones, and on appeal, they rely
    
    primarily on Apprendi. Additionally, for the first time on appeal they challenge
    
    their plea colloquies under Rule 11 based on Apprendi. The Sanchezes emphasize
    
    that from the outset of their cases the government sought enhanced penalties under
    
    § 841(b)(1)(B) based on drug quantities. They seek to expand Apprendi’s
    
    constitutional principle to, and thereby show constitutional error at, all stages of
    
    their cases. Thus, we first review in detail the proceedings in the district court.
    
    A.    Sanchezes’ Indictment
    
          In late 1998, a federal grand jury returned a single-count indictment
    
    charging that the Sanchezes “did combine, conspire, confederate, agree, and have a
    
    
                                               5
    tacit understanding with each other, and with others known and unknown to the
    
    Grand Jury, to violate Title 21, United States Code, § 841, to wit: to knowingly and
    
    intentionally possess with the intent to distribute and distribute quantities of
    
    methamphetamine and amphetamine, both being Schedule II controlled substances,
    
    in violation of Title 21, United States Code, Section 846.”1 The indictment
    
    referenced 21 U.S.C. §§ 841, 846 and the type of drugs involved but not the
    
    quantities. Both defendants pled not guilty.
    
           On April 21, 1999, defendant Ignasio Sanchez filed a “Motion to Dismiss
    
    Indictment for Failure to Allege Facts that Increase Maximum Penalty,”
    
    specifically relying on Jones. The motion stated, “Jones clearly holds that the
    
    Constitution requires an indictment to allege ‘any fact (other than prior conviction)
    
    that increases the maximum penalty for a crime.’ Furthermore, such a fact must be
    
    submitted to a jury for a decision as to proof beyond a reasonable doubt.”2 On this
    
    basis, Ignasio Sanchez argued that the indictment had to be dismissed because the
    
    various statutory maximum penalties under 21 U.S.C. § 841(b) for a violation of
    
           1
           Four other defendants were charged in the indictment, but this appeal involves only the
    Sanchezes.
           2
             The motion quoted in full the now-famous footnote six from Jones v. United States, 
    526 U.S. 227
     (1999), and in particular relied on its statement that “under the Due Process Clause of
    the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact
    (other than prior conviction) that increases the maximum penalty for a crime must be charged in
    an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id. at 243 n.6; see
    also infra Section II.A (discussing footnote six in Jones and Jones more generally).
    
                                                   6
    21 U.S.C. § 841(a) were determined by drug quantity, and the indictment against
    
    him did not allege a specific drug quantity.
    
           The district court denied the motion, noting that under this circuit’s
    
    precedent “[t]he statutory scheme set forth in § 841 establishes that drug quantity is
    
    a sentencing consideration.” The court continued that “the Constitution does not
    
    require drug quantity to be considered as an element of the criminal offense
    
    defined by § 841.” The court noted that Jones “does not stand for the proposition
    
    that every fact which exposes a criminal defendant to a higher maximum penalty
    
    must be alleged in an indictment.” Subsequently, the court granted, without
    
    objection, Santiago Sanchez’s request to adopt Ignasio Sanchez’s motion to
    
    dismiss the indictment and denied that motion as well.3
    
    B.     Guilty Pleas and Rule 11 Colloquies
    
           In early 2000, the district court conducted separate, but substantially similar,
    
    plea colloquies for each defendant pursuant to Rule 11. See Fed. R. Crim. P. 11.
    
    The court advised both defendants of their various constitutional rights and asked
    
    
    
           3
             The Supreme Court decided Jones on March 24, 1999 and Apprendi on June 26, 2000.
    The present case exemplifies how, well before Apprendi, defendants in this circuit were
    asserting that drug quantity under § 841 had to be charged in the indictment and decided by a
    jury, even though prior circuit precedent repeatedly had held otherwise. See infra note 28. As
    explained in United States v. Candelario, 
    240 F.3d 1300
     (11th Cir.), cert. denied, 
    121 S. Ct. 2535
    (2001), “[a] defendant may be deemed to have made a constitutional objection if his objection
    invokes Apprendi or Jones.” Id. at 1304 (citations omitted).
    
                                                    7
    whether each defendant understood that, by pleading guilty to the single-count
    
    indictment, he waived those constitutional rights and there would not be a trial of
    
    any kind. Each defendant responded in the affirmative. The court read the entire
    
    indictment and advised the Sanchezes that before a jury could find them guilty, the
    
    government was required to prove the various elements of the offense, as stated in
    
    the indictment, beyond a reasonable doubt.
    
           Regarding sentencing, the district court advised Ignasio Sanchez that
    
    depending on the amount of drugs found to be attributable to him, he faced a
    
    sentence of either (a) ten years to life imprisonment, five years’ supervised release,
    
    and a $4,000,000 fine, or (b) five to forty years’ imprisonment, four years’
    
    supervised release, and a $2,000,000 fine. The court advised Santiago Sanchez
    
    only of the first of these two sentences. Although not citing any particular
    
    subsections within § 841(b), the court, in effect, described the content of §§
    
    841(b)(1)(A) and 841(b)(1)(B).4 The court also discussed the Sentencing
    
    Guidelines and stated that a sentencing range would be developed for each
    
    defendant within which the court had discretion to impose a sentence depending on
    
    the circumstances of the case.
    
           4
             A sentence of ten years to life imprisonment, five years’ supervised release, and a
    $4,000,000 fine – of which both defendants were advised – corresponds to § 841(b)(1)(A). A
    sentence of five to forty years’ imprisonment, four years’ supervised release, and a $2,000,000
    fine corresponds to § 841(b)(1)(B).
    
                                                    8
           Both defendants, after acknowledging that they understood the nature of the
    
    charge against them, pled guilty to the single-count indictment. Ignasio Sanchez
    
    entered a written plea of guilty which, pursuant to Rule 11(a)(2),5 was conditional
    
    on his reservation of the right to appeal the denial of his motion to dismiss the
    
    indictment.6 See Fed. R. Crim. P. 11(a)(2). Santiago Sanchez likewise was
    
    allowed to enter a conditional guilty plea.7
    
           5
            “A defendant who wishes to preserve appellate review of a non-jurisdictional defect
    while at the same time pleading guilty can do so only by entering a ‘conditional plea’ in
    accordance with [Federal Rule of Criminal Procedure 11(a)(2)].” United States v. Pierre, 
    120 F.3d 1153
    , 1155 (11th Cir. 1997) (quoting Fed. R. Crim. P. 11(a)(2)). Rule 11(a)(2) provides:
           Conditional Pleas. With the approval of the court and the consent of the government, a
           defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing
           the right, on appeal from the judgment, to review of the adverse determination of any
           specified pretrial motion. A defendant who prevails on appeal shall be allowed to
           withdraw the plea.
    Fed. R. Crim. P. 11(a)(2).
           6
            Ignasio Sanchez’s plea agreement stated, “Pursuant to Rule 11(a)(2), the defendant
    reserves the right to appeal the District Court’s Order . . . denying the defendant’s motion to
    Dismiss the Indictment . . . .”
           7
              We note that Santiago Sanchez’s reservation of his right to appeal this issue did not
    comply with the requirements of Rule 11(a)(2), because it was not in writing. See Pierre, 120
    F.3d at 1155 (noting that “[t]he conditional plea must be in writing and must be consented to by
    the court and by the government”) (citing Fed. R. Crim. P. 11(a)(2)). Because the government
    agreed to Santiago Sanchez’s oral reservation of his right to appeal this issue and because the
    district court later granted Santiago Sanchez permission to do so, we, however, treat Santiago
    Sanchez’s orally entered guilty plea as having properly reserved the right to appeal the denial of
    his motion to dismiss the indictment. Indeed, the prosecutor stated:
             Your honor, the government’s not going to have an objection for the late adoption of the
             motion by counsel for Santiago Sanchez, wouldn’t put on extra work for the government
             to file its responsive brief. I would advise the court that, normally, when defendants
             tender a plea of guilty, that such motions would be waived by the plea of guilty.
             [Counsel for Ignasio Sanchez] had requested that he be allowed to retain that right to
             appeal that issue, and that was specifically addressed in his [written] plea agreement for
             Ignasio Sanchez. We consented to that in light of the fact the two defendants are brothers
    
                                                     9
    C.     Pre-Sentence Reports
    
           The initial pre-sentence reports recommended that the Sanchezes be held
    
    accountable for specific quantities of methamphetamine and amphetamine which
    
    resulted in marijuana equivalencies of 38,106.94 kilograms for Ignasio Sanchez
    
    and 50,803.91 kilograms for Santiago Sanchez. Although § 841 specifies grams of
    
    methamphetamine and amphetamine, the Sentencing Guidelines convert certain
    
    drug quantities into marijuana equivalencies as part of calculating the offense level
    
    for the guideline range. See United States Sentencing Guidelines § 2D1.1(c), cmt.
    
    n.10 (drug equivalency tables). The statutory penalty for the Sanchezes’ drug
    
    quantities was ten years’ to life imprisonment, as set forth in 21 U.S.C.
    
    § 841(b)(1)(A)(viii).8 Regarding the guideline range within this statutory range,
    
    
    
            or related and that there’s been a closeness in terms of the defense by the defendants; that
            the government would be willing to permit, with the court’s permission, to allow
            Santiago Sanchez, if he feels so inclined, to raise that issue on appeal in terms of failure
            to allege any drug quantities in the indictment.
    Only after the government agreed did the district court grant permission to Santiago Sanchez to
    reserve the right to appeal this issue. We note, however, that the district court was not required
    to do so.
           8
            At the time of the Sanchezes’ offenses, the penalty provisions applicable to a drug
    offense involving methamphetamine and amphetamine required that the offense involve “100
    grams or more of methamphetamine . . . or 1 kilogram or more of a mixture or substance
    containing a detectable amount of methamphetamine,” or “10 grams or more of
    methamphetamine . . . or 100 grams or more of a mixture or substance containing a detectable
    amount of methamphetamine.” 21 U.S.C. §§ 841(b)(1)(A)(viii), 841(b)(1)(B)(viii) (1994). In
    1998, Congress amended these provisions to require methamphetamine quantities of 50 to 500
    grams, and 5 to 50 grams, respectively. See 21 U.S.C. §§ 841(b)(1)(A)(viii), 841(b)(1)(B)(viii)
    (1998).
    
                                                    10
    the initial pre-sentence reports recommended a custodial term of 210 to 262
    
    months for both defendants.9
    
           Both defendants and the government timely filed written objections. For
    
    example, Ignasio Sanchez objected “to all factual findings of the presentence report
    
    as a matter of due process under the Jones rationale.” Ultimately, revised pre-
    
    sentence reports recommended that Ignasio Sanchez and Santiago Sanchez be held
    
    accountable for reduced amounts of methamphetamine and amphetamine, resulting
    
    in reduced marijuana equivalencies of 5,447.74 kilograms and 6,713.99 kilograms,
    
    respectively. These reduced amounts resulted in a reduced guideline range for
    
    both defendants of 135 to 168 months.10 The revised reports stated that the
    
    “Statutory Penalty” was “5 to 40 years.”11 While this penalty corresponded to §
    
    841(b)(1)(B), the revised reports did not specifically cite to that section of the
    
    
           9
             The drug quantities in the initial pre-sentence reports resulted in a base offense level of
    38 for both defendants. The reports recommended a two-level increase for possession of a
    weapon during the offense and a three-level reduction for acceptance of responsibility. Both
    reports concluded that the Sanchezes’ total adjusted offense level was level 37 with a criminal
    history of Category I. There was never any contention that either Sanchez had a prior drug
    felony conviction.
           10
              Both amounts resulted in a base offense level of 34. The recommended two-level
    increase for possession of a weapon and three-level reduction for acceptance of responsibility
    resulted in an total adjusted offense level of 33, which, with a criminal history of Category I,
    yielded a guideline range of 135 to 168 months.
           11
            The revised reports noted that a mandatory minimum penalty of five years’
    imprisonment applied. Those reports also stated that the “Fine Guideline Range” was $17,500 to
    $2,000,000 and that the term of “Supervised Release” was four years.
    
                                                     11
    statute.
    
    D.     Sentencing
    
           The Sanchezes were sentenced in two joint sentencing hearings. At the
    
    outset of the first hearing, Ignasio Sanchez orally renewed his motion to dismiss
    
    the indictment based on Jones and specifically “based upon the lack of specificity
    
    and quantity in the indictment.” He continued that this argument “would have an
    
    effect at this time . . . in that the findings must be beyond a reasonable doubt under
    
    my motion.” Both defendants, however, agreed that if validly charged and
    
    convicted under this indictment, the court could find that they were accountable for
    
    (a) one transaction involving two pounds of methamphetamine, which is equivalent
    
    to 1,814.4 kilograms of marijuana, and (b) two other transactions each involving
    
    six pounds of amphetamine, the combination of which is equivalent to 1,087.2
    
    kilograms of marijuana. On the basis of the government’s evidentiary proffer and
    
    the Sanchezes’ concessions, the district court found “as a matter of fact by a
    
    preponderance of the evidence” that each defendant was responsible for drug
    
    amounts resulting in a total marijuana equivalency of 2,903.04 kilograms.12
    
           Regarding the statutory penalty, the district court then stated that its
    
    
           12
             We note that the total of the drug quantities to which the Sanchezes pled guilty is
    actually 2,901.6 kilograms. This slight error in arithmetic, however, would not change the base
    offense level.
    
                                                   12
    sentencing option was a statutory mandatory minimum sentence of five years up to
    
    forty years. While not expressly referencing § 841(b)(1)(B), the court described
    
    the content of that section. In calculating the guideline range within that statutory
    
    range, the court determined that the above drug amounts, along with other
    
    guideline calculations, produced a custodial guideline range of 87 to 108 months
    
    for Ignasio Sanchez and 108 to 135 months for Santiago Sanchez.13 Stating an
    
    intention to sentence at the bottom end of those ranges, the court sentenced Ignasio
    
    Sanchez to 87 months’ imprisonment and Santiago Sanchez to 108 months’
    
    imprisonment, followed by four years’ supervised release for each defendant.
    
           After imposing the sentences, the court asked for objections. Citing Jones,
    
    Ignasio Sanchez’s counsel objected to drug quantity not being charged in the
    
    indictment and not being proved beyond a reasonable doubt. Santiago Sanchez’s
    
    counsel adopted the Jones objection made by Ignasio Sanchez’s counsel.
    
    
    
           13
             The different custodial guideline ranges for the defendants resulted from Ignasio
    Sanchez’s receiving a minor role adjustment. The Sanchezes’ drug quantities resulted in the
    same base offense level of 32. The district court applied a two-level increase for firearm
    possession, resulting in an offense level of 34. Regarding Ignasio Sanchez, the court then
    applied a two-level reduction for playing a minor role in the offense and a three-level reduction
    for acceptance of responsibility. These adjustments produced an offense level of 29, which with
    a criminal history of Category I carried a guideline range for Ignasio Sanchez of 87 to 108
    months. Regarding Santiago Sanchez, the court applied only a three-level reduction for
    acceptance of responsibility. This adjustment produced an offense level of 31, which with a
    criminal history of Category I carried a guideline range for Santiago Sanchez of 108 to 135
    months.
    
                                                   13
    Subsequently, both defendants timely appealed.14
    
    
    
                                          II. DISCUSSION
    
           The Sanchezes challenge their single-count indictment, plea colloquies,
    
    convictions, and sentences based on Jones and Apprendi. We can discern no error
    
    in any of these phases of the Sanchezes’ cases. We begin by analyzing Jones and
    
    Apprendi. We then review the federal drug statute, this circuit’s precedent
    
    construing that statutory scheme, and what effect Apprendi has on that landscape.
    
    A.     Jones v. United States
    
           Jones was a case of statutory interpretation, in which a grand jury charged
    
    the defendant with violating the federal carjacking statute, 18 U.S.C. § 2119.15 A
    
           14
             The record shows that the two pounds of methamphetamine agreed to in the sentencing
    hearing was referenced in the pre-sentence reports as 907.2 grams of methamphetamine. (A
    pound of methamphetamine equals 453.6 grams, so that two pounds equal 907.2 grams of
    methamphetamine.) This 907.2 grams of methamphetamine is greater than the 500-grams
    threshold required to trigger a sentence of not less than 10 years under 21 U.S.C. §
    841(b)(1)(A)(viii). The government, however, never requested a mandatory minimum sentence
    of 10 years, never made any objections to the sentences imposed, and has not cross appealed. At
    the conclusion of the sentencing hearing, the government even affirmatively indicated that it had
    “no exceptions.”
           15
             At the time that the grand jury in Jones returned the indictment, § 2119 read:
           “Whoever, possessing a firearm as defined in section 921 of this title, takes a motor
           vehicle that has been transported, shipped, or received in interstate or foreign commerce
           from the person or presence of another by force and violence or by intimidation, or
           attempts to do so, shall –
             (1) be fined under this title or imprisoned not more than 15 years, or both,
             (2) if serious bodily injury (as defined in section 1365 of this title) results, be fined
           under this title or imprisoned not more than 25 years, or both, and
    
                                                    14
    jury found the defendant guilty. The Supreme Court stated, “This case turns on
    
    whether the federal carjacking statute, 18 U.S.C. § 2119, . . . defined three distinct
    
    offenses or a single crime with a choice of three maximum penalties, two of them
    
    dependent on sentencing factors exempt from the requirements of charge and jury
    
    verdict.” Id. at 229. After analyzing the carjacking statute’s text, structure, and
    
    legislative history, and after comparing the statute to others in which “serious
    
    bodily injury” was “unmistakably identified” as an offense element, the Supreme
    
    Court adopted the former interpretation of the statute, concluding that “the fairest
    
    reading of § 2119 treats the fact of serious bodily harm as an element, not a mere
    
    enhancement.” Id. at 239.
    
           While resolving Jones based on this statutory interpretation, the Supreme
    
    Court further justified its construction by invoking the doctrine of constitutional
    
    doubt. The Supreme Court observed that under the alternative statutory
    
    interpretation, in which serious bodily injury was construed as a sentencing factor,
    
    
               (3) if death results, be fined under this title or imprisoned for any number of years up to
            life, or both.”
    Jones, 526 U.S. at 230 (quoting 18 U.S.C. § 2119 (1988 ed., Supp. V)). The Jones indictment
    did not cite the statute’s three numbered subsections, and neither the indictment nor the jury
    instructions mentioned the facts of “serious bodily injury” or “death.” Id. at 230-31. After the
    jury found the defendant guilty, the pre-sentence report recommended a twenty-five year
    sentence under § 2119(2) because a victim suffered “serious bodily injury” during the carjacking
    offense. Id. at 231. The defendant objected, arguing that “serious bodily injury was an element
    of the offense defined in part by § 2119(2), which had been neither pleaded in the indictment nor
    proven before the jury.” Id. Over this objection, the district court sentenced the defendant to
    twenty-five years’ imprisonment. Id.
    
                                                     15
    “the statute would be open to constitutional doubt in light of a series of cases over
    
    the past quarter century, dealing with due process and the guarantee of trial by
    
    jury.” Id. at 240 (citing cases). In the now-famous footnote six, the Supreme
    
    Court described the principle “animating” its view that this alternative
    
    interpretation “may violate the Constitution,” as follows: “[U]nder the Due Process
    
    Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth
    
    Amendment, any fact (other than prior conviction) that increases the maximum
    
    penalty for a crime must be charged in an indictment, submitted to a jury, and
    
    proven beyond a reasonable doubt.” Id. at 243 n.6. The Supreme Court continued
    
    that “[b]ecause our prior cases suggest rather than establish this principle, our
    
    concern . . . rises only to the level of doubt, not certainty.” Id.
    
    B.    Apprendi v. New Jersey
    
          In contrast to its task of statutory interpretation in Jones, the Supreme Court
    
    in Apprendi squarely addressed the constitutionality of a statutory sentencing
    
    scheme that allowed judge-made findings to increase a defendant’s statutory
    
    maximum penalty. The defendant, Charles Apprendi, admitted to firing several
    
    bullets into the home of an African-American family who had recently moved into
    
    a previously all-white neighborhood in New Jersey. Apprendi, 530 U.S. at 469. A
    
    New Jersey grand jury returned a 23-count indictment charging Apprendi with
    
    
                                               16
    various shootings and with the unlawful possession of various weapons. Id.
    
          Apprendi pled guilty to only three counts in the indictment, including two
    
    counts of the second-degree offense of possession of a firearm for an unlawful
    
    purpose, in violation of § 2C:39-4(a) of the New Jersey Statutes. Id. at 469-70.
    
    That state firearm statute provided, “Any person who has in his possession any
    
    firearm with a purpose to use it unlawfully against the person or property of
    
    another is guilty of a crime of the second degree.” N.J. Stat. Ann. § 2C:39-4(a)
    
    (West 1995). As a second-degree crime, this firearm offense was punishable by a
    
    term of imprisonment “between five years and 10 years.” Id. § 2C:43-6(a)(2)
    
    (“Except as otherwise provided, a person who has been convicted of a crime may
    
    be sentenced to imprisonment . . . [i]n the case of a crime of the second degree, for
    
    a specific term of years which shall be fixed by the court and shall be between five
    
    years and 10 years.”).
    
          An entirely separate New Jersey statute, however, provided for higher
    
    minimum and maximum sentences than those normally applicable to second-
    
    degree crimes if the sentencing court made certain factual findings. That statute
    
    provided, “The court shall, upon application of the prosecuting attorney, sentence a
    
    person who has been convicted of a crime . . . to an extended term if it finds, by a
    
    preponderance of the evidence, the grounds in subsection e,” specifically, that
    
    
                                              17
    “[t]he defendant in committing the crime acted with a purpose to intimidate an
    
    individual or group of individuals because of race, color, gender, handicap,
    
    religion, sexual orientation or ethnicity.” N.J. Stat. Ann. § 2C:44-3(e) (West Supp.
    
    2000) (emphasis added).
    
          The “extended term” permitted for a second-degree crime, such as
    
    possession of a firearm for an unlawful purpose, was “between 10 and 20 years.”
    
    N.J. Stat. Ann. § 2C:43-7a(3) (“In the cases designated in section 2C:44-3, a
    
    person who has been convicted of a crime may be sentenced . . . to an extended
    
    term of imprisonment . . . [i]n the case of a crime of the second degree, for a term
    
    which shall be fixed by the court between 10 and 20 years.”). This “extended
    
    term” of imprisonment was identical to the penalty normally applicable to first-
    
    degree crimes. See id. § 2C:43-6(a)(1).
    
          It was this separate state statute – providing for an “extended term” of
    
    imprisonment upon a finding that the defendant acted “with a purpose to intimidate
    
    . . . because of race” – that was the focus of the Supreme Court’s decision in
    
    Apprendi. Only after Apprendi pled guilty to the second-degree crime of firearm
    
    possession for an unlawful purpose, which carried a maximum penalty of ten
    
    years’ imprisonment, the state requested that the sentencing court impose an
    
    enhanced sentence on one of the two firearms counts, pursuant to N.J. Stat. Ann.
    
    
                                              18
    § 2C:44-3(e). Following an evidentiary hearing on whether Apprendi’s “purpose”
    
    for the shooting at issue in that count was “to intimidate . . . because of race,” the
    
    trial judge found by a preponderance of the evidence “that the crime was motivated
    
    by racial bias” and thus that Apprendi acted “with a purpose to intimidate . . .
    
    because of race” as stated in the statute. Apprendi, 530 U.S. at 471.
    
          Under the terms of the state statute, this judge-made finding triggered an
    
    “extended term” of imprisonment of ten to twenty years. Accordingly, the trial
    
    judge, over Apprendi’s constitutional objection, sentenced Apprendi to twelve
    
    years’ imprisonment on that count. Id. This sentence was two years above the ten-
    
    year maximum ordinarily applicable to the second-degree offense with which
    
    Apprendi had been charged and to which he had pled guilty. Id. In addition to this
    
    sentence on one of the firearm counts, the court sentenced Apprendi to shorter,
    
    concurrent terms on the remaining two counts of the indictment to which Apprendi
    
    had pled guilty. Id.
    
          Apprendi appealed his twelve-year sentence on the one firearm count. Id.
    
    He argued that the Due Process Clause of the Constitution required that the finding
    
    of racial bias upon which his sentence was increased be made by a jury beyond a
    
    reasonable doubt, rather than by a judge based on a preponderance of the evidence
    
    standard. Id. The state supreme court affirmed Apprendi’s sentence, and he
    
    
                                               19
    petitioned for certiorari to the Supreme Court of the United States. Id. at 472.
    
          The Supreme Court framed the issue as follows: “The question presented is
    
    whether the Due Process Clause of the Fourteenth Amendment requires that a
    
    factual determination authorizing an increase in the maximum prison sentence for
    
    an offense from 10 to 20 years be made by a jury on the basis of proof beyond a
    
    reasonable doubt.” Id. at 469. The Supreme Court noted that the answer to this
    
    question was “foreshadowed” by its earlier opinion in Jones. Id. at 476.
    
          The Supreme Court stated that the rights set forth in the Sixth and
    
    Fourteenth Amendments “indisputably entitle a criminal defendant to ‘a jury
    
    determination that [he] is guilty of every element of the crime with which he is
    
    charged, beyond a reasonable doubt.’” Id. at 477 (quoting United States v. Gaudin,
    
    
    515 U.S. 506
    , 510 (1995)). After conducting a historical examination of this
    
    entitlement, the Court noted that the “due process and associated jury protections
    
    extend, to some degree, to determinations that [go] not to a defendant’s guilt or
    
    innocence, but simply to the length of his sentence.” Id. at 484 (internal quotation
    
    marks omitted).
    
          The Supreme Court continued that its decision did not strip the term
    
    “sentencing factor” of all meaning, but rather, the “term appropriately describes a
    
    circumstance, which may be either aggravating or mitigating in character, that
    
    
                                             20
    supports a specific sentence within the range authorized by the jury’s finding that
    
    the defendant is guilty of a particular offense.” Id. at 494 n.19. The Court
    
    recognized, “On the other hand, when the term ‘sentence enhancement’ is used to
    
    describe an increase beyond the maximum authorized statutory sentence, it is the
    
    functional equivalent of an element of a greater offense than the one covered by the
    
    jury’s guilty verdict. Indeed, it fits squarely within the usual definition of an
    
    ‘element’ of the offense.” Id. (emphasis added).
    
          The Supreme Court then squarely adopted the following constitutional
    
    principle, which was foreshadowed by Jones and has since provided the Sanchezes
    
    and so many other criminal defendants ammunition with which to attack their
    
    sentences: “Other than the fact of a prior conviction, any fact that increases the
    
    penalty for a crime beyond the prescribed statutory maximum must be submitted to
    
    a jury, and proved beyond a reasonable doubt.” Id. at 490. Applying this principle
    
    to the facts of Apprendi’s case, the Supreme Court concluded that the sentencing
    
    procedure permitted by the New Jersey statutory scheme – which allowed a judge-
    
    made finding of racial bias by a preponderance of the evidence to increase a
    
    defendant’s term of imprisonment for a firearm offense beyond the prescribed
    
    statutory maximum of ten years and up to twenty years – was invalid. Id. at 491.
    
    
    
    
                                              21
    The Court therefore reversed Apprendi’s 12-year sentence on the firearm offense.16
    
    Id. at 497.
    
           Thus, Apprendi’s holding does not paint with the wide brush suggested by
    
    the Sanchezes. Rather, Apprendi was a sentencing case, presented a narrow
    
    sentencing issue, and made only a narrow holding about New Jersey’s sentencing
    
    procedure, specifically: A trial judge cannot find a fact, such as racial bias, and
    
    then use that fact to impose a sentence higher than the prescribed statutory
    
    maximum penalty for the underlying criminal offense. Indeed, the Court itself
    
    characterized the question presented in Apprendi as a “narrow issue.” Id. at 474.
    
           Moreover, the Apprendi opinion expressly limited the applicability of the
    
    constitutional principle it described. Fundamentally, Apprendi did not require that
    
    all sentencing factors be submitted to a jury and proven beyond a reasonable doubt.
    
    
    
           16
              Apprendi challenged only his sentence and did not seek to withdraw his guilty plea or
    attack his indictment. The Supreme Court ordered that the “judgment” of the state court be
    reversed and that the case be “remanded for further proceedings not inconsistent with this
    opinion.” Apprendi, 530 U.S. at 497. Thus, we read Apprendi as reversing only the defendant’s
    sentence and not his conviction. This conclusion is supported by the fact that the indictment was
    not at issue. Indeed, the Supreme Court expressly noted that “Apprendi has not here asserted a
    constitutional claim based on the omission of any reference to sentence enhancement or racial
    bias in the indictment.” Id. at 477 n.3. The Court noted that Apprendi relied “entirely on the
    fact that the ‘due process of law’ that the Fourteenth Amendment requires the States to provide
    to persons accused of crime encompasses the right to a trial by jury, and the right to have every
    element of the offense proved beyond a reasonable doubt,” and it continued that the Fourteenth
    Amendment “has not . . . been construed to include the Fifth Amendment right to ‘presentment
    or indictment of a Grand Jury.’” Id. (citation omitted). Thus, the Court expressly did “not
    address the indictment question separately.” Id.
    
                                                   22
    Instead, Apprendi expressly reaffirmed the long-established general principle that a
    
    judge-decided fact may affect a defendant’s sentence within the applicable
    
    statutory range without invoking the constitutional principles articulated in
    
    Apprendi. In describing the origins of the requirement that all elements of a crime
    
    be proven to a jury, the Court stated, “We should be clear that nothing in this
    
    history suggests that it is impermissible for judges to exercise discretion – taking
    
    into consideration various factors relating both to offense and offender – in
    
    imposing a judgment within the range prescribed by statute. We have often noted
    
    that judges in this country have long exercised discretion of this nature in imposing
    
    sentence within statutory limits in the individual case.” Id. at 481 (citing Williams
    
    v. New York, 
    337 U.S. 241
    , 246 (1949)). The Court continued that its “periodic
    
    recognition of judges’ broad discretion in sentencing . . . has been regularly
    
    accompanied by the qualification that that discretion was bound by the range of
    
    sentencing options prescribed by the legislature.” Id.
    
          In this same vein, the Supreme Court in Apprendi also expressly preserved
    
    its earlier opinion in McMillan v. Pennsylvania, 
    477 U.S. 79
     (1986), in which the
    
    Court permitted a fact triggering a mandatory minimum sentence to be decided by
    
    
    
    
                                              23
    a judge based on a preponderance of the evidence standard. Id. at 86-88.17 In
    
    Apprendi, the Supreme Court specifically stated, “We do not overrule McMillan.
    
