United States v. Promise

Filed: July 17, 2001

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 99-4737
(CR-98-7-MU)

United States of America,

Plaintiff - Appellee,

versus

Marion Promise, a/k/a Mario,

Defendant - Appellant.

O R D E R

The court amends its opinion filed June 29, 2001, as follows:

On the cover sheet of Volume I and Volume 2, section 2 -- the

last slash in “a/k/a” is deleted.

On page 2, section 1, line 4 -- the word “Judges” is corrected

to read “Judge.”

On page 41, first paragraph, line 19 -- the section symbol

before “21 U.S.C.” is deleted.
 - 2 -

On page 45, first full paragraph, line 13 -- the citation for

United States v. Jones is corrected to begin “195 F.3d 205.”

On page 62, third full paragraph, line 3 -- a comma is added

after “(1997)” to close the citation.

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
Volume 1 of 2

OPINION ON REHEARING EN BANC

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 99-4737

MARION PROMISE, a/k/a/ Mario,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-98-7-MU)

Argued: February 27, 2001

Decided: June 29, 2001

Before WILKINSON, Chief Judge, and WIDENER, WILKINS,
NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ,
TRAXLER, KING, and GREGORY, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Wilkins announced the judg-
ment of the court and delivered the opinion of the court with respect
to Parts I and II A-C, in which Judges Widener, Williams, Michael,
Motz, Traxler, and King joined, and an opinion with respect to Part
IID, in which Chief Judge Wilkinson and Judges Williams and Trax-
ler joined. Chief Judge Wilkinson wrote an opinion concurring in part
and concurring in the judgment. Judge Niemeyer wrote an opinion
concurring in the judgment, in which Judge Gregory joined. Judge
Luttig wrote an opinion concurring in the judgment, in which Chief
Judge Wilkinson and Judges Niemeyer and Gregory joined as to Parts
I, II, and III. Judge Motz wrote an opinion concurring in part, dissent-
ing in part, and dissenting in the judgment, in which Judge Widener
joined as to Parts I, II, III, and V and Judge Michael and Judge King
joined in its entirety.

_________________________________________________________________

COUNSEL

ARGUED: Noell Peter Tin, Charlotte, North Carolina, for Appellant.
Nina Swift Goodman, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellee. ON BRIEF: Mark T. Cal-
loway, United States Attorney, Gretchen C.F. Shappert, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.

_________________________________________________________________

WILKINS, Circuit Judge:

Appellant Marion Promise was charged in a single-count indict-
ment with conspiring to possess with the intent to distribute "a quan-
tity of cocaine and cocaine base," J.A. 33, and was convicted by a
jury. Promise was sentenced to 360 months imprisonment based upon
a determination by the district court that he should be held account-
able for more than 1.5 kilograms of cocaine base. Promise maintains
that in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), the dis-
trict court committed plain error in failing to treat the specific amount
of cocaine base attributed to him as an element of the offense.

For the reasons set forth below, we conclude that under Apprendi,
in order to authorize the imposition of a sentence exceeding the maxi-
mum allowable without a jury finding of a specific threshold drug
quantity, such drug quantities must be treated as elements of aggra-
vated drug trafficking offenses under 21 U.S.C.A. § 841 (West 1999
& Supp. 2001), i.e., charged in the indictment and proved to the jury
beyond a reasonable doubt.1 1 We further conclude that because the
_________________________________________________________________

1 "Specific threshold drug quantities" are those quantities of drugs set
forth in 21 U.S.C.A. § 841(b)(1)(A), (b)(1)(B), a finding of which sub-

2
indictment that charged Promise did not allege a specific threshold
quantity of cocaine or cocaine base and the jury did not make a find-
ing regarding whether the offense involved such a quantity, Promise's
conviction subjected him to a maximum penalty of 20 years imprison-
ment. His sentence of 30 years was therefore erroneous. Although this
error was plain and affected Promise's substantial rights, we decline
to exercise our discretion to notice the error. Accordingly, we affirm.

I.

Evidence presented at trial established that Promise supplied
cocaine base to a drug distribution ring operated by William Moore,
Jr. in Gastonia, North Carolina. Moore testified that Promise supplied
him with up to two kilograms of cocaine base every other week dur-
ing the course of their involvement. Promise also provided substantial
quantities of cocaine and cocaine base to several of Moore's cohorts.
Based upon this evidence, Promise was convicted of conspiracy to
possess with the intent to distribute cocaine and cocaine base, see 21
U.S.C.A. § 846 (West 1999). The indictment did not allege a specific
quantity of cocaine base, and the jury was not instructed to make a
finding regarding the quantity of cocaine base attributable to Promise.2
2

At sentencing, the district court determined by a preponderance of
the evidence that Promise should be held accountable for more than
1.5 kilograms of cocaine base and, after further determinations, con-
cluded that Promise's sentencing range under the United States Sen-
tencing Guidelines was 360 months to life imprisonment. The court
_________________________________________________________________

jects a defendant to a sentence of ten years to life imprisonment
(§ 841(b)(1)(A)) or five to 40 years imprisonment (§ 841(b)(1)(B)). We
are not here concerned with whether "death or serious bodily injury
result[ing] from the use of" a controlled substance distributed by the
defendant, e.g., 21 U.S.C.A. § 841(b)(1)(C), which may produce a simi-
lar result, must be treated as an element under Apprendi.

An "aggravated drug trafficking offense" is one that involves a specific
threshold drug quantity.

2 Prior to trial the Government did file an information alleging that the
conspiracy involved "in excess of 50 kilograms of cocaine; [and] in
excess of 50 kilograms of cocaine base." J.A. 39.

3
sentenced Promise to 360 months imprisonment. Promise subse-
quently appealed, arguing for the first time that the district court had
erred in treating the quantity of drugs as a sentencing factor rather
than as an element of the offense, thereby violating his right to due
process. Promise based his argument on Jones v. United States, 526
U.S. 227 (1999), in which the Supreme Court had held that serious
bodily injury was an element of an aggravated offense under the fed-
eral carjacking statute rather than a sentencing factor. See Jones, 526
U.S. at 251-52.

Promise's appeal was consolidated with that of a codefendant, Wil-
liam Patrick Miller. In June 2000, a panel of this court affirmed as to
both Promise and Miller. See United States v. Miller, 217 F.3d 842,
2000 WL 774804 (4th Cir.) (per curiam) (unpublished table decision),
cert. denied, 121 S. Ct. 410 (2000) (denying Miller's petition for writ
of certiorari). With respect to Promise's due process challenge, the
panel concluded that Promise could not demonstrate plain error
because "[n]o circuit to address this question has extended Jones to"
21 U.S.C.A. § 841.3
3 Id., 2000 WL 774804, at **1 (citing cases).
Promise petitioned for panel and en banc rehearing, arguing that the
recent decision of the Supreme Court in Apprendi required this court
to reconsider its refusal to extend Jones to§ 841. The panel granted
panel rehearing and directed the parties to file supplemental briefs.
Before the panel issued a decision, we voted to rehear Promise's
appeal en banc along with the appeals in United States v. Angle, No.
96-4662, also decided today.

II.

Promise argues that his conviction, or at least his sentence, is
invalid because a specific threshold drug quantity was not alleged in
the indictment and the jury was not required to make a finding regard-
ing specific threshold drug quantity beyond a reasonable doubt. Prom-
ise failed to make this argument before the district court and thus
_________________________________________________________________

3 Promise was charged not with a substantive drug offense, but with
conspiracy. However, 21 U.S.C.A. § 846 specifies that "[a]ny person
who . . . conspires to commit any offense" under, inter alia, 21 U.S.C.A.
§ 841 "shall be subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the . . . conspiracy."

4
forfeited the asserted error. See Yakus v. United States, 321 U.S. 414,
444 (1944) ("No procedural principle is more familiar to this Court
than that a constitutional right may be forfeited in criminal as well as
civil cases by the failure to make timely assertion of the right before
a tribunal having jurisdiction to determine it."). Our authority to cor-
rect forfeited errors is granted by Federal Rule of Criminal Procedure
52(b), which provides that "[p]lain errors or defects affecting substan-
tial rights may be noticed although they were not brought to the atten-
tion of the court." See United States v. Olano, 507 U.S. 725, 731-32
(1993) (interpreting Rule 52(b)); see also United States v. Young, 470
U.S. 1, 15 (1985) (explaining that "[t]he plain-error doctrine of Fed-
eral Rule of Criminal Procedure 52(b) tempers the blow of a rigid
application of the contemporaneous-objection requirement" by autho-
rizing correction of "particularly egregious" forfeited errors (internal
quotation marks omitted) (footnote omitted)). As the Court explained
in Olano, in order to establish our authority to notice an error not pre-
served by timely objection, Promise must demonstrate that an error
occurred, that the error was plain, and that the error affected his sub-
stantial rights. See Olano, 507 U.S. at 732. Even if Promise can sat-
isfy these requirements, correction of the error remains within our
discretion, which we "should not exercise . . . unless the error `seri-
ously affect[s] the fairness, integrity or public reputation of judicial
proceedings.'" Id. (second alteration in original) (quoting Young, 470
U.S. at 15).

A.

Our first inquiry, of course, is whether an error occurred. Before
turning to the substance of Promise's argument, we examine the cases
on which he relies, Jones and Apprendi.

1.

Jones concerned the federal carjacking statute, 18 U.S.C. § 2119,
which at the time provided as follows:

"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

5
 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

"(3) if death results, be fined under this title or impris-
oned for any number of years up to life, or both."

Jones, 526 U.S. at 230 (quoting 18 U.S.C. § 2119 (Supp. V 1994)).
Nathaniel Jones was charged with violating § 2119 in an indictment
that did not mention serious bodily injury or death, and the jury that
convicted Jones was not instructed to make findings regarding
whether serious bodily injury or death resulted from his actions. See
id. at 230-31. At sentencing, however, the district court determined by
a preponderance of the evidence that one of the victims had suffered
serious bodily injury; accordingly, the court sentenced Jones to 25
years imprisonment. See id. at 231.

The Supreme Court reversed, determining that subsections (2) and
(3) of § 2119 set forth elements of aggravated offenses, not sentenc-
ing factors relevant to punishment for a single offense defined in the
principal paragraph of the statute. Although the Court concluded as
a matter of statutory construction that "the fairest reading of § 2119
treats the fact of serious bodily harm as an element," it acknowledged
"the possibility of the other view." Id. at 239. The Court determined
that the constitutional doubt rule would preclude a reading of the stat-
ute that would make bodily injury a sentencing factor rather than an
element. See id.; see also id. ("[W]here a statute is susceptible of two
constructions, by one of which grave and doubtful constitutional
questions arise and by the other of which such questions are avoided,
our duty is to adopt the latter." (internal quotation marks omitted)).
Based upon a survey of "a series of cases over the past quarter cen-
tury, dealing with due process and the guarantee of trial by jury," id.
at 240, the Court identified a principle of constitutional law sug-
gested, but never actually adopted, by those cases: "[A]ny fact (other

6
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 Court concluded that
if serious bodily injury and death were intended by Congress to be
mere sentencing factors, a judicial finding of either of those facts
would increase the penalty to which the defendant was exposed from
15 years to 25 years or life imprisonment. See id. at 243-44. The
Court believed that such a scheme would be unconstitutional in light
of the articulated principle. See id.

A little over a year later, the Court decided Apprendi. Charles
Apprendi pleaded guilty, under New Jersey law, to two counts of sec-
ond degree possession of a firearm for an unlawful purpose and one
count of third degree possession of an antipersonnel bomb. See
Apprendi, 530 U.S. at 469-70. New Jersey law specifies a maximum
term of imprisonment of 10 years for second degree offenses. See id.
at 470. However, based on its determination by a preponderance of
the evidence that Apprendi had acted with a racially biased purpose,
the sentencing court imposed an extended term of imprisonment of 12
years on one of the firearms counts. See id. Apprendi argued to the
Supreme Court that the imposition of a penalty greater than the statu-
tory maximum based upon a finding by the court by a preponderance
of the evidence, rather than by a jury beyond a reasonable doubt, vio-
lated his due process rights.

In considering this claim, the Court began by noting that "[a]ny
possible distinction between an `element' of a felony offense and a
`sentencing factor' was unknown to the practice of criminal indict-
ment, trial by jury, and judgment by court as it existed during the
years surrounding our Nation's founding." Id. at 478 (footnote omit-
ted). In the view of the Court, this "historic link between verdict and
judgment," id. at 482, and the concomitant proscription of judicial
authority to impose a sentence outside of "the range of sentencing
options prescribed by the legislature," id. at 481, pointed to the con-
clusion that "[t]he judge's role in sentencing is constrained at its outer
limits by the facts alleged in the indictment and found by the jury. Put
simply, facts that expose a defendant to a punishment greater than that
otherwise legally prescribed were by definition`elements' of a sepa-
rate legal offense," id. at 483 n.10.4
4 On this basis, the Court decried
_________________________________________________________________

4 In this regard, the Court explained that "when the term `sentencing
enhancement' is used to describe an increase beyond the maximum

7
"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." Id. at 482-
83. In light of these principles, the Court adopted the constitutional
rule previously suggested in Jones: "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 rule to the New Jersey statutory scheme, the Court
first observed that it was immaterial that racial bias was formally
labeled a "sentencing factor" by the New Jersey Legislature: "[T]he
relevant inquiry is one not of form, but of effect--does the required
finding expose the defendant to a greater punishment than that autho-
rized by the jury's guilty verdict?" Id. at 494. The Court determined
that there indeed was a difference "between what Apprendi would
have received without the finding of biased purpose and what he
could receive with it." Id. Therefore, because race bias was not found
by a jury beyond a reasonable doubt, the Court concluded that
Apprendi's due process rights had been violated. See id. at 497.

2.

Having examined the decisions most relevant to Promise's argu-
ment, we now turn to a consideration of his claim. Promise argues
that under Apprendi, specific threshold drug quantities must be treated
as elements of aggravated drug trafficking offenses, rather than as
mere sentencing factors. We agree.

The first portion of 21 U.S.C.A. § 841, subsection (a), prohibits,
inter alia, possession of controlled substances with the intent to dis-
tribute them. See 21 U.S.C.A. § 841(a)(1). Subsection (b)(1) sets forth
various penalties that vary according to, inter alia, the quantity of the
_________________________________________________________________

authorized statutory sentence, it is the functional equivalent of an ele-
ment of a greater offense than the one covered by the jury's guilty ver-
dict. Indeed, it fits squarely within the usual definition of an `element'
of the offense." Id. at 494 n.19.

8
particular controlled substance at issue. See id. § 841(b)(1). Although
no legislative history speaks to the question, we have previously held,
as three of my colleagues reiterate now, that Congress intended these
specific threshold quantities to be sentencing factors rather than ele-
ments of aggravated drug trafficking offenses. See, e.g., United States
v. Dorlouis, 107 F.3d 248, 252 (4th Cir. 1997). These factors deter-
mine the maximum penalty that may be imposed on a particular
defendant; for example, an individual who possesses with the intent
to distribute an identifiable but unspecified quantity of a schedule I
or II drug is subject to a term of imprisonment of no more than 20
years. See 21 U.S.C.A. § 841(b)(1)(C). A sentence exceeding 20 years
may be imposed only upon an additional finding that the offense
involved a specific threshold quantity of a schedule I or II controlled
substance--for example, 1 kilogram or more of heroin. See 21
U.S.C.A. § 841(b)(1)(A)(i). Thus, if a specific threshold quantity of
drugs is not found by the jury beyond a reasonable doubt, a judicial
finding of that fact increases the allowable penalty beyond that autho-
rized by the facts found by the jury alone. Accordingly, Apprendi dic-
tates 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,5 5 i.e., charged in
the indictment and proved to the jury beyond a reasonable doubt.6 6 In
_________________________________________________________________

5 We emphasize that we do not hold that "all facts that could serve to
increase a defendant's sentence must be found by the jury beyond a rea-
sonable doubt." Post at 28. Instead, we merely hold that the maximum
penalty that may be imposed upon a defendant is the maximum penalty
allowed by statute upon proof of only those facts alleged in the indict-
ment and found by the jury beyond a reasonable doubt. Once this maxi-
mum penalty is established, a fact (sentencing factor) that may increase
the actual sentence imposed within that maximum is not subject to the
same requirements.