    We limit its holding to cases that do not involve the imposition of a sentence more
    
    severe than the statutory maximum for the offense established by the jury’s verdict
    
    – a limitation identified in the McMillan opinion itself.” Apprendi, 530 U.S. at 487
    
    n.13. Thus, Apprendi actually reaffirmed the longstanding practice of allowing
    
    judge-decided facts to affect the length of a defendant’s sentence, including leaving
    
    the imposition of a mandatory minimum sentence within the purview of the trial
    
    judge. Apprendi carved out only a limited exception to this general rule for facts
    
    that actually cause the sentence imposed on a defendant to exceed the prescribed
    
    statutory maximum, requiring that such facts be proven to a jury beyond a
    
           17
             At issue in McMillan was Pennsylvania’s Mandatory Minimum Sentencing Act, 42 Pa.
    Const. Stat. § 9712, which provided that anyone convicted in state court of certain enumerated
    felonies was subject to a mandatory minimum sentence of five years’ imprisonment if the
    sentencing judge found by a preponderance of the evidence that the defendant “visibly possessed
    a firearm” during the commission of the offense. McMillan, 477 U.S. at 81. As the Supreme
    Court explained, “The Act operates to divest the judge of discretion to impose any sentence of
    less than five years for the underlying felony; it does not authorize a sentence in excess of that
    otherwise allowed for that offense.” Id. at 81-82. The Act expressly provided that visible
    possession was not an element of the crime. Id. at 81 n.1 (quoting Pa. Const. Stat. § 9712(b)).
            The Supreme Court concluded that the terms of the Act did not violate the Due Process
    Clause, thereby following its precedent that rejected the contention that “whenever a State links
    the ‘severity of punishment’ to ‘the presence or absence of an identified fact’ the State must
    prove that fact beyond a reasonable doubt.” Id. at 84 (quoting Patterson v. New York, 
    432 U.S. 197
    , 214 (1977)). The Court noted, “Section 9712, which comes into play only after the
    defendant has been convicted of an enumerated felony, neither provides for an increase in the
    maximum sentence for such felony nor authorizes a separate sentence; it merely requires a
    minimum sentence of five years, which may be more or less than the minimum sentence that
    might otherwise have been imposed.” Id. at 83.
    
                                                   24
    reasonable doubt rather than decided by a judge based on a preponderance of the
    
    evidence standard.
    
          Likewise, Apprendi does not apply to judge-made determinations pursuant
    
    to the Sentencing Guidelines. See, e.g., United States v. Nealy, 
    232 F.3d 825
    , 829
    
    n.3 (11th Cir. 2000) (“The Sentencing Guidelines are not subject to the Apprendi
    
    rule.”); United States v. Harris, 
    244 F.3d 828
    , 829-30 (11th Cir. 2001) (holding
    
    that Apprendi does not apply to the relevant conduct provision of the Sentencing
    
    Guidelines); see also United States v. Diaz, 
    248 F.3d 1065
    , 1105 (11th Cir. 2001)
    
    (noting that “Sentencing Guideline issues are not subject to the Apprendi rule and,
    
    thus, there is no requirement that sentencing facts be submitted to a jury and found
    
    beyond a reasonable doubt”). As the Supreme Court in Apprendi noted, “The
    
    Guidelines are, of course, not before the Court. We therefore express no view on
    
    the subject beyond what this Court has already held.” Apprendi, 530 U.S. at 497
    
    n.21. While Apprendi was silent on the issue, its inapplicability to the Sentencing
    
    Guidelines follows from its holding. A factual finding under the Guidelines
    
    determines the sentence within the statutory range rather than outside it. Because
    
    Apprendi only addresses facts that increase the penalty for a crime beyond the
    
    statutory maximum, it does not apply to those findings that merely cause the
    
    
    
    
                                             25
    guideline range to shift within the statutory range.18
    
           Apprendi also did not hold that judge-decided facts that expose a defendant
    
    to a higher statutory maximum penalty must be proven to a jury beyond a
    
    reasonable doubt. The analysis employed in, and the holding of, Apprendi make
    
    clear that any consideration of a defendant’s sentence in light of Apprendi is to be
    
    conducted retrospectively rather than prospectively. The defendant in Apprendi
    
    was not merely exposed to a higher sentence than otherwise applicable but was
    
    actually sentenced to twelve years’ imprisonment under New Jersey’s entirely
    
    separate “hate crime” statute, which was above the prescribed statutory maximum
    
    of ten years’ imprisonment for his firearm offense. Our reading of Apprendi
    
    anchors its holding to the facts involved. In sum, Apprendi is implicated only
    
    
           18
              In this regard, the Sanchezes also assert that the district court erred in applying the two-
    level increase for firearm possession. Specifically, they contend that the firearm increase must
    be proven beyond a reasonable doubt in light of Apprendi and that the testimony of the sole
    government witness did not connect any weapons to the drug conspiracy. This argument lacks
    merit. First, Apprendi does not apply to the Sentencing Guidelines. Second, the government’s
    evidence satisfied its burden of proof. Sentencing Guideline § 2D1.1(b)(1) provides for a two-
    level increase for possession of a firearm during the offense. The accompanying commentary
    explains that this “adjustment should be applied if the weapon was present, unless it is clearly
    improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1(b)(1), cmt. n.3.
    “Once the prosecution has shown by a preponderance of the evidence that the firearm was
    present at the site of the charged conduct, the evidentiary burden shifts to the defendant to show
    that a connection between the firearm and the offense is clearly improbable.” United States v.
    Hall, 
    46 F.3d 62
    , 63 (11th Cir. 1995). Here, Kenneth Green testified that he delivered guns to
    the Sanchezes as partial payment for drugs and that later he took law enforcement authorities to a
    storage center where he had stored four or five rifles and shotguns. The district court
    specifically found Green’s testimony to be credible, and this finding was not clearly erroneous.
    See id. (“We review findings of fact for clear error only.”).
    
                                                     26
    when a judge-decided fact actually increases the defendant’s sentence beyond the
    
    prescribed statutory maximum for the crime of conviction.19
    
    C.     The Federal Drug Statute
    
           We next examine the impact of Apprendi on the federal drug statute, 21
    
    U.S.C. § 841. To do so, we review initially the plain language and structure of the
    
    statutory scheme itself and then our precedent regarding that statute. We then
    
    ascertain the effect of Apprendi on both. In reviewing a statutory scheme, “[o]ur
    
    task is to construe what Congress has enacted. We begin, as always, with the
    
    language of the statute.” Duncan v. Walker, 
    121 S. Ct. 2120
    , 2124 (2001).20
    
           19
              The Sanchezes emphasize certain language in Apprendi convenient for the contrary
    position. See, e.g., Apprendi, 530 U.S. at 482-83 (“The historic link between verdict and
    judgment and the consistent limitation on judges’ discretion to operate within the limits of the
    legal penalties provided highlight the novelty of a legislative scheme that removes the jury from
    the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding
    the maximum he would receive if punished according to the facts reflected in the jury verdict
    alone.”) (emphasis added); id. at 483 n.10 (“Put simply, facts that expose a defendant to a
    punishment greater than that otherwise legally prescribed were by definition ‘elements’ of a
    separate legal offense.”); id. at 494 (“Despite what appears to us the clear ‘elemental’ nature of
    the factor here, the relevant inquiry is one not of form, but of effect – does the required finding
    expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?”);
    id. at 495 (“But it can hardly be said that the potential doubling of one’s sentence – from 10
    years to 20 – has no more than a nominal effect.”). As discussed above, however, Apprendi’s
    holding was itself limited to judge-decided facts that actually increased the defendant’s sentence
    beyond the prescribed statutory maximum penalty. The opinion’s “exposure” language quoted
    by the Sanchezes does not supercede Apprendi’s actual decision. See generally Crawford-El v.
    Britton, 
    523 U.S. 574
    , 585 (1998) (“There is, of course, an important difference between the
    holding in a case and the reasoning that supports that holding”).
           20
             Within broad constitutional limits, “[t]he definition of the elements of a criminal
    offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely
    creatures of statute.” Staples v. United States, 
    511 U.S. 600
    , 604 (1994) (internal quotation
    marks omitted).
    
                                                     27
           The Sanchezes were charged with conspiring to distribute and to possess
    
    with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a).21
    
    Section 841(a), entitled “Unlawful acts,” describes the prohibited conduct and the
    
    state of mind required for a drug offense. Specifically, § 841(a)(1) renders it
    
    “unlawful for any person knowingly or intentionally . . . to manufacture, distribute,
    
    or dispense, or possess with intent to manufacture, distribute, or dispense, a
    
    controlled substance.” 21 U.S.C. § 841(a)(1) (emphasis added).22 The Sanchezes
    
    
    
           21
              Conspiracy is made a separate offense by 21 U.S.C. § 846. That statute provides, “Any
    person who attempts or conspires to commit any offense defined in this subchapter shall be
    subject to the same penalties as those prescribed for the offense, the commission of which was
    the object of the attempt or conspiracy.” 21 U.S.C. § 846. The “subchapter” to which this
    conspiracy statute refers is 21 U.S.C. § 841. Thus, for simplification, we will discuss only § 841
    in this opinion. Given that the penalties for a violation of § 846 track the penalties for a
    violation of § 841(a), our discussion applies equally to both statutes.
           22
              Similarly, § 841(a)(2) makes it “unlawful for any person knowingly or intentionally . . .
    to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit
    substance.” 21 U.S.C. § 841(a)(2). Again, while for simplification we focus on § 841(a)(1), our
    discussion applies equally to § 841(a)(2).
             Likewise, while we discuss in this opinion methamphetamine and amphetamine, our
    discussion applies equally to any drug meeting the definition of a “controlled substance” as set
    forth in the statute. Specifically, the statute provides, “The term ‘controlled substance’ means a
    drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B
    of this subchapter.” 21 U.S.C. § 802(6). Those schedules are contained in 21 U.S.C. § 812(c),
    and the drugs included in each schedule share certain characteristics. For example, the statute
    provides that the inclusion of a drug on Schedule II – on which methamphetamine and
    amphetamine, the drugs involved in this case, are included – requires “findings” that:
             (A) The drug or other substance has a high potential for abuse.
             (B) The drug or other substance has a currently accepted medical use in treatment in the
             United States or a currently accepted medical use with severe restrictions.
             (C) Abuse of the drug or other substances may lead to severe psychological or physical
             dependence.
    21 U.S.C. § 812(b)(2).
    
                                                    28
    pled guilty to conspiring to violate § 841(a)(1).
    
           According to the plain language of § 841(a)(1), a “controlled substance” is a
    
    distinct element of that drug offense. Because § 841(a) makes it unlawful for a
    
    person knowingly or intentionally to possess with intent to distribute a “controlled
    
    substance,” then necessarily there must be an actual “controlled substance” of
    
    some quantity involved in that drug offense.23 Thus, to some extent, when a
    
    defendant pleads guilty to, or a jury finds the defendant guilty of, an indictment
    
    charging possession with intent to distribute a “controlled substance,” a drug
    
    quantity of some amount is already part of the underlying crime of conviction.
    
           Section 841(b), entitled “Penalties,” provides the penalties for violations of
    
    § 841(a). It states that “any person who violates subsection (a) of this section shall
    
    be sentenced as follows.” 21 U.S.C. § 841(b) (emphasis added). What follows in
    
    § 841(b) are myriad sentencing factors (including serious bodily injury, prior
    
    felony drug convictions, and drug types and quantities) and associated penalties.
    
    Thus, the penalties in § 841(b) become applicable only after a defendant has been
    
    duly convicted of a substantive violation of § 841(a).
    
           Section 841(b)’s penalties begin with a statutory maximum of life
    
    
           23
             Although the indictment here charged “quantities” of two controlled substances,
    specifically, methamphetamine and amphetamine, an indictment charging simply possession
    with intent to distribute “a controlled substance” equally charges some drug type and amount.
    
                                                   29
    imprisonment in § 841(b)(1)(A) and decrease in severity based on this host of
    
    sentencing factors, including drug types and quantities.24 The first three
    
    subsections of § 841(b)(1) govern offenses involving controlled substances listed
    
    in schedules I and II, such as the methamphetamine and amphetamine involved in
    
    this case. Accordingly, those three subsections will receive the brunt of our
    
    attention.
    
           Section 841(b)(1)(A) provides that “[i]n the case of a violation of subsection
    
    (a)” of § 841 “involving” certain enumerated quantities of certain enumerated drug
    
    types, the defendant “shall be sentenced to a term of imprisonment which may not
    
    be less than 10 years or more than life.” 21 U.S.C. § 841(b)(1)(A). Section
    
    841(b)(1)(B) largely mirrors § 841(b)(1)(A), providing that “[i]n the case of a
    
    violation of subsection (a)” of § 841 “involving” certain lesser amounts of those
    
    same drugs set forth in § 841(b)(1)(A), the defendant “shall be sentenced to a term
    
    of imprisonment which may not be less than 5 years and not more than 40 years.”
    
    Id. § 841(b)(1)(B).
    
    
           24
              One estimate is that if the factors in § 841(b) are treated as elements of an offense for
    constitutional purposes, and not sentencing factors as clearly enacted by Congress, then this
    analysis results in approximately 350 different offenses based on these factors. See United
    States v. Promise, 
    255 F.3d 150
    , 175 (4th Cir. 2001) (en banc) (stating a “rough estimation” that
    “some 350 separate offenses” would exist in § 841 under “an interpretation of that provision that
    deems the facts in subsection (b) to be elements of the § 841(a) offenses”) (Luttig, J.,
    concurring).
    
    
                                                    30
           Section 841(b)(1)(C) applies to all other violations of § 841(a) involving
    
    schedule I or II substances and provides, “In the case of a controlled substance in
    
    schedule I or II, . . . except as provided in subparagraphs (A), (B), and (D), such
    
    person shall be sentenced to a term of imprisonment of not more than 20 years.”
    
    21 U.S.C. § 841(b)(1)(C).25 Section 841(b)(1)(C) sets a term of imprisonment for
    
    offenses without regard to drug quantity.26
    
           Thus, § 841 is bifurcated, providing a clear dichotomy of offense elements
    
    and sentencing factors. Specifically, the plain language and structure of the statute
    
    reflect a congressional intent to create a single offense, defined in § 841(a), and to
    
    provide for penalties in § 841(b) dependant upon sentencing factors, such as drug
    
    types and quantities.27
    
           25
              Section 841(b)(1)(D), referred to in § 841(b)(1)(C), governs offenses involving certain
    amounts of marijuana and other drugs and provides for a maximum term of imprisonment of five
    years in the absence of a prior conviction for a felony drug offense. 21 U.S.C. § 841(b)(1)(D);
    see infra note 37.
           26
              We have described § 841(b)(1)(C) as a “catchall provision.” United States v. Trout, 
    68 F.3d 1276
    , 1280 (11th Cir. 1995). Other circuits have adopted the same terminology. See
    United States v. Houle, 
    237 F.3d 71
    , 79 (1st Cir.) (“Section 841(b)(1)(C), the statutory catchall[,]
    authorizes a term of imprisonment for a schedule I or II narcotic, such as cocaine, without
    reference to drug quantity, of ‘not more than 20 years.’”), cert. denied, 
    121 S. Ct. 2234
     (2001);
    United States v. Allison, 
    953 F.2d 870
    , 873 (5th Cir. 1992) (stating that § 841(b)(1)(C) “is a
    more lenient catchall provision for all Schedule II drugs not addressed in” §§ 841(b)(1)(A) or
    841(b)(1)(B)), opinion amended on other grounds, 
    986 F.2d 896
     (5th Cir. 1993); United States v.
    Marshall, 
    908 F.2d 1312
    , 1322 (7th Cir. 1990) (describing § 841(b)(1)(C) as “the catchall
    statute”).
           27
             In contrast, other federal statutes that were the subject of the Supreme Court’s attention
    in recent cases lack this bifurcated structure, clear dichotomy, and indisputable congressional
    
                                                    31
    D.     Circuit Precedent Prior to Apprendi
    
           On multiple occasions prior to both Jones and Apprendi, this Court
    
    construed the federal drug statute and concluded that while a “controlled
    
    substance” is an element of an offense under § 841(a), neither the nature nor the
    
    quantity of that substance is an element of that offense that must be submitted to a
    
    jury or proved beyond a reasonable doubt. Instead, this Court held that in order to
    
    obtain a conviction, the government need show only that some controlled
    
    substance was involved.28 The defendants in these pre-Apprendi cases often
    
    
    intent. See Jones, 526 U.S. at 235 (construing the carjacking statute); Castillo v. United States,
    
    530 U.S. 120
    , 124-25, 131 (2000) (construing 18 U.S.C. § 924(c)(1) (1988 ed., Supp. V), and
    noting that “Congress placed the element ‘uses or carries a firearm’ and the word ‘machinegun’
    in a single sentence, not broken up with dashes or separated into subsections” and that this
    structure indicated that “Congress intended that the firearm type-related words . . . refer[red] to
    an element of a separate, aggravated crime”).
           28
              See, e.g., United States v. Rutherford, 
    175 F.3d 899
    , 906 (11th Cir. 1999) (concluding
    that to prove completely the elements of an offense under § 841(a), the government need not
    prove that a particular controlled substance was involved in the offense conduct, it need only
    show that some controlled substance was involved); United States v. Mejia, 
    97 F.3d 1391
    , 1392-
    93 (11th Cir. 1996) (“To sustain a conviction for possession of cocaine with intent to distribute,
    the government must prove beyond a reasonable doubt that the defendant knowingly possessed
    the cocaine and that he intended to distribute it.”); United States v. Perez, 
    960 F.2d 1569
    , 1574
    (11th Cir. 1992) (“The rule that has developed in this circuit . . . is that the weight or quantity of
    a controlled substance is not an element of the offense that must be included in a § 841(a)(1)
    indictment.”); United States v. Gomez, 
    905 F.2d 1513
    , 1514 (11th Cir. 1990) (“[I]t is well-
    settled that to sustain a conviction for possession with intent to distribute a controlled substance,
    it need not be proved that the defendant had knowledge of the particular drug involved, as long
    as he knew he was dealing with a controlled substance.”); United States v. Williams, 
    876 F.2d 1521
    , 1525 (11th Cir. 1989) (“A violation of section 841(a)(1) occurs when the government
    proves beyond a reasonable doubt that a defendant possessed and intended to distribute a
    ‘controlled substance,’ regardless of whether that substance is cocaine or cocaine base.”); United
    States v. Smith, 
    840 F.2d 886
    , 888 (11th Cir. 1988) (noting that the express language of § 841(a)
    “puts no quantity requirement on the amount of controlled substance possessed”), abrogated on
    
                                                     32
    argued that drug quantity was an essential element of their offenses.29 We
    
    consistently rejected this claim, construing § 841(a) as setting forth a single,
    
    complete offense and § 841(b) as setting forth sentencing factors relevant only to
    
    determining a defendant’s sentence for having violated § 841(a).30
    
           We preserved this interpretation of § 841 even after Jones. See United
    
    States v. Hester, 
    199 F.3d 1287
     (11th Cir.), vacated and remanded, 
    531 U.S. 941
    
    (2000).31 Hester represented the first serious encounter between our prior statutory
    
    other grounds, Gozlon-Peretz v. United States, 
    498 U.S. 395
     (1991); United States v. Simmons,
    
    725 F.2d 641
    , 643 (11th Cir. 1984) (“The statute makes it a crime for a person to possess with
    intent to distribute a controlled substance . . . . [T]he crime can be proved without any
    consideration of the amount involved . . . .”).
           29
             Indeed, in our circuit, defendants were raising the due process issue long before Jones
    and Apprendi were decided. In United States v. Perez, 
    960 F.2d 1569
    , 1574 (11th Cir. 1992), we
    summarized some of our decisions starting in 1984 that involved defendants’ challenges to the
    enhanced penalties in § 841(b) based on the failure of the indictment to allege a specific drug
    quantity. Those decisions, however, focused on whether the specific allegation of drug quantity
    was needed in the indictment in order to give the defendant fair notice of the government’s intent
    to seek enhanced penalties, rather than on whether the jury was required to make that
    determination beyond a reasonable doubt. Subsequently, beginning in 1990, our decisions began
    to address not only whether a specific drug quantity must be alleged in the indictment to give the
    defendant notice of the enhanced penalties but also whether it must be proven to a jury beyond a
    reasonable doubt. See United States v. Cross, 
    916 F.2d 622
    , 623-24 (11th Cir. 1990).
           30
              Our reading of the statute was consistent with that of every other circuit to address the
    issue. See United States v. Promise, 
    255 F.3d 150
    , 176 (4th Cir. 2001) (en banc) (listing cases
    and observing, “[s]ignificantly, even in the wake of Jones, which raised the spectre of a
    constitutional limitation on the legislative power to define offenses, and thus would have
    prompted a more searching, cautious statutory interpretation, every single court still held that
    Congress intended the facts in section 841(b) to be sentencing factors”) (Luttig, J., concurring);
    id. at 167 (Niemeyer, J., concurring) (noting that “no court reached a different conclusion in
    interpreting this statute”).
           31
             The defendant in Hester was sentenced to a twenty-year mandatory minimum sentence,
    and this Court affirmed. See Hester, 199 F.3d at 1288-89. On October 16, 2000, the Supreme
    
                                                     33
    interpretation and the constitutional rule of Apprendi, which at that time existed in
    
    more embryonic form as footnote six of Jones. In Hester, we noted that our
    
    precedent construing § 841 constituted “binding authority” in which we “clearly
    
    rejected the characterization of the amount of drugs as an element of the offense
    
    under [section] 841.” Id. at 1291 (citing cases). We then noted that this precedent
    
    foreclosed any argument that drug quantity was an element of an offense under §
    
    841 “unless the Supreme Court decided otherwise in Jones.” Id. After quoting and
    
    discussing footnote six, we adopted a narrow reading of Jones and concluded that
    
    the constitutional principles referenced in Jones did not disrupt our prior approach
    
    to § 841 cases.32 Id. at 1291-92. We therefore continued to follow our precedent
    
    holding that § 841 is clear and unambiguous and reaffirmed that “[a]s we have
    
    announced in our previous cases, Congress decided that the elements of a § 841
    
    
    Court summarily vacated the judgment and remanded the case “for further consideration in light
    of” Apprendi. Hester v. United States, 
    121 S. Ct. 336
     (2000) (mem.). Hester remains pending in
    this Court.
           32
              We determined in Hester that the language used in footnote six “allow[ed] two plausible
    readings of Jones.” Hester, 199 F.3d at 1291. The first was that “footnote six means exactly
    what it says,” thus resulting in “a broad rule” that we presciently observed “would have
    sweeping implications for factors that Congress has traditionally considered sentencing
    considerations, not elements of the crime.” Id. at 1291-92. The alternative, and narrower,
    reading was that “when a court finds a statute and its legislative history unclear,” as the Supreme
    Court found regarding the federal carjacking statute at issue in Jones, the court “should err in
    favor of the defendant and consider an element of the offense any factor which increases the
    maximum penalty for the offense.” Id. We adopted this latter, narrower reading of Jones,
    concluding that the Jones Court proceeded with the statutory analysis “only because it first found
    Congress’ intent ambiguous.” Id. at 1292.
    
                                                    34
    offense do not include the weight of the drugs.” Id. at 1292.33
    
    E.     Apprendi’s Impact on § 841 and Our Precedent
    
           Such was the landscape applicable to the federal drug statute before
    
    Apprendi squarely adopted the constitutional principle 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.” Apprendi, 530 U.S. at 490. Our reading of the tenor of the
    
    Supreme Court’s decisions is that § 841 is impacted by Apprendi but only to the
    
    limited extent that judge-decided facts actually increase a defendant’s sentence
    
    above the prescribed statutory maximum. We explain the narrow manner in which
    
    Apprendi affects § 841.34
    
           33
             We noted also that other circuits had, at that time, “adopted the narrower reading of
    Jones,” a reading that the Tenth Circuit deemed a “‘more reasonable reading of Jones, one that
    anchors its holdings to its facts, i.e., the statutory provision involved.’” Hester, 199 F.3d at 1292
    (quoting United States v. Eads, 
    191 F.3d 1206
    , 1213-14 (10th Cir. 1999), cert. denied, 
    530 U.S. 1231
     (2000)).
           34
              In this case, the government does not ask that we construe § 841(b) as prescribing an
    overall statutory maximum sentence of life imprisonment for all § 841(a) violations, a view
    recently endorsed by four judges of the Fourth Circuit. See United States v. Promise, 
    255 F.3d 150
    , 169-70 (4th Cir. 2001) (en banc) (“As a consequence of th[e] indisputable congressional
    definition of the section 841 offenses, . . . the statutory maximum sentence for commission of
    these offenses, and therefore the punishment authorized by the jury’s verdict of guilt of a section
    841 offense, is life imprisonment, plus fine, with the actual sentence imposed dependent upon
    judicial findings of the presence or absence of the various sentencing factors, including drug
    amount and type, identified in section 841(b).”) (Luttig, J., concurring); see also id. at 165
    (Wilkinson, C.J., concurring); id. at 167-68 (Niemeyer, J., concurring); id. at 186 (Gregory, J.,
    concurring). This approach, which we have adopted when permitted by the plain statutory
    language, effectively immunizes § 841 from any Apprendi problem. See United States v.
    
                                                     35
           Fundamentally, Apprendi did not announce any new principles of statutory
    
    construction. Rather, Apprendi addressed only the constitutionality of a state
    
    statutory sentencing scheme, and its holding only described constitutional
    
    principles affecting such statutory sentencing schemes. Apprendi thus does not
    
    change our precedent interpreting § 841 outlined above but instead imposes only
    
    an external constitutional restraint under the Sixth Amendment and the Due
    
    Process Clause. While Apprendi does not affect our prior statutory construction of
    
    § 841(b) as setting forth purely sentencing factors, it does alter our prior
    
    conclusion that such judge-decided facts satisfy a defendant’s constitutional rights
    
    to due process and a jury trial even when those factors increase a defendant’s
    
    sentence beyond the prescribed statutory maximum.35
    
           This external constitutional restraint, however, does not apply to the vast
    
    majority of sentencing scenarios. To repeat the oft-repeated, Apprendi explicitly
    
    limited its holding to facts “that increase[] the penalty for a crime beyond the
    
    prescribed statutory maximum.” Apprendi, 530 U.S. at 490 (emphasis added).
    
    Pounds, 
    230 F.3d 1317
    , 1319 (11th Cir. 2000) (holding in a case involving 18 U.S.C. § 924(c)(1)
    that “Apprendi is inapplicable under the present facts because every conviction under §
    924(c)(1)(A) carries with it a statutory maximum sentence of life imprisonment, regardless of
    what subsection the defendant is sentenced under”), cert. denied, 
    121 S. Ct. 1631
     (2001).
           35
             Because Apprendi announced a new rule of constitutional law, we apply it to criminal
    cases pending on direct review. See Griffith v. Kentucky, 
    479 U.S. 314
    , 322 (1987). This is
    especially true here, as the Sanchezes timely raised the issues decided by Apprendi not only in
    this Court but in the district court as well.
    
                                                   36
    Therefore, Apprendi has no effect on cases in which a defendant’s actual sentence
    
    falls within the range prescribed by the statute for the crime of conviction. As
    
    stated above, § 841(b)(1)(C) provides a statutory penalty range applicable to all
    
    drug offenses involving the controlled substances listed on Schedules I or II
    
    without regard to drug quantity. Apprendi thus does not even apply when a
    
    defendant’s actual sentence for a § 841 drug offense falls within that range. See
    
    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.”), cert. denied, ___ S. Ct. ___, No. 00-9373 (Oct. 1, 2001);
    
    United States v. Gallego, 
    247 F.3d 1191
    , 1197 (11th Cir. 2001) (noting that
    
    because the defendant’s sentence of 168 months’ imprisonment fell “below the
    
    twenty year maximum prescribed by section 841(b)(1)(C),” there is “no error under
    
    Apprendi”); United States v. Le, 
    256 F.3d 1229
    , 1240 (11th Cir. 2001) (stating in a
    
    case under the Hobbs Act that because the defendant’s sentence was below the
    
    statutory maximum, “Apprendi is inapplicable”).36 Accordingly, in a § 841 case,
    
           36
              In United States v. Shepard, 
    235 F.3d 1295
     (11th Cir. 2000), cert. denied, ___ S. Ct.
    ___, No. 00-10410 (Oct. 1, 2001), we utilized a slightly different approach to reach the same
    result, stating that there was Apprendi error but concluding that because the defendant’s sentence
    “falls within the authorized range, we find no prejudice.” Id. at 1297. In United States v.
    Candelario, 
    240 F.3d 1300
     (11th Cir.), cert. denied, 
    121 S. Ct. 2535
     (2001), we discussed
    Shepard and pointed out:
    
                                                   37
    when a defendant’s sentence falls at or below the statutory maximum penalty in §
    
    841(b)(1)(C), there is no Apprendi error and there is no need for drug quantity to
    
    be submitted to a jury and proven beyond a reasonable doubt.37
    
           Additionally, Apprendi has no application to cases in which statutory
    
    sentencing factors trigger a mandatory minimum sentence. As noted above,
    
    Apprendi expressly preserved McMillan, in which the Supreme Court approved the
    
    use of judge-made factual findings to sentence a defendant to a mandatory
    
    minimum penalty. Apprendi, 530 U.S. at 487 n.13. Therefore, in a § 841 case,
    
    Apprendi does not prohibit a judge from making drug quantity findings and
    
    sentencing a defendant to one of the mandatory minimum sentences in § 841(b),
    
    provided that the mandatory minimum term does not exceed the otherwise
    
    applicable statutory maximum. This important proposition leaves intact our pre-
    
            Shepard’s holding was merely that a sentence that falls below the twenty year
            maximum, as set forth in 21 U.S.C. § 841(b)(1)(C), is not subject to reversal due
            to Apprendi. Shepard thus stands only for the proposition, along with Gerrow,
            that “there 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.”
    Id. at 1308 n.11 (quoting Gerrow, 232 F.3d at 834) (internal citation omitted). To resolve any
    doubt, however, we hereby limit Shepard’s holding to the above proposition and reject its
    prejudice-based analysis. When a sentence for a § 841 offense does not exceed the prescribed
    statutory maximum under § 841(b)(1)(C), Apprendi is irrelevant.
           37
             The only exception involves quantities of marijuana, hashish, hashish oil, and the other
    drugs specified in § 841(b)(1)(D), for which the maximum sentence is five years’ imprisonment.
    See 21 U.S.C. § 841(b)(1)(D). The same rules discussed in this opinion, however, also apply to
    those cases, with the only difference being that the prescribed statutory maximum penalty is five
    years’ imprisonment.
    