6 The Government concedes that under Apprendi, a defendant may be
subjected to an enhanced sentence based upon a specific threshold drug
quantity only if the jury finds, beyond a reasonable doubt, that that quan-
tity should be attributed to the defendant. However, the Government
maintains that specific threshold drug quantities need not be alleged in
the indictment. Cf. United States v. Nealy, 232 F.3d 825, 829 (11th Cir.
2000) (referring to a specific threshold drug quantity as "an element of

9
reaching this conclusion, we join every circuit that has applied
Apprendi to § 841 in this context. See United States v. Fields, 242
F.3d 393, 395 (D.C. Cir. 2001); United States v. Nance, 236 F.3d 820,
824-25 (7th Cir. 2000); United States v. Hishaw, 235 F.3d 565, 574-
75 (10th Cir. 2000); United States v. Doggett, 230 F.3d 160, 164-65
(5th Cir. 2000), cert. denied, 121 S. Ct. 1152 (2001); United States v.
Rogers, 228 F.3d 1318, 1327 (11th Cir. 2000); United States v.
Nordby, 225 F.3d 1053, 1058-59 (9th Cir. 2000); United States v.
Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.), cert. denied, 121
S. Ct. 600 (2000); see also United States v. Rebmann, 226 F.3d 521,
524-25 (6th Cir. 2000) (holding that, under Apprendi, death resulting
from the use of controlled substances distributed by the defendant is
_________________________________________________________________

sentencing"). The Government rests this argument on a passage in
Apprendi in which the Court referred to a sentencing factor that increases
the statutory maximum penalty for the offense of conviction as "the func-
tional equivalent of an element." Apprendi, 530 U.S. at 494 n.19; cf.
United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.) (referring
to drug quantity as the functional equivalent of an element), cert. denied,
121 S. Ct. 600 (2000). Essentially, the Government contends that a fact
that increases the maximum penalty must be treated as an element for
purposes of some rights guaranteed by the Fifth Amendment (e.g., the
right to a determination of guilt beyond a reasonable doubt) but not oth-
ers (e.g., the right to indictment by a grand jury). The Government pro-
vides no support for this proposition. Furthermore, the Jones Court
explained that the constitutional rule at issue concerns "the required pro-
cedures for finding the facts that determine the maximum permissible
punishment[, including] the safeguards going to the formality of notice."
Jones, 526 U.S. at 243 n.6.

It will not be unduly difficult for juries to determine whether an
offense involved a specific threshold drug quantity. Under the rule we
announce today, the jury need only determine whether drug quantity
exceeds specified thresholds. Juries in state drug-trafficking prosecutions
routinely perform this function. See, e.g., State v. Virgo, 947 P.2d 923,
926 (Ariz. Ct. App. 1997); State v. Moore, 698 A.2d 1259, 1264 (N.J.
Super. Ct. App. Div. 1997). The task of identifying the amount of drugs
for which the defendant should be held accountable at sentencing is left
to the district court pursuant to the principles set forth in the sentencing
guidelines.

10
an element of an aggravated offense). We therefore conclude that
there was error.77
_________________________________________________________________

7 Four of my colleagues conclude that the drug quantity finding made
by the district court did not increase Promise's sentence "beyond the pre-
scribed statutory maximum" for his crime because Congress intended the
statutory maximum for his crime to be life imprisonment. Apprendi, 530
U.S. at 490. In my view, my colleagues fail to reconcile this conclusion
with the statement by the Apprendi Court that "constitutional limits exist
[regarding a legislature's] authority to define away facts necessary to
constitute a criminal offense." Apprendi, 530 U.S. at 486. In this regard,
the Supreme Court made clear in Apprendi that a fact finding increases
a defendant's sentence beyond the statutory maximum whenever it
exposes him to "a penalty exceeding the maximum [the defendant] would
receive if punished according to the facts reflected in the jury verdict
alone." Id. at 483 (second emphasis added). My colleagues do not dis-
pute that 20 years is the maximum penalty that could be imposed based
solely on the facts found by the jury; § 841 requires that an additional
fact such as a specific threshold drug quantity be established in order to
impose a sentence exceeding 20 years. In nevertheless concluding that
the maximum penalty for Promise's offense was life, my colleagues fail
to acknowledge the focus of the entire discussion in Apprendi, which was
that "[t]he judge's role in sentencing is constrained at its outer limits by
the facts alleged in the indictment and found by the jury." Id. at 483 n.10
(emphasis added). It is only by failing to come to grips with the lengthy
explanation provided by the Court for the rule it adopted in Apprendi that
my colleagues can conclude that the constitutional rule announced in
Apprendi was complied with here.

Were there any question regarding the meaning of the rule announced
in Apprendi, it would most certainly be answered by the analysis of the
Court in Jones. According to my colleagues, it would be consistent with
Apprendi to hold that § 841 imposes a single maximum penalty (life
imprisonment) and that the gradations within § 841(b)(1) may be deter-
mined by a judge applying the preponderance standard. In Jones, how-
ever, the Court concluded that an essentially identical interpretation of
§ 2119 would violate the rule later adopted in Apprendi. See Jones, 526
U.S. at 243-44. In other words, the Court doubted the constitutionality
of imposing a sentence exceeding 15 years (the maximum for the basic
offense of carjacking) based on facts (death or serious bodily injury) that
had not been proven to a jury beyond a reasonable doubt. Because the
doubts expressed in Jones were premised on the rule later adopted in
Apprendi, Jones forecloses the interpretation of Apprendi advanced by
my colleagues and requires the conclusion reached by this court and
every other court to decide this question.

11
Before turning to the remaining prongs of the plain error analysis,
we pause to consider the treatment of Walton v. Arizona, 497 U.S.
639 (1990), by the Apprendi Court. In Walton, the Supreme Court
upheld a provision of Arizona's capital sentencing statute under
which a judge, rather than a jury, determined whether the prosecution
had established an aggravating factor necessary to subject the defen-
dant to the death penalty. See Walton, 497 U.S. at 647-49. The
Apprendi Court distinguished Walton on the basis that the defendant
there was convicted of a capital crime even before the judge found
aggravating factors to be present; the judge's findings merely aided
in the selection of an appropriate sentence within a range of penalties
that already included capital punishment. See Apprendi, 530 U.S. at
496-97 (citing Almendarez-Torres v. United States, 523 U.S. 224, 257
n.2 (1998) (Scalia, J., dissenting)); cf. Walton, 497 U.S. at 648
("`Aggravating circumstances are not separate penalties or offenses,
but are standards to guide the making of [the] choice between the
alternative verdicts of death and life imprisonment.'" (quoting Poland
v. Arizona, 476 U.S. 147, 156 (1986)) (second alteration in original)).
The dissent dismissed this proffered distinction as "baffling" in light
of the fact that "[a] defendant convicted of first-degree murder in Ari-
zona cannot receive a death sentence unless a judge makes the factual
determination that a statutory aggravating factor exists." Apprendi,
530 U.S. at 538 (O'Connor, J., dissenting).

In his concurrence, Justice Thomas wrote that aggravating circum-
stances in capital cases are different from other facts that can lead to
_________________________________________________________________

One of my colleagues posits that the rule proposed in Jones is not the
rule that the Court adopted in Apprendi. See post at 25. In concluding
that the rules are different, my colleague places great significance on a
slight modification: Whereas Jones used the phrase "maximum penalty
for a crime," Jones, 526 U.S. at 243 n.6, the Apprendi Court employed
the term "statutory maximum," Apprendi, 530 U.S. at 490. But these
phrases are synonymous; there is no "maximum penalty for a crime"
other than the maximum prescribed by statute for the facts charged and
proven. Moreover, to the extent that this minor semantic difference sug-
gests the possibility of a distinction between the Jones rule and the
Apprendi rule, that suggestion is quashed by the Apprendi opinion, which
explicitly "confirm[ed] the opinion . . . expressed in Jones." Id.

12
increased punishment because they arise in the "unique context" of
capital sentencing and are the product of "special constraints on a leg-
islature's ability to determine what facts shall lead to what punish-
ment." Id. at 522-23 (Thomas, J., concurring). The dissent dismissed
this reasoning as well, noting that "Justice THOMAS gives no spe-
cific reason for excepting capital defendants from the constitutional
protections he would extend to defendants generally, and none is
readily apparent." Id. at 539 (O'Connor, J., dissenting).

We perceive merit both in the manner in which the majority and
Justice Thomas distinguished Walton and in the dissent's criticism of
those proffered distinctions. As noted by the Apprendi majority, the
maximum penalty for first degree murder under Arizona law is death,
but Arizona law interposes procedural safeguards, including addi-
tional factual determinations, between a finding of guilt and the impo-
sition of a death sentence. Cf. People v. Lee, 743 N.E.2d 1019, 1023
(Ill. App. Ct. 2000) (stating that Apprendi procedures apply to Illi-
nois' capital scheme because Illinois, unlike Arizona, sets a maximum
penalty of 60 years for first degree murder and then allows a greater
sentence upon proof of additional facts). And, as Justice Thomas
explained in his concurrence, the additional safeguards provided by
Arizona do not necessarily reflect a legislative determination that the
elements of first degree murder are, by themselves, insufficient to jus-
tify capital punishment; rather, those safeguards were enacted to com-
ply with the strict Eighth Amendment requirements that govern
capital cases, which do not include proof beyond a reasonable doubt
or fact-finding by a jury. See Clemons v. Mississippi, 494 U.S. 738,
745-46 (1990) (stating that the Sixth Amendment right to trial by jury
does not apply to capital sentencing proceedings and that the Eighth
Amendment does not create an independent right to sentencing by
jury); Spaziano v. Florida, 468 U.S. 447, 458-59 (1984) (same).

In contrast, the penalty gradations in § 841(b)(1) are not the prod-
uct of constitutionally mandated procedures as a condition precedent
to the imposition of the maximum penalty, but rather are the result of
congressional prerogative to apply graduated penalties to acts of
increasing severity. Thus, for example, Congress authorized a sen-
tence of no more than 20 years imprisonment for a first offender who
possesses with the intent to distribute three grams of cocaine base, see
21 U.S.C.A. § 841(b)(1)(C), and it is plain that any sentence greater

13
than 20 years would not be authorized; it is likewise plain that the
same offender would face a greater penalty (no less than 5 years and
no more than 40 years) if the sale involved six grams of cocaine base
rather than three, see id. § 841(b)(1)(B)(iii). No constitutional con-
straints compelled Congress to classify drug-trafficking offenses in
this manner; on the contrary, Congress was free to establish a uniform
maximum penalty that did not depend on proof of quantity or other
additional facts. But Congress did make the available penalty depend
on additional facts, and the Constitution governs the process for deter-
mining those facts. Under Apprendi, that process must include charge
by indictment and proof to a jury beyond a reasonable doubt.

We acknowledge Justice O'Connor's sentiment regarding the inter-
play between Walton and Apprendi: It is at least perplexing, if not
"baffling," that due process protections apply to a finding of specific
threshold drug quantities under § 841(b)(1) when such protections do
not apply to factual findings of aggravating circumstances subjecting
a defendant to the death penalty. Apprendi, 530 U.S. at 538
(O'Connor, J., dissenting). It is for the Supreme Court, however, to
resolve this conundrum. Until that happens, we must adhere to both
Walton and Apprendi.

B.

Having determined that the district court erred, we must next
decide whether the error was plain. To be plain, an error must be
"clear" or "obvious," Olano, 507 U.S. at 734 (internal quotation
marks omitted), at least by the time of appeal, see Johnson v. United
States, 520 U.S. 461, 468 (1997). An error is clear or obvious "when
the settled law of the Supreme Court or this circuit establishes that an
error has occurred. In the absence of such authority, decisions by
other circuit courts of appeals are pertinent to the question of whether
an error is plain." United States v. Neal, 101 F.3d 993, 998 (4th Cir.
1996) (internal quotation marks omitted) (citation omitted). In light of
Apprendi and the unanimous conclusion of our sister circuits that spe-
cific threshold drug quantities must be treated as elements of aggra-
vated drug trafficking offenses, we conclude that the error was plain.

C.

Promise must next demonstrate that the error affected his substan-
tial rights, i.e., that it was prejudicial. See Olano, 507 U.S. at 734;

14
United States v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998) (explain-
ing that an error is prejudicial when it "actually affected the outcome
of the proceedings"). In order to determine whether Promise can make
such a showing, we must first understand the nature of the error, i.e.,
whether the flaw is in Promise's conviction or in his sentence. Per-
haps not surprisingly, Promise asserts that the error is in his convic-
tion: He claims that the indictment failed to allege, and the jury failed
to find, an essential element of the offense. The Government, in con-
trast, asserts that the error affects only Promise's sentence.

We conclude that the error was not in Promise's conviction. The
indictment charged Promise with conspiring to possess with the intent
to distribute "a quantity of cocaine and cocaine base." J.A. 33. Thus,
Promise was properly charged with conspiring to violate 21 U.S.C.A.
§ 841. And, there can be no dispute that the jury was properly
instructed regarding the elements of the charged offense. Accord-
ingly, we conclude that Promise was properly charged with, and con-
victed of, conspiring to possess with the intent to distribute cocaine
and cocaine base.

The problem, therefore, lies with Promise's sentence. The facts
alleged in the indictment and found by the jury supported a maximum
penalty of 20 years imprisonment. Based on a determination of drug
quantity by the district court, however, Promise was sentenced to 360
months imprisonment--ten years more than the applicable maximum.
We therefore conclude that Promise has demonstrated that this error
affected his substantial rights.88
_________________________________________________________________

8 One of my colleagues maintains that the error did not affect Promise's
substantial rights because "[n]either the inclusion of the drug weight in
the indictment nor an instruction to the jury that it must find [drug quan-
tity] beyond a reasonable doubt . . . would have affected the outcome of
the district court proceedings." Post at 24. This is not the relevant inquiry
because the failure to charge a specific threshold drug quantity in the
indictment or to instruct the jury regarding threshold drug quantity was
not the error committed by the district court; on the contrary, the indict-
ment, jury instructions, and conviction here are all valid. What was not
valid was the sentence imposed, which exceeded the applicable maxi-
mum for the facts charged and proven. Cf. United States v. Bowens, 224
F.3d 302, 315 (4th Cir. 2000) (stating that third prong of plain error anal-

15
We reject the Government's assertion that the error in Promise's
sentence did not affect his substantial rights because prior to trial the
Government filed an information alleging that the conspiracy
involved "in excess of 50 kilograms of cocaine; [and] in excess of 50
kilograms of cocaine base." J.A. 39. "[A]n indictment may not be
amended except by resubmission to the grand jury, unless the change
is merely a matter of form." Russell v. United States, 369 U.S. 749,
770 (1962). The Government did not seek to include a specific thresh-
old drug quantity in the indictment, and Russell teaches us that we
cannot assume that the grand jury would have returned an indictment
charging specific threshold drug quantity had the Government done
so. See id. ("To allow . . . the court[ ] to make a subsequent guess as
to what was in the minds of the grand jury at the time they returned
the indictment would deprive the defendant of a basic protection
which the guaranty of the intervention of a grand jury was designed
to secure.").

D.

Having demonstrated that there was error, that the error was plain,
and that the error affected his substantial rights, Promise has satisfied
the threshold requirements of the plain error test. However, as the
Court explained in Olano, "Rule 52(b) is permissive, not mandatory."
Olano, 507 U.S. at 735. Thus, it remains within our discretion to
notice a plain error. See id. at 735-36. Our discretion is appropriately
exercised only when failure to do so would result in a miscarriage of
justice, such as when the defendant is actually innocent or the error
"`seriously affect[s] the fairness, integrity or public reputation of judi-
cial proceedings.'" Id. at 736 (quoting United States v. Atkinson, 297
U.S. 157, 160 (1936) (alteration in original)).
_________________________________________________________________

ysis was "easily . . . satisfied" by sentence exceeding applicable maxi-
mum for conspiracy to distribute heroin even though there was
"overwhelming and essentially uncontroverted evidence" that defendant
qualified for greater penalty based upon distribution of cocaine base),
cert. denied, 121 S. Ct. 1408 (2001). Unquestionably, had the district
court been aware of Apprendi at the time of trial, it would have imposed
a sentence of 20 years imprisonment, instead of the term of 30 years it
actually imposed.

16
The mere fact that a forfeited error affects substantial rights does
not alone warrant the exercise of our discretion, "for otherwise the
discretion afforded by Rule 52(b) would be illusory." Id. at 737.
Indeed, this court is not obligated to notice even structural errors on
plain error review, notwithstanding that structural errors are per se
reversible when reviewed under a harmless error standard. See John-
son, 520 U.S. at 468-70; see also United States v. Wilkinson, 137 F.3d
214, 224, 227 (4th Cir. 1998) (citing Johnson for the proposition that
a reviewing court possesses discretion to refuse to notice structural
errors). Rather, we must consider the error in the context of the record
as a whole, bearing in mind that "Rule 52(b) carefully balances the
goal of encouraging defendants to seek an accurate and fair trial in the
first instance . . . against a recognition that a true miscarriage of jus-
tice or a defect calling into question the fairness, integrity, or public
reputation of the judiciary must not be allowed." United States v.
Cedelle, 89 F.3d 181, 185 (4th Cir. 1996); see also Young, 470 U.S.
at 16 (observing that "[e]specially when addressing plain error, a
reviewing court cannot properly evaluate a case except by viewing
such a claim against the entire record"); Cedelle, 89 F.3d at 186 (stat-
ing that "[c]entral" to the question of whether to notice a plain error
affecting substantial rights "is a determination of whether, based on
the record in its entirety, the proceedings against the accused resulted
in a fair and reliable determination of guilt"). It is appropriate to
refuse to notice a plain error when evidence of guilt is overwhelming.
See Johnson, 520 U.S. at 470 (refusing to notice plain error in failure
to instruct jury on element of offense when evidence was overwhelm-
ing and essentially uncontested); United States v. Johnson, 219 F.3d
349, 354 (4th Cir.) (same), cert. denied, 121 S. Ct. 593 (2000); Has-
tings, 134 F.3d at 244 (same); United States v. Jackson, 124 F.3d 607,
615 (4th Cir. 1997) (same); see also United States v. Mietus, 237 F.3d
866, 875 (7th Cir. 2001) (holding that, even assuming that first three
prongs of plain error analysis were satisfied, court would refuse to
notice Apprendi error when guilty verdict necessarily established that
defendant was responsible for more than threshold quantity of drugs);
United States v. Swatzie, 228 F.3d 1278, 1284 (11th Cir. 2000)
(same), petition for cert. filed, No. 00-9051 (U.S. Mar. 20, 2001).