                                                   38
    Apprendi cases involving the imposition of mandatory minimum sentences under
    
    § 841(b). See, e.g., United States v. Gomez, 
    905 F.2d 1513
    , 1514 (11th Cir. 1990)
    
    (“As to sentencing, it is now equally well-settled that a defendant need not know
    
    the quantity of drug involved in the offense in order to be subject to a mandatory
    
    minimum sentence based on quantity under § 841(b)(1).”). Thus, we join six other
    
    circuits in concluding that there is no error under Apprendi when the district court
    
    sentences a defendant to a mandatory minimum sentence under § 841(b).38
    
           Instead, Apprendi applies to § 841 cases only in this limited sense: In light
    
    of Apprendi, there is constitutional error in a defendant’s sentencing procedures
    
    when drug quantity increases a defendant’s sentence beyond the prescribed
    
    statutory maximum under § 841(b)(1)(C), unless it was submitted to a jury and
    
    proven beyond a reasonable doubt. Conversely, in a § 841 case in which a
    
    defendant’s ultimate sentence falls at or below the statutory maximum penalty in
    
    § 841(b)(1)(C), there is no Apprendi error and drug quantity need not have been
    
           38
              All but one of the seven circuits to consider the issue have decided that Apprendi does
    not invalidate the imposition of a mandatory minimum sentence under §§ 841(b)(1)(A) or
    841(b)(1)(B), as long as the sentence does not exceed the statutory maximum sentence under
    § 841(b)(1)(C). See United States v. Rodgers, 
    245 F.3d 961
    , 965-68 (7th Cir. 2001); United
    States v. Harris, 
    243 F.3d 806
    , 809 (4th Cir. 2001); United States v. Robinson, 
    241 F.3d 115
    , 122
    (1st Cir. 2001), cert. denied, ___ S. Ct. ___, No. 00-10411 (Oct. 1, 2001); United States v.
    Garcia-Sanchez, 
    238 F.3d 1200
    , 1201 (9th Cir. 2001); United States v. Keith, 
    230 F.3d 784
    , 787
    (5th Cir. 2000), cert. denied, 
    121 S. Ct. 1163
     (2001); United States v. Aguayo-Delgado, 
    220 F.3d 926
    , 933-34 (8th Cir.), cert. denied, 
    531 U.S. 1026
     (2000). But see United States v. Ramirez,
    
    242 F.3d 348
    , 351-52 (6th Cir. 2001); United States v. Flowal, 
    234 F.3d 932
    , 936-38 (6th Cir.
    2000).
    
                                                   39
    submitted to a jury and proven beyond a reasonable doubt. Moreover, judge-made
    
    findings of drug quantity may be used to sentence a defendant anywhere within the
    
    applicable statutory range and, as outlined above, may be used in all guidelines
    
    calculations. All of these rules on the effect of Apprendi on § 841 have the
    
    additional benefit of being consistent with the views adopted in virtually every
    
    other circuit to address these matters to date.39
    
                                    III. THE SANCHEZES’ CLAIMS
    
          Having described Apprendi and its effect on § 841 and our precedent, we
    
    turn to the Sanchezes’ challenges to their indictment, plea colloquies, convictions,
    
    and sentences. The Sanchezes seek to stretch Apprendi’s constitutional rule and
    
    Jones’s dicta to apply to the beginning, middle, and end of the criminal procedures
    
    in their cases. Specifically, they emphasize that from the outset of their cases, the
    
    government sought enhanced penalties under § 841(b)(1)(B) based on the quantity
    
    of the methamphetamine and amphetamine involved in their offense. As a result,
    
    they contend that their cases were “§ 841(b)(1)(B) cases” and thus that drug
    
    quantity was an element of their offense that not only had to be submitted to the
    
    jury and proven beyond a reasonable doubt but that also had to be charged in their
    
    indictment. Consistent with these views, the Sanchezes timely moved in the
    
    
          39
               See infra note 50.
    
                                                40
    district court to dismiss the indictment for failure to allege the required element of
    
    drug quantity, specifically citing Jones. Upon denial of that motion, they entered
    
    conditional plea agreements preserving that issue for appeal.
    
          On appeal, the Sanchezes also contend that because their cases are Ҥ
    
    841(b)(1)(B) cases,” the failure to comply with this trio of procedural requirements
    
    – indictment, jury submission, and proof beyond a reasonable doubt – was
    
    constitutional error under Apprendi or at least under United States v. Rogers, 
    228 F.3d 1318
     (11th Cir. 2000), which the Sanchezes assert expanded Apprendi to all
    
    “§ 841(b)(1)(A) and § 841(b)(1)(B) cases.” They further argue that the failure to
    
    comply with this procedural triumvirate constituted constitutional error that is so
    
    fundamental as to be structural error and reversible per se. They also assert that the
    
    omission of an essential element from the indictment constituted a jurisdictional
    
    error requiring dismissal of the indictment.
    
          Alternatively, the Sanchezes claim that the lack of a specific drug quantity in
    
    their indictment meant that their maximum sentence was limited to twenty years
    
    under § 841(b)(1)(C) and that their plea colloquies thus did not comply with Rule
    
    11. Although their indictment charged “quantities of methamphetamine and
    
    amphetamine,” they submit that it had to charge a specific drug quantity in order to
    
    support an enhanced sentence under § 841(b)(1)(B). They argue that the district
    
    
                                              41
    court erred not only by advising them of the increased penalty ranges
    
    corresponding to §§ 841(b)(1)(A) and 841(b)(1)(B) in Ignasio Sanchez’s case and
    
    § 841(b)(1)(A) in Santiago Sanchez’s case but also by not mentioning §
    
    841(b)(1)(C) and by not advising them that only the lower penalty range under §
    
    841(b)(1)(C) was applicable to the charges in their indictment. In short, the
    
    Sanchezes challenge not merely their sentences, as defendant Apprendi did, but
    
    also their indictment, plea colloquies, and convictions stemming from that
    
    indictment. We are not persuaded by their arguments and address each issue in
    
    turn.
    
    A.      Motion to Dismiss the Indictment
    
            Of course, the correct response to an argument that the Sanchezes make
    
    about the lack of a specific drug quantity in a § 841 indictment is usually that by
    
    entering a guilty plea and ultimately stipulating to or not contesting drug quantity,
    
    defendants thereby waive the right to appeal on the basis of Apprendi.40 The
    
            40
              This Court has indicated that when a defendant pleads guilty and accepts the drug
    quantity determination contained in the pre-sentence report or agrees to drug quantity at
    sentencing or in his plea colloquy, he waives any right to appeal his sentence on the basis of
    Apprendi, regardless of what sentence is ultimately imposed. See United States v. Walker, 
    228 F.3d 1276
    , 1278 n.1 (11th Cir. 2000) (affirming the defendant’s life sentence, noting that “[i]n
    Apprendi, the Supreme Court required that during a jury trial, the government must be made to
    prove and the jury convict on the factual evidence necessary for a sentence enhancement beyond
    the statutory maximum” and concluding that since the defendant “pled guilty in this case and
    accepted the contents of the PSI, he lost any right to appeal on the basis of this argument”), cert.
    denied, 
    121 S. Ct. 1408
     (2001). This is so because a defendant’s stipulation as to drug quantity
    serves to waive the right to a jury trial on that issue, even when that drug quantity results in a
    
                                                     42
    Sanchezes’ plea agreements, however, were conditional on their right to appeal the
    
    sufficiency of the indictment. Because the Sanchezes’ conditional plea agreements
    
    
    
    
    sentence in excess of the otherwise applicable statutory maximum. Indeed, just as the
    defendant’s guilty plea to a substantive offense serves as the equivalent to a jury’s finding
    beyond a reasonable doubt of that defendant’s guilt, so does a stipulation to a specific drug
    quantity – whether as part of a written plea agreement, part of a jury trial, or at sentencing –
    serve as the equivalent of a jury finding on that issue, since the stipulation takes the issue away
    from the jury.
            Accordingly, in prior cases in which defendants pled guilty to violating § 841, we have
    affirmed sentences that violated Apprendi when there was agreement about the drug quantity.
    See United States v. Pease, 
    240 F.3d 938
    , 944 (11th Cir. 2001) (affirming the defendant’s thirty-
    year sentence where he admitted in both his plea agreement and plea colloquy that he had
    accepted delivery of three kilograms of cocaine); United States v. Gallego, 
    247 F.3d 1191
    , 1200
    (11th Cir. 2001) (affirming the defendant’s life sentence when his counsel stated “there is no
    question but that [the defendant] had the ten kilograms of cocaine, he pled guilty to possessing
    the ten kilograms of cocaine”). Similarly, we have affirmed sentences that violated Apprendi
    when the defendant elected to go to trial but where evidence of drug quantity was uncontested.
    See United States v. Nealy, 
    232 F.3d 825
    , 830 (11th Cir. 2000) (holding that a preserved
    Apprendi error was harmless where the evidence of 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 him to the penalty range in § 841(b)(1)(B), and thus affirming the
    defendant’s thirty-two-year sentence); Gallego, 247 F.3d at 1198-99 (affirming a defendant’s life
    sentence when he admitted in an objection to the pre-sentence report and at sentencing that he
    personally possessed four kilograms of cocaine during the offense, and affirming another
    defendant’s life sentence when there was “undisputed testimony” that 326 kilograms of cocaine
    were involved in the offense); United States v. Wims, 
    245 F.3d 1269
    , 1272-74 (11th Cir. 2001)
    (affirming the defendant’s concurrent sentences of forty years and life imprisonment when he did
    not contest drug quantity); United States v. Candelario, 
    240 F.3d 1300
    , 1311-12 (11th Cir.)
    (affirming the defendant’s sentence where, based on the testimony of the sole witness, “no
    reasonable jury could have concluded that Candelario was guilty of the substantive offense . . . ,
    but that the amount was less than five grams”), cert. denied, 
    121 S. Ct. 2535
     (2001); United
    States v. Swatzie, 
    228 F.3d 1278
    , 1283 (11th Cir. 2000) (affirming the defendant’s life sentence
    because there was “no serious dispute that [he] possessed at least 5 gm of cocaine base, enough
    for the increased statutory maximum, and no evidentiary basis existed for the jury reasonably to
    have found that [the defendant] possessed drugs with intent to distribute, but did not possess both
    cocaine base and powder at least in the amounts the authorities bagged at [the defendant]’s
    house”), cert. denied, 
    121 S. Ct. 2600
     (2001). We reaffirm all of the actual holdings in those
    decisions.
    
                                                    43
    preserved the indictment issue for appellate review, their guilty pleas do not
    
    resolve the matter as would normally be the case. Thus, in light of Jones and
    
    Apprendi, we address whether the district court erred in denying the Sanchezes’
    
    motion to dismiss their indictment. In other words, we consider whether the
    
    Sanchezes correctly claimed in that motion that drug quantity is an essential
    
    element that now must always be charged in an indictment for a § 841 offense. We
    
    first address the standard of review and then why we conclude that the district
    
    court did not err in denying the Sanchezes’ motion to dismiss the indictment.
    
          1.     Standard of Review
    
          Because the Sanchezes timely raised and thus preserved for appeal the issue
    
    of error in their indictment under Apprendi, we review it de novo, but we will
    
    reverse only for harmful error. See United States v. Mills, 
    138 F.3d 928
    , 938-39
    
    (11th Cir. 1998). As we have held, Apprendi error is constitutional error, subject
    
    to harmless or plain error review depending on the timing of the constitutional
    
    objection. See, e.g., United States v. Smith, 
    240 F.3d 927
    , 929 (11th Cir. 2001)
    
    (affirming thirty-year sentence); United States v. Candelario, 
    240 F.3d 1300
    , 1308
    
    (11th Cir.) (same), cert. denied, 
    121 S. Ct. 2535
     (2001); United States v. Nealy,
    
    
    232 F.3d 825
    , 829-30 & n.4 (11th Cir. 2000) (affirming thirty-two-year sentence).
    
          Given our precedent, we reject the Sanchezes’ claims that Apprendi error is
    
    
                                             44
    either structural or jurisdictional. In Smith, Candelario, and Nealy, we correctly
    
    outlined why an Apprendi error did not create a structural error. In Nealy, we
    
    explained, “Structural error occurs only in the rare instance involving a ‘structural
    
    defect affecting the framework within [which] the trial proceeds, rather than simply
    
    an error in the trial process itself.’” Nealy, 232 F.3d at 829 n.4 (quoting Arizona v.
    
    Fulminante, 
    499 U.S. 279
    , 310 (1991)).41 “Failure to submit the issue of drug
    
    quantity to the jury is just an element of the trial process and does not rise to the
    
    level of structural error. . . .” Id. It “is not structural error because it ‘does not
    
    necessarily render a criminal trial fundamentally unfair or [an] unreliable vehicle
    
    for determining guilt or innocence.’” Id. (quoting Neder v. United States, 
    527 U.S. 1
    , 9 (1999)). Harmless error review is “appropriate” in the Apprendi context
    
    “because it ‘block[s] setting aside [sentences] for small errors or defects that have
    
    little, if any, likelihood of having changed the result of the trial.’” Id. at 829-30
    
    (quoting Chapman v. California, 
    386 U.S. 18
    , 22 (1967)).
    
           Our precedent follows Neder v. United States, 
    527 U.S. 1
     (1999), where the
    
    Supreme Court held that “the omission of an element [in a jury instruction] is an
    
    
           41
             There is no separate category of structural error apart from constitutional error. The
    only question is whether any constitutional errors under Apprendi rise to the level of structural
    error. Structural error occurs only in “a very limited class of cases,” Johnson v. United States,
    
    520 U.S. 461
    , 468 (1997), and “necessarily render[s] a trial fundamentally unfair.” Rose v.
    Clark, 
    478 U.S. 570
    , 577 (1986).
    
                                                    45
    error that is subject to harmless-error analysis.” Id. at 15. Any Apprendi error
    
    arising from the omission of a specific drug quantity in a § 841 indictment is
    
    analogous to the jury-instruction error in Neder.42 Indeed, part of the Sanchezes’
    
    argument is precisely that a specific drug quantity must be charged in the
    
    indictment so that it will then be submitted to the jury and proven beyond a
    
    reasonable doubt. A defendant’s right to have a petit jury find each element of the
    
    offense is no less important than his right to have that same element presented to
    
    the grand jury.43
    
           Likewise, we have rejected the claim, which the Sanchezes also make, that
    
    an Apprendi error creates a jurisdictional error. See United States v. Cromartie,
    
    ___ F.3d ___, No. 00-13957 (11th Cir. Oct. 3, 2001); McCoy v. United States, ___
    
    
    
           42
              Ultimately, Nealy determined that the jury-instruction error was harmless but that the
    defendant abandoned the indictment issue by not raising it in his initial brief. Because the
    Sanchezes timely raised the indictment issue and their conditional plea agreements preserved the
    issue for appellate review, we address the standard of review applicable to that issue in the
    Apprendi context. In United States v. Swatzie, 
    228 F.3d 1278
     (11th Cir. 2000), cert. denied, 
    121 S. Ct. 2600
     (2001), we emphasized that the error at issue in Neder was “in material respects
    indistinguishable from error under Apprendi.” Id. at 1283.
           43
             Neder explained that “‘most constitutional errors can be harmless.’” 527 U.S. at 8
    (quoting Fulminante, 499 U.S. at 306). “[I]f the defendant had counsel and was tried by an
    impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may
    have occurred are subject to harmless-error analysis.” Id. (quoting Rose v. Clark, 
    478 U.S. 570
    ,
    579 (1986)). The list in Neder of structural errors not subject to harmless-error review is a short
    one. See id. (mentioning complete denial of counsel, biased trial judge, racial discrimination in
    grand jury selection, denial of self-representation at trial, denial of public trial, and defective
    reasonable doubt instruction as structural errors).
    
                                                    
    46 F.3d
    ___, No. 00-16434 (11th Cir. Sept. 25, 2001).44 A jurisdictional defect occurs
    
    only where a federal court lacks power to adjudicate at all. Id.45 The constitutional
    
    rights to be charged by a grand jury, be informed of an accusation, and to have a
    
    jury trial are the personal rights of the defendant and do not go to the district
    
    court’s subject matter jurisdiction. Indeed, Federal Rule of Criminal Procedure
    
    7(b) provides that certain offenses “may be prosecuted by information” if the
    
    defendant “waives in open court prosecution by indictment.” Fed. R. Crim. P.
    
    7(b). Such waiver would not be possible if the indictment-related right were
    
    jurisdictional, as parties cannot confer subject-matter jurisdiction on federal courts
    
    by consent. See United States v. Griffin, 
    303 U.S. 226
    , 229 (1938).
    
           The notion that any Apprendi-based challenge has a jurisdictional dimension
    
    is also implicitly rejected by our precedent’s consistent application of plain or
    
    harmless error review. See, e.g., United States v. Pease, 
    240 F.3d 938
    , 943-44
    
    (11th Cir. 2001) (finding plain error under Apprendi in a thirty-year sentence
    
           44
              For the reasons outlined in more detail in McCoy and Cromartie, we disagree with the
    position in Judge Barkett’s concurring opinion and conclude that Apprendi error based on failure
    to allege a specific drug quantity does not constitute a jurisdictional defect in a § 841 indictment
    even if the defendant has been sentenced in excess of twenty years under § 841(b)(1)(A) or §
    841(b)(1)(B).
           45
              See also Steel Co. v. Citizens for a Better Env’t, 
    523 U.S. 83
    , 89 (1998) (describing
    subject matter jurisdiction as “the courts’ statutory or constitutional power to adjudicate the
    case”); Escareno v. Carl Nolte Sohne GmbH & Co., 
    77 F.3d 407
    , 412 (11th Cir. 1996) (noting
    that a jurisdictional defect is one that “strip[s] the court of its power to act and make[s] its
    judgment void”).
    
                                                    47
    where the indictment did not allege drug quantity but finding no effect on
    
    defendant’s substantial rights); United States v. Swatzie, 
    228 F.3d 1278
    , 1282-84
    
    (11th Cir. 2000) (assuming arguendo a life sentence was plain error under
    
    Apprendi where indictment did not allege drug quantity but finding no effect on
    
    defendant’s substantial rights), cert. denied, 
    121 S. Ct. 2600
     (2001).46
    
           The Tenth Circuit, sitting en banc, explicitly endorsed this approach. See
    
    United States v. Prentiss, 
    256 F.3d 971
     (10th Cir. 2001) (en banc) (concluding that
    
    “the failure of an indictment to allege an essential element of a crime does not
    
    deprive a district court of subject matter jurisdiction; rather, such failure is subject
    
    to harmless error review”). Two other circuits have handled omissions of an
    
    element from an indictment in a similar manner.47 See United States v. Nance, 236
    
           46
              Our application of plain error review in the indictment context is consistent with our
    practice in other Apprendi cases, centering on the failure to submit an element to the jury, where
    we also applied harmless or plain error analysis based on the timing of the objection. See United
    States v. Gallego, 
    247 F.3d 1191
    , 1198-2001 (11th Cir. 2001) (affirming life sentences); United
    States v. Wims, 
    245 F.3d 1269
    , 1272 (11th Cir. 2001) (affirming life sentence); United States v.
    Candelario, 
    240 F.3d 1300
    , 1311 (11th Cir.) (affirming 360-month sentence), cert. denied, 121 S.
    Ct. 2535 (2001); United States v. Pease, 
    240 F.3d 938
    , 943 (11th Cir. 2001) (affirming thirty-
    year sentence); United States v. Smith, 
    240 F.3d 927
    , 930 (11th Cir. 2001) (affirming thirty-year
    sentence); United States v. Swatzie, 
    228 F.3d 1278
    , 1282-83 (11th Cir. 2000) (affirming life
    sentence), cert. denied, 
    121 S. Ct. 2600
     (2001). Our approach is consistent with decisions from
    other circuits. See, e.g., United States v. Vazquez, ___ F.3d ___, No. 99-3845 (3d Cir. Oct. 9,
    2001) (stating that “Apprendi violations do not constitute structural defects,” affirming the
    defendant’s 292-month sentence under plain error review, and listing in footnotes 5-10 other
    circuits’ decisions also applying plain error review).
           47
            But see United States v. Du Bo, 
    186 F.3d 1177
    , 1179 (9th Cir. 1999) (concluding in a
    Hobbs Act case where the indictment failed to state the required mens rea that “if properly
    challenged prior to trial, an indictment’s complete failure to recite an essential element of the
    
                                                    
    48 F.3d 820
    , 825-26 (7th Cir. 2000) (stating in a § 841 case involving an Apprendi
    
    challenge that indictment and jury-instruction errors are “analogous to the
    
    instructional error the Court considered in Neder” and did not constitute structural
    
    error, and affirming the defendant’s 262-month sentence under plain-error review);
    
    United States v. Mojica-Baez, 
    229 F.3d 292
    , 310-12 (1st Cir. 2000) (stating in a 18
    
    U.S.C. § 924(c)(1) case where the indictment did not charge a type of firearm that
    
    the court was “compelled by the Supreme Court’s decision in Neder to subject the
    
    indictment error in this case to plain error review,” and thus finding error was not
    
    structural and affirming the defendants’ ten-year sentences under 18 U.S.C. §
    
    924(c)(1)(B)), cert. denied, 
    121 S. Ct. 2215
     (2001).48 We now turn to the
    
    
    
    charged offense is not a minor or technical flaw subject to harmless error analysis, but a fatal
    flaw requiring dismissal of the indictment”); United States v. Spinner, 
    180 F.3d 514
    , 516 (3d Cir.
    1999) (interstate commerce element). While the Second Circuit has held that the failure to
    include the type of firearm in a 18 U.S.C. § 924(c) indictment is jurisdictional error not subject
    to plain error review, see United States v. Tran, 
    234 F.3d 798
    , 806-09 (2d Cir. 2000), that issue
    is being addressed en banc. See United States v. Thomas, 
    248 F.3d 76
    , 78 (2d Cir. 2001) (en
    banc) (order asking the parties to brief whether Tran’s reasoning was “sound”).
           48
              For the reasons set forth in detail in these opinions, we do not believe that the Supreme
    Court’s decision in Stirone v. United States, 
    361 U.S. 212
     (1960), which discussed the interstate
    commerce requirement under the Hobbs Act, dictates a contrary result. See Prentiss, 256 F.3d at
    984 n.11; Mojica-Baez, 229 F.3d at 310. Furthermore, Stirone was decided before Chapman v.
    California, 
    386 U.S. 18
    , 22 (1967), in which the Supreme Court first stated that some
    constitutional errors could be deemed harmless.
            Additionally, the Sanchezes rely on United States v. Tomeny, 
    144 F.3d 749
     (11th Cir.
    1998), but that decision is inapposite. The issue there was whether the statute under which the
    defendants were indicted was preempted by another statute, not whether the indictment failed to
    allege an element of the charged offense. Also, this Court ultimately affirmed the defendants’
    convictions based on the indictment.
    
                                                    49
    Sanchezes’ Apprendi-based challenge to their indictment.
    
          2.     The Sanchezes’ Indictment
    
          By sparing no expense in the foundational discussion above, the case-
    
    specific application of Apprendi that follows will enjoy the luxury of brevity. The
    
    correct response to the Sanchezes’ argument is that they ultimately were sentenced
    
    below the otherwise applicable statutory maximum in § 841(b)(1)(C), and thus,
    
    drug quantity never was an element of their offense under § 841 and never became
    
    an element under Apprendi. Therefore, there is no Apprendi error in their
    
    indictment or in their convictions and sentences stemming from that indictment.
    
          Both before and after Apprendi, in any § 841 case, an indictment charging
    
    that a defendant violated § 841 properly charges a complete federal crime without
    
    any reference to either drug type or quantity. While under Apprendi the allowable
    
    maximum sentence for a § 841 violation may differ depending on how drug
    
    quantity was handled at the plea, trial, or sentencing phases, and on the timeliness
    
    of an Apprendi-based objection, Apprendi has no effect whatsoever on whether a
    
    complete federal crime under § 841 is charged in an indictment that does not
    
    specify drug quantity. Therefore, even if an indictment for a § 841 offense does
    
    not allege a specific drug quantity, it is legally and constitutionally sufficient both
    
    before and after Apprendi, and a district court may still accept the defendant’s
    
    
                                               50
    guilty plea to, or try a defendant on, a § 841 charge and then sentence the
    
    defendant for that charge. Thus, the district court did not err in denying the
    
    Sanchezes’ motion to dismiss their indictment.49
    
           We fully recognize that from the outset of the Sanchezes’ cases the
    
    government sought enhanced sentences, particularly under § 841(b)(1)(B), and that
    
    the district court made drug quantity findings and purported to sentence both
    
    Sanchezes under that section. Accordingly, the Sanchezes argue that their cases
    
    were “§ 841(b)(1)(B) cases” and thus that there is not only Apprendi error in their
    
    cases but also “Rogers error” as coined in United States v. Camacho, 
    248 F.3d 1286
    , 1289-90 (11th Cir. 2001) (citing United States v. Rogers, 
    228 F.3d 1318
    ,
    
    1327 (11th Cir. 2000)).
    
           As explained above, being sentenced under § 841(b)(1)(A) or § 841(b)(1)(B)
    
    and being potentially exposed to a higher sentence under either section do not
    
    create Apprendi error. Indeed, the condition that the Sanchezes describe – that of
    
    
    
           49
             Although the Sanchezes preserved the indictment issue for appellate review, many
    defendants making a similar argument have not. Under our precedent, “[a] contention that the
    indictment lacked sufficient specificity is waived . . . if the defendant fails to raise it before
    entering a guilty plea.” United States v. Pease, 
    240 F.3d 938
    , 942 (11th Cir. 2001) (citing Fed.
    R. Crim. P. 12(b)(2)). While entry of a guilty plea does not act as a waiver of the objection that
    the indictment failed to charge any offense at all, id. at 942-43, such a scenario is usually not
    presented by an indictment charging a § 841 drug offense. This is so because an indictment
    charging a drug offense under § 841 but failing to state a specific drug quantity does charge a
    complete federal offense under § 841.
    
                                                    51
    facing theoretical or potential exposure to a particular fate under § 841(b)(1)(B)
    
    but actually being consigned to one of less severity under § 841(b)(1)(C) – borders
    
    on the metaphysical. Contrary to the Sanchezes’ suggestion, Apprendi did not
    
    hold that judge-made factual findings that merely expose a defendant to a higher
    
    statutory maximum penalty, without actually resulting in a sentence beyond the
    
    applicable maximum, must be proven to a jury beyond a reasonable doubt. We
    
    thus agree with those circuits that have concluded that theoretical exposure to a
    
    higher sentence does not constitute error under Apprendi. See, e.g., United States
    
    v. Robinson, 
    241 F.3d 115
    , 121-22 (1st Cir. 2001) (“[T]heoretical exposure to a
    
    higher sentence, unaccompanied by the imposition of a sentence that in fact
    
    exceeds the otherwise-applicable statutory maximum, is of no consequence. . . . In
    
    fine, the Apprendi rule applies only in situations in which a judge-made factual
    
    determination actually boosts the defendant’s sentence beyond the basic statutory
    
    maximum. Theoretical exposure to a higher maximum punishment, in and of
    
    itself, is not enough.”) (emphasis added) (citation omitted), cert. denied, ___ S. Ct.
    