In Johnson, the Supreme Court considered on plain error review a
perjury conviction in which an element of the offense, materiality of
the false statement, was found by a judge rather than by a jury. See

17
Johnson, 520 U.S. at 464. Finding that the error was plain, the Court
assumed that the error was structural and that the error therefore
affected substantial rights. See id. at 468-69. Nevertheless, the Court
declined to notice the error because the evidence concerning the omit-
ted element was "overwhelming" and "essentially uncontroverted." Id.
at 470 (internal quotation marks omitted). The Court noted that "it
would be the reversal of a conviction such as this" that would "seri-
ously affect[ ] the fairness, integrity or public reputation of judicial
proceedings." Id. (emphasis added) (internal quotation marks omit-
ted). Accordingly, without even discussing the seriousness of the
error, the Supreme Court unanimously declined to notice it. See id.

This court relied on similar principles in United States v. Bowens,
224 F.3d 302 (4th Cir. 2000), cert. denied, 121 S. Ct. 1408 (2001).
Bowens was charged with conspiring to distribute cocaine, cocaine
base, and heroin. See Bowens, 224 F.3d at 314. The district court
instructed the jury that it could convict upon finding that Bowens had
conspired to distribute any one of the three substances. See id. The
jury returned a general verdict of guilt that did not specify which drug
or drugs the jury believed Bowens had conspired to distribute. See id.
The district court imposed a life sentence based upon its assumption
that Bowens had conspired to distribute cocaine base, the most heav-
ily punishable object of the conspiracy. See id. We agreed with Bow-
ens' argument--raised for the first time on appeal--that the general
verdict returned by the jury authorized a sentence "only up to the
maximum for the least-punished drug offense," conspiracy to distrib-
ute heroin. Id. (internal quotation marks omitted). We accordingly
concluded that the district court had committed plain error in sentenc-
ing Bowens for conspiracy to distribute cocaine base instead of for
conspiracy to distribute heroin; we further held that the error affected
Bowens' substantial rights because he received a life sentence when
his sentence for a heroin-based conspiracy could not have been
greater than 20 years. See id. at 314-15. However, we declined to
notice the error because "the overwhelming and essentially uncontro-
verted evidence" established that Bowens "was a major participant"
in a conspiracy to distribute cocaine base. Id. at 315.

For reasons similar to those that guided the Supreme Court in
Johnson and this court in Bowens, we decline to notice the error
before us. As in Johnson and Bowens, the evidence regarding the ele-

18
ment subjected to erroneous treatment was both overwhelming and
essentially uncontroverted. Here, witness after witness testified that
Promise supplied substantial quantities of cocaine base to Moore's
organization:

• Moore testified that during the course of the conspiracy,
Promise supplied him with quantities of cocaine base
ranging from six ounces (168 grams) to two kilograms
every other week. Moore estimated that, altogether,
Promise supplied him with more than 20 kilograms of
cocaine base.

• Timothy Wallace testified that Promise supplied him
with three ounces (84 grams) of cocaine base.

• Aaron Gettys testified that he witnessed a transaction in
which Promise supplied Moore with at least 1.5 kilo-
grams of cocaine base. Gettys also corroborated Moore's
testimony that Promise supplied Moore with as much as
two kilograms of cocaine base at a time.

• Torianno Hall testified that he witnessed a transaction in
which Promise supplied Moore with two kilograms of
cocaine base.

• John Gwinn testified that he assisted Moore with a trans-
action in which Moore obtained over a kilogram of
cocaine base from Promise.

• Donald Thompson testified that Promise offered, through
Moore, to supply Thompson with nine ounces (252
grams) of cocaine base; Thompson refused the offer
because he was not familiar with Promise.

Most importantly, at sentencing Promise did not contest the quantity
of drugs the presentence report recommended be attributed to him,
nor did he dispute the finding by the district court that he should be
held accountable for more than 1.5 kilograms of cocaine base--thirty
times more than the threshold quantity of 50 grams necessary to sub-

19
ject him to a statutory sentence of not less than 10 years or more than
life imprisonment.

Finally, and critically, the record clearly demonstrates that Prom-
ise's decision not to dispute the finding of the specific threshold drug
quantity by the district court was not the result of lack of notice that
the existence of the specific threshold drug quantity was an important
issue in his case. Prior to trial, the Government filed an information
contending that Promise was accountable for "in excess of 50 kilo-
grams of cocaine[ and] in excess of 50 kilograms of cocaine base."
J.A. 39. Under § 841(b)(1)(A) and the law prevailing in this circuit at
the time of Promise's trial, it was clear that a finding of either of these
amounts could result in the imposition of a life sentence, if proven by
the Government at sentencing. Yet, even armed with this knowledge
in advance of trial and his subsequent sentencing, Promise elected not
to dispute the critical fact that he was to be held accountable for a
large quantity of narcotics that would justify a life sentence.

There simply can be no doubt that had the indictment included the
specific threshold quantity of 50 grams of cocaine base, the jury
would have found Promise guilty beyond a reasonable doubt. See
Swatzie, 228 F.3d at 1284 (declining to notice plain Apprendi error
even though specific threshold drug quantity was not alleged in
indictment because defendant did not assert that lack of notice pre-
cluded him from disputing drug quantity). It would be a miscarriage
of justice to allow him to avoid a sentence for the aggravated drug
trafficking crime that the evidence overwhelmingly demonstrates he
committed. We therefore declined to notice the error.9 9
(Text continued on page 22)
_________________________________________________________________

9 My determination not to notice the error is based on a balancing of
numerous considerations, including the strength of the Government's
evidence, the manifest adequacy of notice, and Promise's failure to con-
test drug quantity despite this notice. I have also given due weight to the
importance of grand jury charging practices, which the partial dissent so
eloquently extols. (Contrary to the partial dissent's contention, I do not
rely on any supposition regarding what the grand jury might have done
had the Government sought an indictment charging a specific threshold
drug quantity.) The partial dissent, however, makes this last consider-
ation not only dispositive but exclusive, eschewing a flexible approach
in favor of a per se rule requiring appellate courts to notice plain error

20
whenever a defendant suffers a conviction or sentence not authorized by
the indictment. See post at 58 ("The United States Constitution expressly
prohibits such a result."). I do not believe that Supreme Court precedent
supports this view.

The partial dissent contends that this per se rule derives from Russell
v. United States, 369 U.S. 749 (1962), and Silber v. United States, 370
U.S. 717 (1962) (per curiam). Russell was not a plain error case, how-
ever. Moreover, Russell does not preclude us from considering whether
the defendant has received actual notice of a fact omitted from an indict-
ment; rather, Russell only requires us to conclude that such omissions
from the indictment necessarily affect a defendant's substantial rights,
regardless of whether the defendant had actual notice. See Russell, 369
U.S. at 770. But the fact that the error affects substantial rights (the third
prong of the plain error inquiry) does not compel us to notice the error
(the final prong). See Olano, 507 U.S. at 737 (stating that reversal is not
required whenever a plain error affects substantial rights, because other-
wise "the discretion afforded by Rule 52(b) would be illusory"). Here,
consideration of the entire record leads me to the conclusion that no mis-
carriage of justice would result from declining to notice the omission of
the specific threshold drug quantity from the indictment and the failure
to instruct the jury to make a finding regarding threshold drug quantity.
Critically, as noted above, the Government filed an information specifi-
cally contending that Promise's conspiracy involved "in excess of 50
kilograms of cocaine[ and] in excess of 50 kilograms of cocaine base."
J.A. 39. The filing of the information does not alter the fact that Promise
was deprived of the possibility that the grand jury would not have
returned an indictment including a specific threshold drug quantity had
the Government sought such an indictment. However, the information
filed here at least apprized Promise that drug quantity would be a major
issue affecting his sentence. Despite this notice, Promise never contested
the amount of cocaine base for which he could be held accountable. In
light of these facts, there can be no reasonable doubt that Promise was
actually responsible for the specific threshold amount.

Neither is Silber controlling here. In Silber, the defendant was con-
victed of refusing to answer questions posed by a congressional commit-
tee, in violation of 2 U.S.C.A. § 192 (West 1997). See Silber, 369 U.S.
at 717. The indictment for this offense was invalid under Russell, in that
it failed to identify the subject of the congressional inquiry as to which
the refusal to answer questions occurred. See id. The Supreme Court con-

21
III.

The judgment of conviction and sentence are affirmed.

AFFIRMED

WILKINSON, Chief Judge, concurring in part, and concurring in the
judgment:

I vote to affirm the judgment of conviction and sentence.
_________________________________________________________________

cluded that this defect in the indictment amounted to reversible plain
error. See id. at 718. In its brief, per curiam opinion, the Court did not
discuss the strength of the Government's proof, whether the defendant
had actual notice, or whether the evidence concerning the omitted ele-
ment was disputed; thus, the opinion does not reveal either the facts
relating to these issues or how those facts influenced the Court's deci-
sion. A court of appeals had previously opined that Silber's culpability
was beyond question, see Silber v. United States, 296 F.2d 588, 590
(D.C. Cir. 1962), but that court was addressing a different issue, and the
Supreme Court never alluded to this finding.

While Russell and Silber do not foreclose consideration of a broad
range of circumstances, other Supreme Court decisions affirmatively
command us to examine the entire record when deciding whether to
notice plain error. See, e.g., Young, 470 U.S. at 16. Moreover, one of the
most recent Supreme Court statements on this issue, Johnson, attaches
great weight to the presence of powerful, uncontroverted evidence
against the defendant. In relying on Johnson, I do not, as the partial dis-
sent suggests, make the decision to notice plain error "depend on a defen-
dant's innocence." Post at 61. Such an approach would contravene
Supreme Court precedent. See Olano, 507 U.S. at 736-37 (explaining
that, while "the court of appeals should no doubt correct a plain forfeited
error that results in the conviction or sentence of an actually innocent
defendant, . . . [a]n error may seriously affect the fairness, integrity or
public reputation of judicial proceedings independent of the defendant's
innocence" (internal quotation marks omitted)). It does not follow, how-
ever, that a clear and undisputed demonstration of the defendant's guilt
is irrelevant to our decision regarding whether to notice an error. Under
Johnson, we may not ignore such a demonstration, as overturning a con-
viction or sentence resting on overwhelming evidence of guilt and undis-
puted evidence of drug quantity would itself be a miscarriage of justice.
See Johnson, 520 U.S. at 470.

22
I.

I share Judge Luttig's view that 21 U.S.C. § 841(b) is a graduated
sentencing scheme in which life imprisonment constitutes the maxi-
mum penalty. I see no reason to parse that scheme into finer parts for
Apprendi purposes. The sentences set forth in Section 841(b) form an
integrated sanction for a single Section 841(a) offense. As the drug
quantity rises, so too does the sanction until it reaches the maximum
penalty of life imprisonment. I would not pull out one strand in the
middle of this carefully sequenced scheme and designate it as a maxi-
mum sentence under the theory that it is somehow a "catch-all." See,
e.g., United States v. Rogers, 228 F.3d 1318, 1327-28 (11th Cir.
2000) (holding that 21 U.S.C. § 841(b)(1)(C) is a catch-all provision
under which defendants may be sentenced if drug quantity is not
determined by a jury beyond a reasonable doubt). To do so seems to
me to intrude the courts and the Constitution into a domain that has
long been preeminently legislative. The creation of new offense ele-
ments out of the statute's traditional sentencing factors works a seri-
ous infringement on the powers of a coequal branch of government.
In transmuting a single crime with multiple sentencing factors into a
series of separate offenses, my colleagues have replaced the legisla-
ture's structure of crime and punishment with their own to the general
detriment of popular governance.

II.

I do not believe there was an error in the proceedings below.
Assuming, arguendo, that some plain error has indeed occurred, I do
not believe that it merits reversal under United States v. Olano, 507
U.S. 725 (1993), and United States v. Young, 470 U.S. 1 (1985).
Under Olano, before an appellate court can correct an error not raised
at trial, there must be (1) error, (2) that is plain, and (3) that affects
substantial rights. See Johnson v. United States, 520 U.S. 461, 466-67
(1997). 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 affects the fairness, integrity, or public reputation of
judicial proceedings. Id.

I join Section II.D of Judge Wilkins' opinion, which persuasively
illustrates that defendant suffered no prejudice whatsoever. I cannot

23
concur in Section II.C of my good colleague's analysis, however,
because I do not believe that substantial rights are affected when no
prejudice of any kind exists.

In Olano, the Supreme Court held that, except in rare circum-
stances, in order to affect substantial rights "the error must have been
prejudicial: It must have affected the outcome of the district court
proceedings." 507 U.S. at 734. The Court stated that generally "the
defendant must make a specific showing of prejudice to satisfy the
`affecting substantial rights' prong of Rule 52(b)." Id. at 735. Defen-
dant suffered no prejudice here. Neither the inclusion of the drug
weight in the indictment nor an instruction to the jury that it must find
beyond a reasonable doubt the amount of drugs in question would
have affected the outcome of the district court proceedings. Because
Promise has not met his burden of showing prejudice under Rule
52(b), the error in this case did not affect his substantial rights. See,
e.g., United States v. Terry, 240 F.3d 65, 74 (1st Cir. 2001) (finding
that defendant failed to satisfy the "affecting substantial rights" prong
of the plain error test where, given the trial evidence about the quan-
tity of drugs, there was no prejudice to defendant); United States v.
Candelario, 240 F.3d 1300, 1311-12 (11th Cir. 2001) (same).

Olano demonstrates that substantial rights are not affected when a
picture-perfect proceeding would yield exactly the same result as that
which actually transpired. That is the case here. The statute permits
the thirty year sentence that was imposed. See 21 U.S.C.
§ 841(b)(1)(B). The evidence as to the requisite drug quantity is so
overwhelming that it cannot be contended that Promise did not
deserve the sentence he received.

NIEMEYER, Circuit Judge, concurring in the judgment:

A grand jury indicted Marion Promise in one count for conspiring
to possess with intent to distribute "a quantity of cocaine and cocaine
base" in violation of 21 U.S.C. §§ 841(a)(1) and 846. Following the
jury's conviction on this count, the district court sentenced Promise
to 360 months imprisonment, based on its finding that Promise was
accountable for more than 1.5 kilograms of cocaine base. Promise
challenges this sentence, relying on the Supreme Court's decision in
Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). He contends that

24
drug quantities are elements of the offense and that his sentence must
be vacated because the grand jury did not charge him with aggravat-
ing quantities of cocaine and cocaine base and the jury consequently
did not find those quantities. Accordingly, he maintains that his sen-
tence must be vacated to allow resentencing at the level appropriate
when no jury finding is made as to the amount of cocaine and cocaine
base, which under § 841(b) would be a maximum sentence of 240
months.

The constitutional proposition that Promise advances to vacate his
sentence was first identified by a majority of the Supreme Court in
Jones v. United States, 526 U.S. 227 (1999). Drawing on the guaran-
tees contained in the Fifth and Sixth Amendments of the Constitution,
the Jones Court expressed serious doubt concerning the constitution-
ality of allowing the trial judge to make penalty-enhancing findings
under the federal carjacking statute, 18 U.S.C. § 2119, by a prepon-
derance of the evidence. See id. at 240-52. The Court raised the possi-
bility that "any fact (other than prior conviction) that increases the
maximum penalty for a crime must be charged in an indictment, sub-
mitted to a jury, and proven beyond a reasonable doubt." Id. at 243
n.6. But going no further than identifying the potential existence of
such a constitutional principle and expressing doubt about the statute
before it, the Court concluded it could avoid the constitutional issue
by construing the ambiguous statute as providing three separate
offenses with distinct elements rather than one offense with sentence-
enhancing factors. See id. at 251-52.