    ___, No. 00-10411 (Oct. 1, 2001). As stated above, there is no error at all under
    
    Apprendi unless a judge-made factual finding actually increases the defendant’s
    
    
    
    
                                              52
    sentence beyond the statutory maximum in § 841(b)(1)(C).50
    
    
           50
              Other circuits have adopted a similar approach. See, e.g., United States v. Robinson,
    
    241 F.3d 115
    , 119 (1st Cir. 2001) (“No Apprendi violation occurs when the district court
    sentences a defendant below the default statutory maximum, even though drug quantity,
    determined by the court under a preponderance-of-the-evidence standard, influences the length
    of the sentence imposed.”), cert. denied, ___ S. Ct. ___, No. 00-10411 (Oct. 1, 2001); United
    States v. Williams, 
    235 F.3d 858
    , 863 (3d Cir. 2000) (“First and foremost, though the District
    Court’s finding regarding the amount of drugs substantially increased the possible statutory
    maximum sentence under 21 U.S.C. § 841(b)(1), we hold that Apprendi is not applicable to [the
    defendant’s] sentence, because the sentence actually imposed (seven years and one month) was
    well under the original statutory maximum of 20 years.”), cert. denied, ___ S. Ct. ___, No. 00-
    1771 (Oct. 1, 2001); United States v. Obi, 
    239 F.3d 662
    , 667 (4th Cir. 2001) (concluding that a
    sentence of 200 months’ imprisonment “does not offend the standards set forth in Apprendi,
    despite the fact that [the defendant’s] sentence is based, in part, on factual findings of drug
    quantity made by the sentencing judge by a preponderance of the evidence”), cert denied, ___ S.
    Ct. ___, No. 00-9843 (Oct. 1, 2001); United States v. Doggett, 
    230 F.3d 160
    , 165-66 (5th Cir.
    2000) (“As [the defendant’s] sentence of 235 months falls short of this statutory maximum [of
    240 months as provided in § 841(b)(1)(C)], his claim fails. [The defendant’s] sentence was not
    enhanced beyond the statutory maximum by a factor not contained in the indictment or
    submitted to the jury. . . . The decision in Apprendi was specifically limited to facts which
    increase the penalty beyond the statutory maximum, and does not invalidate a court's factual
    finding for the purposes of determining the applicable Sentencing Guidelines.”), cert. denied,
    
    121 S. Ct. 1152
     (2001); United States v. Jones, 
    245 F.3d 645
    , 649 (7th Cir. 2001) (“[B]ecause
    [the defendant’s] sentence was forty-eight months below the statutory maximum for a defendant
    who has a prior felony drug conviction, Apprendi is inapplicable . . . .”); United States v.
    Aguayo-Delgado, 
    220 F.3d 926
    , 933-34 (8th Cir.) (“If the non-jury factual determination only
    narrows the sentencing judge’s discretion within the range already authorized by the offense of
    conviction, such as with the mandatory minimums applied to [the defendant], then the governing
    constitutional standard is provided by McMillan . . . . [B]ecause [the defendant’s sentences] are
    within the statutory range authorized by § 841(b)(1)(C) without reference to drug quantity, [they
    are] permissible under Apprendi . . . even where the drug quantity was not charged in the
    indictment or found by the jury to have been beyond a reasonable doubt.”), cert. denied, 121 S.
    Ct. 600 (2000); United States v. Garcia-Sanchez, 
    238 F.3d 1200
    , 1201 (9th Cir. 2001) (noting in
    a case involving a sentence of 121 months, “Apprendi has no application here. Apprendi dealt
    with the consideration of facts in sentencing enhancement beyond the statutory maximum. In the
    instant case, the sentence imposed was nine years and eleven months below the statutory
    maximum.”); United States v. Thompson, 
    237 F.3d 1258
    , 1262 (10th Cir.) (noting in a case
    involving a 121-month sentence, “[B]ecause the indictment set forth all the necessary elements
    of a crime as defined by 21 U.S.C. § 841(a) and 21 U.S.C. § 846, and because the minimum
    statutory range (within which [the defendant] was sentenced) does not specify a drug amount,
    neither the indictment nor the conviction was defective. . . . [W]here the sentence is fully
    supported, as it is in this case, by allegations in the indictment which are subsequently proven
    
                                                   53
           We also recognize that, prior to this en banc decision, our circuit precedent
    
    regarding the impact of Apprendi on § 841 cases stemmed largely from United
    
    States v. Rogers, 
    228 F.3d 1318
     (11th Cir. 2000) and its progeny. See, e.g., United
    
    States v. Camacho, 
    248 F.3d 1286
     (11th Cir. 2001); United States v. Candelario,
    
    
    240 F.3d 1300
     (11th Cir.), cert. denied, 
    121 S. Ct. 2535
     (2001); United States v.
    
    Shepard, 
    235 F.3d 1295
     (11th Cir. 2000), cert. denied, ___ S. Ct. ___, No. 00-
    
    10410 (Oct. 1, 2001). Rogers was correct in some aspects of its analysis but wrong
    
    in others. Rogers properly recognized, “Applying Apprendi’s constitutional
    
    principle to § 841 cases, it is clear that the principle is violated if a defendant is
    
    sentenced to a greater sentence than the statutory maximum based upon the
    
    quantity of drugs, if such quantity is determined by the sentencing judge rather
    
    than the trial jury.” Rogers, 228 F.3d at 1327 (emphasis added). Rogers continued
    
    that such a sentence – that is, one greater than the statutory maximum – violates
    
    Apprendi unless drug quantity was charged in the indictment, submitted to a jury,
    
    and proven beyond a reasonable doubt. See id.51 To this extent, Rogers correctly
    
    beyond a reasonable doubt, there can be no violation of Apprendi.”), cert. denied, 
    121 S. Ct. 1637
     (2001); see also United States v. Fields, 
    251 F.3d 1041
    , 1043-44 (D.C. Cir. 2001)
    (“Apprendi does not apply to sentencing findings that elevate a defendant’s sentence within the
    applicable statutory limits. In other words, Apprendi does not apply to enhancements under the
    Sentencing Guidelines when the resulting sentence remains within the statutory maximum.”)
    (citation omitted).
           51
             Rogers appears to have assumed that compliance with Apprendi requires that drug
    quantity be subjected to this full procedural triumvirate, including being charged in the
    
                                                   54
    analyzed Apprendi’s effect on § 841.52
    
    
    indictment. Indeed, we stated in a case involving concurrent sentences of forty years and life
    imprisonment that Rogers “required” that the indictment specify drug quantity. United States v.
    Wims, 
    245 F.3d 1269
    , 1272 n.6 (11th Cir. 2001) (citing Rogers, 228 F.3d at 1327). Other cases
    in this circuit echoed this sentiment, generally attributing it to Rogers. See United States v.
    Gallego, 
    247 F.3d 1191
    , 1196-97 (11th Cir. 2001); United States v. Candelario, 
    240 F.3d 1300
    ,
    1306 (11th Cir.), cert. denied, 
    121 S. Ct. 2535
     (2001); United States v. Pease, 
    240 F.3d 938
    , 943
    (11th Cir. 2001); United States v. Shepard, 
    235 F.3d 1295
    , 1297 (11th Cir. 2000), cert. denied,
    ___ S. Ct. ___, No. 00-10410 (Oct. 1, 2001); United States v. Gerrow, 
    232 F.3d 831
    , 834 (11th
    Cir. 2000), cert. denied, ___ S. Ct. ___, No. 00-9373 (Oct. 1, 2001); cf. United States v. Swatzie,
    
    228 F.3d 1278
    , 1282 (11th Cir. 2000) (assuming arguendo that a failure to charge drug quantity
    in the indictment and submit it to a jury constituted Apprendi error, in part because the
    indictment issue was not adequately briefed), cert. denied, 
    121 S. Ct. 2600
     (2001).
             Rogers expanded Apprendi in this regard, because neither Jones nor Apprendi held that a
    congressionally enacted sentencing factor must also be alleged in the indictment. The
    government argues that this expansion is not inevitable. Under the government’s view, a fact
    such as drug quantity that increases a sentence beyond a default maximum does not in all
    respects equate to a “traditional element”; it is, rather, “the functional equivalent of an element
    of a greater offense than the one covered by the jury’s guilty verdict.” Apprendi, 530 U.S. at 494
    n.19. Drug quantity in § 841 thus may occupy an ambiguous place somewhere in the middle of a
    hazy spectrum marked by traditional “elements” on one end and “sentencing factors” on the
    other, two endpoints that themselves represent a “constitutionally novel and elusive distinction.”
    Id. at 494. The government can find comfort in at least one of our cases, which suggested that if
    an indictment did not charge a specific drug quantity but “the evidence established a drug
    quantity that would authorize a sentence under section 841(b)(1)(A) or (B), the Government
    would be entitled to a special jury verdict specifying the quantity of drugs.” United States v.
    Candelario, 
    240 F.3d 1300
    , 1305 n.7 (11th Cir.), cert. denied, 
    121 S. Ct. 2535
     (2001).
    According to the government, in sum, drug quantity is an “element lite” that is not subject to the
    indictment requirement, but still must be submitted to the jury and proven beyond a reasonable
    doubt.
             We are not persuaded, and we thus preserve our precedent in Rogers and its progeny to
    this limited effect. Of course, our holding with respect to the Sanchezes’ motion to dismiss the
    indictment shows that drug quantity, even in Rogers-like cases, is not a “traditional element” in
    the sense that a failure to allege it could entitle the defendant to dismissal of a § 841 indictment.
    Instead, as outlined in this opinion, the omission of that element would first have to be
    established and then, if shown, would be reviewed for harmless or plain error, depending on the
    timing of the objection. See supra section III.A.1.
           52
            Although Rogers added a third procedural protection of charging drug quantity in the
    indictment, we hasten to specify that drug quantity need be alleged only in the narrow
    circumstances described above in which Apprendi’s jury-submission and reasonable-doubt
    requirements apply – that is, when the sentence imposed exceeds the maximum in
    
                                                     55
           Rogers, however, extended Apprendi substantially beyond its holding, and
    
    we are not prepared to go that far. Rogers suggested that the mere fact that a
    
    sentence arose in “section 841(b)(1)(A) and section 841(b)(1)(B) cases” meant that
    
    drug quantity must be charged in the indictment and proven to a jury beyond a
    
    reasonable doubt even if the sentence did not exceed the statutory maximum in §
    
    841(b)(1)(C). See id. at 1327. As we have explained, this is not so unless the
    
    factual finding of drug quantity boosts the actual sentence imposed under §§
    
    841(b)(1)(A) or 841(b)(1)(B) beyond the statutory maximum otherwise
    
    permissible under § 841(b)(1)(C) absent drug quantity.
    
           Specifically, Rogers also stated: (1) that “sections 841(b)(1)(A) and
    
    841(b)(1)(B) may not be utilized for sentencing without a finding of drug quantity
    
    by the jury,” Rogers, 228 F.3d at 1327 (emphasis added); (2) “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 in light of Apprendi,”
    
    id. (emphasis added); (3) that when a defendant is sentenced under the wrong
    
    subsection of § 841(b), “this alone is reason for us to vacate and remand the
    
    sentence,” id. at 1321; and (4) that “[a]pplying the rule [of Apprendi] to the facts at
    
    
    
    § 841(b)(1)(C). Drug quantity need not be alleged when it has effects that Apprendi’s doctrine
    does not reach, such as mandatory minimum sentences, guideline sentencing calculations, and
    sentences at or below the otherwise applicable maximum in § 841(b)(1)(C).
    
                                                  56
    hand, it is clear that Rogers must be sentenced under section 841 without reference
    
    to drug quantity,” id. at 1328; and decided (5) to “overrule Hester to the extent it is
    
    inconsistent with this holding,” id.
    
           As we have explained, however, a district court’s drug quantity findings and
    
    utilization of the § 841(b)(1)(A) and § 841(b)(1)(B) sentencing schemes in § 841
    
    cases in no manner violate Apprendi unless the actual sentence ultimately imposed
    
    exceeds the catchall maximum penalty in § 841(b)(1)(C). Thus, for example,
    
    mandatory minimum sentences do not violate Apprendi’s constitutional rule
    
    because they do not exceed the catchall statutory maximum penalty in
    
    § 841(b)(1)(C) that is otherwise applicable when no specific drug quantity is
    
    charged or found by the jury.53 We therefore expressly disavow these five
    
           53
              This Court previously suggested that the imposition of a mandatory minimum sentence
    based on a judge-made factual determination does not violate Apprendi. See United States v.
    Pounds, 
    230 F.3d 1317
    , 1319-20 (11th Cir. 2000), cert. denied, 
    121 S. Ct. 1631
     (2001). In
    Pounds, the defendant was sentenced to the mandatory minimum sentence of ten years under 18
    U.S.C. § 924(c)(1)(A)(iii), based on the sentencing court’s finding that his co-defendant had
    discharged a firearm. Pounds, 230 F.3d at 1318. This Court affirmed the sentence, holding on
    the basis of the statutory text that the discharge of a firearm was a sentencing factor and not an
    element of the offense. Id. at 1319. Furthermore, this Court noted that Apprendi did not alter
    this result, stating, “The discharge of a firearm does not increase the maximum possible penalty
    of life under § 924(c)(1)(A); rather, it increases only the mandatory minimum penalty.” Id.
             Thus, consistent with the analysis in this en banc opinion, our decision in Pounds, and the
    holdings of the majority of circuits, we hereby overrule the holding about mandatory minimum
    sentences in United States v. Camacho, 
    248 F.3d 1286
    , 1289 (11th Cir. 2001) (concluding that,
    because the district court sentenced the defendant to the mandatory minimum of ten years’
    imprisonment under § 841(b)(1)(A), it “necessarily used section 841(b)(1)(A) for sentencing,”
    and concluding that this constituted error). We also reject Camacho’s adoption of “Rogers
    error,” a concept that Camacho conceded “went beyond Apprendi” and would hold as error any
    sentence obtained when the court utilized drug quantities in §§ 841(b)(1)(A) and 841(b)(1)(B)
    
                                                    57
    propositions in Rogers and any repetition of them in Rogers’s progeny.
    
           Apprendi does not prohibit all uses of drug quantity in sentencing under
    
    § 841, or any use of drug quantity in guideline calculations under the Sentencing
    
    Guidelines for that matter. Rather, it prohibits such use only to the extent that a
    
    factual finding of drug quantity increases a defendant’s sentence beyond the
    
    otherwise applicable statutory maximum penalty under § 841(b)(1)(C) absent drug
    
    quantity. We limit Rogers’s analysis and conclusion about Apprendi to those §
    
    841 cases where the defendant’s sentence is both (1) directly affected by a judge-
    
    made finding of drug quantity under either § 841(b)(1)(A) or § 841(b)(1)(B), and
    
    (2) as a direct result of that drug quantity finding actually exceeds the statutory
    
    maximum otherwise permissible under § 841(b)(1)(C).54 As explained above, in
    
    
    that were not charged in the indictment and proven to a jury beyond a reasonable doubt,
    regardless of the actual sentence imposed.
             We preserve, however, that portion of Camacho which reaffirmed the principle that “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.” Camacho, 248 F.3d at 1288 (citing
    Gerrow, 232 F.3d at 834). Applying this rule, the Camacho Court stated that “[b]ecause
    Camacho’s sentence of 120 months’ imprisonment was less than the twenty year maximum
    prescribed by section 841(b)(1)(C), there is arguably no Apprendi error, even though the court
    utilized a mandatory minimum when sentencing Camacho,” id. at 1289 (emphasis added)
    (footnote omitted), but concluded that “[r]egardless of whether there is Apprendi error, there is
    error in Camacho’s sentence under” Rogers. Id. We now clarify that nothing was “arguabl[e]”
    about the lack of Apprendi error in Camacho’s sentence. Because Camacho was sentenced
    below twenty years, Apprendi did not apply to his case.
           54
             In Rogers, the defendant actually received a thirty-year prison sentence, and this Court
    found, under the particular circumstances of that case, that the defendant’s prescribed statutory
    maximum sentence was twenty years under § 841(b)(1)(C). We observe, however, that a thirty-
    
                                                   58
    all circumstances other than this, there is no Apprendi error.
    
           In sum, a defendant is not entitled to dismissal of a § 841 indictment that
    
    does not allege a specific drug quantity, whether that indictment was issued before
    
    or after Apprendi. Instead, whether a specific drug quantity is charged affects only
    
    the permissible statutory maximum sentence and not the sufficiency of a § 841
    
    indictment. In the context of § 841, Apprendi involves error in sentencing and
    
    necessarily looks retrospectively, rather than prospectively, at whether the criminal
    
    procedures that culminated in the actual sentence pass constitutional muster.55
    
    Thus, for all of these reasons, the Sanchezes have not shown that the district court
    
    erred in denying their motion to dismiss the indictment.
    
    B.     Plea Colloquies
    
           The Sanchezes next attempt to make use of Apprendi by arguing – for the
    
    first time on appeal – that their convictions must be reversed because their guilty
    
    pleas were unintelligent and involuntary under Apprendi. The Sanchezes’
    
    challenge to their guilty pleas rests on two branches of the Apprendi tree.
    
           First, the Sanchezes assert that the district court failed to comply with Rule
    
    
    year sentence is permitted under § 841(b)(1)(C) when a defendant’s prior felony drug conviction
    is properly shown.
           55
              Accordingly, in United States v. Candelario, 
    240 F.3d 1300
     (11th Cir.), cert. denied,
    
    121 S. Ct. 2535
     (2001), we stated that a “constitutional objection for Apprendi purposes is timely
    if a defendant makes the objection at sentencing.” Id. at 1304 (citations omitted).
    
                                                   59
    11 before accepting their guilty pleas because it did not address drug quantity,
    
    which they believe Apprendi converted into an element of their offense. The
    
    second aspect of their argument is that Apprendi vitiated the voluntariness of their
    
    guilty pleas by reducing the legally permissible maximum penalty they faced for
    
    their drug offense. More specifically, they aver that their guilty pleas were induced
    
    by the threat of a harsher punishment – up to forty years or life imprisonment –
    
    than was possible given Apprendi, under which they faced a maximum penalty of
    
    only twenty years’ imprisonment under § 841(b)(1)(C).
    
           1.     Standard of Review
    
           The Sanchezes raise the Apprendi issues concerning their guilty pleas for the
    
    first time on appeal. This Court has held “that a defendant who has not presented
    
    his objection to the district court – for example, through a motion to withdraw the
    
    plea – must show plain error on direct appeal.” United States v. Quinones, 
    97 F.3d 473
    , 475 (11th Cir. 1996).56 Thus, the Sanchezes must show that there is (1)
    
    “error,” (2) “that is ‘plain,’” and (3) “that ‘affect[s] substantial rights.’” Johnson v.
    
    United States, 
    520 U.S. 461
    , 466-67 (1997) (quoting United States v. Olano, 507
    
           56
             Although Rule 11(h), entitled “Harmless Error,” provides that “[a]ny variance from the
    procedures required by this rule which does not affect substantial rights shall be disregarded,”
    Fed. R. Crim. P. 11(h), such review does not supercede the plain error standard of review. See
    Quinones, 97 F.3d at 475 (“We see no reason why the plain error rule should not apply in the
    Rule 11 context, though we recognize that many non-technical deviations from Rule 11 will
    constitute plain error.”).
    
                                                   
    60 U.S. 725
    , 732 (1993)). “If all three conditions are met, an appellate court may then
    
    exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously
    
    affect[s] the fairness, integrity, or public reputation of judicial proceedings.’” Id.
    
    (quoting Olano, 507 U.S. at 732) (other internal quotation marks omitted).
    
          2.     Rule 11
    
          The Sanchezes claim that the district court failed to comply with the
    
    requirements of Rule 11 when it accepted their guilty pleas. Rule 11 provides that
    
    “[b]efore accepting a plea of guilty . . . the court must address the defendant
    
    personally in open court and inform the defendant of, and determine that the
    
    defendant understands,” certain matters. Fed. R. Crim. P. 11(c). At issue in this
    
    case are the requirements in Rule 11 that the court properly advise the defendant of
    
    “the nature of the charge to which the plea is offered, the mandatory minimum
    
    penalty provided by law, if any, and the maximum possible penalty provided by
    
    law, including the effect of any special parole or supervised release term.” Fed. R.
    
    Crim. P. 11(c)(1). Under Rule 11, a “court shall not accept a plea of guilty . . .
    
    without first, by addressing the defendant personally in open court, determining
    
    that the plea is voluntary and not the result of force or threats or of promises apart
    
    from a plea agreement.” Fed. R. Crim. P. 11(d).
    
          Rule 11 serves two purposes: “to assist the district judge in making the
    
    
                                                61
    constitutionally required determination that a defendant’s guilty plea is truly
    
    voluntary” and “to produce a complete record at the time the plea is entered of the
    
    factors relevant to this voluntariness determination.” McCarthy v. United States,
    
    
    394 U.S. 459
    , 465 (1969). “Thus, the more meticulously the Rule is adhered to,
    
    the more it tends to discourage, or at least to enable more expeditious disposition
    
    of, the numerous and often frivolous post-conviction attacks on the constitutional
    
    validity of guilty pleas.” Id.
    
          “No simple or mechanical rule determines whether the district court
    
    complied with Rule 11’s mandate to satisfy itself that [the defendants] understood
    
    the nature of the charges against them.” United States v. DePace, 
    120 F.3d 233
    ,
    
    237 (11th Cir. 1997) (citing United States v. Bell, 
    776 F.2d 965
    , 968 (11th Cir.
    
    1985)). “Rather, the inquiry varies from case to case depending on ‘the relative
    
    difficulty of comprehension of the charges and of the defendant’s sophistication
    
    and intelligence.’” Id. (quoting Bell, 776 F.2d at 968). This Court has described
    
    “the spectrum of complexity of charges and the concomitant degree of required
    
    explication” as follows:
    
          “For simple charges . . . a reading of the indictment, followed by an
          opportunity given the defendant to ask questions about it, will usually
          suffice. Charges of a more complex nature, incorporating esoteric terms or
          concepts unfamiliar to the lay mind, may require more explication. In the
          cases of extreme complexity, an explanation of the elements of the offense
          like that given the jury in its instructions may be required.”
    
                                              62
    Id. (quoting United States v. Dayton, 
    604 F.2d 931
    , 937-38 (5th Cir. 1979) (en
    
    banc)). We recently stated that “[p]ossession with intent to distribute crack and
    
    conspiracy to do the same are not of course the most complicated of offenses.”
    
    United States v. Telemaque, 
    244 F.3d 1247
    , 1249 (11th Cir. 2001).
    
          In assessing whether a district court’s failure to comply with Rule 11
    
    constitutes plain error, this Court has identified three “core concerns” of that rule:
    
    “(1) ensuring that the guilty plea is free of coercion; (2) ensuring that the defendant
    
    understands the nature of the charges against him; and (3) ensuring that the
    
    defendant is aware of the direct consequences of the guilty plea.” Quinones, 97
    
    F.3d at 475 (citing United States v. Zickert, 
    955 F.2d 665
    , 668 (11th Cir. 1992)).
    
    “Failure to satisfy any of the core objectives violates the defendants’s substantial
    
    rights.” Id.
    
          3.       Elements of the Offense
    
          The Sanchezes maintain that the district court failed to comply with Rule 11
    
    because it did not inform them of all of the elements of the offense with which they
    
    were charged. Because both Sanchezes were sentenced below the prescribed
    
    maximum penalty otherwise permissible under § 841(b)(1)(C), a specific drug
    
    
    
    
                                              63
    quantity was not, nor did it ever become, an element of their drug offenses.57 Thus,
    
    that the district court did not discuss any specific drug quantity in their plea
    
    colloquies was not error, plain or otherwise, under Apprendi.
    
           4.      “Maximum Possible Penalty”
    
           Alternatively, the Sanchezes assert that if drug quantity never became an
    
    element of their offense, their guilty pleas were nonetheless involuntary and
    
    unknowing because they were misadvised during their plea colloquies as to the
    
    “maximum possible penalty” they faced. See Fed. R. Crim. P. 11(c)(1). The
    
    argument is that their guilty pleas were induced by the threat of a harsher
    
    punishment than was legally permissible under the indictment in this case.
    
    Specifically, the Sanchezes’ contention is that they entered their guilty pleas while
    
    laboring under the understanding that they could face up to forty years’ or life
    
    imprisonment, when actually they could have been sentenced only to a maximum
    
    of twenty years’ imprisonment because their indictment did not allege a specific
    
    drug quantity.
    
           The Sanchezes first must establish that they were in fact misadvised about
    
    the “maximum possible penalty” under Rule 11. See Fed. R. Crim. P. 11(c)(1). To
    
    
    
           57
              The Sanchezes’ conditional plea agreements did not preserve the right to appeal any
    error in their plea colloquies, nor did they ever move to withdraw their pleas in the district court.
    
                                                     64
    do so, they argue that, in light of Apprendi, their indictment would not have
    
    supported an enhanced sentence of forty years under § 841(b)(1)(B) because it did
    
    not allege a drug quantity. The Sanchezes emphasize that to obtain a sentence
    
    beyond that otherwise provided under § 841(b)(1)(C), Apprendi requires that drug
    
    quantity be charged in the indictment, submitted to a jury, and proven beyond a
    
    reasonable doubt. Since their indictment did not charge a specific drug quantity,
    
    the Sanchezes argue that it was insufficient for an enhanced sentence and that their
    
    maximum possible penalty, in light of Apprendi, was actually twenty years’
    
    imprisonment under § 841(b)(1)(C). The issue presented by this argument,
    
    however, is not whether drug quantity should be alleged in some form in the
    
    indictment when it increases a sentence beyond the maximum in § 841(b)(1)(C) – a
    
    question already answered by Rogers – but whether the wording of the Sanchezes’
    
    indictment is sufficient to satisfy that indictment requirement.58
    
           58
             Our precedent strongly implies that naming a number is not the only way of alleging
    drug quantity in the indictment. See United States v. Nealy, 
    232 F.3d 825
    , 830 & n.5 (11th Cir.
    2000) (stating “that the indictment likely only needs to reference the statute” but finding that the
    defendant abandoned the indictment issue and affirming his thirty-two-year sentence) (citing
    United States v. Fern, 
    155 F.3d 1318
    , 1325 (11th Cir. 1998)); Fern, 155 F.3d at 1325 (“If an
    indictment specifically refers to the statute on which the charge was based, the reference to the
    statutory language adequately informs the defendant of the charge.”) (citing United States v.
    Stefan, 
    784 F.2d 1093
    , 1101-02 (11th Cir. 1986)); see also United States v. Wims, 
    245 F.3d 1269
    , 1272 n.6 (11th Cir. 2001) (affirming concurrent sentences of forty years and life
    imprisonment and stating that “by alleging violations of section 841(b)(1)(A), the indictment
    served [the defendant] with notice that the Government was charging him with possessing (or
    conspiring to possess) at least five kilograms of a mixture containing a detectable amount of
    cocaine or at least fifty grams of a mixture containing cocaine base”). Because the Sanchezes’
    
                                                     65
            We need not resolve this issue, however, because even assuming arguendo
    
    that the Sanchezes were misadvised about the “maximum possible penalty” they
    
    faced, their challenge to their plea colloquies lacks merit due to Brady v. United
    
    States, 
    397 U.S. 742
     (1970). The Supreme Court in Brady expressly held that a
    
    guilty plea was not rendered involuntary by a subsequent legal pronouncement that
    
    reduced the statutory maximum sentence below what the defendant was advised of
    
    at the time of his plea. In Brady, the defendant was charged with violating the
    
    Federal Kidnaping Act, 18 U.S.C. § 1201(a), which authorized a penalty of death
    
    or imprisonment.59 Id. at 743. Although initially pleading not guilty, he later
    
    changed his plea to guilty.60 Id. The trial judge twice questioned the defendant as
    
    to the voluntariness of his plea, and the defendant affirmed that the plea was
    
    
    
    
    challenges to their guilty pleas lack merit even if they were misadvised, we need not imagine
    here or resolve all the ways in which an indictment may adequately allege drug quantity.
            59
                 At the time of the defendant’s plea colloquy in 1959, § 1201(a) provided, in pertinent
    part:
           Whoever knowingly transports in interstate . . . commerce, any person who has been
           unlawfully . . . kidnaped . . . and held for ransom . . . shall be punished (1) by death if the
           kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so
           recommend, or (2) by imprisonment for any term of years or for life, if the death penalty
           is not imposed.
    Brady, 397 U.S. at 743 n.1 (quoting 18 U.S.C. § 1201(a)).
            60
            The habeas court found that Brady changed his plea upon learning that his co-defendant
    would plead guilty and would be available to testify against him. Id. at 745.
    
                                                       66
    voluntary. Id. at 743 n.2 (excerpt from the defendant’s plea colloquy).61 The trial
    
    judge then sentenced the defendant to fifty years’ imprisonment, which was later
    
    reduced to thirty years. Id. at 744.
    
           After the defendant pled guilty and was sentenced, the Supreme Court
    
    invalidated the portion of § 1201(a) that permitted the death penalty. See United
    
    States v. Jackson, 
    390 U.S. 570
    , 572 (1968).62 The defendant filed a federal habeas
    
    petition pursuant to 28 U.S.C. § 2255 and claimed that, after Jackson, his guilty
    
    
           61
              While the Supreme Court’s opinion indicates that Brady alleged that the district court
    did not comply with Rule 11 in its plea colloquy, neither that opinion nor the circuit court
    opinion under review indicate what advice the district court gave concerning the possible
    penalties. The Supreme Court’s opinion does state that “Brady’s counsel advised him that
    § 1201(a) empowered the jury to impose the death penalty.” Brady, 397 U.S. at 756.
    Nonetheless, its discussion centered on whether the subsequent change in the law rendered the
    guilty plea invalid.
           62
              In Jackson, the Supreme Court concluded that the death penalty provision of § 1201(a)
    “impose[d] an impermissible burden upon the exercise of a constitutional right.” Jackson, 390
    U.S. at 572. Specifically, the Court observed that under § 1201(a), “the defendant who abandons
    the right to contest his guilt before a jury [i.e., by pleading guilty] is assured that he cannot be
    executed; the defendant ingenuous enough to seek a jury acquittal stands forewarned that, if the
    jury finds him guilty and does not wish to spare his life, he will die.” Id. at 581. The Court
    further noted that “[t]he inevitable effect of any such provision, is of course, to discourage
    assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth
    Amendment right to demand a jury trial.” Id. (footnote omitted). The Supreme Court
    concluded, “Whatever the power of Congress to impose a death penalty for violation of the
    Federal Kidnaping Act, Congress cannot impose such a penalty in a manner that needlessly
    penalizes the assertion of a constitutional right.” Id. at 583 (citing Griffin v. California, 
    380 U.S. 609
     (1965)). The Court further decided, however, that the unconstitutionality of the death
    penalty provision did not invalidate the entire statute, and it thus upheld the remainder of the
    statute after excising the death penalty provision. See id. at 591 (“Thus the infirmity of the death
    penalty clause does not require the total frustration of Congress’ basic purpose – that of making
    interstate kidnaping a federal crime. By holding the death penalty clause of the Federal
    Kidnaping Act unenforceable, we leave the statute an operative whole, free of any constitutional
    objection.”).
    
                                                     67
    plea could not be considered voluntary because § 1201(a) had operated to coerce
    
    his plea. Brady, 397 U.S. at 744. The Supreme Court thus was faced with the
    
    questions of whether “it violates the Fifth Amendment to influence or encourage a
    
    guilty plea by opportunity or promise of leniency” and whether “a guilty plea is
    
    coerced and invalid if influenced by the fear of a possibly higher penalty for the
    
    crime charged if a conviction is obtained after the State is put to its proof.” Id. at
    
    750-51.
    
          The Supreme Court answered in the negative, stating:
    
          A defendant is not entitled to withdraw his plea merely because he discovers
          long after the plea has been accepted that his calculus misapprehended the
          quality of the State’s case or the likely penalties attached to alternative
          courses of action. More particularly, absent misrepresentation or other
          impermissible conduct by state agents, a voluntary plea of guilty
          intelligently made in the light of the then applicable law does not become
          vulnerable because later judicial decisions indicate that the plea rested on a
          faulty premise. A plea of guilty triggered by the expectations of a
          competently counseled defendant that the State will have a strong case
          against him is not subject to later attack because the defendant’s lawyer
          correctly advised him with respect to the then existing law as to possible
          penalties but later pronouncements of the courts, as in this case, hold that the
          maximum penalty for the crime in question was less than was reasonably
          assumed at the time the plea was entered.
    
                 The fact that [the defendant] did not anticipate [the later change in the
          law] does not impugn the truth or reliability of his plea. We find no
          requirement in the Constitution that a defendant must be permitted to disown
          his solemn admissions in open court that he committed the act with which he
          is charged simply because it later develops that the State would have had a
          weaker case than the defendant had thought or that the maximum penalty
          then assumed applicable has been held inapplicable in subsequent judicial
    
                                               68
           decisions.
    
    Id. at 757 (citation omitted) (emphasis added). The Supreme Court concluded that
    
    the defendant’s guilty plea was voluntary at the time it was made:
    
           [The defendant] first pleaded not guilty; prior to changing his plea to guilty
           he was subjected to no threats or promises in face-to-face encounters with
           the authorities. He had competent counsel and full opportunity to assess the
           advantages and disadvantages of a trial as compared with those attending a
           plea of guilty; there was no hazard of an impulsive and improvident
           response to a seeming but unreal advantage. His plea of guilty was entered
           in open court and before a judge obviously sensitive to the requirements of
           the law with respect to guilty pleas. [The defendant’s] plea . . . was
           voluntary.
    
    Id. at 754-55.63
    
           The Supreme Court further concluded that even if the fear of the death
    
    penalty in fact caused the defendant to enter a guilty plea rather than go to trial,
    
    that did not render the plea involuntary, explaining, “But even if we assume that
    
    [the defendant] would not have pleaded guilty except for the death penalty
    
    provision of [the statute at issue], this assumption merely identifies the penalty
    
    provision as a ‘but for’ cause of his plea. That the statute caused the plea in this
    
    sense does not necessarily prove that the plea was coerced and invalid as an
    
           63
              The Supreme Court in Brady found support for this conclusion in Jackson itself, stating,
    “The Court made it clear in Jackson that it was not holding § 1201(a) inherently coercive of
    guilty pleas: ‘the fact that the Federal Kidnaping Act tends to discourage defendants from
    insisting upon their innocence and demanding trial by jury hardly implies that every defendant
    who enters a guilty plea to a charge under the Act does so involuntarily.’” Brady, 397 U.S. at
    746-47 (quoting Jackson, 390 U.S. at 583).
    
                                                   69
    involuntary act.” Id. at 750-51.
    
           When distilled to its essence, the Sanchezes’ argument here is no different
    
    from that rejected by the Supreme Court in Brady. The Sanchezes claim, as did the
    
    defendant in Brady, that a subsequent judicial pronouncement – namely, Apprendi
    
    – reduced the maximum possible penalty they faced for their offense and that this
    
    new knowledge, of which they did not have the benefit during their plea
    
    colloquies, retroactively invalidated their guilty pleas. We agree with the Supreme
    
    Court, however, that there is “no requirement in the Constitution that a defendant
    
    must be permitted to disown his solemn admissions in open court that he
    
    committed the act with which he is charged simply because it later develops that . .
    
    . the maximum penalty then assumed applicable has been held inapplicable in
    
    subsequent judicial decisions.” Id. at 757. Thus, we reject the Sanchezes’ claim
    
    that Apprendi invalidated their guilty pleas.64
    
           64
              Indeed, even if the Sanchezes had been misadvised about the maximum possibly
    penalty under the law as it existed at the time of their plea colloquy, their guilty pleas would not
    be invalid. In United States v. Woodall, 
    438 F.2d 1317
     (5th Cir. 1971) (en banc), the defendant
    challenged his guilty pleas to two related indictments on the ground that he had been incorrectly
    advised that the trial judge would pyramid the sentences rather than consider them as graduated
    penalties for a single offense. Id. at 1327. We upheld the pleas, stating:
            Isolating all other facts that could influence a defendant in determining to enter a
            plea of guilty, the court is of the opinion that even if [the defendant] had been told
            that the district judge could pyramid the maximum sentences under each of the
            separate counts of the two indictments to which he pled, this factor would not
            invalidate his plea. The probability such information would have influenced [the
            defendant] not to change his plea so far outweighs the possibility that the prospect
            of stiffer punishment may have caused the change, that we refuse to consider the
    
                                                     70
            The Sanchezes’ plea colloquies were otherwise sufficient. Like the
    
    defendant in Brady, both defendants here were represented by counsel. The
    
    requirements of Rule 11 were met by the district court’s advice to the Sanchezes
    
    before accepting their guilty pleas.65 Also like the defendant in Brady, the
    
    Sanchezes’ argument is based on a speculative “but-for” argument – that is, they
    
    appear to suggest that but for the district court’s statement that they faced a
    
    possible life sentence, they would not have pled guilty. The Sanchezes were
    
    ultimately sentenced well below the maximum penalties of which they had been
    
    advised.66 Under these circumstances, the Sanchezes cannot correctly claim that
    
    
            latter as relevant.
    Id. at 1329.
            65
              The Sanchezes’ reliance on United States v. Brown, 
    117 F.3d 471
     (11th Cir. 1997),
    does not help them. The defendant Brown was informed that willfulness was not an element of
    his crime, based on the then-applicable law in our circuit. Fourteen months after Brown pled
    guilty, the Supreme Court overruled our precedent in that regard. Id. at 473 (citing Ratzlaf v.
    United States, 
    510 U.S. 135
     (1994)). The defendant moved to vacate his conviction and sentence
    on the ground that he had been misinformed of a critical element of his offense. Id. at 474. The
    district court denied the motion, id., but this Court reversed and remanded. Id. at 480. We
    stated, “Because the misinformation [the defendant] was given about one of the critical elements
    of the charge against him caused him to plead guilty, it necessarily follows that his guilty plea
    was not voluntary in a constitutional sense.” Id. at 477. We decided that Brady did not require a
    different result, noting that the defendant in Brown misapprehended the elements of his offense,
    while the defendant in Brady misapprehended the possible penalties. See id. at 478 (“Unlike
    Brady’s strategic miscalculations, Brown’s misapprehension concerning the critical elements of
    his charged offense substantially undermines the reliability of this plea. Brown has never
    admitted all the elements of the crime with which he was charged.”).
            66
             Although the Sanchezes were advised about the mandatory minimum sentences in
    § 841(b), they were not misadvised about them, as Apprendi does not affect mandatory minimum
    sentences under § 841(b). See supra notes 38, 53.
    
                                                   71
    their guilty pleas were involuntary and unintelligent, and they can claim no harm or
    
    detriment whatsoever resulting from their plea colloquies.67
    
    C.     Sentences
    
           In addition to challenging their prison terms – an argument we have already
    
    rejected – the Sanchezes, for the first time on appeal, make an Apprendi-based
    
    attack on their terms of supervised release.68 Specifically, they contend that their
    
    supervised release was limited by statute to three years and that the four-year terms
    
    imposed violated Apprendi. We conclude that there was no Apprendi error in the
    
    supervised release portion of the Sanchezes’ sentences.
    
           The central question presented is what statute provides the prescribed term
    
    of supervised release applicable to the Sanchezes’ convictions.69 Section
    
           67
              This result is consistent with other cases in which we have decided that a district court’s
    failure to inform a defendant that he faces a specified term of supervised release or to inform the
    defendant of the effect of supervised release is harmless error where the sentence is well below
    the sentence that the defendant was informed that he faced. See United States v. Bejarano, 
    249 F.3d 1304
    , 1306 n.1 (11th Cir. 2001).
           68
             Thus, we review their argument for plain error. See United States v. Candelario, 
    240 F.3d 1300
    , 1306 (11th Cir.) (“If the defendant either does not raise the constitutional objection or
    does not raise it in a timely fashion, he is entitled only to plain error review.”), cert. denied, 
    121 S. Ct. 2535
     (2001).
           69
             In United States v. Gerrow, 
    232 F.3d 831
     (11th Cir. 2000), cert. denied, ___ S. Ct. ___,
    No. 00-9373 (Oct. 1, 2001), we addressed a similar challenge and concluded that the district
    court did not commit plain error in imposing a supervised release term of five years. That
    conclusion was based primarily on the facts that there was no Supreme Court or Eleventh Circuit
    precedent and that the circuits were split on the issue, under which circumstances “‘there can be
    no plain error in regard to that issue.’” Id. at 835 (quoting United States v. Aguillard, 
    217 F.3d 1319
    , 1321 (11th Cir. 2000)). While Gerrow suggested that there was no error under any
    
                                                     72
    841(b)(1)(C) requires a term of supervised release of “at least three years.” 21
    
    U.S.C. § 841(b)(1)(C) (emphasis added). The Sanchezes rely, however, on 18
    
    U.S.C. § 3583(b)(2), which provides that “[e]xcept as otherwise provided,” the
    
    term of supervised release for a “Class C felony” may be “not more than three
    
    years.” 18 U.S.C. § 3583(b)(2). A Class C felony is a felony for which the
    
    “maximum term of imprisonment authorized” is “less than twenty-five years but
    
    ten or more years.” 18 U.S.C. § 3559(a)(3). Thus, § 841(b)(1)(C), which provides
    
    for a maximum prison term of twenty years, constitutes a Class C felony.
    
           The Sanchezes argue that, based on the facts of their cases, § 3583(b)(2)
    
    creates a maximum term of supervised release of three years, while § 841(b)(1)(C)
    
    authorizes a minimum term of supervised release of three years. The issue
    
    presented, then, is whether § 841(b)(1)(C) or § 3583(b)(2) controls the length of
    
    their terms of supervised release.
    
           A term of supervised release of four years, as the Sanchezes received, is
    
    permitted under 21 U.S.C. § 841(b)(1)(C). As emphasized above, § 3583(b)(2)
    
    limits the maximum term of supervised release for a Class C felony to three years,
    
    “[e]xcept as otherwise provided.” 18 U.S.C. § 3583(b)(2). Section 841(b)(1)(C),
    
    
    
    standard of review by noting that the majority of circuits resolved the issue against the
    defendants, we now clarify that there is no error at all in a supervised release term of four years
    for an offense where the term of imprisonment is governed by § 841(b)(1)(C).
    
                                                     73
    in fact, expressly “otherwise provide[s]” – specifically, § 841(b)(1)(C) provides
    
    that the term of supervised release for that particular Class C felony must be “at
    
    least three years.” 21 U.S.C. § 841(b)(1)(C).
    
          To adopt the Sanchezes’ interpretation of the statute would require us to
    
    ignore the words “at least” in § 841(b)(1)(C), thus rendering that statutory
    
    language superfluous. Furthermore, the legislative history of both statutes
    
    indicates that Congress did not intend for a term of supervised release ordered
    
    pursuant to § 841(b)(1)(C) to be limited to three years. As noted by the Second
    
    Circuit when faced with the identical question, “the supervised release terms
    
    authorized by Congress for drug offenses, including section 841, were added in the
    
    same statute that amended section 3583(b) by adding the introductory phrase
    
    ‘Except as otherwise provided.’” United States v. Eng, 
    14 F.3d 165
    , 172-73 (2d
    
    Cir. 1994) (citing the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 1006,
    
    100 Stat. 3207). As the Second Circuit concluded from this legislative history, “It
    
    is apparent that in enacting . . . the Anti-Drug Abuse Act of 1986, Congress
    
    intended to enhance the penalties available to combat drug offenses. That
    
    Congress intended these penalties to override the maximums set by 18 U.S.C.
    
    § 3583(b) is clear from the fact that Congress simultaneously amended that section
    
    to add the phrase ‘[e]xcept as otherwise provided.’” Id. at 173.
    
    
                                             74
           In light of its language and history, § 841(b)(1)(C) cannot be understood to
    
    provide for a term of supervised release not greater than three years, as the
    
    Sanchezes contend. Relying on these principles of statutory interpretation, six
    
    other circuits have held that § 3583(b) does not limit the term of supervised release
    
    authorized in § 841(b)(1)(C) and that a term of supervised release over the
    
    minimum set forth in § 841(b)(1)(C) may be imposed notwithstanding the
    
    provisions of § 3583(b). See United States v. Pratt, 
    239 F.3d 640
    , 647 (4th Cir.
    
    2001) (holding that § 3583 “does not cap the period of supervised release that a
    
    district court may impose under § 841(b)(1)(C)”); United States v. Shorty, 
    159 F.3d 312
    , 315-16 n.6 (7th Cir. 1998) (noting that the provision for the term of
    
    supervised release in § 841(b)(1)(C) “sets a floor requirement, leaving the ceiling
    
    open, closed only by a defendant’s death”); United States v. Page, 
    131 F.3d 1173
    ,
    
    1177-80 (6th Cir. 1997), abrogated on other grounds by Johnson v. United States,
    
    
    529 U.S. 694
     (2000); United States v. Garcia, 
    112 F.3d 395
    , 398 (9th Cir. 1997);
    
    United States v. Orozco-Rodriguez, 
    60 F.3d 705
    , 707-08 (10th Cir. 1995); United
    
    States v. Eng, 
    14 F.3d 165
    , 172-73 (2d Cir. 1994); United States v. LeMay, 
    952 F.2d 995
    , 998 (8th Cir. 1991).70 We therefore conclude that the Sanchezes’ four-
    
    
           70
              But see Suveges v. United States, 
    7 F.3d 6
    , 10 & n.6 (1st Cir. 1993) (indicating that a
    term of supervised release imposed pursuant to § 841(b)(1)(C) is limited to three years); United
    States v. Kelly, 
    974 F.2d 22
    , 25 (5th Cir. 1992) (same).
    
                                                    75
    year terms of supervised release are authorized by § 841(b)(1)(C) and not limited
    
    by § 3583(b)(3).71 Therefore, the Sanchezes’ Apprendi-based challenges to the
    
    supervised release portions of their sentences lack merit.
    
                                         IV. CONCLUSION
    
           In conclusion, we recognize the following principles. Apprendi is
    
    implicated only when a judge-decided fact actually increases a defendant’s
    
    sentence beyond the prescribed statutory maximum penalty for the crime of
    
    conviction and has no application to, or effect on, cases where a defendant’s
    
    sentence falls at or below that maximum penalty. This means, among other things,
    
    that Apprendi has no application to, or effect on, either mandatory minimum
    
    sentences or Sentencing Guidelines calculations, when in either case the ultimate
    
    sentence imposed does not exceed the prescribed statutory maximum penalty.
    
    Thus, in a § 841 case when a specific drug quantity triggers a mandatory minimum
    
    sentence or is used in a Sentencing Guidelines calculation, and results in a sentence
    
    at or below the otherwise applicable maximum penalty in § 841(b)(1)(C), there is
    
    no Apprendi error and there is no requirement that a specific drug quantity be
    
    alleged in the indictment, submitted to a jury, and proven beyond a reasonable
    
           71
              To the extent that the Sanchezes rely on the fact of their four-year terms of supervised
    release to demonstrate that they were “sentenced under” § 841(b)(1)(B), that argument fails
    because of our conclusion that a term of supervised release of four years is in fact authorized by
    § 841(b)(1)(C).
    
                                                    76
    doubt.
    
             More specifically, we conclude that: 1) the various Apprendi errors that the
    
    Sanchezes assert are constitutional errors subject to harmless or plain error review,
    
    depending on the timing of their constitutional objections, and are not structural or
    
    jurisdictional errors; 2) the district court’s drug quantity findings under
    
    § 841(b)(1)(B) and utilization of that sentencing scheme, which exposed the
    
    Sanchezes to enhanced sentences under that section but did not result in an actual
    
    term of imprisonment beyond the otherwise applicable maximum penalty in §
    
    841(b)(1)(C), did not violate Apprendi; 3) because the district court’s drug quantity
    
    findings did not increase the Sanchezes’ ultimate sentences beyond the otherwise
    
    applicable maximum penalty in § 841(b)(1)(C), Apprendi does not apply to their §
    
    841 indictment, guilty pleas, convictions, and sentences, and there was no
    
    requirement that a specific drug quantity be alleged in their indictment, covered in
    
    their plea colloquies, submitted to a jury, or proven beyond a reasonable doubt; 4)
    
    in this regard, we adopt the analyses of Apprendi in United States v. Gerrow, 
    232 F.3d 831
     (11th Cir. 2000), cert. denied, ___ S. Ct. ___, No. 00-9373 (Oct. 1, 2001),
    
    and other circuits’ decisions concluding that Apprendi does not apply to § 841
    
    cases unless drug quantity actually increases a defendant’s sentence beyond the
    
    otherwise applicable maximum penalty, and we reject the extension of the
    
    
                                               77
    Apprendi rule contemplated by the five propositions identified above in United
    
    States v. Rogers, 
    228 F.3d 1318
     (11th Cir. 2000) and reflected by the subsequent
    
    coining of the term “Rogers error” in United States v. Camacho, 
    248 F.3d 1286
    
    (11th Cir. 2001); 5) the district court thus properly denied the Sanchezes’ motion
    
    to dismiss their indictment because drug quantity was not an essential element of
    
    their § 841 offense, and their indictment charging a violation of § 841 without
    
    alleging a specific drug quantity properly charged a completed federal crime both
    
    before and after Apprendi; 6) a specific drug quantity also never became an
    
    element of the Sanchezes’ § 841 offense under Apprendi because their ultimate
    
    sentences did not exceed the otherwise applicable maximum penalty under
    
    § 841(b)(1)(C); 7) Apprendi also did not render the Sanchezes’ plea colloquies
    
    inadequate and their guilty pleas unintelligent or involuntary even assuming that
    
    the district court misadvised them about the higher statutory maximum penalties
    
    under §§ 841(b)(1)(A) and 841(b)(1)(B); and 8) the Sanchezes’ four-year terms of
    
    supervised release were permitted by § 841(b)(1)(C) and thus did not implicate
    
    Apprendi.72
    
           72
             In response to the statement in Judge Tjoflat’s concurring opinion that this case is not
    en banc worthy because the Apprendi answer is obvious, we note that it was not obvious (1) to
    the Sanchezes (or their counsel) who, notwithstanding their guilty pleas, preserved the right to
    challenge the absence of drug quantity in their indictments as part of their plea agreements and
    have pressed their contention that there is Apprendi error requiring reversal of their convictions
    and sentences; (2) to the Sanchez panel whose opinion followed Rogers and Shepard, but
    
                                                    78
           For the foregoing reasons, no error exists in the Sanchezes’ indictment, plea
    
    colloquies, convictions, or sentences. Thus, we affirm both the convictions and the
    
    sentences of defendants Ignasio Sanchez and Santiago Sanchez.
    
           AFFIRMED.
    
    
    
    
    ultimately found no prejudice and any error was harmless; or (3) to “All Federal Public and
    Community Defenders within the Eleventh Circuit Court of Appeals” and the “National
    Association of Criminal Defense Lawyers and Families Against Mandatory Minimums
    Foundation” who filed Amicus Curiae briefs supporting the Sanchezes’ requests for reversal of
    their convictions and sentences based in part on their readings of Apprendi, Rogers, and
    Camacho. For example, as noted in one Amicus Curiae brief, “[p]anels of this court have split
    on the question of what effect Apprendi has on § 841’s type- and amount-base provisions.” That
    brief then contrasts the approach taken in Gerrow versus that in Rogers and Camacho. We heard
    this case en banc precisely (1) because of the need to clarify in our circuit the impact of
    Apprendi on drug convictions, sentences, and plea colloquies, especially where a §§ 846, 841
    indictment does not allege drug quantity, and (2) because it involves issues of exceptional
    importance affecting a plethora of criminal cases.
    
                                                 79
    TJOFLAT, Circuit Judge, specially concurring, in which WILSON, Circuit Judge,
    joins:
    
           It is obvious from the start that there is no Apprendi error in this case.
    
    Because the Sanchezes’ sentences did not exceed the twenty-year maximum
    
    sentence prescribed by 21 U.S.C. § 841(b)(1)(C), Apprendi simply does not apply.
    
    Likewise, there is no error under this circuit’s post-Apprendi cases, United States
    
    v. Rogers, 
    228 F.3d 1318
     (11th Cir. 2000), and United States v. Camacho, 
    248 F.3d 1286
     (11th Cir. 2001), because the mandatory minimums of neither section
    
    841(b)(1)(A) nor (B) constrained the district court’s sentencing discretion provided
    
    by the sentencing guidelines. Hence, further discussion is unnecessary.1
    
           Yet, the court commences to canvass every issue that could possibly arise
    
    out of a potential Apprendi error, and, in the process, composes a treatise of dicta
    
    that compromises this circuit’s commitment to the policies established by
    
    Apprendi. The majority, for instance, misinterprets Rogers’ holding that drug
    
    quantity must be charged in the indictment when a court utilizes sections
    
    841(b)(1)(A) or (B), and then sets about overruling it. Likewise, the court
    
    disavows Camacho after finding it inconsistent with McMillan v. Pennsylvania,
    
           1
              Rule 35 of the Federal Rules of Appellate Procedure advises that an en banc hearing “is
    not favored . . . unless (1) [it] is necessary to secure or maintain uniformity of the court’s
    decisions; or (2) the proceeding involves a question of exceptional importance.” Fed. R. Appl.
    Pro. 35. This appeal satisfies neither test. Therefore, the court should vacate the order taking
    this case for rehearing en banc as improvidently granted.
    
                                                   80
    
    477 U.S. 79
    , 
    106 S. Ct. 2411
    , 
    91 L. Ed. 2d 67
     (1986); yet, a closer reading of
    
    Camacho reveals it to be entirely consistent with McMillan and a significant
    
    decision in this circuit’s application of Apprendi to section 841(a) cases.
    
    Overruling these two cases undermines the progress of our post-Apprendi
    
    decisions and, because it is accomplished through dicta, creates a blurring array of
    
    contradictions through which trial court judges and practitioners must now sift.
    
    Not content to confine its decision to this dictum, the majority continues by
    
    tackling the task of deciding whether an Apprendi error, when it actually occurs, is
    
    jurisdictional and reversible per se or is, instead, subject to harmless or plain error
    
    analyses under Rule 52(a) or (b) of the Federal Rules of Criminal Procedure.2
    
    Again, though the question is interesting, our task as judges is to decide the issues
    
    this appeal actually presents.
    
          Anxious though it may be to establish a hornbook on Apprendi errors, the
    
    majority simply chose the wrong case as its vehicle, a decision which is both
    
    unfortunate and counterproductive. Dicta, especially erroneous dicta, creates a
    
    potential for mischief. “For the layperson, as well as for judges, confusion about
    
    
          2
              Federal Rule of Criminal Procedure 52 states:
                   (a) Harmless Error. Any error, defect, irregularity or variance which does not
                   affect substantial rights shall be disregarded.
                   (b) Plain Error. Plain errors or defects affecting substantial rights may be noticed
                   although they were not brought to the attention of the court. Id.
    
                                                     81
    the state of the law most often comes about by confusing the holding of a case with
    
    the dicta in the opinion.” Denno v. School Bd. of Volusia County, 
    218 F.3d 1267
    ,
    
    1280 (11th Cir. 2000) (Forrester, J., concurring in part, dissenting in part)
    
    (emphasis in original). Faced with the majority’s opinion here and the earlier
    
    decisions it seeks to disavow, a trial judge or practitioner sits in an unenviable
    
    position in discerning our law. Our own court will face uncertainty; in analyzing
    
    any question answered by dictum, “we are ‘free to give that question fresh
    
    consideration.’” United States v. Hunter, 
    172 F.3d 1307
    , 1310 (11th Cir. 1999)
    
    (Carnes, J., concurring) (quoting Great Lakes Dredge & Dock Co. v. Tanker
    
    Robert Watt Miller, 
    957 F.2d 1575
    , 1578 (11th Cir. 1992)).
    
          While I agree that the Sanchezes’ convictions and sentences should be
    
    affirmed, and therefore concur in the court’s judgment, I write separately to
    
    eliminate the confusion our decision may cause district judges and the lawyers who
    
    litigate drug cases. I begin in part I with a brief recitation of the facts and
    
    procedural history leading up to this appeal. I then explain in part II why Apprendi
    
    does not apply in this case and assert, moreover, that discussion of Rogers is
    
    entirely irrelevant. Rogers is irrelevant because the defendant there, unlike the
    
    Sanchezes, who pled guilty, stood on his not guilty plea and was tried by a jury.
    
    Putting this dispositive distinction aside, to address the majority’s disavowing of
    
    
                                               82
    Rogers, I also explain in part II the proper interpretation of that decision and its
    
    importance in our caselaw. In part III, I turn to respond more fully to Judge
    
    Barkett’s argument that Apprendi errors are jurisdictional. In short, I believe that a
    
    closer look at Apprendi reveals the Supreme Court’s true concerns: that the
    
    defendant receive notice of the enhanced sentence and that the enhanced sentence
    
    be reliable. Two conclusions necessarily follow from this observation. First, when
    
    these two concerns are not alleviated, the error is not jurisdictionally fatal; in fact,
    
    analyzing the error under harmless or plain error analysis best fulfills the Apprendi
    
    Court’s mantra. I set out in part IV the second conclusion: as long as the defendant
    
    receives notice and a reliable sentence, then there is no Apprendi error. I then
    
    describe the various scenarios in which Apprendi errors arise and the sound
    
    approach in analyzing each one.
    
                                                   I.
    
           Appellants Ignasio Sanchez and Santiago Sanchez were indicted, along with
    
    four others, for conspiring knowingly and intentionally to possess with intent to
    
    distribute methamphetamine and amphetamine, in violation of 21 U.S.C. §§ 841(a)
    
    and 846.3 The indictment did not include a specific drug quantity. Ignasio
    
           3
            21 U.S.C. § 841(a)(1) makes it unlawful “for any person knowingly or intentionally . . .
    to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or
    dispense, a controlled substance.” Id. 21 U.S.C. § 846 is the corresponding attempt and
    conspiracy provision. Id.
    
                                                   83
    Sanchez subsequently moved to dismiss the indictment for “failure to allege facts
    
    that increase the maximum penalty,” arguing that “Jones [v. United States, 
    526 U.S. 227
    , 243 n.6, 
    119 S. Ct. 1215
    , 1224 n.6, 
    143 L. Ed. 2d 311
     (1999)], clearly
    
    holds that the Constitution requires an indictment to allege ‘any fact (other than
    
    prior conviction) that increases the maximum penalty for a crime.’” Santiago
    
    Sanchez later adopted Ignasio’s motion. After the district court denied both
    
    motions, the defendants pled guilty conditioned on the right to appeal the court’s
    
    denial.4
    
            The initial pre-sentence investigation reports (“PSIs”) recommended that
    
    the Sanchezes be found responsible for various drug quantities of
    
    methamphetamine and amphetamine. Following objections from both the
    
    Government and the appellants, the reports were revised and the drug quantities
    
    were lowered. In the final PSIs, Santiago Sanchez was held accountable for
    
    24,494.4 grams of amphetamine, 907.2 grams of methamphetamine, and 3.54
    
    grams of cocaine, and Ignasio Sanchez was held responsible for 18,144 grams of
    
    amphetamine, 907.2 grams of methamphetamine, and 4,536 grams of marijuana.
    
    
           4
             Ignasio Sanchez properly preserved his right to appeal under Federal Rule of Criminal
    Procedure 11(a)(2). As the majority notes, Santiago Sanchez, though not complying with the
    Rule 11(a)(2) “writing requirement,” should be treated as having properly preserved his right to
    appeal because the Government agreed to the oral reservation and the district court granted
    permission.
    
                                                   84
    As the majority notes, the PSIs then converted these drug quantities into amounts
    
    of marijuana, according to the drug equivalency tables of the sentencing
    
    guidelines. For Santiago, this yielded an equivalency of 6,713.99 kilograms of
    
    marijuana; for Ignasio, the total was 5,447.74 kilograms of marijuana. Then,
    
    without citing any penal provision in 21 U.S.C. § 841(b), the reports stated that the
    
    “Statutory Penalty” for each defendant was “5 to 40 years.”5
    
           The Sanchezes were sentenced at the conclusion of the second of two
    
    sentencing hearings. At the first hearing, after the court denied the Sanchezes’
    
    renewed motion to dismiss the indictment (for failure to allege drug quantity), the
    
    prosecutor streamlined the drug transactions listed in the PSIs into essentially three
    
    categories. The first category included one significant drug transaction, one to
    
    which Santiago Sanchez never objected, that occurred at a Stone Mountain motel
    
    in June 1998 and involved 907.2 grams of methamphetamine.6 In the second
    
    
    
           5
              “Statutory Penalty” is most likely a reference to 21 U.S.C. § 841(b)(1)(B), one of the
    three penalty provisions of section 841. This provision requires a finding of a particular drug
    quantity and prescribes a penalty range of five to forty years’ imprisonment. As I explain more
    fully infra, note 7, however, the methamphetamine quantity actually corresponds to the
    methamphetamine quantity set out in section 841(b)(1)(A), which prescribes a penalty range of
    10 years to life imprisonment.
           6
             The PSIs and the prosecutor reported that “two pounds” of methamphetamine were
    involved in the Stone Mountain transaction; two pounds is equivalent to 907.2 grams. Unlike
    the other substances described in the PSIs, “approximately 230 grams” of the drugs exchanged at
    the Stone Mountain hotel were seized by the Government and tested positive for the presence of
    methamphetamine.
    
                                                   85
    category, the prosecutor described several transactions between the Sanchezes and
    
    a woman named C.J. Franks, which, according to the prosecutor, yielded
    
    approximately 2,718 grams of amphetamine. Finally, the prosecutor reported a
    
    third category of transactions involving the Sanchezes and a man named Kenneth
    
    Kish Green, which totaled 2,718 grams of amphetamine. While the Sanchezes did
    
    not withdraw their objections to the initial PSIs, they both conceded that the
    
    prosecutor’s revision of the drug quantities had “the same effect on [their]
    
    sentencing guidelines as if [they had] won all of [their] objections.” Then, based
    
    on these three categories of transactions, the district court found by a
    
    preponderance of the evidence that the Sanchezes should be held responsible for
    
    907.2 grams of methamphetamine and 5,436 grams of amphetamine, which
    
    together yielded a marijuana equivalency of 2,903.04 kilograms. Under the
    
    sentencing guidelines, the district court concluded, these drug quantities resulted in
    
    a base offense level of 32. At this first sentencing hearing, the Sanchezes made an
    
    oral motion for a downward departure from the applicable guidelines range based
    
    on the prison conditions at the Atlanta Pretrial Detention Center. The court
    
    deferred ruling on the motion.
    
          At the second sentencing hearing, the court denied the motion for the
    
    downward departure, finding that the conditions at the Atlanta Pretrial Detention
    
    
                                              86
    Center were not “so atypical as to justify the highly infrequent exercise of a
    
    downward departure.” The court then noted that its sentencing option in this case
    
    was a mandatory minimum of five years and a maximum of forty years
    
    imprisonment, thus describing, but not citing, the statutory provision of section
    
    841(b)(1)(B).7 Using the sentencing guidelines, the drug amounts described in the
    
    first sentencing hearing, and other adjustments, the court then announced a
    
    guideline range of 87 to 108 months for Ignasio Sanchez and 108 to 135 months
    
    for Santiago Sanchez.8 The court then settled on the lower end of the guideline
    
           7
              The PSIs, the district court, and the parties failed to recognize that 21 U.S.C. §
    841(b)(1)(A)(viii), specifying a prison term of 10 years to life, actually controlled the sentences
    in this case. Instead, the PSIs described the “Statutory Penalty” as being from “5 to 40 years,”
    which corresponds to the penalty range set out in section 841(b)(1)(B); the district court at the
    second sentencing hearing declared that its sentencing option was “a statutory minimum
    mandatory sentence of five years up to forty years . . .”; and, the parties in their briefs to this
    court assumed that section 841(b)(1)(B) is controlling. Yet, as the PSIs indicated and the court
    found at the sentencing hearing, the Sanchezes were responsible for 5,436 grams of
    amphetamine and 907.2 grams of methamphetamine, the latter of which requires the application
    of section 841(b)(1)(A)(viii). Under that section, the proper sentence was 10 years to life
    imprisonment, not five to forty years. After arriving at the marijuana equivalency for the drugs,
    the district court nevertheless sentenced the Sanchezes to 87 and 108 months, respectively, both
    sentences falling below the 10-year mandatory minimum of section 841(b)(1)(A). Because the
    Government has not cross-appealed, however, this court cannot address the issue. See, e.g.,
    McKinney v. Pate, 
    985 F.2d 1502
    , 1507 n.11 (11th Cir. 1993) (“The failure to cross-appeal
    renders this point waived and without merit.”); Baker v. Montgomery, 
    811 F.2d 557
    , 558 n.1
    (11th Cir. 1987) (“Having failed to brief and argue these issues on appeal, defendant has
    abandoned these claims.”).
           8
              Under the sentencing guidelines, this final drug amount – a marijuana equivalency of
    2,903.04 kilograms – resulted in a base offense level of 32 for each defendant. The court then
    applied a two-level increase for firearm possession, resulting in an offense level of 34. For
    Ignasio Sanchez, the court applied a two-level reduction for playing a minor role and a three-
    level reduction for acceptance of responsibility, producing a final offense level of 29. With a
    criminal history category of I, the guideline range for Ignasio Sanchez was 87 to 108 months.
    