A year later, however, in Apprendi, the Court, in confirming the
Jones constitutional "proposition" for the first time as a constitutional
principle, articulated its contours more narrowly. It limited applica-
tion of the principle to circumstances in which the facts increase the
penalty only "beyond the prescribed statutory maximum." Id. at 2362-
63 (emphasis added). Thus, the principle considered in Jones was lim-
ited in application in Apprendi to sentences that exceed the scope of
Congress' enactment -- i.e., to circumstances in which the facts
increase a penalty beyond the statutory maximum. It would appear,
therefore, that the constitutional principle proposed in Jones and
defined in Apprendi, rather than limiting Congress' ability to distin-
guish elements of an offense from sentencing factors, actually pre-
serves Congress' right to define the statutory maximum, at least in the

25
absence of legislative manipulation -- i.e., where it could be found
that Congress defined elements of an offense as sentencing factors to
avoid the constitutional protections afforded by the Fifth and Sixth
Amendments. See id. at 2363 n.16; cf. Cooper Indus., Inc. v. Leather-
man Tool Group, Inc., No. 99-2035, ___ S. Ct. ___, ___, 2001 WL
501732, at ___, slip op. at 7 (May 14, 2001) ("Legislatures have
extremely broad discretion in defining criminal offenses and in setting
the range of permissible punishments for each offense" (internal cita-
tions omitted)). Since Apprendi, however, no court has applied its
rationale to hold a statute unconstitutional because it manipulated the
elements of an offense by defining them improperly as sentencing
factors.

Thus, absent evidence of improper congressional manipulation, if
a statute clearly distinguishes between an element of the offense and
a sentencing factor, these Supreme Court precedents recognize Con-
gress' right to do so. And based on the rationale thoroughly developed
by Judge Luttig in Parts I and II of his concurring opinion, I would
conclude that the only rational reading of 21 U.S.C. § 841 is that ele-
ments of the offense are stated in § 841(a) and the sentencing factors
are provided in § 841(b). Before Apprendi, no court reached a differ-
ent conclusion in interpreting this statute, and in the absence of clear
evidence that the elements of the offense have been manipulated,
there is no reason to conclude otherwise now. Until that case is credi-
bly made, the constitutional issue does not arise, and we are left with
the statutory interpretation made by Judge Luttig in his concurring
opinion.

In his opinion, Judge Wilkins concludes that drug 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 reason-
able doubt." Supra at 9 (footnote omitted). With this conclusion, it
would necessarily follow that Promise was not charged with an aggra-
vated drug trafficking offense because no more than a detectable
amount of drugs was imputed to him in the indictment. Moreover,
because Promise was properly charged with a non-aggravated drug
trafficking offense, the "outer limits" of any sentence are defined by
that charge as no more than 20 years. Apprendi, 120 S. Ct. at 2359
n.10. Yet, the district court in this case sentenced Promise to 30 years,
believing that it had sentencing authority to do so under 21 U.S.C.

26
§ 841(b). If Judge Wilkins' premise that drug quantities are elements
of the offense were accepted, then Judge Wilkins could appropriately
conclude that the district court erred because the jury, not the judge,
would have been required to find drug quantity. But rather than fol-
low the necessary consequence of this premise, Judge Wilkins some-
how holds that the district court's sentence was not reversible error
under the plain-error doctrine, even though a 30-year sentence would
not have been authorized by the indictment returned by the grand
jury. Of necessity, therefore, this plain-error analysis requires a con-
structive amendment of the indictment, a fact Judge Wilkins acknowl-
edges: "There simply can be no doubt that had the indictment
included the specific threshold quantity of 50 grams of cocaine base,
the jury would have found Promise guilty beyond a reasonable
doubt." Supra at 20 (emphasis added). The first error therefore was
in the government's failure to obtain an indictment for 50 grams or
more. But we do not have the authority to change the offenses that
a grand jury charges in an indictment. As we held in United States v.
Floresca, "it is `utterly meaningless' to posit that any rational grand
jury could or would have indicted[the defendant] . . . because it is
plain that this grand jury did not, and, absent waiver, a constitutional
verdict cannot be had on an unindicted offense." 38 F.3d 706, 712
(4th Cir. 1994) (en banc); see also Stirone v. United States, 361 U.S.
212, 215-16 (1960) ("[A]fter an indictment has been returned its
charges may not be broadened through amendment except by the
grand jury itself"); id. at 217 ("[A] court cannot permit a defendant
to be tried on charges that are not made in the indictment against
him"); Ex Parte Bain, 121 U.S. 1 (1887) (noting that the scope of an
indictment is jurisdictional).

The indictment in this case properly charged an offense, the jury
properly convicted Promise of that offense, and now the sentence is
limited by the indictment and the jury's finding. See Apprendi, 120
S. Ct. at 2359 n.10. If quantity were an element of an aggravated
offense, such an offense was not charged, and any sentence could not
have been based on that offense.

But because I disagree with Judge Wilkins' conclusion that drug
quantity under 21 U.S.C. § 841 is an element of the offense, the diffi-
culties his conclusion raises are not presented. Accordingly, I concur

27
in the judgment of the court, and I join in Parts I, II, and III of Judge
Luttig's concurring opinion.

Judge Gregory has authorized me to indicate that he joins this opin-
ion.

LUTTIG, Circuit Judge, concurring in the judgment:

I believe that, in interpreting 21 U.S.C. § 841, this court, and every
other Court of Appeals, has, however understandably, fundamentally
misunderstood the Supreme Court's decisions in Almendarez-Torres
v. United States, 523 U.S. 224 (1998), Jones v. United States, 526
U.S. 227 (1999), and Castillo v. United States, 530 U.S. 120 (2000),
on the one hand, and Apprendi v. New Jersey, 530 U.S. 466 (2000),
on the other, outright substituting Apprendi's constitutional analysis
(and a mistaken understanding of that analysis, at that) for the statu-
tory analysis prescribed in Almendarez-Torres, Jones, and Castillo. In
misreading these cases in the way that they have-- due largely to the
Supreme Court's own failure to distinguish clearly its statutory from
its constitutional analyses -- our court and our sister circuits have
unwittingly and unnecessarily reached and decided the very question
that the Supreme Court has as yet declined to answer, and indeed
expressly reserved in Apprendi, namely, whether all facts that could
serve to increase a defendant's sentence must be found by the jury
beyond a reasonable doubt. And not only have the courts unknow-
ingly decided this issue of inestimable importance to the criminal law,
they have decided the question contrary to the way in which I believe
the majority of the Supreme Court will, if only by a bare majority and
upon a principle of stare decisis, ultimately decide the question, com-
pare McMillan v. Pennsylvania, 477 U.S. 79 (1986), with Apprendi,
1530 U.S. at 487 n.13, holding, in error on the authority of Apprendi,
that any fact that increases a sentence, whether or not the increase will
result in a sentence that exceeds the maximum penalty prescribed by
statute, must be submitted to the jury and proven beyond a reasonable
doubt.

The as-yet quite narrow constitutional principle of Apprendi is that
the jury must find beyond a reasonable doubt only any fact that
increases the maximum sentence authorized for the statutory offense.
And the holdings of Almendarez-Torres, Jones, and Castillo -- that

28
whether any given fact is an element of the offense (requiring proof
beyond a reasonable doubt) or a sentencing factor (requiring only
proof by a preponderance) is a question of legislative intent, and
therefore statutory interpretation -- remain unaffected by Apprendi,
except to the extent that the finding of a legislatively-defined sentenc-
ing factor results in a sentence in excess of the statutory maximum.
Faithful to the limited constitutional principle of Apprendi, but
equally faithful to the bedrock principle of Almendarez-Torres, Jones,
and Castillo that the power to define criminal offenses rests in the leg-
islature, subject only to constitutional limitations, see, e.g., Staples v.
United States, 511 U.S. 600, 604 (1994) ("[T]he definition of the ele-
ments of a criminal offense is entrusted to the legislature, particularly
in the case of federal crimes, which are solely creatures of statute."
(quoting Liparota v. United States, 471 U.S. 419, 424 (1985))), I
would hold without any hesitation whatsoever that Congress' mani-
fest intent is that the sole offenses established in section 841 are those
set forth in sections 841(a)(1) and (a)(2) -- the knowing or intentional
manufacture, distribution, or dispensation of a controlled or counter-
feit substance, or the possession of such substance with the intent to
manufacture, distribute or dispense -- and that those offenses are set
forth in their entirety in sections 841(a)(1) and (2).

As a consequence of this indisputable congressional definition of
the section 841 offenses, I would hold that the statutory maximum
sentence for commission of these offenses, and therefore the punish-
ment 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). Because the statutory maximum sentence for com-
mission of the offenses defined by Congress in section 841 is life plus
fine, I would hold that the principle of Apprendi that a judicially-
found fact may not increase a sentence beyond the prescribed statu-
tory maximum is not offended by any of the sentences imposed in the
cases before us because none of the sentences at issue exceeds life
imprisonment.

I.

As a matter of statutory interpretation, I believe that Congress
intended "serious bodily injury" in 18 U.S.C. § 2119 and use or carry

29
of a "machinegun" in 18 U.S.C. § 924(c), not as elements of the
offenses defined in those statutes, but, rather, as so-called sentencing
factors to be determined by the judiciary, as many courts had held
prior to Jones and Castillo. I think that this conclusion is relatively
clear by application of the conventional tools of statutory interpreta-
tion such as text, structure, context, historical usage, and legislative
history. And I believe that the majority in Jones (explicitly) and the
unanimous court in Castillo (implicitly) came to the opposite conclu-
sions, respectively, only because of the individual Justices' different
views over the considerably larger issue of the constitutional limits
imposed on the power of the federal and state legislatures to define
criminal offenses. That is, unconstrained by their individual views as
to the constitutional limitations on the legislatures' power to define
offenses, and their natural concern that the opposite constitutional
conclusion might ultimately be reached by a majority of their col-
leagues were the issue addressed, I believe that, based upon conven-
tional statutory analysis, the Court would have reached precisely the
opposite conclusions from those that it reached in Jones and Castillo.

Although I disagree with the Court's statutory conclusions in both
Jones and Castillo, there was arguably at least some basis for con-
cluding that the facts at issue in those cases were intended by the leg-
islature to be elements rather than sentencing factors, or at least for
concluding, as in Jones, that there was sufficient question as to con-
gressional intent as to warrant invocation of the rule of constitutional
doubt. Unlike the fact of either "serious bodily injury" in Jones or use
or carry of a "machinegun" in Castillo, however, there is no basis
whatever for concluding that Congress intended drug quantity (and
likely even type) in 21 U.S.C. § 841 to be elements of the statutory
offense. Indeed, in my view, as my colleagues today and the United
States must ultimately and uncomfortably concede, it is incontestable
as a matter of statutory construction that Congress intended these
facts not as elements, but as sentencing factors.

A.

The statutory analysis prescribed by the Court in Almendarez-
Torres, Jones, and Castillo that leads to this conclusion is compelling.

First, Congress explicitly denominated the specific activities set
forth in section 841(a) as the "unlawful acts" that it criminalized. That

30
is, in terms whose clarity cannot be disputed, Congress stated that the
unlawful conduct prohibited in section 841 is that set forth in section
841(a). See Almendarez-Torres, 523 U.S. at 234 ("We also note that
`the title of a statute and the heading of a section' are `tools available
for the resolution of a doubt' about the meaning of a statute." (quoting
Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 528-29 (1947))).
That conduct is, and is only, the knowing or intentional manufacture,
distribution, or dispensation, of a controlled or counterfeit substance,
or the possession with intent to manufacture, create, distribute, or dis-
pense, such substance.

Second, Congress expressly distinguished the conduct that it crimi-
nalized in section 841(a) from the punishments that it prescribed for
commission of the unlawful acts in section 841(b) by explicitly
denominating as "penalties" the punishments prescribed in section
841(b).

Third, as if to remove any doubt that it intended the activities
described in section 841(a) to constitute the section 841 offenses,
Congress expressly stated within the substantive text of section 841(a)
itself that "it shall be unlawful" for any person to engage in the con-
duct specified in subsection (a).

Fourth, Congress established the section 841 offenses in section
841(a) in a single, complete, self-contained sentence. No reference is
necessary to other subparts of the statute in order to complete either
the sentence or the obvious thought. To use the Supreme Court's
phrase, the offense-defining provision "stands on its own grammatical
feet." Jones, 526 U.S. at 233-34.

Fifth, further confirming its intent that the lone section 841
offenses are those described, and wholly described, in section 841(a),
Congress provided in section 841(b) for the particular "penalties" that
will obtain for "any person who violates subsection (a)." In other
words, within the actual text of section 841(b), Congress unambigu-
ously states again its understanding that the violation of section 841
occurs when one completes the conduct recited in section 841(a),
predicating its specified punishments upon violation of section
841(a). Indeed, Congress carries forward this same formulation, or its
equivalent, throughout the numerous individual subparts of section

31
841(b). See, e.g., 21 U.S.C. § 841(b)(1)(A) ("In the case of a violation
of subsection (a) of this section involving . . . such person shall be
sentenced . . . .") (emphasis added); § 841(b)(1)(B) (same);
§ 841(b)(1)(D)(4) ("[A]ny person who violates subsection (a) of this
section by distributing . . . shall be treated as provided in . . . .")
(emphasis added); § 841(b)(1)(D)(5) ("Any person who violates sub-
section (a) of this section by cultivating a controlled substance on
Federal property shall be imprisoned as provided . .. .") (emphasis
added); § 841(b)(1)(D)(6) ("Any person who violates subsection (a),
or attempts to do so, and knowingly uses a poison, chemical, or other
hazardous substance on Federal property . . . .") (emphasis added).

And finally, Congress reinforced that the substantive interrelation-
ship between the conduct in section 841(a) and the facts in section
841(b) is that between criminal offense and sentence when it intro-
duced section 841(b) with the command that "any person who vio-
lates subsection (a) of this section shall be sentenced as follows[.]"
(emphasis added). It is plain from this language, if from nothing else,
that Congress understood section 841(b) to prescribe not additional
elements of the offenses established in section 841(a), but, rather, the
sentencing factors to be considered when imposing the sentence for
commission of the offenses defined in section 841(a).

Thus, both the text and structure of section 841 unequivocally con-
firm a congressional intent that the conduct recited in section 841(a)
constitutes the section 841 offenses, and that the facts that appear in
section 841(b) are sentencing factors only, not elements of the statu-
tory offenses.11 In this respect, section 841 is as close as possible to
_________________________________________________________________

1 Like the government, I am not sure that the legislative history can be
read fairly to suggest either that Congress did or did not intend drug
amount and type to be sentencing factors. The appellant in Promise, in
an observation against interest, however, is of the view that the legisla-
tive history rather clearly suggests that Congress intended at least drug
quantity as a sentencing factor. See Supplemental Brief of Appellant at
2, 17, United States v. Promise (No. 99-4737) (citing Comprehensive
Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837 (1984);
S. Rep. No. 225-98, at 255 (1983); and Chapman v. United States, 500
U.S. 453, 461 (1991) (noting that the Comprehensive Crime Control Act
of 1984 "made punishment dependent upon the quantity of the controlled
substance involved")).

32
a "statute[ ] [that] comes with the benefit of provisions straightfor-
wardly addressing the distinction between elements and sentencing
factors." Jones, 526 U.S. at 232 (citation omitted).

Although it is necessary to resort to other statutes only "[i]f a given
statute is unclear about treating such a[particular] fact as element or
penalty aggravator," id. at 234 (emphasis added), which section 841
is not, were there any ambiguity in the text and structure of the sec-
tion as to this congressional intent, the ambiguity would have to be
resolved in favor of the very same conclusion by virtue of the prac-
tice, or the tradition, of treating drug quantity (and arguably even
type) as a sentencing factor, not an element of the crime. See, e.g., id.
at 234-35 (noting importance of traditional treatment of fact to
whether fact is an element of offense or a mere sentencing factor);
Almendarez-Torres, 523 U.S. at 230 (same). The Court seemingly
may have defined traditional sentencing factors in such a way as to
exclude drug quantity. See, e.g., Castillo, 530 U.S. at 126 (observing
that traditional sentencing factors "often involve either characteristics
of the offender, such as recidivism, or special features of the manner
in which a basic crime was carried out (e.g., that the defendant abused
a position of trust or brandished a gun)"). But, as even the defendants
in the cases before us acknowledge, at least over the past quarter cen-
tury, drug quantity, if not drug type also, has uniformly been consid-
ered by the courts to be a sentencing factor, not an offense element.
Whether or not this tradition reaches back to the common law, it is
more than sufficient to buttress the conclusion, which is plain from
the statutory text and structure, that Congress intended drug quantity
as a factor relevant to sentencing only.

B.

The marked differences between the language and structure of sec-
tion 841, on one hand, and, on the other, sections 2119 and 924(c) of
Title 18, which were addressed by the Court in Jones and Castillo,
respectively, only further reinforce the conclusion that Congress
intended drug quantity and type as sentencing factors, not elements
of the offense.

1.

Turning first to 18 U.S.C. § 2119, the carjacking statute analyzed
by the Court in Jones, admittedly "[t]he `look' of [a] statute . . . is not

33
a reliable guide to congressional intentions." Jones, 526 U.S. at 233.
For the reasons identified above, however, section 841 not only has
far more of the "look" of a statute that defines its offenses in subsec-
tion (a) and then provides only penalties in subsection (b) than did
section 2119, cf. id., section 841 by all appearances is such a statute.