                                                    87
    range for each defendant, taking into account the offensive conditions at the
    
    Atlanta Pretrial Detention Center, and sentenced Ignasio Sanchez to 87 months’
    
    imprisonment and Santiago Sanchez to 108 months’ imprisonment.9 This appeal
    
    followed.
    
                                                   II.
    
           The Sanchezes contend that the district court should have dismissed their
    
    indictment for failing to allege drug quantity. As I see it, they appear to advance
    
    two arguments. First, the Sanchezes assert that because drug quantity determines
    
    the range of punishment in a case prosecuted under 21 U.S.C. §§ 841(a) and 846,
    
    the Supreme Court’s decision in Apprendi requires quantity to be treated as an
    
    element. Second, noting that the district court believed that 21 U.S.C. §
    
    841(b)(1)(B) prescribed their maximum and minimum sentences, the Sanchezes
    
    argue that drug quantity should have been alleged in the indictment and proven
    
    beyond a reasonable doubt under both Apprendi and Rogers.
    
           Because the Sanchezes properly preserved this issue for appeal, the majority
    
    
    
    For Santiago Sanchez, the court reduced the offense level of 34 by only three for acceptance of
    responsibility. This produced an offense level of 31, which, with a criminal history of Category
    I, resulted in a guideline range for Santiago Sanchez of 108 to 135 months.
           9
            After the court imposed the sentences, the Sanchezes renewed for a second time their
    motion to dismiss the indictment for failure to allege a drug quantity. The court denied their
    motion.
    
                                                   88
    is correct in applying a de novo standard of review to their arguments. United
    
    States v. Candelario, 
    240 F.3d 1300
    , 1306-07 (11th Cir. 2001).10
    
                                                    1.
    
           The Sanchezes’ first argument, that the Supreme Court’s decision in
    
    Apprendi requires quantity to be treated as an element of any 21 U.S.C. § 841(a)
    
    offense, may be disposed of quickly. 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
    
    proven beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S. Ct. at
    
    2362-63. As the majority correctly notes, in applying the rule of Apprendi to 21
    
    U.S.C. § 841, this circuit has held in case after case that the rule of Apprendi does
    
    not apply to cases in which the ultimate sentence is no greater than the twenty-year
    
    maximum set out in section 841(b)(1)(C).11 See, e.g., Rogers, 228 F.3d at 1327;
    
    
           10
              Because I believe that Apprendi does not apply to this case, in part III I discuss
    whether an Apprendi error, when it occurs, is jurisdictional or merely subject to harmless or
    plain error analysis under Rule 52.
           11
               At this point, a review of the statutory framework of 21 U.S.C. § 841 is helpful. The
    first section of the statute, section 841(a), sets out the offense without regard to drug quantity.
    See supra, note 3. The second section, section 841(b), then describes the various penalty
    provisions to which the defendant may be subject after being found guilty of section 841(a).
    Section 841(b)(1)(A) applies a mandatory minimum sentence of 10 years up to life imprisonment
    for certain drug quantities, while section 841(b)(1)(B) applies a mandatory minimum of five
    years up to forty years imprisonment for lesser drug quantities. It is under section 841(b)(1)(C),
    however, that a defendant may be sentenced without a finding of any drug quantity. Section
    841(b)(1)(C) states, “In the case of a controlled substance in schedule I or II . . . such person
    
                                                    89
    see also United States v. Gallego, 
    247 F.3d 1191
    , 1197 (11th Cir. 2001); United
    
    States v. Gerrow, 
    232 F.3d 831
    , 834 (11th Cir. 2000); United States v. Nealy, 
    232 F.3d 825
    , 829 (11th Cir. 2000); United States v. Shepard, 
    235 F.3d 1295
    , 1296-97
    
    (11th Cir. 2000). That is to say, we have treated section 841(b)(1)(C) as the
    
    “catch-all [penalty] provision” of section 841(b) because under that section, a
    
    defendant may be sentenced up to a maximum of twenty years without regard to
    
    any drug quantity. Rogers, 228 F.3d at 1327, n.15. Hence, if a defendant is
    
    sentenced under section 841(b)(1)(C) to a term no greater than twenty years, there
    
    is no Apprendi error. See, e.g., Rogers, 228 F.3d at 1327; see also Gallego, 247
    
    F.3d at 1197; United States v. Pease, 
    240 F.3d 938
    , 943-44 (11th Cir. 2001);
    
    Gerrow, 232 F.3d at 834; Nealy, 232 F.3d at 829; Shepard, 235 F.3d at 1296-97;.
    
           Therefore, I contend that the rule of Apprendi does not apply here, because
    
    the Sanchezes’ ultimate sentences did not exceed the twenty-year maximum of
    
    section 841(b)(1)(C).
    
                                                    2.
    
           The Sanchezes persist, however, arguing that even though their sentences
    
    did not exceed section 841(b)(1)(C)’s maximum, they were imposed under section
    
    841(b)(1)(B) because the district court, at the second sentencing hearing, referred
    
    
    shall be sentenced to a term of imprisonment of not more than 20 years . . .” Id.
    
                                                    90
    to and felt limited by that section. Specifically, the Sanchezes argue that by
    
    mentioning section 841(b)(1)(B), the district court exposed the defendants to a
    
    possible prison term higher than the maximum penalty set out in section
    
    841(b)(1)(C). Therefore, the Sanchezes assert, Apprendi requires that drug
    
    quantity be treated as an essential element of their offense and that, under Rogers,
    
    the quantity be charged in the indictment. It is this latter argument that most
    
    confuses the majority and leads unnecessarily to the dicta regarding Rogers and
    
    United States v. Camacho, 
    248 F.3d 1286
     (11th Cir. 2001). Before addressing the
    
    Sanchezes’ alleged Rogers’ error, however, I review briefly the decisions disposing
    
    of the Sanchezes’ supposed Apprendi error.
    
           Bared to their essentials, these cases hold that there is no Apprendi error as
    
    long as the defendant’s sentence does not exceed the twenty-year maximum of
    
    section 841(b)(1)(C), no matter what the district court said or found during
    
    sentencing. Although I concur with the majority in its treatment of the alleged
    
    Apprendi error, I believe it is important to show that our precedents, standing
    
    independent of Rogers, have long held that mere references to or reliance on
    
    sections 841(b)(1)(A) or 841(b)(1)(B) do not create error under Apprendi.12 In
    
           12
              It is unclear from the majority’s response to this particular Apprendi argument on what
    basis the majority rejects it. The majority first implies that the Sanchezes’ argument derived
    from Rogers and, rather than laying out this circuit’s well-established precedents, it then cites to
    nine other circuits’ decisions to dispose of both the argument and Rogers. I believe that our own
    
                                                     91
    United States v. Gerrow, 
    232 F.3d 831
     (11th Cir. 2000), for example, two
    
    defendants were tried and convicted under sections 841(a)(1) and 846 without
    
    regard to drug quantity. See id., 232 F.3d at 833. At their sentencing hearing, the
    
    district court determined drug quantities for each and then sentenced them under
    
    the sentencing guidelines to terms well under the twenty-year maximum of section
    
    841(b)(1)(C). See id. at 834. We found no error, plain or otherwise, under
    
    Apprendi because the terms of imprisonment did not exceed the statutory
    
    maximum set forth in section 841(b)(1)(C). See id. Moreover, in United States v.
    
    Gallego, 
    247 F.3d 1191
     (11th Cir. 2001), one of the defendants was charged in an
    
    indictment that did not include drug quantity and was tried and convicted under
    
    section 841(a)(1). See id., 247 F.3d at 1194 n.3. The district court sentenced this
    
    defendant under the sentencing guidelines to 168 months imprisonment, and we
    
    held that there was no Apprendi error because the sentence fell within the statutory
    
    maximum of section 841(b)(1)(C). See id. at 1197. Likewise, in Rogers, Nealy,
    
    Pease, Candelario, and Wims, this court found sentencing errors under Apprendi
    
    only because the lower courts had sentenced defendants to terms over the twenty-
    
    year maximum of section 841(b)(1)(C), meaning that the district courts had
    
    
    
    
    cases, including Rogers, however, have long held that there can be no Apprendi error when the
    sentence does not exceed the statutory maximum of section 841(b)(1)(C).
    
                                                  92
    necessarily employed either section 841(b)(1)(A) or section 841(b)(1)(B) without
    
    properly treating drug quantity as an element.
    
           In only one case has this court intimated that there could be an Apprendi
    
    error for not treating drug quantity as an element even when the defendant’s
    
    sentence did not exceed the twenty-year maximum of section 841(b)(1)(C). In
    
    United States v. Shepard, 
    235 F.3d 1295
     (11th Cir. 2000), although no drug
    
    quantity was alleged in the indictment, the district court “sentenc[ed] [the
    
    defendant] under section 841(b)(1)(B)” for possessing the requisite drug quantity13
    
    to 188 months imprisonment. Id. at 1296. On appeal, we found this to be an error
    
    under Apprendi because the “[defendant’s] sentence was controlled by section
    
    841(b)(1)(C)” but the district court had applied section 841(b)(1)(B). Id. at 1297.
    
    Nevertheless, we affirmed the sentence because it fell “within the range
    
    authorized” by section 841(b)(1)(C); the error, we held, was not prejudicial. Id.
    
    As the majority correctly notes, however, we effectively limited Shepard in United
    
    States v. Candelario, 
    240 F.3d 1300
     (11th Cir. 2001). In Candelario, we explained
    
    that “Shepard’s holding was merely that a sentence that falls below the twenty year
    
    maximum, as set forth in 21 U.S.C. § 841(b)(1)(C), is not subject to reversal due to
    
           13
               In Shepard, the defendant was indicted for violating 21 U.S.C. § 841(a)(1) without
    regard to drug quantity. See Shepard, 235 F.3d at 1296. After the defendant pled guilty, the
    district court, relying on the PSI report, found him responsible for 50 grams of cocaine base and
    then “considered and sentenced [him] under section 841(b)(1)(B).” Id.
    
                                                   93
    Apprendi” and therefore “‘there is no error, plain or otherwise, under Apprendi
    
    where the term of imprisonment is within the statutory maximum set forth in
    
    section 841(b)(1)(C).’” Id. at 1308 n.11 (quoting in part Gerrow, 232 F.3d at 834).
    
          The proper response, then, to the Sanchezes’ second argument – that the
    
    district court committed an Apprendi error because it effectively sentenced them
    
    under section 841(b)(1)(B) – is straightforward. There is no Apprendi error
    
    because the defendants’ sentences do not exceed the twenty-year maximum of
    
    section 841(b)(1)(C). The district court’s reference to the penalty range of section
    
    841(b)(1)(B) in sentencing the Sanchezes does not violate Apprendi, according to
    
    this circuit’s well-established law.
    
          The Sanchezes are correct that there may be another kind of error, however,
    
    even when the sentence falls under the twenty-year maximum of section
    
    841(b)(1)(C). Termed the “Rogers’ error” after our decision in United States v.
    
    Rogers, 
    228 F.3d 1318
     (11th Cir. 2000), this mistake occurs when the indictment
    
    fails to allege a drug quantity, none is proven at trial, and yet the district court
    
    utilizes section 841(b)(1)(A) or 841(b)(1)(B) in sentencing. See id. at 1327;
    
    Camacho, 248 F.3d at 1290 n.7. It is in addressing this argument that the majority
    
    errs. Rather than determining whether Rogers even applies to the case at hand, the
    
    majority incorrectly assumes that it does and then attempts to overrule parts of
    
    
                                               94
    Rogers and the cases which apply it. To respond, I first explain that Rogers has no
    
    application in a case like the one before us because, unlike the defendant in Rogers,
    
    the Sanchezes pled guilty. I then demonstrate how exactly a sentencing court
    
    commits a Rogers’ error, show why no such error was ever committed here (even
    
    assuming Rogers’ application), and, finally, assert that the majority’s overruling of
    
    Rogers and its progeny is both wrong and pure dictum.
    
          The holding in Rogers is inapplicable in the case before us. In Rogers, we
    
    held 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
    
    in light of Apprendi.” Rogers, 228 F.3d at 1327. Unlike the Sanchezes, however,
    
    the defendant in Rogers chose to stand on his not-guilty plea and was tried before a
    
    jury. See id. at 1319. If the mantra of Apprendi is to provide the defendant with
    
    notice (and a reliable sentence), as I have already stated and explain more fully in
    
    part III, then the only way to satisfy that imperative in a case to be tried to a jury is
    
    to allege the sentence-enhancing fact in the indictment. Thus, we held in Rogers
    
    that in light of Apprendi, a fact like drug quantity, which enhances the sentence of
    
    a section 841(a) offense, must be charged in the indictment.
    
          Clarifying our holding in Rogers in this way illustrates its inapplicability in
    
    the case before us. Here, the Sanchezes pled guilty, waiving their right to a jury
    
    
                                               95
    trial. Moreover, because, as I point out in part III, the failure to allege drug
    
    quantity did not deprive the court of subject matter jurisdiction, the guilty pleas
    
    also waived notice of the drug quantity the Government would rely upon at
    
    sentencing. The Sanchezes, however, actually did receive notice of the drug
    
    quantity involved in the charged offense. Federal Rule of Criminal Procedure
    
    11(c), “Advice to Defendant,” required the court to inform the defendants of “the
    
    mandatory minimum penalty provided by law, if any, and the maximum possible
    
    penalty provided by law.” Fed. R. of Crim. Pro. 11(c). In order to inform the
    
    defendants of such penalties, the court had to know the quantity of drugs the
    
    Government would establish at sentencing. In fact, after summarizing the various
    
    drug transactions later included in the PSIs, the prosecutor stated, “[O]ur evidence
    
    would indicate the distributions were probably more than one kilogram of
    
    methamphetamine.” Likewise, the court informed the Sanchezes that if their
    
    offense involved one kilogram or more of methamphetamine, they would be facing
    
    a maximum penalty of life imprisonment and a mandatory minimum penalty of ten
    
    years imprisonment. If their offense involved “more than 100 grams but less than
    
    1,000 grams of methamphetamine and amphetamine,” the maximum penalty would
    
    be forty years imprisonment and a mandatory minimum penalty of five years
    
    imprisonment. Our command in Rogers, that all sentence-enhancing facts be
    
    
                                               96
    included in the indictment, simply does not apply to cases such as this, in which
    
    the defendants were put on notice of drug quantity well in advance of the
    
    sentencing hearing.
    
          Despite Rogers’ inapplicability to the case before us, the majority assumes
    
    that it applies and then sets about overruling it and Camacho. The source of the
    
    majority’s confusion is its acceptance of the Sanchezes’ argument that because the
    
    district court cited section 841(b)(1)(B) they were sentenced as if their case was “a
    
    section 841(b)(1)(B) case.” It is true that, in Rogers, we stated that “sections
    
    841(b)(1)(A) and 841(b)(1)(B) may not be utilized for sentencing without a finding
    
    of drug quantity by the jury.” Rogers, 228 F.3d at 1327. Both the Sanchezes and
    
    the majority, however, misinterpret and misapply the phrase “utilizing sections
    
    841(b)(1)(A) or 841(b)(1)(B).” Essentially, a district court utilizes those sections
    
    when its sentencing discretion dictated by the sentencing guidelines is eliminated
    
    or cut short by the sections’ mandatory minimums. If, for example, the defendant
    
    requests a downward departure from the applicable guideline range, and the court’s
    
    compliance with section 841(b)(1)(A) or 841(b)(1)(B) is the only reason it refuses
    
    the departure, then that court would be “utilizing section 841(b)(1)(A) or
    
    841(b)(1)(B).” Though this would not result in an Apprendi error, we have held
    
    that it constitutes a “Rogers’ error.” See United States v. Camacho, 
    248 F.3d 1286
    ,
    
    
                                              97
    1289 (11th Cir. 2001). If a Rogers’ error occurs in a case tried before a jury, then
    
    drug quantity would need to be alleged in the indictment and proven to the jury
    
    beyond a reasonable doubt. We have never held, however, that a sentencing judge
    
    utilizes section 841(a)(1)(A) or 841(b)(1)(B) simply by referring to it during the
    
    imposition of a sentence.
    
          The prototypical Rogers’ error occurred in Camacho. In Camacho, the
    
    defendant was indicted and convicted at trial under section 841(a)(1) without
    
    regard to drug quantity. See id. at 1288. At the sentencing hearing, the defendant
    
    stipulated to a drug quantity sufficient for a sentence under section 841(b)(1)(A),
    
    which prescribes a mandatory minimum sentence of ten years. See id. When the
    
    district court determined the defendant’s sentence range under the sentencing
    
    guidelines, it arrived at a range of 108 to 135 months. Id. at 1289 n.6. The court
    
    applied the mandatory minimum of section 841(b)(1)(A), however, which
    
    narrowed the range to 120 to 135 months and effectively limited the district court’s
    
    sentencing discretion. See Camacho, 248 F.3d at 1289 n.6. The court then
    
    sentenced the defendant to 120 months. Id. at 1289. On appeal, this court found
    
    no Apprendi error because the sentence was less than the statutory maximum of
    
    section 841(b)(1)(C). Id. We nevertheless found an error under Rogers because
    
    “Rogers . . . went beyond Apprendi to hold that ‘drug quantity in section
    
    
                                             98
    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.’” Camacho, 248 F.3d at 1289.
    
    Because the district court had used the ten-year mandatory minimum of section
    
    841(b)(1)(A), narrowing the applicable guidelines range, we found that there was
    
    “no doubt that the district court applied the regime of section 841(b)(1)(A) when
    
    sentencing Camacho . . . [which] is error under this circuit’s precedent in Rogers.”
    
    Id.
    
          Even assuming that Rogers’ command to charge quantity in the indictment
    
    applies to the case before us, I maintain that the district court never “utilized
    
    sections 841(b)(1)(A) or 841(b)(1)(B)” because it never relied on the mandatory
    
    minimum of either section. Thus, unlike Camacho, the statutory provisions of
    
    section 841(b)(1)(A) and 841(b)(1)(B) did not constrain the district court or narrow
    
    the guidelines sentence range of either defendant. Rather, in sentencing the
    
    Sanchezes, the district court determined and applied the sentencing guidelines
    
    without any interference from section 841(b) at all. Even after they moved for a
    
    downward departure, the district court denied the motion because the motion
    
    lacked merit – not because any provision in section 841(b) prevented it from doing
    
    so. Because the district court did not “utilize section 841(b)(1)(A) or (B),” the
    
    Sanchezes’ cases were not “section 841(b)(1)(B) cases.” Rogers and Camacho,
    
    
                                               99
    therefore, are simply inapplicable.14
    
                                                   III.
    
           I now turn to the discussion of whether hypothetical Apprendi errors are
    
    jurisdictional. I reiterate here that, like its treatment of Rogers and Camacho, the
    
    court’s discourse about Apprendi error is unnecessary because there was no such
    
    error in this case. While I join the court’s conclusion that an Apprendi error, when
    
    it occurs, should be subject to harmless or plain error analysis under Rule 52(a) or
    
    (b), I write separately to respond more fully to Judge Barkett’s argument that
    
    
    
    
           14
               In overruling Rogers and Camacho, the majority opinion appears to rest its reasoning
    on two pillars: first, that under Apprendi there can be no error when the ultimate sentence does
    not exceed the twenty-year maximum of 841(b)(1)(C); and, second, that Apprendi preserved
    McMillan v. Pennsylvania, 
    477 U.S. 79
    , 
    106 S. Ct. 2411
    , 
    91 L. Ed. 2d 67
     (1986), and the use of
    mandatory minimum sentences. The opinion’s first reason that Apprendi is not violated unless
    the sentence surpasses the twenty-year maximum, does nothing to advance the majority’s
    argument because the Rogers’ error is one independent of Apprendi. As the majority concedes,
    in cases tried to a jury Rogers requires drug quantity to be alleged in the indictment and proven
    to a jury beyond a reasonable doubt if the district court utilizes either section 841(b)(1)(A) or
    841(b)(1)(B) in sentencing. I assert, then, that Camacho simply holds that a district court
    necessarily used section 841(b)(1)(A) or 841(b)(1)(B) in sentencing if the court allowed the
    mandatory minimum to constrain its sentencing discretion under the guidelines. This reasoning,
    moreover, is completely consistent with Apprendi’s preservation of McMillan, in which the
    Supreme Court held that mandatory minimums may be imposed based on facts found by a judge
    by a preponderance of the evidence. See Apprendi v. New Jersey, 
    530 U.S. 466
    , 487 n.13, 
    120 S. Ct. 2348
    , 2361 n.13, 
    147 L. Ed. 2d 435
     (2000). Camacho itself recognized that the district
    court’s use of the mandatory minimum of section 841(b)(1)(A) did not violate Apprendi or
    McMillan. See Camacho, 248 F.3d at 1289 n.5. Camacho went on to explain, however, that
    sentencing the defendant to the mandatory minimum of that section necessarily meant that it was
    utilizing that section for sentencing. See id. at 1289. This, we held, violated Rogers’ mantra that
    when section 841(b)(1)(A) or (B) is used, drug quantity must be alleged in the indictment and
    proven to a jury beyond a reasonable doubt.
    
                                                   100
    Apprendi errors are jurisdictional.15
    
           The argument that any fact which enhances a defendant’s sentence becomes
    
    an element of the offense and must be included in the indictment in order to sustain
    
    a court’s jurisdiction derives from a simple misunderstanding of the Court’s
    
    opinion in Apprendi. The Court did not hold that such facts become elements;
    
    rather, Apprendi commands courts to treat a sentence-enhancing fact as the
    
    “functional equivalent of an element.” Apprendi, 
    530 U.S. 466
    , 494 n.19. In this
    
    part, I show that the Court’s concern was twofold: first, that a defendant have
    
    notice that the Government seeks to use a fact to enhance his sentence; and,
    
    second, that the enhanced sentence itself be reliable. As long as these two
    
    concerns are satisfied, then the district court has properly treated a sentence-
    
    enhancing fact as the functional equivalent of an element under Apprendi. I
    
    contend, therefore, that because a section 841(a) indictment would still state an
    
    offense even without including the drug quantity, a court would have subject
    
    matter jurisdiction under federal law. Hence, failing to allege drug quantity in the
    
    
    
           15
              I also join the court’s conclusion that Apprendi error is not structural, and our cases
    have already held as much. See United States v. Nealy, 
    232 F.3d 825
    , 829 & n.4 (2000) (holding
    that “Apprendi did not recognize or create a structural error that would require per se reversal.”
    and further noting that “Structural error occurs only in the rare instance involving a ‘structural
    defect affecting the framework within the trial proceeds, rather than simply an error in the trial
    process itself.’”) (quoting Arizona v. Fulminante, 
    499 U.S. 279
    , 
    111 S. Ct. 1246
    , 1265, 113 L.
    Ed. 2d 302 (1991)).
    
                                                   101
    indictment is not jursidictionally fatal.
    
          In understanding Apprendi’s holding that sentence-enhancing facts are to be
    
    treated like elements, rather than made elements, it is useful to compare Apprendi
    
    with the Supreme Court’s earlier opinion in Jones v. United States, 
    526 U.S. 227
    ,
    
    
    119 S. Ct. 1215
    , 
    143 L. Ed. 2d 311
     (1999). In Apprendi, the Court’s task was
    
    determining whether and to what extent the Constitution protects a defendant from
    
    a penalty exceeding the statutory maximum based on a fact found by a judge by a
    
    preponderance of the evidence. See Apprendi, 530 U.S. at 476, 120 S. Ct. at 2355.
    
    The engines propelling the Court’s decision were the due process clause of the
    
    Fourteenth Amendment and the Sixth Amendment right to trial by jury, which,
    
    taken together, the Court held, “entitle a criminal defendant to a jury
    
    determination” of any fact which enhances his sentence beyond the statutory
    
    maximum. Id. at 476-77, 120 S. Ct. at 2356. In order that courts honor these
    
    constitutional protections, Apprendi declared that such sentence-enhancing facts
    
    are to be treated as “the functional equivalent of an element” and are “‘elemental’
    
    [in] nature.” Id. at 494 & n.19, 120 S. Ct. at 2365 & n.19 (emphasis mine). The
    
    Court’s focus in Jones, on the other hand, was determining whether Congress
    
    intended that a sentence-enhancing fact be an element or a sentencing factor of an
    
    offense set out in the federal carjacking statute, 18 U.S.C. § 2119. See Jones, 526
    
    
                                                102
    U.S. at 229, 119 S. Ct. at 1217. The Jones Court, then, was not driven by any
    
    constitutional provision but by the federal statute. Based on its interpretation of
    
    that statute, the Court held that Congress had intended that serious bodily injury or
    
    death, a fact which resulted in higher penalties, be an element of the offense. See
    
    id. at 233-39, 119 S. Ct. at 1219-1223. In Apprendi, the Court brought the
    
    distinction to light, noting that while Jones discussed the “constitutionality of
    
    allowing penalty-enhancing findings to be determined by a judge by a
    
    preponderance of the evidence . . ., the [Jones] court concluded that those doubts
    
    were not essential to our holding.” Apprendi, 530 U.S. at 472-73, 120 S. Ct. at
    
    2353. Not only were the sources of the two opinions different, but their
    
    conclusions were dissimilar as well: in Jones, the Court found the sentence-
    
    enhancing fact to be an element; in Apprendi, on the other hand, the Court found
    
    that the fact was to be treated like an element.16
    
           The focus of the Apprendi Court was not on legislative intent, but, rather, on
    
    the constitutional protections to which a defendant is entitled when a prosecutor
    
    
    
           16
              It is also beneficial to consider the language of Almendarez-Torres v. United States,
    
    523 U.S. 224
    , 
    118 S. Ct. 1219
    , 
    140 L. Ed. 2d 350
     (1998), in which the Court discussed whether
    the due process clause required a prior conviction to be treated as an element. There, the Court
    described its purpose as determining “whether, or when, the Constitution requires the
    Government to treat a particular fact as an element, i.e., as a ‘fact necessary to constitute the
    crime,’ even where the crime-defining statute does not do so.” Almendarez-Torres, 523 U.S. at
    239-40, 118 S. Ct. at 1229.
    
                                                   103
    seeks to enhance his sentence beyond the offense’s maximum penalty. In focusing
    
    on these constitutional protections, I contend that the Court in Apprendi was
    
    fundamentally concerned with giving the defendant notice of the sentence
    
    enhancement and ensuring that any increased sentence be reliable. The Court
    
    began with the historical foundations of due process, noting that criminal
    
    proceedings have traditionally been initiated by an indictment that includes all
    
    facts in order “that the defendant . . . may be enabled to determine the species of
    
    offence they constitute, in order that he may prepare his defence accordingly . . .
    
    and that there may be no doubt as to the judgment which should be given, if the
    
    defendant be convicted.” Id. at 478, 120 S. Ct. at 2356 (quoting J. Archbold,
    
    Pleading and Evidence in Criminal Cases 44 (15th ed. 1862) (emphasis mine).
    
    Honing in on the concern for reliability, the Court submitted that one way to ensure
    
    the fairness and accuracy of the sentence is to require the prosecutor to prove all
    
    the facts of the offense to a jury beyond a reasonable doubt. See id. at 483-84, 120
    
    S. Ct. at 2359. “The ‘reasonable doubt’ requirement ‘has a vital role in our
    
    criminal procedure for cogent reasons,’” not the least of which is to “reduce the
    
    risk of imposing [due process] deprivations erroneously.” Id. at 484, 120 S. Ct. at
    
    2360 (quoting In re Winship, 
    397 U.S. 358
    , 
    90 S. Ct. 1068
    , 
    25 L. Ed. 2d 368
    
    (1970)).
    
    
                                             104
          The Court’s two-part concern for fair notice and sentence reliability are
    
    highlighted in its discussion in Jones and Apprendi of Almendarez-Torres v.
    
    United States, 
    523 U.S. 224
    , 
    118 S. Ct. 1219
    , 
    140 L. Ed. 2d 350
     (1998), in which
    
    the Court found that recidivism is a sentencing factor that does not need to be
    
    treated as an element. Although the Court pointed out that its conclusion in
    
    Almendarez-Torres relied partly on the tradition of treating recidivism as a
    
    sentencing factor and not an element, the Court in Jones and Apprendi illuminated
    
    other reasons. Unlike most sentence-enhancing facts, the Court observed, a prior
    
    conviction has already “been established through procedures satisfying fair notice,
    
    reasonable doubt, and jury trial guarantees.” Jones, 526 U.S. at 249, 119 S. Ct. at
    
    1227. In Apprendi the Court further explained that the defendant in Almendarez-
    
    Torres had admitted his earlier convictions, all three of which “had been entered
    
    pursuant to proceedings with substantial procedural safeguards of their own,” and
    
    thus there was “no question [before the Court] concerning the right to a jury trial or
    
    the standard of proof that would apply to a contested issue of fact.” Apprendi, 530
    
    U.S. at 488, 120 S. Ct. at 2361.
    