More importantly, though, section 841(a), which, like section 2119,
"begins with a principal paragraph listing a series of obvious ele-
ments," does not merely "come[ ] close to standing on its own," as did
section 2119, id. at 232; it does stand on its own. Not only does sec-
tion 841(a), unlike section 2119, stand alone as a grammatically com-
plete sentence, but, unlike section 2119, it also stands alone as a
substantive sentence. It does not "merely describe some very obnox-
ious behavior, leaving any reader assuming that it must be a crime,
but never being actually told that it is," id. at 233 (describing opening
paragraph of section 2119); it describes the "obnoxious" conduct and
"complete[s] the thought," id., providing explicitly that that conduct
"shall be unlawful." It is, thus, paradigmatic of the classic "offense-
defining provisions in the federal criminal code, which genuinely
stand on their own grammatical feet thanks to phrases such as `shall
be unlawful' . . . which draw a provision to its close." Id. at 233-34
(citations omitted).

In short, whereas text and structure "[did] not justify any confident
inference," id. at 234, about Congress' intent whether "serious bodily
injury" was an element of the section 2119 offense or merely a sen-
tencing factor, just the opposite is the case with section 841. Con-
gress' intent could not be any clearer.

And what is clear from the statutory text and structure of section
841 as to Congress' intent with respect to the treatment of drug quan-
tity (and perhaps type also) is, as noted, fully consistent with the "tra-
ditional treatment," id., of these facts. Unlike the section 2119 fact of
"serious bodily injury" at issue in Jones, which Congress had "unmis-
takably identified [ ] as an offense element in any number of statutes,"
id. at 235, the fact of drug quantity, like the fact of recidivism in
Almendarez-Torres, has seldom (if ever) in recent history explicitly
been identified by Congress as an offense element.

34
Volume 2 of 2

_________________________________________________________________

2.

The contrasts between section 841, and section 924(c), which was
before the Court in Castillo, are no less instructive. First, while the
"literal language [of section 924(c)], taken alone, appeare[d] neutral"
as to whether firearm type was an element or sentencing factor, Cas-
tillo, 530 U.S. at 124, the literal language of section 841 is not, for
the reasons discussed above, at all neutral as to the intended treatment

35
of drug quantity and type. One simply cannot reason "with equal
ease," id., from the statute's language that Congress intended drug
quantity and type to be elements of the section 841 offense, as one
could (or at least as the Court said one could) reason that firearm type
could be either an element or a sentencing factor.

And second, unlike in section 924(c), not only is there nothing in
the structure of section 841 to suggest that drug quantity and type are
elements of the offense; there is affirmative proof in the structure that
they were instead intended as sentencing factors. Whereas Congress
"placed the element `uses or carries a firearm' and the word
`machinegun' in a single sentence, not broken up with dashes or sepa-
rated into subsections," id. at 125, Congress in section 841 not only
did not include the undisputed elements of the knowing or intentional
distribution of a controlled substance and the factors of drug quantity
and type in a single sentence, it set them forth in entirely separate stat-
utory provisions, and the former in a self-contained, offense-defining
sentence. Moreover, unlike section 924(c)(1), in which the first sen-
tence, which included the undisputed elements of the offense, was fol-
lowed by three successive sentences that indisputably specified
sentencing factors only (recidivism, concurrent sentences, parole),
giving rise to an inference that the fact of use of a "machinegun" ref-
erenced in the first sentence was an element also, section 841's invio-
late structural separation of offense elements from sentencing factors
belies any such inference.

Thus, not only does section 841 have a "look" that suggests that
drug quantity and type are sentencing factors; its structure confirms
as much. It has the structure which the Court left little doubt would
prove such intent -- the definition of the offense and the provision
for penalties in separate, complete sentences. Cf. id. (contrasting the
single sentence in 18 U.S.C. § 924(c) with the separately numbered
subsection of 18 U.S.C. § 2119).

Indeed, the structure of section 841 is more clearly confirmatory of
an intention to treat drug quantity and type as sentencing factors even
with respect to the less important "structural circumstances" that the
Court conceded "suggest[ed] a contrary interpretation" of section
924(c) from the one ultimately adopted by the Court. Id. Unlike with
section 924(c), portions of which Congress itself had subsequently

36
determined "create[d] not penalty enhancements, but entirely new
crimes," id., Congress most certainly has made no such determination
with respect to section 841. Thus, the titles "unlawful acts" and "pen-
alties" in subsection 841(a) and (b), respectively, unquestionably
retain their interpretive significance. Cf. id. (explaining that, because
of Congress' determination that portions of section 924(c) create new
crimes, "the section's title cannot help" in determining which facts are
elements and which are sentencing factors). Nor, unlike section
924(c), has section 841 been amended in such a way that might give
rise to uncertainty as to congressional intent. Cf. id. (noting that sec-
tion 924(c) had been amended to "separat[e] different parts of the first
sentence (and others) into different subsections," but observing that
"a new postenactment statutory restructuring[cannot] help . . . to
determine what Congress intended at the time it enacted the earlier
statutory provision that governs the case").

Apart from the text and structure, while it could not be said in Cas-
tillo with respect to section 924(c) that "courts have typically or tradi-
tionally used firearm types (such as `shotgun' or`machinegun') as
sentencing factors," id. at 126, again it most certainly can, and must,
be said with respect to section 841 that courts have uniformly treated
drug quantity (if not drug type as well) as a sentencing factor, not as
an element of the crime.

And finally, although I would suggest that its relevance to congres-
sional intent is at best dubious, I assume that no one would dispute
that asking the jury, rather than the judge, to decide drug quantity
beyond a reasonable doubt (even if the same cannot be said of drug
type) would seriously complicate the criminal trial, unlike requiring
of the jury a finding as to firearm type. Cf. id. at 127 (noting that a
requirement that the jury decide whether the firearm was a
machinegun would "rarely complicate a trial").

C.

In light of the foregoing, so absolutely certain is it that Congress
intended the section 841 criminal offenses to be defined exclusively
and entirely in section 841(a), and the facts in section 841(b) to be
only factors that inform sentencing, that I cannot conceive of a single
Justice of the Supreme Court of the United States holding otherwise

37
as a matter of statutory construction. See, e.g., Supplemental Brief of
Appellant at 5, Promise (No. 99-4737) ("To the extent the Court is
considering reinterpreting the statute under Jones, the first require-
ment -- that the statute be susceptible of two interpretations -- is not
present."). Whatever one believes about the constitutional limitations
on the legislature to define offenses and their elements, a different
conclusion as to Congress' intent in section 841 is implausible, as I
think every one of my colleagues today appreciates. It is simply not
credible to hold that Congress knowingly and intentionally fashioned
some 350 separate offenses in section 841, the number of offenses
which, by my rough estimation, would exist under an interpretation
of that provision that deems the facts in subsection (b) to be elements
of the section 841(a) offenses.

D.

That the only possible conclusion as to Congress' intent, and the
only plausible interpretation of section 841, is that Congress in fact
created as offenses only those identified in section 841(a), is attested
to by the fact that, prior to the Supreme Court's decision in Jones, it
had not occurred to any court in the country to hold that the facts in
subsection (b) were offense elements. As the panel opinion in Angle
acknowledged, "[h]istorically, this court and all of her sister circuits
have held that drug quantity is a sentencing factor, not an element of
the crime." United States v. Angle, 230 F.3d 113, 122 (4th Cir. 2000),
reh'g en banc granted, Jan. 17, 2001; see also Supplemental Brief of
Appellant at 4, Promise (No. 99-4737) ("Every Court of Appeals to
consider the meaning of the statute over the last ten years, including
this Court, has already held that Congress did not intend for drug
quantity to be an element of the offense."). In fact, before Jones was
decided, every single court to address the issue of Congress' intent in
enacting section 841 concluded, as I have, that the elements of the
section 841 offense are set forth in their entirety in subsection (a) and
that the facts arrayed in subsection (b) are mere sentencing factors,
which need not be charged in the indictment or proved to the jury
beyond a reasonable doubt. See, e.g., United States v. Caldwell, 176
F.3d 898, 900 (6th Cir. 1999) (drug quantity); United States v. Hare,
150 F.3d 419, 428 n.2 (5th Cir. 1998) (drug quantity); United States
v. Stone, 139 F.3d 822, 826 (11th Cir. 1998) (drug type); United
States v. Lewis, 113 F.3d 487, 490 (3d Cir. 1997) (drug type); United

38
States v. Dorlouis, 107 F.3d 248, 252 (4th Cir. 1997) (drug quantity);
United States v. Fletcher, 74 F.3d 49, 53 (4th Cir. 1996) (drug quan-
tity); United States v. Ruiz, 43 F.3d 985, 989 (5th Cir. 1995) (drug
quantity); United States v. Coy, 19 F.3d 629, 636 (11th Cir. 1994)
(drug quantity); United States v. Perez, 960 F.2d 1569, 1574-76 (11th
Cir. 1992) (drug quantity); United States v. Patrick, 959 F.2d 991,
995 n.5 (D.C. Cir. 1992) (drug quantity); United States v. Valencia,
957 F.2d 1189, 1197 (5th Cir. 1992) (drug quantity); United States v.
Sotelo-Rivera, 931 F.2d 1317, 1319 (9th Cir. 1991) (drug quantity);
United States v. Cross, 916 F.2d 622, 623 (11th Cir. 1990) (drug
quantity); United States v. Delario, 912 F.2d 766, 769 (5th Cir. 1990)
(drug quantity); United States v. Campuzano, 905 F.2d 677, 679 (2d
Cir. 1990) (drug quantity); United States v. Moreno, 899 F.2d 465,
473 (6th Cir. 1990) (drug quantity); United States v. Ocampo, 890
F.2d 1363, 1372 (7th Cir. 1989) (drug quantity); United States v.
Barnes, 890 F.2d 545, 551 n.6 (1st Cir. 1989) (drug quantity); United
States v. Powell, 886 F.2d 81, 85 (4th Cir. 1989) (drug quantity);
United States v. Williams, 876 F.2d 1521, 1525 (11th Cir. 1989) (drug
type); United States v. Jenkins, 866 F.2d 331, 334 (10th Cir. 1989)
(drug quantity); United States v. Wood, 834 F.2d 1382, 1388-90 (8th
Cir. 1987) (drug quantity); United States v. Gibbs, 813 F.2d 596, 600
(3d Cir. 1987) (drug quantity); United States v. Normandeau, 800
F.2d 953, 956 (9th Cir. 1986) (drug quantity); United States v.
McHugh, 769 F.2d 860, 868 (1st Cir. 1985) (drug quantity).2 2

Significantly, 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
_________________________________________________________________

2 See also, e.g., United States v. Pena, 51 F. Supp. 2d 364, 366
(W.D.N.Y. 1998) (drug quantity); United States v. Carlos, 906 F. Supp.
582, 590-91 (D. Kan. 1995) (drug type); United States v. Monocchi, 836
F. Supp. 79, 82 (D. Conn. 1993) (drug quantity); United States v. Bush,
813 F. Supp. 1175, 1177-78 (E.D. Va. 1993) (drug quantity); United
States v. Ekwunoh, 813 F. Supp. 168, 172 (E.D.N.Y. 1993) (drug quan-
tity); United States v. McDonald, 777 F. Supp. 43, 44 (D.D.C. 1991)
(drug quantity); United States v. Taft, 769 F. Supp. 1295, 1311 (D. Vt.
1991) (drug quantity); United States v. Naranjo, 755 F. Supp. 46, 47
(D.R.I. 1991) (drug quantity); United States v. Marshall, 706 F. Supp.
650, 652 (C.D. Ill. 1989) (drug quantity and type).

39
statutory interpretation, every single court still held that Congress
intended the facts in section 841(b) to be sentencing factors. See, e.g.,
United States v. Grimaldo, 214 F.3d 967, 972 (8th Cir. 2000); United
States v. Jackson, 207 F.3d 910, 920 (7th Cir.), vacated and
remanded for further consideration in light of Apprendi, 121 S. Ct.
376 (2000), judgment reinstated on other grounds, 236 F.3d 886, 888
(7th Cir. 2001); United States v. Thomas, 204 F.3d 381, 384 (2d Cir.),
vacated and remanded for further consideration in light of Apprendi,
121 S. Ct. 749 (2000), reh'g en banc granted, 2000 WL 33281680
(Apr. 20, 2001); United States v. Rios-Quintero, 204 F.3d 214 (5th
Cir.), cert. denied, 121 S. Ct. 301 (2000); United States v. Swiney,
203 F.3d 397, 404 n.5 (6th Cir.), cert. denied, 530 U.S. 1238 (2000);
United States v. Hester, 199 F.3d 1287, 1292 (11th Cir.), vacated and
remanded for further consideration in light of Apprendi, 121 S. Ct.
336 (2000); United States v. Jones, 194 F.3d 1178, 1185-86 (10th Cir.
1999), vacated and remanded for further consideration in light of
Apprendi, 530 U.S. 1271 (2000); United States v. Williams, 194 F.3d
100, 106-07 (D.C. Cir. 1999), cert. denied 121 S. Ct. 1156 (2001).3
3

And, what is more, no court has ever believed there to be any
ambiguity as to congressional intent in this regard. See, e.g., United
States v. Doggett, 230 F.3d 160, 163 (5th Cir. 2000) ("Given the clear
congressional intent in § 841 and the uncertain mandate of Jones, we
would have been hesitant to overturn our well-established precedent
that the quantity of drugs is a sentencing factor and not an element
of the offense.") (citations omitted); id. at 164 ("Notwithstanding
prior precedent of this circuit and the Supreme Court that Congress
did not intend drug quantity to be an element of the crime under 21
U.S.C. § 841 and 846, we are constrained by Apprendi to find in the
opposite."); United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir.
2000) ("Because [United States v.] Hester[, 199 F.3d 1287 (11th Cir.
2000)] did not find section 841 and its legislative history unclear,
Hester retained the rule in this circuit that drug quantity was not an
_________________________________________________________________

3 See also, e.g., United States v. Parker, 89 F. Supp. 2d 850, 857 (W.D.
Tex. 2000); United States v. Harris, 66 F. Supp. 2d 1017, 1034 (D. Iowa
1999); United States v. Bennett, 60 F. Supp. 2d 1318, 1321-22 (N.D. Ga.
1999); United States v. Lilly, 56 F. Supp. 2d 856, 859 (W.D. Mich.
1999); United States v. Favors, 54 F. Supp. 2d 1328, 1331 (N.D. Ga.
1999).

40
element of the offense."); id. ("In light of Hester's determination that
section 841 is not ambiguous and given to alternate interpretation
. . . ."); United States v. Nordby, 225 F.3d 1053, 1058 (9th Cir. 2000)
("Existing precedent in this circuit states plainly that Congress did not
intend drug quantity to be an element of the crime under 21 U.S.C.
§§ 841 and 846, and that a defendant may be sentenced under these
provisions pursuant to a finding made by a judge at sentencing under
a preponderance of the evidence standard. . . . Congress . . . clearly
intended that drug quantity be a sentencing factor, not an element of
the crime under § 841; the statute is not susceptible to a contrary
interpretation."); United States v. Aguayo-Delgado, 220 F.3d 926,
932-33 (8th Cir. 2000) ("Quite simply, we have held repeatedly that
because the legislature defined drug quantity as a sentencing factor in
21 U.S.C. § 841(b), a judge could decide drug quantity using a pre-
ponderance of the evidence standard. We have maintained this hold-
ing regardless of the impact of the drug quantity on the applicable
sentencing range.") (citations omitted); Grimaldo, 214 F.3d at 972
("Any argument that Jones requires us to interpret drug quantity as an
element of a 21 U.S.C. 841 offense is foreclosed by the language
of the statute and by circuit precedent. The structure and plain lan-
guage of the statute leave no doubt that drug quantity is a sentencing
factor.").

E.

To be sure, within the past year, following the Supreme Court's
decision in Apprendi, all of the courts to have reconsidered section
841, including ours today, have now concluded that drug quantity and
type are elements, not simply sentencing factors-- precisely the
opposite from what they had held prior to Apprendi. See, e.g., United
States v. Page, 232 F.3d 536, 543-44 (6th Cir. 2000); Doggett, 230
F.3d at 164; Rogers, 228 F.3d at 1327-28; Nordby, 225 F.3d at 1058;
Aguayo-Delgado, 220 F.3d at 933. But just as surely have these courts
misunderstood Apprendi's narrow constitutional holding to require
the complete abandonment of their earlier and consistent statutory
interpretation of section 841, which most certainly it did not. Given
their prior, repeated interpretations that the section 841 offenses are
set forth in their entirety in section 841(a), and that Congress plainly
intended drug quantity and type to be mere sentencing factors, the
conclusion is inescapable that these courts have misunderstood

41
Apprendi actually to hold, in effect if not in fact, that any fact that
could serve to increase a defendant's sentence must be charged and
proven to the jury beyond a reasonable doubt. They have misunder-
stood Apprendi's holding that any fact that increases a defendant's
sentence beyond the maximum sentence statutorily authorized for the
offense in question must be proven beyond a reasonable doubt, as a
holding that any fact that increases a defendant's sentence must be so
proven.

That the courts have misunderstood Apprendi in this way is evi-
denced by their failure even to undertake a statutory analysis of the
kind prescribed in Almendarez-Torres, Jones, and Castillo to deter-
mine the maximum statutory punishment for the offenses defined in
section 841, an analysis which would, consistent with their prior hold-
ings that drug quantity and type are not elements of the section 841
offenses, dictate a conclusion that the maximum punishment autho-
rized for commission of the section 841 offenses is life. Rather, they
in effect reason backwards from the fact that drug quantity and type
can increase an individual defendant's sentence, to the conclusion
(constitutional, not statutory) that if quantity and type are not charged
and proven to a jury beyond a reasonable doubt, then the statutory
maximum penalty can only be that set forth in a subsection of section
841 that imposes a sentence without regard to drug quantity or type.

Nowhere is this error in defining the statutory maximum punish-
ment clearer than in the Eleventh Circuit's opinion in Rogers, wherein
the court reasoned as follows:

The statutory maximum must be determined by assessing the
statute without regard to quantity. This means that sections
841(b)(1)(A) and 841(b)(1)(B) may not be utilized for sen-
tencing without a finding of drug quantity by the jury. If a
provision of section 841(b) that does not contain a quantity
amount applies, for example, section 841(b)(1)(C), then a
convicted defendant may still be sentenced under that provi-
sion.

228 F.3d at 1327 (footnote omitted; emphasis added). And further
confirming its understanding that Apprendi requires every fact that
increases a defendant's sentence to be proven beyond a reasonable

42
doubt, even when that fact does not increase the sentence beyond that
authorized by the jury's verdict of guilt of the offenses defined in sec-
tion 841, the court concluded:

In effect, the jury verdict convicted [Rogers] only of manu-
facturing, possessing, or distributing an undetermined quan-
tity of crack cocaine. Because section 841(b)(1)(A) and
section 841(b)(1)(B) both turn upon the amount of crack
cocaine at issue, those two sub-parts are inapplicable to this
case. Therefore, Rogers may only be sentenced under sec-
tion 841(b)(1)(C), which provides punishment for convic-
tion of an undetermined amount of crack cocaine.

Id. at 1328 (emphasis added).

The Ninth Circuit made precisely the same error in Nordby that the
Eleventh Circuit did in Rogers:

[T]he judge's finding that Nordby possessed 1000 or more
marijuana plants `increase[d] the penalty for [Nordby's]
crime beyond the prescribed statutory maximum.' Section
841(a) contains no penalty provision. But the only sentence
under § 841 justifiable under the facts as found by the jury
would be a sentence (and possible fine) of not more than
five years applicable to possession of less than 50 mari-
juana plants. The trial court's finding that Nordby possessed
1000 or more plants under § 841(b)(1)(A)(vii) increased
Nordby's sentence to `not [ ] less than 10 years or more than
life' and a possible fine. Thus, the judge's finding, made
under a preponderance standard, increased the statutory
maximum penalty for Nordby's crime from five years to
life.

225 F.3d at 1058-59 (citation omitted; emphasis added); id. at 1056
(equating statutory maximum for the offense with "statutory maxi-
mum penalty to which a criminal defendant is exposed," explaining
that "Apprendi held that a fact that increases the prescribed statutory
maximum penalty to which a criminal defendant is exposed must be
submitted to a jury and proven beyond a reasonable doubt."). And the

43
Sixth Circuit recently embraced the same misunderstanding of
Apprendi in United States v. Page :

Pursuant to the provisions of § 841, the quantity of drugs is
a factual determination that significantly impacts the sen-
tence imposed. . . . The jury merely found that defendants
conspired to distribute and possess to distribute some unde-
termined amount of crack cocaine. As such, defendants can-
not be subjected to the higher penalties under
§ 841(b)(1)(A) or (B). Rather, the maximum sentence that
may be imposed on this count is 20 years pursuant to
§ 841(b)(1)(C).

232 F.3d at 543. See also supra at 2-3 (Wilkins, J.) ("[B]ecause the
indictment that charged Promise did not allege a specific threshold
quantity of cocaine or cocaine base and the jury did not make a find-
ing regarding whether the offense involved such a quantity, Promise's
conviction subjected him to a maximum penalty of 20 years imprison-
ment." (emphasis added)); United States v. Fields, 242 F.3d 393, 395-
96 (D.C. Cir. 2001); Doggett, 230 F.3d at 164-65 ("Section 841
clearly calls for a factual determination regarding the quantity of the
controlled substance, and that factual determination significantly
increases the maximum penalty from 20 years under § 841(b)(1)(C)
to life imprisonment under § 841(b)(1)(A). Therefore, we 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."); Aguayo-Delgado, 220 F.3d at 933
("Thus, if 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 sen-
tence in the indictment, and must prove those facts to the jury beyond
a reasonable doubt.").

To reason in the way these courts have, is not to decide congressio-
nal intent; Congress' intent as to the statutory maximum punishment
in section 841 does not change depending upon whether drug quantity
and type are or are not submitted to a particular jury. To so reason,
is unwittingly to impose the constitutional limitation that every fact
that serves to increase a defendant's sentence must be charged in the

44
indictment, submitted to the jury, and proven beyond a reasonable
doubt, when Congress clearly did not intend such.

II.

Having concluded, as a matter of statutory interpretation, that Con-
gress unambiguously intended that the section 841 offenses are
defined in their entirety in section 841(a), it remains for me only to
determine the congressionally-prescribed maximum sentence for
commission of those offenses. From the interpretation that the
offenses are entirely defined in section 841(a), it follows that the facts
of drug quantity and type identified in section 841(b) are not elements
of the offenses, but, rather, sentencing factors. And it follows in turn
from this that the maximum punishment for commission of a section
841 offense is life, plus fine, as provided for in sections 841(b)(1)(A),
(B), and (C), with the actual sentence imposed dependent upon the
presence or absence of the various sentencing factors identified in
section 841(b). See United States v. Jones, 195 F.3d 205, 206-07 (4th
Cir. 1999) (Luttig, J.) (what the defendant could have received in light
of aggravating and mitigating factors does not change the statutory
maximum). Because Apprendi only constitutionally forbids imposi-
tion of a sentence in excess of that authorized by the legislature for
commission of that particular offense (when based upon the finding
of a fact by a simple preponderance of the evidence), it is apparent
that none of appellants' sentences are constitutionally voidable under
Apprendi because none of them exceeds life.

III.

In reaching the conclusion that I do as to Congress' intent when
enacting section 841, I appreciate that I am brought four-square to the
constitutional question, lurking in the Supreme Court's majority opin-
ions from Jones to Apprendi and openly addressed and decided in
several separate opinions in those cases, of whether any fact that
serves to increase a defendant's sentence -- even within the range of
punishments authorized by statute -- must be charged in the indict-
ment and proven to the jury beyond a reasonable doubt. See, e.g.,
Apprendi, 530 U.S. at 498-99 (Scalia, J., concurring) ("What ulti-
mately demolishes the case for the dissenters is that they are unable
to say what the right to trial by jury does guarantee if, as they assert,

45
it does not guarantee -- what it has been assumed to guarantee
throughout our history -- the right to have a jury determine those
facts that determine the maximum sentence the law allows."); id. at
501 (Thomas, J., concurring) ("A long line of essentially uniform
authority addressing accusations, and stretching from the earliest
reported cases after the founding until well into the 20th century,
establishes that the original understanding of which facts are elements
was even broader than the rule that the Court adopts today. This
authority establishes that a `crime' includes every fact that is by law
a basis for imposing or increasing punishment . . . ."); Jones, 526 U.S.
at 253 (Stevens, J., concurring) ("Indeed, in my view, a proper under-
standing of this principle [of due process on which the Court's prior
cases have rested] encompasses facts that increase the minimum as
well as the maximum permissible sentence . . . ."). I understand that
the question is all the more starkly presented because of the vastly dif-
ferent punishments that can result from different judicial findings as
to drug quantity and type, the possibility which has, at bottom,
prompted the constitutional concerns that are so evident on the
Supreme Court. With all respect to my colleagues on this court and
our sister courts, however, I am confident that this is a question
entirely different from that decided by the Supreme Court in
Apprendi. In fact, I am convinced that it is, rather, the question
expressly reserved by the Court when it declined to overrule McMil-
lan v. Pennsylvania; limited the holding of that case to circumstances
"that do not involve the imposition of a sentence more severe than the
statutory maximum for the offense established by the jury's verdict";
and "reserve[d] for another day the question whether stare decisis
considerations preclude reconsideration of [McMillan's] narrower
holding." Apprendi, 530 U.S. at 487 n.13.

To believe otherwise, i.e., that this is the issue actually decided by
the Court in Apprendi, as I believe my colleagues on this and other
courts believe, is simply to confuse the Supreme Court's decisions in
Almendarez-Torres, Jones, and Castillo, on the one hand, and its deci-
sion in Apprendi on the other. Even post-Apprendi, the Court's deci-
sions in Almendarez-Torres, Jones, and Castillo remain sound and
controlling precedents, as to whether, as a matter of statutory inter-
pretation, Congress intended a particular fact to be an element of the
offense or a mere sentencing factor. They hold that Congress' intent
must be determined by resort to the conventional methods of statutory

46
interpretation such as analysis of text, structure, context, tradition, and
legislative history. The Court in Apprendi addressed the entirely dif-
ferent, constitutional question of whether the legislature permissibly
may define a particular fact as a sentencing factor and permit its proof
upon a simple preponderance of the evidence. And although the Court
ominously reserved the enormously significant question of whether
every fact that could result in an increase in sentence must be proven
beyond a reasonable doubt, it only held that any fact that increases
the penalty beyond the statutory maximum prescribed by the legisla-
ture must be submitted to the jury and proven beyond a reasonable
doubt. (As to this essential limitation on the Court's holding, it must
be borne in mind that the additional punishment that Apprendi chal-
lenged and the Court invalidated as unconstitutional was imposed via
a statute separate altogether from the one under which Apprendi was
convicted; thus, there was no question but that Apprendi received a
punishment greater than that authorized by the jury's verdict.) Conse-
quently, unless or until the Supreme Court overrules its holding in
McMillan that a defendant is not entitled to a jury determination of
a fact that serves to increase the defendant's sentence within the
statutorily-prescribed punishment range, it is, as a constitutional mat-
ter, irrelevant that a particular fact will increase a defendant's sen-
tence -- even increase it significantly -- as the findings as to drug
quantity and type can do.

As to the almost imponderably significant constitutional question
of whether any fact that could serve to increase a defendant's sen-
tence must be charged and proven to the jury beyond a reasonable
doubt, which obviously so divides the Supreme Court, I would not
even begin to venture an answer. I am under no illusions as to the
tenor of the Court's majority opinion in Apprendi, which is unmistak-
ably to the effect that the Constitution would require a holding that
all facts that increase a defendant's sentence must be proven to the
jury beyond a reasonable doubt -- a tenor that is unsurprising given
its author's view that such is required by the Constitution. See, e.g.,
Jones, 526 U.S. at 253 (Stevens, J., concurring). Indeed, despite
assurances that its holding is quite narrow,4 4 it is even plain that the
_________________________________________________________________

4 See, e.g., Apprendi, 530 U.S. at 474 (characterizing as "narrow" the
issue before the Court); id. at 481 ("We should be clear that nothing in

47
overarching principles upon which the Court's decision rested, as well
as much of the opinion's critical language, would dictate a holding
that all facts that could serve to increase a defendant's sentence must
be proven to the jury beyond a reasonable doubt.5 5 However, it is
_________________________________________________________________

this history suggests that it is impermissible for judges to exercise discre-
tion -- taking into consideration various factors relating both to offense
and offender -- in imposing a judgment within the range prescribed by
statute."); id. at 484 n.19 ("This is not to suggest that the term `sentenc-
ing factor' is devoid of meaning. The term appropriately describes a cir-
cumstance . . . that supports a specific sentence within the range
authorized by the jury's finding that the defendant is guilty of a particular
offense."); id. at 482-83 ("The historic link between verdict and judg-
ment and the consistent limitation on judges' discretion to operate within
the limits of the legal penalties provided highlight the novelty of a legis-
lative scheme that removes the jury from the determination of a fact that,
if found, exposes the criminal defendant to a penalty exceeding the maxi-
mum he would receive if punished according to the facts reflected in the
jury verdict alone.") (footnote omitted).

5 See, e.g., Apprendi, 530 U.S. at 469 ("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 478 ("Any possible
distinction between an `element' of a felony offense and a `sentencing
factor' was unknown to the practice of criminal indictment, trial by jury,
and judgment by court as it existed during the years surrounding our
Nation's founding.") (footnote omitted); id. at 484 ("Since Winship, we
have made clear beyond peradventure that Winship's 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.'") (citation omitted); id. at 486 ("We did not, however,
there [in McMillan] budge from the position that (1) constitutional limits
exist to States' authority to define away facts necessary to constitute a
criminal offense, and (2) that a state scheme that keeps from the jury
facts that `expose [defendants] to greater or additional punishment,' may
raise serious constitutional concern.") (citations omitted); id. at 487 n.13
("[W]e reserve[d] for another day the question whether stare decisis con-
siderations preclude reconsideration of [McMillan's] narrower hold-
ing."); id. at 489 ("Even though it is arguable that Almendarez-Torres
was incorrectly decided, and that a logical application of our reasoning

48
equally clear that the Court did not so hold in Apprendi and has yet
to so hold. When it finally does confront the question (as it may have
no choice but to do in the context of this very dispute over section
841), I believe the ultimate answer will come down to the stare deci-
sis effect accorded the Court's prior decisions in McMillan v. Penn-
sylvania, and, to a lesser extent, Almendarez-Torres. Unless or until
the Court chooses to overrule these cases, however, I, as a lower court
judge, am bound by them. And, accordingly, I would hold today that
the Constitution forbids, upon a finding of a mere preponderance,
only the imposition of a sentence that exceeds that authorized by the
legislature. Where, as in the cases before us, the sentences imposed
are within, not beyond, the range of punishments statutorily permit-
ted, the Constitution, according to the Supreme Court in McMillan v.
Pennsylvania, is simply not offended.

IV.

The view of the United States on so fundamental a matter as that
we address herein is of importance, and we have sought those views.
Having studied the submissions and reflected on the arguments orally
advanced by the government, I am convinced that it, too (although no
less understandably), is as confused as are the federal courts. In fact,
I am confident that government counsel throughout the Department
of Justice would readily concede as much. To the extent that I can
understand the government's position, however, I am unconcerned
that a different conclusion is warranted by it.

As an initial matter, the United States has vacillated on its position
throughout the various litigations that have come before our court.
According to counsel for the United States in United States v. Prom-
ise, the Department of Justice apprised its attorneys that they may, but
_________________________________________________________________

today should apply if the recidivist issue were contested . . . ."); id. at 494
(characterizing as "constitutionally novel and elusive" the "distinction
between `elements' and `sentencing factors'"); id. at 495 ("When a
judge's finding based on a mere preponderance of the evidence autho-
rizes an increase in the maximum punishment, it is appropriately charac-
terized as `a tail which wags the dog of the substantive offense.'")
(citation omitted).

49
were not required to, argue that section 841 states multiple offenses,
elements of which appear throughout subsection (b). Pursuant to this
authorization, counsel for the government in Promise argued to us
forcefully and unequivocally that the statutory offenses of section 841
are, as I maintain above, set forth in their entirety in subsection (a),
and that the facts referenced in subsection (b) are mere sentencing
factors. Counsel cautioned the panel that "drug amounts are sentenc-
ing factors[,] [t]he Supreme Court has not reversed itself on that and
I would submit this court doesn't need to get out in front of the
Supreme Court." Counsel then analyzed section 841 precisely as
required by the Supreme Court's decisions in Almendarez-Torres,
Jones and Castillo, and concluded that Congress never intended drug
amount to be anything other than a sentencing factor, and that the
statutory maximum for a violation of section 841 is life. And even
after having had months to reflect on the position taken at argument
in preparation for submission of supplemental briefing, the govern-
ment concluded the same:

A fair reading of the statute demonstrates unequivocally that
§ 841(a) establishes the elements of the offense and § 841(a)
[sic] provides for the gradiated penalties. The facts by which
a violation of § 841(a) are proven do not increase the maxi-
mum penalty for the offense, since the maximum penalty is
up to life imprisonment, as provided in § 841(b).

United States' Supplemental Brief at 8, United States v. Promise (No.
99-4737).