          The command of Apprendi, therefore, is not to transform sentence-
    
    enhancing facts into elements, the allegation of which is necessary in the
    
    indictment in order to state an offense, but, rather, to treat sentence-enhancing facts
    
    
                                             105
    like elements in order to provide the defendant with notice of the sentence
    
    enhancement and to make certain the resulting sentence is reliable. Even though a
    
    sentence-enhancing fact like drug quantity should be included in the indictment in
    
    order to provide the defendant with notice,17 its absence is not a jurisdictionally
    
    fatal error. On the contrary, a court’s power to adjudicate a federal criminal
    
    prosecution comes from 18 U.S.C. § 3231, which gives federal courts original
    
    jurisdiction of “all offenses against the laws of the United States.” 18 U.S.C. §
    
    3231. In many instances, an indictment may sufficiently charge a federal offense,
    
    and thus sustain the court’s jurisdiction, without including the sentence-enhancing
    
    fact. In a section 841(a)(1) case, for example, an indictment charging the
    
    defendant with possessing or distributing a controlled substance properly states an
    
    offense against the United States without alleging a specific drug quantity. 18
    
    U.S.C. § 841(a)(1). See also Prou v. United States, 
    199 F.3d 37
    , 45 (1st Cir. 1999)
    
    (“Whether or not the prosecution files a timely section 851(a)(1) information, a
    
    
           17
              The Court in Apprendi avoided the issue of whether such facts should be charged in the
    indictment because the appellant there had not asserted a claim “based on the omission of any
    reference to sentence enhancement or racial bias in the indictment.” Apprendi, 530 U.S. at 477
    n.3, 120 S. Ct. at 2356 n.3. We nevertheless held in Rogers, a case in which the defendant pled
    not guilty and chose to be tried before a jury, that drug quantity in section 841(b)(1)(A) or
    841(b)(1)(B) cases must be charged in the indictment and proven to a jury beyond a reasonable
    doubt. See United States v. Rogers, 
    228 F.3d 1318
    , 1327 (11th Cir. 2000). In cases in which the
    defendant pleads guilty, however, the defendant is informed of drug quantity, the maximum
    penalty, and the mandatory minimum penalty, if any, when the court entertains his plea under
    Rule 11. Such a defendant, therefore, receives the notice Apprendi requires.
    
                                                  106
    federal district court plainly possesses subject-matter jurisdiction over drug cases.
    
    See 18 U.S.C. § 3231 (conferring original jurisdiction of ‘all offenses against the
    
    laws of the United States’).”); United States v. Prentiss, 
    256 F.3d 971
    , 982 (10th
    
    Cir. 2001) (finding that the elements of the crime of arson (in Indian country) are
    
    “jurisdictional only in the sense that in the absence of those elements, no federal
    
    crime exists”). Failing to include drug quantity in a section 841(a) offense,
    
    therefore, is not jurisdictional.
    
           Furthermore, it is well-established that failing to include an element in a jury
    
    instruction (or wrongly putting the burden on the defendant to prove an element) is
    
    not jurisdictional error but is subject to harmless error analysis. In Franklin v.
    
    Francis, 
    720 F.2d 1206
     (11th Cir. 1983), for example, this court, after finding that
    
    the jury instructions had improperly shifted the burden of proving an essential
    
    element of the offense to the defendant, evaluated the error under the harmless
    
    error standard. See Franklin, 720 F.2d at 1212.18 We upheld this analysis in
    
    Collins v. Zant, 
    892 F.2d 1502
     (11th Cir. 1990), stating that impermissibly shifting
    
    the burden of proof of an essential element to the defendant “does not
    
           18
              Although the opinion in Franklin does not cite the “harmless beyond a reasonable
    doubt” standard of Chapman v. California, 
    386 U.S. 18
    , 24, 
    97 S. Ct. 824
    , 827, 
    17 L. Ed. 2d 705
    (1967), as the harmless error standard it employed, the opinion cites the harmless error standard
    used by the court in Lamb v. Jernigan, 
    683 F.2d 1332
     (11th Cir. 1982). Lamb, in turn, relied on
    the standard the court used in Mason v. Balkcom, 
    669 F.2d 222
    , 226 (11th Cir. 1982), which was
    Chapman’s “harmless beyond a reasonable doubt” standard.
    
                                                  107
    automatically require reversal of an otherwise valid conviction; it is subject to the
    
    harmless error analysis under Chapman v. California, 
    386 U.S. 18
    , 
    87 S. Ct. 824
    ,
    
    
    17 L. Ed. 2d 705
     (1967).” Collins, 892 F.2d at 1506. This approach was explicitly
    
    adopted by the Supreme Court in Neder v. United States, 
    527 U.S. 1
    , 
    119 S. Ct. 1827
    , 
    144 L. Ed. 2d 35
     (1999), in which the Court held outright that omitting an
    
    element from the judge’s charge to the jury can be harmless error under Rule 52(a).
    
    See Neder, 527 U.S. at 7-8, 119 S. Ct. at 1833. Such an error, the Court held,
    
    “differs markedly from the constitutional violations we have found to defy
    
    harmless-error review.” Id. at 8, 119 S. Ct. at 1833.
    
           I contend, as the majority of this court does, that jury instruction errors, like
    
    the one that occurred in Neder, are no different from Apprendi errors occurring
    
    when an indictment fails to charge a sentence-enhancing fact (and the jury is not
    
    instructed to find such fact beyond a reasonable doubt).19 Indeed, we have already
    
    held as much, finding in United States v. Swatzie, 
    228 F.3d 1278
     (11th Cir. 2000),
    
    cert. denied, 
    121 S. Ct. 2600
     (2001), that “the error in Neder is in material respects
    
    indistinguishable from error under Apprendi” because both Neder and Apprendi
    
    
           19
              We are not alone in this conclusion. See, e.g., United States v. Mojica-Baez, 
    229 F.3d 292
    , 311 (1st Cir. 2000) (holding that failure to include an element in the indictment is no
    different from the failure to submit an element to the jury, and under Neder, harmless error
    review applies); United States v. Nance, 
    236 F.3d 820
    , 825 (7th Cir. 2001) (same); United States
    v. Prentiss, 
    256 F.3d 971
     (10th Cir. 2001) (same).
    
                                                  108
    involve facts that were to be resolved by a jury under a reasonable-doubt standard
    
    but, instead, were resolved by the judge using a less-exacting standard. Swatzie,
    
    228 F.3d at 1283. Under Neder, therefore, failing to include a sentence-enhancing
    
    fact in the indictment is not jurisdictional error but is, instead, subject to harmless
    
    or plain error analysis under Rule 52(a) or (b).
    
          Though failing to include a sentence-enhancing fact could create an error
    
    under Apprendi and Rogers, it is not a “structural error,” but a constitutional error,
    
    which is subject to harmless or plain error review. We review section 841(a) cases
    
    on direct appeal under Rule 52. If an Apprendi error occurs and is properly
    
    preserved, then Rule 52(a) applies, and we “must disregard [the] error[] [if it is]
    
    harmless ‘beyond a reasonable doubt.’” Neder, 527 U.S. at 7, 119 S. Ct. at 1833
    
    (1999) (quoting Chapman v. California, 
    386 U.S. 18
    , 24, 
    87 S. Ct. 824
    , 827, 17 L.
    
    Ed. 2d 705 (1967)); see also United States v. Nealy, 
    232 F.3d 825
    , 829 (11th Cir.
    
    2000) (applying Rule 52(a)’s harmless error analysis and using Chapman’s
    
    standard to section 841(a) cases). In other words, Apprendi errors that are not
    
    harmless beyond a reasonable doubt “affect [the defendant’s] substantial rights”
    
    within the meaning of Rule 52(a). When a defendant fails to preserve an Apprendi
    
    error, then we may reverse under Rule 52(b) only if the error is plain, affects
    
    substantial rights, and “seriously affects the fairness, integrity, or public reputation
    
    
                                              109
    of judicial proceedings.” Johnson v. United States, 
    520 U.S. 461
    , 467, 
    117 S. Ct. 1544
    , 1549, 
    137 L. Ed. 2d 718
     (1997).20
    
                                                   IV.
    
           In my view, focusing on Apprendi’s two-part concern – notice of the drug
    
    quantity and reliability of sentence – better illuminates our task in resolving the
    
    cases that come before us. In this part, I divide those cases into two groups: those
    
    arising after Apprendi and those arising before. My comments on the first group
    
    
    
           20
              The Supreme Court has made clear that, before an appellate court may reverse, both
    Rule 52(a) and (b) require a showing that the error, whether preserved under (a) or not preserved
    under (b), “affect[ed the defendant’s] substantial rights.” United States v. Olano, 
    507 U.S. 725
    ,
    734, 
    113 S. Ct. 1770
    , 1777-78, 
    123 L. Ed. 2d 508
     (1993). Indeed, in comparing Rule 52(a) with
    Rule 52(b), the Court stated, “[The language of Rule 52(b)] is the same language employed in
    Rule 52(a), and in most cases it means that the error must have been prejudicial: It must have
    affected the outcome of the district court proceedings.” Id. There is, however, one important
    difference: Under Rule 52(b), “[i]t is the defendant rather than the Government who bears the
    burden of persuasion with respect to prejudice.” Id. (emphasis mine). I contend that when
    analyzing whether the defendant has met this burden under Rule 52(b), Neder’s command to
    reverse only if the error is prejudicial “beyond a reasonable doubt” likewise controls. Although
    Olano and Johnson are silent on the applicable standard in assessing Rule 52(b) errors, I believe
    that Neder incorporates the beyond a reasonable doubt standard from Chapman into Rule 52.
    See Neder, 527 U.S. at 15, 119 S. Ct. at 1837 (“In Chapman . . . we set forth the test for
    determining whether a constitutional error is harmless. That test, we said, is whether it appears
    ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict
    obtained.’” (quoting Chapman, 386 U.S. at 24)). Because Olano makes clear that Rule 52(a) and
    (b) employ the same language and mean essentially the same, it follows that the beyond a
    reasonable doubt standard of Rule 52(a) applies in the Rule 52(b) context. That is to say, under
    Rule 52(b), a defendant bears the burden of proving beyond a reasonable doubt that the error
    affected his substantial rights, i.e., that he was prejudiced. But see United States v. Hastings,
    
    134 F.3d 235
    , 243 (4th Cir. 1998) (requiring the defendant to show, under Rule 52(b) that the
    error actually affected his substantial rights). A question I find unanswered in the Rule 52(b)
    cases, and one which this appeal does not present, is whether a constitutional error that is not
    harmless beyond a reasonable doubt “seriously affects the fairness, integrity, or public reputation
    of judicial proceedings” as a matter of law.
    
                                                   110
    are short. It is apparent that, in section 841(a) cases, the indictments returned in
    
    this circuit (and elsewhere) are alleging drug quantity when the government’s
    
    proof will trigger the application of section 841(b)(1)(A) or (b)(1)(B). Thus,
    
    whether the defendant pleads guilty or goes to trial, the defendant will be on notice
    
    of the quantity of drugs the prosecution contends is involved in the offense.21 In
    
    both cases, the drug quantity involved in the offense of conviction will be found by
    
    the trier of fact – whether jury or judge – beyond a reasonable doubt as Apprendi
    
    requires.
    
           I turn now to those cases arising before Apprendi and further divide them
    
    into two groups: those in which the defendant was tried before a jury and those in
    
    which the defendant pled guilty. In cases tried before a jury, if the drug quantity
    
    involved in the offense was not found by the jury beyond a reasonable doubt and
    
    the court used section 841(b)(1)(A) or 841(b)(1)(B) in imposing the sentence, we
    
    review the defendant’s sentence under Rule 52(a) or (b), depending on whether the
    
           21
               In using the term “involve,” I am referring specifically to section 841(b), which
    establishes maximum sentences and, in sections 841(b)(1)(A) and (B), mandatory minimum
    sentences for violations of section 841(a) “involving” particular drug quantities. See 21 U.S.C. §
    841(b). For example, in determining which provision of section 841(b) applies when the
    defendant has been convicted of the substantive section 841(a) offense of heroin distribution, the
    district court decides the quantity of heroin the defendant distributed, or aided or abetted the
    distribution of, on the date alleged in the indictment. If, in determining the appropriate sentence
    range under the guidelines, the court holds the defendant accountable for additional heroin as
    “relevant conduct” under U.S.S.G. § 1B1.2, the court cannot also use such additional amount in
    determining the applicable section 841(b) provision, since the offense of conviction did not
    involve such additional heroin.
    
                                                   111
    defendant objected to the court’s failure to instruct the jury to find the drug
    
    quantity or the court’s failure to find such quantity beyond a reasonable doubt.
    
    In cases adjudicated on a plea of guilty, the defendant would have been informed at
    
    the Rule 11 plea hearing of the quantity of drugs involved in the offense to which
    
    he tendered his plea.22 The Apprendi error – the failure of the court to determine
    
    the quantity of drugs involved in the offense of conviction beyond a reasonable
    
    doubt – will have arisen at sentencing. If the defendant objected to the court’s
    
    finding such quantity by a preponderance of the evidence, we consider whether the
    
    error was harmless beyond a reasonable doubt under Rule 52(a). Absent a defense
    
    objection, we conduct this harmless error analysis under Rule 52(b).
    
                                                    V.
    
           22
               As explained supra, in pleading guilty, the defendant waives all non-jurisdictional
    defects in the indictment, including that the indictment fails to charge the quantity of drugs
    involved in the offense. Rule 11(c), however, in its application in a case brought under section
    841(a) (and, as here, section 846), indirectly informs the defendant of drug quantity. It does so
    because the Rule requires the district court to inform the defendant, in entertaining his plea of
    guilty, of “the mandatory minimum penalty provided by law, if any, and the maximum possible
    penalty by law,” that is, of the penalties specified in section 841(b). If the court fails to do so,
    the plea is subject to vacation. United States v. Siegel, 
    102 F.3d 477
    , 481 (11th Cir. 1996). For
    this reason, if the prosecution is going to contend at sentencing that 21 U.S.C. §§ 841(b)(1)(A) or
    841(b)(1)(B) applies, it must inform the court so that the court can discharge its Rule 11(c)
    responsibility. In taking the Sanchezes pleas (without a plea agreement), the court discharged
    such responsibility by having the prosecutor state for the record the quantity of
    methamphetamine involved in the offense and then informing the defendants that they faced
    sentencing under subsections (A) or (B) depending on the quantity of drugs involved in the
    offense. We can take judicial notice of the fact plea agreements always indicate the maximum
    penalty and the mandatory minimum, if any, the defendant faces in pleading guilty. More often
    than not the plea agreement also specifies the quantity of drugs involved in the offense. Not
    infrequently, the parties agree to the appropriate offense level under the guidelines.
    
                                                    112
          In sum, Apprendi does not apply in this case because the Sanchezes’
    
    sentences did not exceed the twenty-year maximum of section 841(b)(1)(C). Nor
    
    does Rogers apply: (1) unlike the instant case, Rogers involved a case tried to a
    
    jury, and (2) the five-year mandatory minimum provision of section 841(b)(1)(B)
    
    played no role in the court’s decision making. For these reasons, much of which
    
    the majority and I have written is pure dicta. My concern is that it causes the
    
    district courts no mischief.
    
    
    
    
                                             113
    BARKETT, Circuit Judge, concurring in result only:
    
           I agree that the sentences in this case should be affirmed because a sentence
    
    below the 20-year statutory maximum established by 21 U.S.C. § 841(b)(1)(C) for
    
    the violation of § 841(a) does not violate Apprendi v. New Jersey, 
    530 U.S. 466
    
    (2000),1 and both Ignasio and Santiago Sanchez were sentenced to terms below 20
    
    years. However, although the majority acknowledges that Apprendi error occurs
    
    when an indictment charging a violation of § 841(a) fails to allege drug quantity
    
    and a sentence in excess of 20 years pursuant to § 841(b)(1)(A) or (b)(1)(B) is
    
    nonetheless imposed, the majority proceeds to argue—hypothetically, because no
    
    Apprendi error occurred in the case before us—that such an error would be a “trial
    
    type” error subject to harmless or plain error review. While I do not believe the
    
    majority’s discussion of this question is warranted by the instant case, I write
    
    separately because I believe its analysis is mistaken.
    
           1
            Although I initially believed that imposing a mandatory minimum pursuant to
    § 841(b)(1)(A) or (b)(1)(B) where no amount of drugs was alleged in the indictment would
    violate Apprendi, I have reconsidered that view. Apprendi held that any fact, other than a prior
    conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must
    be submitted to a jury and proved beyond a reasonable doubt. See Apprendi, 530 U.S. at 490.
    But the Apprendi Court expressly limited its holding so as not to overrule McMillan v.
    Pennsylvania, 
    477 U.S. 79
     (1986), in which the Court upheld a state statute that required a
    sentencing judge to impose a mandatory minimum sentence if the judge found, by a
    preponderance of the evidence, that the defendant possessed a firearm during the commission of
    the offense of conviction. See Apprendi, 530 U.S. at 487 n.13. Reading McMillan and
    Apprendi together, until the Supreme Court says otherwise, it appears that a sentence is not
    constitutionally defective unless the sentence exceeds the statutory maximum authorized by the
    indictment and the jury’s ultimate verdict.
    
                                                  114
    I     Does Apprendi Require That Drug Quantity Be Treated As An Essential
          Element Of The Crimes Set Forth In 21 U.S.C. §§ 841 And 846?
    
          No one disputes that prior to Apprendi certain basic principles were clearly
    
    and unambiguously established: (1) A defendant has the constitutional right under
    
    the Fifth Amendment to be charged by an indictment returned by a grand jury; (2)
    
    The court has the power to act only within the parameters of the specific crime
    
    charged in the indictment or information; (3) A sentence imposed outside of the
    
    parameters of the crime charged in the indictment or information is per se
    
    reversible; (4) A defendant has the constitutional right under the Fifth and Sixth
    
    Amendments to an information or indictment that gives notice of all of the
    
    essential elements of the crime charged and the factual bases therefor; (5) A
    
    defendant has the constitutional right to a jury determination of guilt beyond a
    
    reasonable doubt as to each essential element of the crime charged; (6) Any
    
    waiver, by plea or otherwise, of the right to notice by indictment or information, or
    
    of the right to a jury determination of guilt beyond a reasonable doubt, must be
    
    voluntary and intelligent.
    
          In Apprendi, the Court stated that a fact that increases the penalty for a crime
    
    beyond the otherwise-applicable statutory maximum “fits squarely within the usual
    
    definition of an ‘element’ of the offense.” Apprendi, 530 U.S. at 494 n.19. The
    
    Court held that “other than the fact of a prior conviction, any fact that increases the
    
                                              115
    penalty for a crime beyond the prescribed statutory maximum must be submitted to
    
    a jury, and proved beyond a reasonable doubt.” Id. at 490.
    
           The fundamental question posed after Apprendi is whether these statements
    
    mean that drug quantity must be treated as an element of the offenses set forth in
    
    21 U.S.C. §§ 841 and 846 in order to impose the enhanced penalties provided by §
    
    841(b)(1)(A) and (b)(1)(B) for the increased amount of drugs involved in the
    
    offense.2 I see only three ways to answer this question. The first is that drug
    
    quantity is an essential element of the offenses punishable under § 841(b)(1)(A)
    
    and (b)(1)(B), and that, therefore, all of the basic principles established by long
    
    standing precedent that apply to traditional offense elements—involving the
    
    defendants’ rights under the Fifth and Sixth Amendments, as well as the
    
    boundaries of the court’s power to act—apply to the element of drug quantity in
    
    § 841(b)(1)(A) and (b)(1)(B). Application of these principles to 21 U.S.C.
    
           2
              21 U.S.C. § 841(a) provides that it is “unlawful for any person knowingly or
    intentionally” to “manufacture, distribute, or dispense, or possess with intent to manufacture,
    distribute, or dispense, a controlled substance.” This section does not set forth any specific drug
    quantity that must be involved in the crime. 21 U.S.C. § 841(b)(1)(C) sets forth a maximum
    penalty of 20 years imprisonment for a violation of § 841(a).
             21 U.S.C. § 841(b)(1)(A) and (b)(1)(B) criminalize the same conduct as
    § 841(a) but establish specific threshold drug quantities that must be involved in the crime.
    These sections provide for correspondingly more severe penalties than that set forth in
    § 841(b)(1)(C) for a violation of § 841(a). Specifically, § 841(b)(1)(A) establishes a penalty of
    10 years to life imprisonment or, if death or serious bodily injury results from use of the drug
    involved in the crime, a penalty of 20 years to life. Section 841(b)(1)(B) establishes a penalty of
    5 to 40 years imprisonment, or, if death or serious bodily injury result from use of the drug
    involved in the crime, a penalty of 20 years to life.
    
                                                   116
    § 841 leads to the conclusion that when an indictment charging a violation of
    
    § 841(a) fails to allege drug quantity, any sentence in excess of 20 years is
    
    reversible per se for resentencing within the 20 year statutory maximum prescribed
    
    by § 841(b)(1)(C).
    
          The second option is that drug quantity is not an essential element of the
    
    crimes set forth in § 841(b)(1)(A) and (b)(1)(B), but remains a mere “sentencing
    
    factor.” If this is so, drug quantity need not be charged in the indictment or proved
    
    to a jury beyond a reasonable doubt, but may be found by the sentencing judge by
    
    a preponderance of the evidence.
    
          The third possibility is that although drug quantity is an element necessary to
    
    be charged and proven to a jury beyond a reasonable doubt, it constitutes a new
    
    kind of element, a constitutionally novel creature that is an element for some
    
    purposes but not for others. On this unprecedented theory, which the majority
    
    appears to endorse, the “element” must be alleged in the indictment, but if it is not,
    
    that failure does not have the same effect as a failure to allege a “real” element.
    
    Whereas precedent teaches that the failure to allege an element essential to the
    
    crime charged is a fatal defect requiring reversal of the excess sentence for
    
    resentencing within the proper bounds of the offense charged, the failure to allege
    
    this new “quasi-element” may be excused by an appellate court if it thinks it
    
    
                                              117
    harmless.
    
           Our own circuit, and every other circuit to have spoken on the question, has
    
    determined that the only plausible interpretation of Apprendi, especially as read
    
    together with Jones v. United States, 
    526 U.S. 227
     (1999), is that drug quantity is
    
    an offense element of the crimes punishable by § 841(b)(1)(A) and (b)(1)(B) that
    
    must be alleged in the indictment as a prerequisite to the imposition of the
    
    sentences under those provisions.3 I believe this conclusion derives from both the
    
    
           3
             Our circuit reached this conclusion in United States v. Rogers, 
    228 F.3d 1318
    , 1327
    (11th Cir.2000), as has every other circuit to address the question. See United States v. Promise,
    
    255 F.3d 150
    , 156-57 (4th Cir., 2001) (“Accordingly, Apprendi dictates that in order to authorize
    the imposition of a sentence exceeding the maximum allowable without a jury finding of a
    specific threshold drug quantity, the specific threshold quantity must be treated as an element of
    an aggravated drug trafficking offense, i.e., charged in the indictment and proved to the jury
    beyond a reasonable doubt.”); United States v. Fields, 
    242 F.3d 393
    , 395 (D.C. Cir. 2001) (“[I]t
    is now clear that, in drug cases under 21 U.S.C. §§ 841 and 846, before a defendant can be
    sentenced to any of the progressively higher statutory maximums . . . in subsections
    841(b)(1)(A) or (B), the Government must state the drug type and quantity in the indictment,
    submit the required evidence to the jury, and prove the relevant drug quantity beyond a
    reasonable doubt.”) (emphasis added); United States v. Nance, 
    236 F.3d 820
    , 826 (7th Cir.
    2001) (“Under Apprendi, before the defendant could receive a sentence greater than 20 years but
    no more than 40 years, the indictment should have charged that he had conspired to distribute 5
    grams or more of the cocaine base mixture and that issue should have been submitted to the jury
    and proven beyond a reasonable doubt by the government.”) (emphasis added); United States v.
    Doggett, 
    230 F.3d 160
    , 164-65 (5th Cir. 2000) (“[W]e hold that if the government seeks enhanced
    penalties based on the amount of drugs under 21 U.S.C. § 841(b)(1)(A) or (B), the quantity must
    be stated in the indictment and submitted to a jury for a finding of proof beyond a reasonable
    doubt.”) (emphasis added); United States v. Aguayo-Delgado, 
    220 F.3d 926
    , 933 (8th Cir. 2000)
    (“[I]f the government wishes to seek penalties in excess of those applicable by virtue of the
    elements of the offense alone, then the government must charge the facts giving rise to the
    increased sentence in the indictment, and must prove those facts to the jury beyond a reasonable
    doubt.”) (emphasis added); cf. United States v. Tran, 
    234 F.3d 798
    , 808 (2d Cir. 2000)
    (aggravating firearm enhancement must be charged in the indictment and proved to the jury
    beyond a reasonable doubt because “[a] prosecutor cannot make an end run around the
    jurisdictional prerequisite of an indictment by charging any federal offense, and then proceeding
    
                                                   118
    language and holding of Apprendi.
    
           In Apprendi, the Supreme Court reiterated that the Sixth and Fourteenth
    
    Amendments “indisputably entitle a criminal defendant to ‘a jury determination
    
    that [he] is guilty of every element of the crime with which he is charged, beyond a
    
    reasonable doubt.’” Apprendi, 530 U.S. at 477 (quoting United States v. Gaudin,
    
    
    515 U.S. 506
    , 510 (1995)). The Court characterized any “fact that increases the
    
    penalty for a crime” as “the functional equivalent of an element of a greater offense
    
    than the one covered by the jury’s guilty verdict,” indeed, as noted above, as one
    
    that “fits squarely within the usual definition of an ‘element’ of the offense.”
    
    Apprendi, 530 U.S. at 494 n.19. As Justice Thomas wrote in his concurring
    
    opinion, joined by Justice Scalia, “[o]ne need only look to the kind, degree, or
    
    range of punishment to which the prosecution is by law entitled for a given set of
    
    facts. Each fact necessary for that entitlement is an element.” Id. at 501 (Thomas,
    
    J., concurring). Drug quantity, in 21 U.S.C. § 841 is precisely such a fact—that is,
    
    a fact that legally entitles the prosecution to increased ranges of punishment under
    
    § 841(b)(1)(A) and (b)(1)(B) that exceed the statutory maximum for drug crimes of
    
    
    
    to prosecute a defendant for a different, albeit related, federal offense. Likewise, a prosecutor
    cannot make this jurisdictional end run, and then urge the court to sentence the defendant for an
    offense for which the defendant was neither charged nor convicted.”).
    
    
    
                                                   119
    indeterminate quantity set forth in §§ 841(a) and 841(b)(1)(C).4 Thus, as a result
    
    of Apprendi, it is clear that drug quantity must be treated as an element of the
    
    offenses described by these sections.
    
           Accordingly, I agree with the majority that if a sentence under
    
    § 841(b)(1)(A) or (b)(1)(B) is to be imposed, the necessary elements of the crimes
    
    charged therein, including the threshold drug amount prerequisite to the application
    
    of these subsections of the statute,5 must be “charged in the indictment and proven
    
    to a jury beyond a reasonable doubt . . . .” United States v. Rogers, 
    228 F.3d 1318
    ,
    
    1327; see also, e.g., United States v. Cotton, 
    261 F.3d 397
     (4th Cir. 2001). My
    
    disagreement with the majority and with Judge Tjoflat’s special concurrence is that
    
    I can find no reason in logic or law for failing to apply the consequences that flow
    
    from that determination.
    
           The majority suggests that, on appeal, an Apprendi error in the indictment is
    
    susceptible to harmless error review if it has been preserved, and plain error review
    
    if it has not. The problem with this view is, first, that it fails to account for the
    
           4
            See supra, n.3.
           5
             Although the Government does not need to allege the precise amount of drugs involved,
    the Government must allege drug quantity with sufficient specificity to apprise the defendant
    under which subsections of § 841 the Government is proceeding. See Jones, 526 U.S. at 230-37
    (failure of indictment to refer to either of federal carjacking statute’s two subsections
    criminalizing activity involving certain aggravating facts, coupled with indictment’s failure to
    allege any of the specific facts set forth by those subsections, amounted to a failure to charge
    either of the aggravated crimes).
    
                                                  120
    court’s responsibility, in every criminal case, to ascertain precisely the bounds of
    
    its own jurisdiction as delineated by the offenses charged in the indictment or
    
    information. If, as the majority agrees, drug quantity constitutes an element of the
    
    offenses in § 841)b)(1)(A) and (b)(1)(B), then failure to plead quantity in the
    
    indictment must, under all existing precedent, constitute jurisdictional error that
    
    requires any sentence in excess of 20 years to be reversed for resentencing within
    
    the limit of § 841(b)(1)(C). The majority, in its effort to sidestep this result,
    
    impermissibly creates a new class of “quasi-elements” not subject to this rule.6 At
    
           6
             In his special concurrence, Judge Tjoflat explains why, in his view, Apprendi does not
    require that drug quantity be deemed an “element” of the crimes laid out in
    § 841(b)(1)(A) and (b)(1)(B). Judge Tjoflat points out that the question before the Apprendi
    Court, properly conceived, was: ‘What protection does the Constitution afford criminal
    defendants against being sentenced based on facts not proved to a jury beyond a reasonable
    doubt?’ In characterizing the responsive holding of Apprendi, Judge Tjoflat concludes that the
    Supreme Court was concerned only with the twin requirements that: (a) a defendant be given
    notice that the government seeks to use a particular fact to enhance his sentence, and (b) that the
    resulting enhanced sentence be “reliable.” Problems regarding the constitutional rights to notice
    and “reliability,” Judge Tjoflat argues, are reviewed under the rubrics of harmless or plain error.
    Thus, Judge Tjoflat concludes, the absence of drug quantity from an indictment cannot constitute
    jurisdictional error, reversible per se.
            However, this analysis begs the question of Apprendi’s applicability. If notice is
    required (and I believe it is), that notice must come when the government first charges the
    offense so that the defendant can effectively respond to the charge; if “reliability” is
    constitutionally required, the reliability of a sentence based on an enhancing fact is to be derived,
    according to Apprendi, by a jury determination of that fact beyond a reasonable doubt. Apprendi
    clearly dictates that sentence-enhancing facts be treated as the functional equivalents of an
    element. If we are required to treat drug quantity as an element, then we ought to consider cases
    in which an element, properly-so-called, was omitted from an indictment, and act accordingly,
    treating drug quantity the same way. Constructive amendment of the indictment cases like Bain
    and Stirone provide the best guide. In these cases, the Supreme Court has spoken precisely on
    the functions of “elements”, and on the consequences of omitting an element from the
    indictment. Specifically, the Court has recognized that only the grand jury has the power to
    charge, or refuse to charge, a defendant with a fact that results in a more serious crime and
    
                                                    121
    the same time, the majority fails to consider the constitutional principles that
    
    govern the validity of any waiver of constitutional rights—in this instance, the
    
    waiver of the right to a grand jury’s consideration of the charges, and the
    
    requirement that any guilty plea, and corresponding waiver of the right to a jury
    
    trial, be voluntary and intelligent. Again, if drug quantity is an element of
    
    § 841(b)(1)(A) and(b)(1)(B), then failure to plead it in the indictment deprives the
    
    defendant of the meaningful notice to which he is due, under the Fifth and Sixth
    
    Amendments, of each of the elements of the crime charged, rendering his plea
    
    unintelligent and hence invalid.
    