Although acknowledging that the then-current position of the
United States was otherwise, counsel for the United States in United
States v. Cotton, No. 99-4162, when pressed, forthrightly admitted
that she could not construct the statutory argument for the official
position of the United States that drug quantity and type must be
proven to the jury beyond a reasonable doubt, and that if they were
not required to be submitted to the jury, the statutory maximum for
the section 841 offense was twenty years. And, when pressed further
for her personal view of section 841, she expressed the position that
the statutory maximum for commission of the offenses defined in sec-
tion 841 is indeed life imprisonment:

50
Counsel: I think that there is an argument in just the way the
statute has been written out to say that the offense is con-
tained in 841(a), and that the sentencing scheme as set forth
in 841(b) basically lays out life and works it's way down.

Court: Is that the position of the Department?

Counsel: No, that is not the position of the Department, your
honor. I think the position of the Department, I know that
the position of the Department right now is to, for us to,
assume that twenty years is the statutory max and we are
working our way up, as opposed to down, from life impris-
onment. But as a drug prosecutor for so many years, I --
looking at the way the statute was phrased and where it was
written by Congress -- I don't see where the argument is
that they were saying all drug offenses are twenty years
except for fifty grams of crack, which is a small amount
which all of sudden places you at life, or a kilo of heroin.
And the majority of these multi-defendant drug prosecutions
you are talking about a tremendous quantity of drugs and
most of these federal cases that come to court, and that when
Congress was crafting the drug statutes, you are looking at
cases that are going to be involving what really is a mini-
mum amount of drugs to invoke that life penalty. And so
when I look at the statute itself I think there is a cogent
argument to say Congress' intent was that life imprisonment
was the maximum penalty and that you work your way
down. I can understand the other argument in the reverse
and I think we're all assuming . . .

Court: And how that how do you understand it?

Counsel: I, well . . .

Court: Piece by piece, how would you construct that argu-
ment for the opposite position?

Counsel: Um, I would say . . . well, your honor, you know,
in all, in all . . .

51
Court: You really can't.

Counsel: In all truthfulness no, I really can't. And I think
that's probably why I fall on the side of saying it really is
life imprisonment and then coming down from there as
opposed to the reverse direction. And I am not exactly sure
I understand the reasoning as to why many of the courts,
including in some of the other opinions that this court has
issued, we've all assumed, for the sake of argument it seems,
that twenty years is the statutory maximum and that the
other two prongs of 841(b) are in penalty enhancements.

Court: Have you or anyone in your office seen fit to tell
main Justice this view?

Counsel: Your Honor, I know that there has been much dis-
cussion back and forth between the Narcotics Section of
Main Justice, and much discussion within each U.S. Attor-
ney's Office about this particular argument. But we've basi-
cally been directed by Department of Justice to say we're
going to take, I guess, the "safe route," which is to say it's
twenty years, and you should go ahead and be including the
amounts in the indictment.

...

Court: [B]ut the larger question is why, in the zealous repre-
sentation of your client, the United States, are you in search
of the safe route? That's not what most of the lawyers in this
room are doing when they represent their clients.

Counsel: Um, well, your honor I'm, I'm, I guess, I'm, in rep-
resenting this position, uh, as the safe route because it's the
position that the Department of Justice is taking at this
point, and I am probably going out on a limb by putting
forth my own personal view as a drug prosecutor. But I
think that, and the court itself has already held in some other
opinions -- and I realize that this may be all up for grabs
when you reconsider the Angle decision -- that you all have

52
 been looking at twenty years as the, uh, the statutory max
from which everything else is an enhancement. So I am
looking at that, I am working with that body of case law,
right now.

Court: Well the reason that I asked the question, frankly, is
because I suspect that main Justice is also in search of a safe
route and perhaps my question can make its way back to
them as to whether that's what they should be doing.

Counsel: Well I, I definitely am going to take this colloquy
today back to my office and perhaps call someone, call our
counterparts at Justice to advise them of that . . ..

And before the en banc court, the government directly contradicted
its earlier position in Promise, and equivocated even on what, a
month later, would be its position in Cotton, arguing inconsistently (if
not incoherently) that the offenses defined in section 841 appear in
their entirety in section 841(a) and that Congress plainly intended
drug quantity and type to be sentencing factors only, but, at the same
time, that the quantity and type of drugs increase the statutory maxi-
mum sentence and "it is error to impose a sentence that is authorized
only by virtue of that increase in the maximum sentence without
proving that fact (type or quantity) to the jury beyond a reasonable
doubt." Letter from Nina Goodman, DOJ, Criminal Division, Appel-
late Section, to Clerk of Court, Fourth Circuit (Feb. 22, 2001). Thus,
like my colleagues, unable to reconcile what it knows to be Congress'
intent with what it either believes (mistakenly) or fears (prematurely)
to be a holding by the Court in Apprendi that any fact that increases
a sentence significantly must be proven to the jury beyond a reason-
able doubt, the United States now takes the novel position that a fact
that it concedes is not an element of the offense must nevertheless be
proven to the jury beyond a reasonable doubt as if it were an element
-- apparently confusing a fact that increases a sentence beyond the
statutory maximum, which the Supreme Court characterized in
Apprendi as the "functional equivalent" of an element of a greater
offense, see 530 U.S. at 494 n.19, with a fact that increases a sen-
tence, but only within the range of punishments authorized by the leg-
islature. And as if this position were not untenable enough, the United
States assures us that, even though this "non-element" must be proven

53
to the jury beyond a reasonable doubt as if it were an element, it need
not be charged in the indictment for the reason that it is not a "real"
element -- a position one cannot help but believe was formulated
solely because virtually every drug conviction in recent history would
have to be reversed otherwise.

I cannot even imagine the Supreme Court accepting such tortured
arguments as to those matters that must and must not be proven to the
jury beyond a reasonable doubt and those that must and must not be
charged in the indictment. Indeed, I have a hard time conceiving even
that the Solicitor General would be prepared to advance such an argu-
ment before the Supreme Court. Either facts that affect the sentence
a defendant receives are elements or they are not; they are not ele-
ments for some purposes and not for others. And if they are elements,
then they must be charged in the indictment. See, e.g., Apprendi, 530
U.S. at 483 n.10 ("The judge's role in sentencing is constrained at its
outer limits by the facts alleged in the indictment and found by the
jury."); Castillo, 530 U.S. at 123-24 ("The question before us is
whether Congress intended the statutory references to particular fire-
arm types in § 924(c)(1) to define a separate crime or simply to autho-
rize an enhanced penalty. If the former, the indictment must identify
the firearm type and a jury must find that element proved beyond a
reasonable doubt."); Jones, 526 U.S. at 232 ("Much turns on the
determination that a fact is an element of an offense rather than a sen-
tencing consideration, given that elements must be charged in the
indictment, submitted to the jury, and proven by the Government
beyond a reasonable doubt.").

In the end, I suspect that the government's conundrum, unlike that
of my colleagues, is not attributable so much to a misinterpretation of
the Court's opinion in Apprendi, as to a misconception as to the con-
sequence of its correct understanding of Congress' intent that drug
quantity and type are mere sentencing factors, a misconception that
is evident even in the few substantive sentences of the Department of
Justice's supplemental letter to the en banc court in this case. There,
the Department states that "Section 841(b), which sets out the penal-
ties for violations of Section 841(a)(1), authorizes increased maxi-
mum sentences based on, among other things, the type and quantity
of the controlled substances involved in the offense." It is true that
section 841(b) authorizes increased maximum sentences for particular

54
defendants. What section 841(b) does not do, however, is increase the
statutory maximum sentence for commission of the offenses in section
841(a). That statutory maximum sentence is, as a matter of congres-
sional intent, life plus fine. The sentence that any particular defendant
receives within the full range of penalties authorized in subsection (b)
may depend upon the court's finding as to the presence or absence of
the various sentencing factors identified in section 841(b). But the
maximum sentence authorized by Congress for commission of the
section 841 offense of unlawful manufacture or distribution of a con-
trolled or counterfeit substance, and therefore the maximum sentence
permitted by the jury's verdict of guilt of that offense, is always life
plus fine -- as a matter of statutory interpretation.

Accordingly, nothing in the arguments advanced by the United
States gives me any pause that I might be mistaken either as to Con-
gress' intent with regard to drug quantity and type, or as to the effec-
tive inapplicability of Apprendi to Title 21, section 841. This is not
to say that the Department of Justice will not be proven prescient
when the Supreme Court eventually does address the question it
reserved in Apprendi. But until the Court does decide that question,
the Department is no less bound than I by McMillan v. Pennsylvania.
And it is that decision that proves in error the Department's interpre-
tation of the federal drug statute we construe today, not, as the
Department believes, Apprendi that proves that interpretation correct.

I am authorized to show that Chief Judge Wilkinson and Judges
Niemeyer and Gregory concur in Parts I, II, and III of this opinion.

DIANA GRIBBON MOTZ, Circuit Judge, concurring in part and dis-
senting in part, and dissenting in the judgment:

I concur in parts II A-C of Judge Wilkins's opinion. I do not concur
in part II D or part III, however, and I respectfully dissent from the
judgment of the court because that judgment affirms Marion Prom-
ise's sentence for a crime for which he has never been charged or
indicted, and, therefore, never tried or convicted. This plain error not
only clearly affects Promise's substantial rights, it also goes to the
very heart of the judicial process. If not remedied, this error will "seri-
ously affect" the "fairness, integrity or public reputation of judicial
proceedings," and so, as the Supreme Court has directed, we "should

55
correct" the error. See United States v. Olano, 507 U.S. 725, 736
(1993). I regret, and dissent from, the court's refusal to do so.

I.

Speaking for a majority of the court, Judge Wilkins clearly and per-
suasively explains why a specific threshold drug quantity constitutes
an element of the aggravated drug trafficking offenses prohibited by
21 U.S.C.A. § 841 (West 1999), which must be charged in an indict-
ment and proven to a jury beyond a reasonable doubt.

In this case, the grand jury indicted and the petit jury convicted
Promise of a single offense -- conspiracy to possess with intent to
distribute "a quantity of cocaine and cocaine base." No specific drug
quantity charge was submitted to, or returned by, the grand jury. Con-
sequently, the petit jury that tried Promise never considered the ques-
tion of drug quantity, let alone found beyond a reasonable doubt that
Promise conspired to distribute more than 50 kilograms of cocaine or
50 grams of cocaine base.

The statute at issue provides that the maximum sentence for con-
viction of conspiracy to possess with intent to distribute an unquanti-
fied amount of cocaine is no more than 20 years imprisonment. See
21 U.S.C.A. § 841(b)(1)(c). Therefore, under the new rule set forth by
the Supreme Court in Apprendi, the maximum prison term that the
district court could have legally imposed on Promise for this single
count of conspiracy involving an unspecified "quantity of cocaine and
cocaine base" is 20 years. See Apprendi v. New Jersey, 120 S. Ct.
2348, 2359 n.10 (2000) ("The judge's role in sentencing is con-
strained at its outer limits by the facts alleged in the indictment and
found by the jury."). Yet the district court, not having the benefit of
the decision in Apprendi, sentenced Promise to 30 years imprison-
ment pursuant to 21 U.S.C.A. § 841(b)(1)(A)(i) for the more serious
crime of conspiracy to possess with intent to distribute a specific
threshold quantity of Schedule I or II controlled substance, e.g., at
least 50 grams of cocaine base.

Judge Wilkins properly concludes that the district court plainly
erred in sentencing Promise to a prison term of 30 years. Judge Wil-
kins also correctly finds that this plain error affected Promise's sub-

56
stantial rights and rightly recognizes one of the reasons why this is so
-- it resulted in Promise receiving a sentence of ten more years in
prison than the statute he was charged with violating permits.

The court's refusal, notwithstanding these conclusions, to recog-
nize this plain error is stunning. This serious misjudgment reflects a
failure to appreciate fully both the nature of the error at issue here and
the impossibility of overlooking such an error without jeopardizing
the fairness, integrity, and reputation of judicial proceedings.

II.

The error at issue in this case is a sentencing error only in the sense
that it can be remedied by vacating Promise's sentence and remanding
for resentencing. But, unlike the usual sentencing error, the root of
this error is not a simple failure to calculate the correct sentence for
the crime for which the defendant has been charged and convicted.1 1
Rather, the error here rests on the district court's decision to sentence
Promise for a crime for which he was never charged or convicted.

The imposition of such a sentence is antithetical to our system of
justice. It deprives Promise of the most fundamental of rights -- the
right to be tried and convicted only on charges presented in an indict-
ment returned by a grand jury. That Promise was properly indicted
and convicted of a different (lesser) crime does not change the fact
that he was never indicted or convicted of the crime for which he was
_________________________________________________________________

1 Ironically, if this were the source of the error in this case, the court
would undoubtedly notice it. See United States v. Ford, 88 F.3d 1350,
1355-56 (4th Cir. 1996) (sentencing defendant at a more "severe guide-
line range" is plain error that "clearly affect[s] substantial rights" and "se-
riously affects the fairness, integrity, and public reputation of the judicial
proceedings," and, thus should be noticed despite defendant's failure to
raise objection below). See also United States v. Perkins, 108 F.3d 512,
517 (4th Cir. 1997) ("[T]he district court's plain error allowed Perkins to
receive an unwarranted 52-month reduction, `thereby affecting the sub-
stantial rights of the government and the people of the United States that
this defendant be sentenced correctly'" and "[t]he bestowing of a wind-
fall sentence reduction . . . also seriously affects the fairness, integrity,
and public reputation of judicial proceedings.").

57
sentenced. As the Supreme Court reminded us in Apprendi itself,
"`the indictment must contain an allegation of every fact which is
legally essential to the punishment to be inflicted.'" Apprendi, 120
S. Ct. at 2362 n.15 (quoting United States v. Reese, 92 U.S. 214, 232-
33 (1875) (Clifford, J., concurring)) (emphasis added). The indict-
ment here simply did not do that. Using this indictment as the basis
for imposing on Promise a 30-year sentence for an aggravated drug
offense is precisely the same as using a defendant's indictment and
conviction on a manslaughter offense, carrying a maximum penalty
of 5 years, as the basis for imposing a life sentence for murder.

The United States Constitution expressly prohibits such a result.
The Constitution guarantees all of us the right to have each element
of a crime presented to, and found by, a grand jury prior to being
tried, convicted, or sentenced for that crime. Indeed, the Fifth Amend-
ment promises that "[n]o person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury." U.S. Const. amend V. And the Sixth Amendment
ensures that this indictment shall inform the accused "of the nature
and cause of the accusation" against him. U.S. Const. amend. VI.

More than a hundred years ago, in its seminal opinion construing
these provisions, the Supreme Court noted the importance of a court
placing itself "as nearly as possible in the condition of the men who
framed" the Constitution. Ex Parte Bain, 121 U.S. 1, 12 (1887). Rec-
ognizing that the grand jury's critical role in "protecting the citizen
against unfounded accusation" is of "very ancient origin," long pre-
dating the founding of this Country, the Court surmised that the Fram-
ers were "imbued in the common-law estimate of the value of the
grand jury." Id. at 10-12. The Court concluded that the Framers
"therefore, must be understood to have used the language which they
did in declaring that no person should be called to answer for any cap-
ital or otherwise infamous crime except upon an indictment or pre-
sentment of a grand jury, in the full sense of its necessity and of its
value." Id. at 12 (emphasis added). For this reason, the Supreme Court
held that "an indictment found by a grand jury was indispensable to
the power of the court to try the petitioner." Id. at 12-13 (emphasis
added).

The Supreme Court has never retreated from its dictate that the
Constitution makes a grand jury's indictment "indispensable" to the

58
power to try a defendant for a serious crime. Rather, the Court has
consistently and repeatedly reiterated the fundamental nature of the
constitutional right to be tried only on charges presented to a grand
jury.

Particularly relevant here, the Court has expressly held that "after
an indictment has been returned its charges may not be broadened
through amendment except by the grand jury itself." Stirone v. United
States, 361 U.S. 212, 215-16 (1960) (emphasis added). In the case at
hand, although the government presented the grand jury with an
indictment containing only the elements necessary to charge Promise
with a violation of § 841(b)(1)(C), the district court sentenced him to
the more serious crime defined in § 841(b)(1)(A); the court did not
formally amend the indictment, but its sentence had the same effect.
The Supreme Court in Stirone addressed a similar situation and con-
cluded that "[a]lthough the trial court did not permit a formal amend-
ment of the indictment, the effect of what it did was the same." Id.
at 217. The district court here, as in Stirone, "destroyed the defen-
dant's substantial right to be tried only on the charges presented in an
indictment returned by a grand jury." Id. This "basic right is far too
serious" to be "taken away with or without court amendment." Id. at
217-19. To do so, the Supreme Court has instructed, is "fatal error."
Id. at 219.

By formalizing the grand jury requirement in our Constitution, the
Framers indicated their understanding of the importance of convening
"a body of laymen, free from technical rules, acting in secret, pledged
to indict no one because of prejudice and to free no one because of
special favor." Costello v. United States, 350 U.S. 359, 362 (1956).
These characteristics of the grand jury provide several "safeguards
essential to liberty in a government dedicated to justice under law."
Cole v. Arkansas, 333 U.S. 196, 202 (1948).