    
    
    II     Failure To Plead Drug Quantity In The Indictment Is A Fatal Jurisdictional
           Defect To Any Sentence In Excess of 20 Years
    
           A.      The Court’s Jurisdiction To Impose A Sentence Is Limited To the
    
    
    accordingly, where an indictment fails to charge an element of the offense, any sentence for the
    enhanced offense is per se invalid.
             Judge Tjoflat states in his special concurrence that “a court’s power to adjudicate a
    federal criminal prosecution comes from 18 U.S.C. § 3231, which gives federal courts original
    jurisdiction of ‘all offenses against the laws of the United States.’” Tjoflat Concurrence at 27.
    As explained infra, in note 15, § 3231 cannot function to give the district court the power to try
    and sentence a defendant for a crime with which he is not charged. Section 3231 indeed gives
    the district courts original jurisdiction over crimes against the United States, but it does not give
    a district court the power to sentence a defendant for a crime of its own choosing. Such a rule
    would leave the district court with the functional power to define its sentencing jurisdiction
    subject only to the limits of its own imagination. As the Second Circuit explained in Tran, such
    a rule would allow prosecutors to avoid the jurisdictional prerequisite of a grand jury indictment
    by charging any federal offense at all, and then proceeding to prosecute the defendant for a
    different offense. See supra, n. 3.
    
                                                     122
                   Offense Charged In The Indictment
    
           When an indictment is not brought by the grand jury or does not contain all
    
    the essential elements of the crime charged and the necessary factual bases
    
    therefor, there is error in the subsequent criminal proceedings. When challenged, a
    
    conviction or sentence based on charges not initially brought by the grand jury
    
    must be per se reversed because, unlike most ordinary trial errors, “an indictment
    
    found by a grand jury [i]s indispensable to the power of the court to try [the
    
    defendant] for the crime with which he was charged.” Ex Parte Bain, 
    121 U.S. 1
    ,
    
    12-13 (1887). Likewise, a “court cannot permit a defendant to be tried on charges
    
    that are not made in the indictment against him.” Stirone v. United States, 
    361 U.S. 212
    , 217 (1960). The power, or lack thereof, to try defendants on the specific
    
    charges made in an indictment is the essence of the court’s criminal jurisdiction.7
    
    
           7
             The majority refers to three recent circuit cases that have held that failure to charge an
    essential element of an offense in the indictment does not constitute a “jurisdictional” defect, but
    is subject only to review for harmless or plain error. Maj. at 42-3, citing United States v.
    Prentiss, 
    256 F.3d 971
     (10th Cir. 2001) (en benc), United States v. Mojica-Baez, 
    229 F.3d 292
    ,
    310-12 (1st Cir. 2000), and United States v. Nance, 
    236 F.3d 820
    , 825-26 (7th Cir. 2000).
    Although, like the majority here, these cases utilized harmless or plain error review, none of
    them explains why, if drug quantity is an essential element of the crime charged, the ordinary
    consequences established by precedent for the indictment’s failure to allege such an element
    should not be applied.
            While Nance reviewed the failure of an § 841 indictment to charge drug quantity for
    plain error, it simply did not address the question whether the error was jurisdictional in nature.
    The Nance Court merely assumed, without discussion, that since the defendant had not
    challenged his sentence on Apprendi grounds in the trial court, review on appeal was for plain
    error. See Nance, 236 F.3d at 824.
            Nor, as the Second Circuit recently pointed out in United States v. Tran, 
    234 F.3d 798
    ,
    
                                                    123
           The remedy required by the Supreme Court for a sentence imposed beyond
    
    the trial court’s jurisdiction is a remand for resentencing within the proper confines
    
    of its jurisdiction: “[T]he imposition of a sentence in excess of what the law
    
    permits does not render the legal or authorized section of the sentence void, but
    
    only leaves such portion of the sentence as may be in excess open to attack
    
    . . . . [T]he sound rule is that a sentence is legal so far as it is within the provisions
    
    of law . . . and only void as to the excess . . . .” United States v. Pridgeon, 
    153 U.S. 809
     (2d Cir. 2000), did the Mojica-Baez case directly address this issue. Indeed, Mojica-Baez
    expressly noted that an indictment’s failure to charge an essential element of an offense must be
    recognized by the court at any time during the proceedings, either sua sponte or on motion of the
    parties, (which, if anything, suggests that the error is jurisdictional in nature). See id. at 308-09
    (“We accept as true two general propositions . . . . The first proposition is that an objection that
    an indictment fails to state an essential element of an offense ‘shall be noticed by the court at any
    time during the pendency of the proceedings.’ Fed. R. Crim. Proc. 12(b)(2) . . . . The second
    proposition is that a statutory citation standing alone in an indictment does not excuse the
    government's failure to set forth each of the elements of an offense.”) (internal citations omitted).
    Notwithstanding its recognition of these propositions, the court did not address the question
    whether the alleged indictment error in the case before it was jurisdictional, instead simply
    holding that any error in the indictment was harmless. Presumably, because of this deficiency in
    reasoning, the Second Circuit stated, “to the extent that Mojica-Baez can be read to conclude that
    this type of error is not jurisdictional, we reject that conclusion here.” Tran, 234 F.3d at 809.
            Although Prentiss did squarely hold that the failure to charge an essential element of an
    offense in the indictment does not constitute jurisdictional error, it, like the majority, in large
    part, based its reasoning on Neder v. United States, 
    527 U.S. 1
     (1999). See Prentiss, 256 F.3d at
    984 (“To us, a defendant's right to have a petit jury find each element of the charged offense
    beyond a reasonable doubt is no less important than a defendant's right to have each element of
    the same offense presented to the grand jury. If denial of the former right is subject to harmless
    error analysis, we believe denial of the latter right must be as well.”). As detailed below, I do
    not believe that Neder is applicable to the issue of whether the omission of an essential element
    from an indictment is a fatal deficiency precluding the imposition of a sentence beyond that
    prescribed for the crime which has been charged.
    
                                                    124
    48, 62 (1894).8 Therefore, any sentence imposed under § 841(b)(1)(A) or
    
    841(b)(1)B) in excess of 20 years, where the indictment alleges only a violation of
    
    § 841(a), is “void as to the excess” sentence imposed beyond the court’s
    
    jurisdiction. Id.
    
           The majority takes no account of this jurisdictional error that occurs when a
    
    court acts in excess of its authority. Indeed, even guilty pleas can not excuse such
    
    jurisdictional errors, for the court simply does not have authority to accept a plea to
    
    an offense greater than that charged in the indictment.
    
                   The objection that the indictment fails to charge an offense is not
                   waived by a guilty plea. The violation of [the defendant’s] right to be
                   free of prosecution for a nonoffense would bar his conviction even if
                   his “factual guilt” had been established validly. The entry of a guilty
                   plea does not act as a waiver of jurisdictional defects such as an
                   indictment's failure to charge an offense.
    
     United States v. Meacham, 
    626 F.2d 503
    , 510 (5th Cir. 1980).9
    
    
           8
             In Pridgeon, the defendant was sentenced to a 5 year term of imprisonment at a
    penitentiary that subjected inmates to “hard labor.” See Pridgeon, 153 U.S. at 50. The
    defendant sought a writ of habeas corpus on the grounds that the statute under which he was
    charged and convicted authorized only “imprisonment,” and the requirement of hard labor was
    therefore in excess of the court’s power rendering his entire conviction void. See id. As an
    initial matter, the Court held that the defendant’s subjection to “hard labor” was not beyond the
    power of the Court because hard labor was merely one of the rules of the penitentiary to which
    defendant was duly committed. Nevertheless, the Court held, even if the hard labor were in
    excess of the Court’s authority, the appropriate remedy would be invalidation of the excess
    sentence rather than reversal of the entire conviction. See id. at 62.
           9
             In Bonner v. Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981) (en banc), the Eleventh
    Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of
    business on September 30, 1981.
    
                                                   125
           The majority argues that a sentence in excess of 20 years under an
    
    indictment alleging only a violation of § 841(a) can be affirmed because it is not a
    
    structural error but simply a trial type error “analogous to the jury-instruction
    
    error” in Neder v. United States, 
    527 U.S. 1
     (1999). Although, prior to Apprendi,
    
    no court had held that the omission of an essential element from an indictment was
    
    reviewable for harmless error, the majority, in applying this principle to Apprendi
    
    cases, would do just that.10 To categorize the error in this way ignores the initial
    
    question that must be asked when an essential element has not been alleged in the
    
    indictment: What is the extent of the court’s power to act or, put in the traditional
    
    way, the extent of its jurisdiction?11 Neder is not applicable to this threshold issue.
    
    
           10
              See also United States v. Moss, 
    252 F.3d 993
    , 1004 (8th Cir. 2001) (Arnold, J.,
    dissenting) (“As far as I am aware, no case has ever held that the omission of an element of a
    crime from an indictment can be harmless error.”).
           11
              The majority states that “the notion that any Apprendi-based challenge has a
    jurisdictional dimension is implicitly rejected by our precedent’s consistent application of plain
    or harmless error review” Maj. at 41, citing United States v. Pease, 
    240 F.3d 938
    , 943 (11th Cir.
    2001), and United States v. Swatzie, 
    228 F.3d 1278
    , 1282-83 (11th Cir. 2000). However, in
    Swatzie, the Court found no indictment error, explaining that the indictment cited § 841(b)(1)(B)
    in the indictment and that “Swatzie does not even argue that he did not know before trial that the
    quantity or type of drugs could affect his sentence . . . .” Swatzie, 228 F.3d at 1283. In Pease, we
    found that the failure to allege drug quantity constituted plain error but did not substantially
    affect the defendant’s rights because he did not contend that he distributed a lesser amount of
    drugs than that necessary to support his sentence. Although I believe Pease was wrongly
    decided, I also note that the jurisdictional aspect of the indictment error does not appear to have
    been raised by the defendant, nor did the Court address the question whether a sentence in excess
    of 20 years constituted a constructive amendment of the indictment. In any event, this Circuit’s
    own precedent is subject to analysis and reconsideration on en banc review, and, in light of the
    reconsideration of some of our Apprendi precedent, should be analyzed and reconsidered as
    well.
    
                                                    126
          First, as Neder recognizes, an error in a petit jury instruction is “simply an
    
    error in the trial process itself.” Id. at 1833. Such errors can be assessed within the
    
    context of the trial and may consequently be deemed harmless. In contrast, the
    
    grand jury indictment confers initial jurisdiction upon the court and defines its
    
    scope. See, e.g., Gaither v. United States, 
    413 F.2d 1061
     (D.C. Cir. 1969). Thus,
    
    an error by which the scope of the indictment is expanded cannot be analyzed in
    
    the context of the trial, for such errors precede any consideration of trial process
    
    errors and challenge either the court’s initial jurisdiction or its reach.
    
          As illustrated by Stirone, not every error in jury instructions is susceptible to
    
    harmless error review. Unlike the non-jurisdictional jury instruction error in
    
    Neder—to wit, failure to submit the issue of materiality to the jury when it was
    
    implicit in the jury instructions as a whole—the jury instructions given in Stirone
    
    varied from the indictment to such an extent that the substantial right to be tried
    
    only on charges presented in the indictment returned by a grand jury was
    
    abrogated. The defendant’s sentence was therefore vacated because the court had
    
    exceeded its jurisdiction. See also United States v. Tran, 
    234 F.3d 798
    , 809 (2d
    
    Cir. 2000) (“If the district court acts beyond its jurisdiction by trying, accepting a
    
    guilty plea from, convicting, or sentencing a defendant for an offense not charged
    
    in the indictment, this Court must notice such error and act accordingly to correct
    
    
                                               127
    it, regardless of whether the defendant has raised the issue.”).12
    
           B.      A Defendant Has A Right To Have A Grand Jury Consider The Crime
                   For Which He or She Will be Punished And Can Only Waive This
                   Right If The Waiver Is Voluntary
    
           The conclusion that the failure to allege an element in the indictment is not
    
    susceptible to harmless error review flows from a recognition of the pivotal role
    
    played by the grand jury in the process of a criminal case. Under the Fifth
    
    Amendment the Constitution gives the grand jury complete discretion to provide
    
    the parameters of a criminal proceeding, vesting it with the power to indict based
    
    on the evidence presented to it and the absolute choice not to indict,
    
    notwithstanding any evidence presented:
    
                   In the hands of the grand jury lies the power to charge a greater
                   offense or a lesser offense; numerous counts or a single count; and
                   perhaps most significant of all, a capital offense or a noncapital
                   offense—all on the basis of the same facts. Moreover, “[t]he grand
                   jury is not bound to indict in every case where a conviction can be
                   obtained.” Thus, even if a grand jury’s determination of probable
                   cause is confirmed in hindsight by a conviction on the indicted
                   offense, that confirmation in no way suggests that the discrimination
    
           12
              The majority’s position also leads to the highly anomalous result of requiring greater
    specificity from a civil complaint than from a criminal indictment or information. Rule 8(a) of
    the Federal Rules of Civil Procedure requires that a civil complaint include “a short and plain
    statement of the grounds upon which the court’s jurisdiction depends,” and “a short and plain
    statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Proc. 8(a).
    The pleading must “give the defendant fair notice of what the plaintiff's claim is and the grounds
    upon which it rests.” Conley v. Gibson, 
    355 U.S. 41
    , 47 (1957). By holding that a sentence
    under § 841(b)(1)(A) or 841(b)(1)(B) could be upheld even where the indictment failed to allege
    drug quantity, the majority would functionally exempt the criminal indictment or information
    from even these minimal requirements.
    
                                                   128
                 did not impermissibly infect the framing of the indictment and,
                 consequently, the nature or very existence of the proceedings to come.
    
    Vasquez v. Hillery, 
    474 U.S. 254
    , 263 (1986) (quoting United States v.
    
    Ciambrone, 
    601 F.2d 616
    , 629 (2d Cir. 1979) (Friendly, J., dissenting)).
    
          Thus, even when there is overwhelming evidence of drug amounts to
    
    support conviction and sentence under § 841(b)(1)(A) or (b)(1)(B), the grand jury
    
    has the right to refuse to charge the defendant with those amounts. Whatever
    
    decision is made by the grand jury for whatever reason, it cannot be reversed by a
    
    later petit jury, or worse, by the decision of the sentencing judge.
    
                 The content of the charge, as well as the decision to
                 charge at all, is entirely up to the grand jury–subject to its
                 popular veto, as it were. The grand jury’s decision not
                 to indict at all, or not to charge the facts alleged by the
                 prosecutorial officials, is not subject to review by any
                 other body.
    
    Gaither v. United States, 
    413 F.2d 1061
    , 1066 (D.C. Cir. 1969) (internal citations
    
    omitted); Russell, 369 U.S. at 770 (1962) (harmless error analysis would allow a
    
    defendant to “be convicted on the basis of facts not found by, and perhaps not even
    
    presented to, the grand jury which indicted him.”).
    
          Moreover, just as the grand jury alone has the power to return an indictment,
    
    any amendments to the indictment must be made by the grand jury as well. See
    
    Stirone, 361 U.S. at 215-16; Bain, 
    121 U.S. 1
    . If, in subsequent proceedings, “the
    
    
                                              129
    charging terms of the indictment are altered, either literally or in effect, by
    
    prosecutor or court after the grand jury has last passed upon them,” United States
    
    v. Bursten, 
    453 F.2d 605
    , 607 (5th Cir. 1971), the alteration is deemed a
    
    “constructive” or “effective” amendment. Id. Such substantial “broaden[ing],” see
    
    Stirone, 360 U.S. at 216, constitutes per se reversible error because it violates the
    
    defendant’s constitutional right to be tried solely within the parameters of the
    
    charges returned by the grand jury.13 See id.; Bursten, 453 F.2d at 607. In
    
    reviewing instructions to a jury which differed from the charges in the indictment,
    
    the Court in Stirone held:
    
                  While there was a variance in the sense of a variation
                  between pleading and proof, that variation here destroyed
                  the defendant's substantial right to be tried only on
                  charges presented in an indictment returned by a grand
                  jury. Deprivation of such a basic right is far too serious
                  to be treated as nothing more than a variance and then
                  dismissed as harmless error.
    
    Id. at 217. In United States v. Peel, 
    837 F.2d 975
    , 979 (11th Cir. 1988), this court
    
    reiterated that “a constructive amendment of a grand jury indictment is reversible
    
    
    
    
           13
              Minor and insubstantial errors in the indictment that do not broaden its scope are
    obviously not construed as such amendments. However, as explained above, sentencing for
    more than the offense charged constructively amends the indictment, and no one but the grand
    jury has the power do this.
    
                                                 130
    error per se.” Id. (emphasis in original).14
    
           Because it is necessary to allege the requisite drug quantity in the indictment
    
    to sentence a defendant under § 841(b)(1)(A) or 841(b)(1)(B), it is clearly error to
    
    sentence the defendant in excess of 20 years under those provisions in the absence
    
    of such an allegation. By such a sentence, the court, in place of the grand jury,
    
    supplies the missing allegation in the indictment, and, in place of the petit jury,
    
    “finds” it as a “fact.” This “fact” is “legally essential to the punishment to be
    
    inflicted,” thereby increasing the penalty under § 841(b)(1)(A) or 841(b)(1)(B).
    
    Thus, by such a sentence the court is constructively amending the indictment in
    
    just as substantial a manner as that prohibited in Stirone, and thus, like in Stirone,
    
    the error is per se reversible. Because the court’s sentence exceeds the jurisdiction
    
    established by the indictment, the erroneous sentence is not susceptible to harmless
    
    or plain error review on direct appeal, or procedural default on collateral review.
    
           If the indictment has charged a violation of 21 U.S.C. § 841(a), alleging
    
    
           14
              The majority, in footnote 50, appears to suggest that the authority of Stirone has
    somehow been diminished by the Supreme Court’s decision in Chapman v. California, 
    386 U.S. 18
     (1967). Chapman held that some constitutional errors could be deemed harmless; it did not
    state that constitutional errors already deemed harmful by the Supreme Court could henceforth
    be regarded as harmless. Put differently, Chapman did not give appellate courts license to
    survey the landscape of constitutional errors and recategorize them as they wish. Until the
    Supreme Court holds that Stirone errors are harmless, its statement that some constitutional
    errors may be harmless has no effect whatsoever on the precedential force of its holding in
    Stirone. Our own court in Peel, decided long after Chapman, recognized that the law deems
    constructive amendments of a grand jury indictment to be reversible per se.
    
                                                 131
    only some indeterminate drug quantity, the sentence for that crime is set out in
    
    § 841(b)(1)(C). Clearly the court has the jurisdiction or the power to sentence a
    
    convicted defendant under these allegations pursuant to this provision. However,
    
    any sentence “beyond the prescribed statutory maximum” of § 841(b)(1)(C) must
    
    necessarily be based on a “fact” not alleged in the indictment, namely drug
    
    quantity, that has “increas[ed] the penalty beyond the prescribed statutory
    
    maximum” and that is “legally essential to the punishment to be inflicted.” See
    
    Apprendi, 560 U.S. at 490 n. 15. When drug quantity is not alleged in the
    
    indictment, such a sentence is invalid.15
    
    
           15
                Obviously, as the majority points out, the defendant has the right to waive indictment
    by grand jury. In such a case, a court would, of course, undertake the usual constitutional
    inquiry as to whether the waiver was voluntary and intelligent and whether the substituting
    information complied with other constitutional protections. See United States v. Moore, 
    37 F.3d 169
    , 173 (5th Cir. 1994) (waiver of right to indictment by grand jury requires that the “court
    must be satisfied that the waiver was knowingly, understandingly, and voluntarily made.”). The
    majority seems to argue that the fact that Fed. R. Crim. Proc. 7(b) allows a defendant to waive
    his Fifth Amendment right to be prosecuted by indictment and proceed instead on a criminal
    information somehow proves that failure to allege an essential element in an indictment is not a
    jurisdictional error but rather a trial type error that is subject to harmless or plain error review.
    It is difficult to discern the logic in this view. Rule 7(b) simply recognizes that a defendant can
    waive the grand jury’s involvement in initiating the charges against him. The ability to waive
    the right to prosecution by indictment has nothing to do with whether errors at the charging
    phase are jurisdictional. If anything, the fact that the prosecution must alternatively proceed by
    information confirms that there is a vital jurisdictional step that cannot be waived: some charging
    document is essential to confer jurisdiction on the court and to define its scope. Waiving the
    right to a grand jury indictment does not mean a defendant waives either his own right, or the
    court’s obligation, to assure subject matter jurisdiction over the relevant crime and punishment.
             To use an admittedly extreme example to make the point, a defendant waiving indictment
    by the grand jury cannot be permitted to be sentenced for manslaughter under an information that
    only charges theft, even should he want to. The bottom line is that in every case, the court has
    an independent obligation to ensure that the charging document—whether indictment or
    
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    III    The Defendant’s Fifth and Sixth Amendment Rights To Notice Also Require
           That, Where The Indictment Does Not Allege Drug Quantity, Sentences In
           Excess Of 20 Years Be Per Se Reversed
    
           A.      The Indictment Or Information Must Give The Defendant Notice Of
                   All The Essential Elements Of The Crime Charged
    
           When the grand jury does return an indictment, due process requires that the
    
    indictment must provide a defendant with adequate notice of the crime with which
    
    he or she has been charged:
    
                   The criteria [for a valid indictment] are, first, whether the
                   indictment contains the elements of the offense intended to be
                   charged, and sufficiently apprises the defendant of what he
                   must be prepared to meet, and, secondly, in case any other
                   proceedings are taken against him for a similar offense whether
                   the record shows with accuracy to what extent he may plead a
                   former acquittal or conviction.
    
    Russell, 369 U.S. at 763-764 (collecting cases) (internal quotations omitted). As
    
    our own Circuit has emphasized,
    
    
    information—outlines the elements of the crime. See DeBenedictis v. Wainwright, 
    674 F.2d 841
    (11th Cir. 1982). Failure to allege an element constitutes jurisdictional error that renders any
    sentence relying on the unalleged element invalid. See id.
             Moreover, the discussion of the right to waive a grand jury’s indictment seems almost
    irrelevant in the Apprendi context. In future cases, one assumes that the Government would, at
    least in an abundance of caution, present the indictment to the grand jury in a way that includes
    the requisite drug quantity for the conviction and sentence it seeks. In reviewing those cases that
    arose before Apprendi, courts must analyze whether any waiver of the right to have the grand
    jury pass on the crime it wants to charge, i.e., have the ability to choose from among the crimes
    delineated by §§ 841(a), 841(b)(1)(A), and 841(b)(1)(B), has been made knowingly, intelligently
    and voluntarily. In all fairness, how can a waiver possibly be made knowingly, intelligently, and
    voluntarily if the defendant did not know that the grand jury should have had that opportunity?
    
    
    
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                   A grand jury indictment must set forth each essential element of
                   the offense in order for the conviction to stand . . . . [T]he Sixth
                   Amendment to the Constitution requires that every criminal
                   defendant ‘be informed of the nature and cause of the
                   accusation.’ Inclusion of the essential elements of an offense in
                   an indictment provides the accused with the bare minimum of
                   information necessary to meet this requirement . . . . [T]he Fifth
                   Amendment guarantees the right of a grand jury indictment to
                   each defendant to be prosecuted for an ‘infamous,’ or serious,
                   crime. A grand jury can perform its function of determining
                   probable cause and returning a true bill only if all elements of
                   the offense are contained in the indictment.
    
    United States v. Outler, 
    659 F.2d 1306
    , 1310 (5th Cir. Unit B 1981)16; see also
    
    United States v. Ramos, 
    666 F.2d 469
    , 474 (11th Cir. 1982) (an indictment is valid
    
    only “as long as those words of themselves fully, directly, and expressly, without
    
    any uncertainty or ambiguity, set forth all the elements necessary to constitute an
    
    offense under the laws of the United States”).17 “[T]he language of the statute may
    
           16
             In Stein v. Reynolds Securities, Inc., 
    667 F.2d 33
     (11th Cir. 1982), the Eleventh Circuit
    adopted as binding precedent all decisions of Unit B of the former Fifth Circuit handed down
    after September 30, 1981.
           17
              Although a defendant may waive his right to be charged by the grand jury through
    indictment, and plead or be tried under a criminal information, Fed. R. Crim. Proc. 7(b), the
    criminal information, which substitutes for the indictment, must likewise comply with
    constitutional guarantees. Specifically, the information must satisfy the defendant’s Sixth
    Amendment right to have notice of the specific offense that he has allegedly committed so that
    he may defend against the case or make a fully informed plea to the charge. See, e.g., United
    States v. Morales-Rosales, 
    838 F.2d 1359
    , 1361 (5th Cir. 1988) (citing United States v.
    London, 
    550 F.2d 206
    , 211 (5th Cir. 1977)); DeBenedictis v. Wainwright, 
    674 F.2d 841
    , 842-
    843 (11th Cir. 1982). In accordance with the defendant’s Fifth Amendment right to be free from
    double jeopardy, the information must likewise provide him with a basis for determining
    whether a subsequent charge punishes him for the same illegal conduct charged in the
    information. Equally important, the information provides the court with the means to ascertain
    the scope of its own jurisdiction when a defendant enters a plea, and to be aware of the range of
    
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    be used . . . but it must be accompanied with such a statement of the facts and
    
    circumstances as will inform the accused of the specific offence, coming under the
    
    general description, with which he is charged.” Hamling v. United States, 
    418 U.S. 87
    , 117-18 (1984).
    
           Defects in the charging document compromise the defendant’s Sixth
    
    Amendment guarantee requiring that any guilty plea be made with full and
    
    meaningful notice of the criminal charges lodged against him. How a defendant
    
    prepares to answer the charges brought against him and whether or not he will
    
    choose to enter a guilty plea is dictated by the contours of the charging document.
    
    Consider the example of a defendant charged with a drug crime of indeterminate
    
    quantity, who pleads guilty, and in his guilty plea, does not contest the
    
    government’s allegations of a drug quantity which bring him within the increased
    
    range of § 841(b)(1)(A). Laboring under the justifiable but erroneous belief that
    
    the Government was not required to charge that quantity in the indictment, or
    
    prove it beyond a reasonable doubt to the jury in the first place, the defendant
    
    forewent his right to take the quantity issue to the jury. Such a waiver obviously
    
    cannot be deemed voluntary and intelligent, because the defendant’s erroneous
    
    belief caused him to forego a fundamental constitutional right which he might
    
    
    penalties it is authorized to impose at sentencing. See Smith v. United States, 
    360 U.S. 1
     (1959).
    
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    otherwise have chosen to exercise. The exacting standard for guilty pleas, See
    
    Brady v. United States, 
    397 U.S. 742
    , 747-48 (1970) (“That a guilty plea is a grave
    
    and solemn act to be accepted only with care and discernment has long been
    
    recognized”), mandates that any such waiver must not be deemed voluntary and
    
    intelligent. Thus, any sentence based on such a waiver violates a defendant’s Sixth
    
    Amendment right to adequate notice of the charges against him upon which he can
    
    reasonably and knowledgeably base a defense or a plea.18
    
                                           CONCLUSION
    
           In sum, if this court were presented with a case in which a defendant
    
    received a sentence in excess of 20 years pursuant to § 841(b)(1)(A) or
    
    
           18
              The majority states that even if the trial judge misadvised the Sanchezes of their
    maximum potential sentence pursuant to § 841(b)(1)(A) or 841(b)(1)(B), the Sanchezes’ guilty
    pleas were valid under Brady v. United States, 
    397 U.S. 742
     (1970). The majority cites Brady
    for the proposition that misinformation provided to the Sanchezes’ by the court could not
    possibly have sufficed to render their guilty pleas involuntary or unintelligent. But Brady does
    not stand for any such broad proposition.
            In Brady, the Supreme Court held that the federal kidnaping statute could not condition a
    defendant’s right to opt for a jury trial on his willingness to risk the death penalty (which, under
    the statute, could be imposed only by a jury). Nevertheless, the Court rejected the defendant’s
    challenge to the voluntariness of his guilty plea, but not, as the majority suggests, because the
    defendant’s misunderstanding of his sentencing exposure could not possibly have shown his plea
    to be involuntary. Instead, the court rejected defendant’s argument because the trial court and
    the Tenth Circuit explicitly found that the defendant voluntarily chose to plead guilty when he
    learned that his co-defendant was cooperating with the prosecution and was available to testify
    against him. Indeed, contrary to the majority’s suggestion, the Brady Court reaffirmed the
    existing standards for analyzing guilty pleas holding that they must always be both voluntary and
    intelligent. See id. at 747 n.4. The Court wrote: “Waivers of constitutional rights not only must
    be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant
    circumstances and likely consequences.” Id. at 748.
    
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    § 841(b)(1)(B) and the indictment did not allege the requisite drug quantity, I
    
    believe we would be required to vacate the sentence and remand for resentencing
    
    under § 841(b)(1)(C). Apprendi’s requirement that drug quantity be alleged in the
    
    charging document establishes that the error would be jurisdictional to the extent
    
    that the court imposed a sentence in excess of that provided by § 841(b)(1)(C) and
    
    therefore reversible per se. The defendant would have to be resentenced within the
    
    20 year maximum of § 841(b)(1)(C) . As a jurisdictional error, it cannot be waived
    
    by the defendant; it is not subject to harmless or plain error analysis on direct
    
    appeal; and it cannot be procedurally defaulted on collateral review. But because
    
    Ignasio and Santiago Sanchez received sentences below the statutory maximum of
    
    20 years, I do not believe this court needed to reach any of these questions.19 I
    
    agree that their sentences created no Apprendi error and should be affirmed.
    
    
    
    
           19
             As we have previously stated, “appellate courts best serve the law in deciding ‘each
    case on the narrow ground that leads to a decision.’” Clay v. Riverwood Intern. Corp., 
    157 F.3d 1259
    , 1264 (11th Cir. 1998) (summarizing and quoting Blackston v. Shook & Fletcher Insulation
    Co., 
    764 F.2d 1480
    , 1481 (11th Cir.1985)).
    
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