Because of the grand jury requirement, before the United States
can prosecute anyone for a serious crime, an independent body of the
citizenry must "declare, upon careful deliberation, under the solem-
nity of an oath, that there is good reason for his accusation and trial."
Ex Parte Bain, 121 U.S. at 11. This evidentiary function protects all
of us "from an open and public accusation of crime, and from the

59
trouble, expense, and anxiety of a public trial before probable cause
is established." Id. at 12 (internal quotation marks omitted).

Moreover, because the Sixth Amendment demands that an accused
"be informed of the nature and cause of the accusation" against him,
the "indictment must set forth . . . every ingredient of which the
offence is composed." United States v. Cruikshank, 92 U.S. 542, 558
(1875) (internal quotation marks omitted). This notification allows the
accused to prepare a defense as to every element of the indicted
crime, or, after considering the charged elements and the maximum
penalty permitted under the indictment, allows him to forego a trial
and plead guilty. See Cole, 333 U.S. at 201. Without notification
through indictment, one accused of criminal activity cannot know-
ingly decide whether to plead guilty or face trial, or adequately defend
himself at trial against every element necessary to convict and punish
him for a particular crime.

But the "most valuable function of the grand jury" may be "to stand
between the prosecutor and the accused, and to determine whether the
charge was founded upon credible testimony or was dictated by mal-
ice or personal ill will." Hale v. Henkel, 201 U.S. 43, 59 (1906). See
also Ex Parte Bain, 121 U.S. at 12 ("[The grand jury] is justly
regarded as one of the securities to the innocent against hasty, mali-
cious, and oppressive public prosecutions.") (internal quotation marks
omitted). The requirement of indictment by grand jury constrains the
power of both the prosecutor and the court by limiting what can be
submitted for trial, conviction, and sentence. And, indeed, the
Supreme Court has stated that "[t]he very purpose of the requirement
that a man be indicted by grand jury is to limit his jeopardy to
offenses charged by a group of his fellow citizens acting indepen-
dently of either prosecuting attorney or judge." Stirone, 361 U.S. at
218.

Thus, the true measure of the right denied Marion Promise is this:
the district court sentenced Promise as if he had been indicted and
convicted of a far more serious offense, imposing on Promise ten
more years of imprisonment than the offense for which he was actu-
ally indicted and convicted permits. In doing so, the district court
denied Promise rights guaranteed by the Constitution, which have

60
long been regarded as "essential to liberty in a government dedicated
to justice under law." Cole, 333 U.S. at 202.

III.

Nevertheless, this court refuses to recognize this error because it
believes, with clear hindsight, that Promise was not innocent of the
crime for which he was sentenced -- that the government presented
"overwhelming" evidence at trial establishing his guilt. Ante at 18.
But correcting plain error does not depend on a defendant's inno-
cence. Rather, the Supreme Court has instructed that an appellate
court "should" exercise its discretion to correct any plain error preju-
dicing a defendant's substantial rights, which "seriously affect the
fairness, integrity or public reputation of judicial proceedings inde-
pendent of the defendant's innocence." Olano, 507 U.S. at 736-37
(internal quotation marks omitted) (emphasis added). See also United
States v. Floresca, 38 F.3d 706, 713 n.18 (4th Cir. 1994) (en banc)
("[T]he term `miscarriage of justice' is not the equivalent of `miscar-
riage of result."); United States v. Hanno, 21 F.3d 42, 49 (4th Cir.
1994) (finding error "impacts on the fairness, integrity and public rep-
utation of judicial proceedings" without discussing the evidence of
guilt).

Certainly, sentencing a man for a crime for which he has been nei-
ther charged nor convicted seriously affects the fairness, integrity, and
public reputation of judicial proceedings. Perhaps this is most easily
seen by analogy. Returning to the defendant indicted and convicted
of manslaughter, but illegally sentenced to life imprisonment for mur-
der -- I hope and trust no member of this court would "decline to
notice" this "sentencing" error, even where the evidence adduced at
trial indicated that the defendant's actions likely fit the statutory defi-
nition of murder. No such result could be regarded as fair, nor could
"judicial proceedings" that would permit such a sentence to stand
instill "public confidence." See Olano, 507 U.S. at 736. For an appel-
late court to "decline to notice" such an error would constitute a seri-
ous abuse of discretion, producing a true "miscarriage of justice." Id.
Declining to notice the error in this case gives rise to the same funda-
mental unfairness, engenders the same lack of confidence in judicial
proceedings, results in the same miscarriage of justice, and constitutes
the same grave abuse of discretion.

61
Because the grand jury is "not bound to indict in every case where
a conviction can be obtained," Vasquez v. Hillery, 474 U.S. 254, 263
(1986), our judicial system does not permit this or any other court to
usurp the grand jury's role as gatekeeper. The court today attempts to
do this sub silentio, stating "[t]here simply can be no doubt that had
the indictment included the specific threshold quantity of 50 grams of
cocaine base, the jury would have found Promise guilty beyond a rea-
sonable doubt." Ante at 20 (emphasis added). But the fact is that the
indictment returned against Promise did not include any aggravated
drug offense charge and we do not know what evidence the grand
jurors considered. Because of this, we cannot know whether they
would have indicted Promise of an aggravated drug offense if such a
charge had been submitted to them.

A court cannot rely on its own view of what indictment a grand
jury could or would have issued if the grand jury was never presented
with a charge, or what verdict a petit jury could or would have
reached if the petit jury was never presented with an indictment. "[I]t
is utterly meaningless to posit that any rational grand jury could or
would have indicted [the defendant] . . ., because it is plain that this
grand jury did not, and absent waiver, a constitutional verdict cannot
be had on an unindicted offense." Floresca, 38 F.3d at 712 (internal
quotation marks omitted). In sum, whether the grand jury would have
indicted Promise on the available evidence is irrelevant because:

The very purpose of the requirement that a man be indicted
by grand jury is to limit his jeopardy to offenses charged by
a group of his fellow citizens acting independently of either
prosecuting attorney or judge. Thus the basic protection the
grand jury was designed to afford is defeated by a device or
method which subjects the defendants to prosecution for [an
element] which the grand jury did not charge.

Stirone, 361 U.S. at 218 (footnote omitted) (emphasis added).

For this reason, contrary to Judge Wilkins's suggestion, the case at
hand critically differs from Johnson v. United States, 520 U.S. 461,
468 (1997), and United States v. Bowens, 224 F.3d 302 (4th Cir.
2000). Simply put, the district courts in Johnson and Bowens, unlike
the district court here, did not sentence the defendants to crimes not

62
charged in the indictment returned against them. Because the Johnson
and Bowens errors occurred not in failing to present a charge to the
grand jury, but in the "trial process," Arizona v. Fulminante, 499 U.S.
279, 310 (1991), an appellate court could examine that process and
discern that "overwhelming" and "essentially uncontroverted" evi-
dence presented at trial supported the charges the grand jury had
returned against the defendants. Johnson, 520 U.S. at 470; Bowens,
224 F.3d at 315. Upon making this assessment of the evidence at trial,
the Supreme Court in Johnson and our court in Bowens could con-
clude with confidence that declining to notice the courts' sentencing
errors would not "seriously affect the fairness, integrity or public rep-
utation of the judicial process." Id. (quoting Olano, 507 U.S. at 736).

Such a determination is impossible in a case like that at hand in
which the defendant has never been charged with, or indicted of, the
crime for which he has been sentenced. It is impossible because grand
jury proceedings are secret. Thus, a court simply "cannot know
whether the grand jury would have included in its indictment" a
charge not before it. Stirone, 361 U.S. at 219. Assessment of the evi-
dence presented at trial provides no reliable assurance as to what
facts were presented to, or found by, the grand jury.

To attempt to judge the fairness of a sentence based on charges
never made to a grand jury is to have this court "make a subsequent
guess as to what was in the minds of the grand jur[ors]." Russell v.
United States, 369 U.S. 749, 770 (1962). The Supreme Court has out-
lawed such post hoc judicial guesswork, precisely because it 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." Id.

This is why, quite unlike most 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. at 12-13 (emphasis added). Indeed, "the lack of grand jury
indictment . . . gives rise to a right not to be tried." Midland Asphalt
Corp. v. United States, 489 U.S. 794, 802 (1989) (emphasis added).
Thus, while it is appropriate for a reviewing court to assess the avail-
able evidence in determining when to notice instructional errors or
other errors occurring at trial, a court simply does not have the

63
"power" to review the evidence presented at trial before a grand jury's
indictment allows it to do so. See Stirone, 361 U.S. at 215 ("[T]he
Fifth Amendment requires that prosecution be begun by indictment.").2
2

IV.

In response to what I have written above, my colleagues contend
that I improperly "eschew[ ] a flexible approach in favor of a per se
rule requiring appellate courts to notice plain error whenever a defen-
dant suffers a conviction or sentence not authorized by the indict-
ment." Ante at 20-1 n.9. I offer this brief reply.

First, I confess that I do believe that sentencing a defendant for a
crime for which he was neither indicted by a grand jury nor convicted
by a petit jury is an error that always seriously affects the fairness,
integrity, and public reputation of our judicial process. Furthermore,
I believe that the Constitution requires this conclusion and that the
Supreme Court has never held to the contrary. Today, in holding oth-
erwise, this court takes a step toward disregarding altogether the right
to grand jury indictment and to trial by petit jury in favor of judicial
imposition of a sentence for whatever crime an appellate court
believes that a defendant has committed. This, I hope, the Constitu-
tion will never permit.

However, invocation of a "per se" rule is unnecessary to the proper
resolution of this case. Rather, balancing all even arguably pertinent
considerations requires precisely the same result-- noticing the plain
error and ordering re-sentencing. On the other hand, the court's "flex-
ible approach," assertedly "based on a balancing of numerous consid-
erations," id., actually is grounded entirely on just two factors, both
of which are irrelevant in the case at hand, gives short shrift to the
_________________________________________________________________
2 Long ago, the Supreme Court expressly held that a court has no "au-
thority" to impose a sentence other than that which the law provides for
the offense on which a defendant "was indicted and convicted." In re
Bonner, 151 U.S. 242, 254, 258 (1894) (Even"[i]f the court is authorized
to impose imprisonment" for the crime on which the defendant has been
indicted and convicted, if the term of imprisonment"exceeds the time
prescribed by law, the judgment is void for the excess.").

64
fundamental nature of the grand jury error before us, and completely
ignores the most relevant additional considerations.3
3

First, the court exaggerates the significance of two matters that are
of minimal importance in the grand jury context-- the strength of the
government's evidence4 4 and post-indictment notice. These "consider-
ations" are of little import in this case because, as I explained in part
III, grand jury proceedings are secret, and thus no matter what evi-
dence was produced at trial, and no matter what notice the govern-
ment provided post-indictment, a court simply "cannot know whether
the grand jury would have included in its indictment" a charge never
presented to it. Stirone, 361 U.S. at 219.

This view entirely accords with Supreme Court precedent. One
need look no further than Olano. There, the Court listed numerous
cases in which it had reiterated the appropriate plain error standard as
set forth in United States v. Atkinson, 297 U.S. 157, 160 (1936); in
only one, Silber v. United States, 370 U.S. 717 (1962) (per curiam),
did the Court hold that the plain error should be noticed and cor-
rected. See Olano, 507 U.S. at 736 (collecting cases). The error
noticed in Silber, like the error at issue here, involved a defective
indictment. (Silber had moved to dismiss the indictment in the trial
court; when that motion was erroneously denied, Silber failed to raise
the indictment error in the court of appeals or the Supreme Court, but
_________________________________________________________________

3 The court's approach also creates a rule so vague as to be almost
impossible to discern or follow; for the court never tells us which of its
"considerations" is dispositive or how its "considerations" are to be
weighed. Presumably, even overwhelming and uncontroverted evidence
of a defendant's guilt, without post-indictment notice, is insufficient to
persuade the court not to notice an error like that at issue here. See ante
at 20. But if this sort of evidence were accompanied by a notice, but not
one which was "manifest[ly] adequate," should a court notice this sort of
error? What if the government provided an adequate notice, and pres-
ented strong, but not undisputed, evidence?

4 The court suggests that assessment of the government's evidence and
Promise's failure to dispute that evidence are two separate "consider-
ations," see ante at 20 n.9; in fact they are just different parts of a single
"consideration" -- the strength ("overwhelming" and/or "undisputed" or
not) of the prosecution's evidence -- which, for all we know, the grand
jury never considered.

65
the Supreme Court nonetheless noticed the plain error. Silber, 370
U.S. at 717.) Although the evidence adduced at Silber's trial unques-
tionably established both his guilt and that he had notice of the
unindicted information, see Silber v. United States, 296 F.2d 588, 590
(D.C. Cir. 1961), the Supreme Court, without any consideration of
that evidence or the notice, corrected the plain indictment error and
reversed the judgment. Silber, 370 U.S. at 718. Just as the evidence
at trial was irrelevant to the Supreme Court's decision to notice the
plain indictment error in Silber, it should be irrelevant to our decision
to notice the plain error here.55

In addition, in its emphasis on the post-indictment "notice" given
Promise, the court fails to recognize that the grand jury not only
serves to inform a defendant of the charge against him, but that possi-
bly the "most valuable function of the grand jury" is "to stand
between the prosecutor and the accused" to protect a defendant
against charges "dictated by malice or personal ill will." Hale, 201
U.S. at 59. Declining to notice this error allows the prosecution and
the court to circumvent the grand jury and punish a man on the basis
of evidence that they, not the grand jury, deem sufficient. Accord-
ingly, post-indictment notice does nothing to preserve the integrity of
the grand jury process or protect our grand jury rights, which are so
"essential to liberty in a government dedicated to justice under law."
Cole, 333 U.S. at 202.

At the same time that the court inflates two irrelevant consider-
_________________________________________________________________

5 The court attempts to distinguish Silber on the basis that the Supreme
Court "did not discuss the strength of the Government's proof, [or]
whether the defendant had actual notice." Ante at 21-22 n.9. But that is
precisely the point. The Supreme Court in Silber corrected the plain error
caused by the defective indictment without regard to the trial evidence
or the notice given. In fact, the Court thought the defect serious enough
to warrant sua sponte correction, despite the defendant's failure to bring
the error to the Court's attention. See Silber, 370 U.S. at 718.

Furthermore, despite the court's assertion to the contrary, see ante at
21-22 n.9, for the reasons discussed in part III, the Supreme Court's con-
sideration of the evidence in declining to correct the jury instruction
error at issue in Johnson does not alter the fact that the Court looked past
the evidence to correct the indictment error in Silber.

66
ations, it downplays a critical one -- the fundamental nature of the
grand jury error. We have previously recognized, even when consid-
ering simple instructional error, that the "fundamental nature of [an]
error" is a factor that an appellate court on plain error review should
consider in "appropriately exercis[ing]" its discretion "so as to pre-
serve the fairness, integrity and reputation of the judicial process."
United States v. David, 83 F.3d 638, 648 (4th Cir. 1996). Here, that
factor, which the court today barely mentions, weighs heavily in favor
of noticing and rectifying the error. For this error-- sentencing a
defendant for a crime for which he has never been charged, let alone
indicted or convicted -- denies a right too vital to be ignored. When
"a plain error [i]s committed in a matter[this] absolutely vital to
defendants," an appellate court properly notices it. Wiborg v. United
States, 163 U.S. 632, 658 (1896) (emphasis added). Indeed, even my
colleagues who dissented in Floresca, although refusing to find as the
majority did that the indictment was defective, recognized that when,
as is concededly the case here, an indictment is truly defective "it may
be that the burden [a defendant must meet to warrant correction of
plain error] will be met most of the time." Floresca, 38 F.3d at 726
n.17 (Russell, J., dissenting, joined by Wilkinson, Wilkins, Niemeyer,
and Williams, JJ.) (emphasis added).

In addition to refusing to recognize the importance of the vital right
denied here, the court today completely ignores the most relevant fac-
tors that the Supreme Court has found significant in assessing whether
to notice errors that are far less fundamental than the one in this case.
Thus, the court pays no mind to a "consideration" that helped tip the
scales in Johnson v. United States, 520 U.S. 461 (1997), on which the
court so heavily relies. Noticing the error in Johnson would have
required reversing the defendant's conviction and possibly resulted in
a costly new trial. See Id. at 470 (noting that "reversal of [the] convic-
tion" would seriously affect the fairness, integrity and public reputa-
tion of judicial proceedings). The consequences of noticing the defect
in this case are not nearly as onerous. We can rectify the instant error
simply by re-sentencing Promise to the maximum term allowed by the
statute for the offense of which he was indicted and convicted. Prom-
ise would not be set free, nor would the government have to under-
take a new trial. The minimal costs of noticing this "fatal error,"
Stirone, 361 U.S. at 219, certainly pale in comparison to the damage
done to the integrity of our judicial process in failing to correct it.

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Perhaps even more surprisingly, the court also ignores the fact that
noticing the error in this case does not encourage a defendant to
"sandbag" the government, i.e., forego timely objection in the trial
court for strategic advantage. Yet, the Supreme Court has time and
again emphasized that preventing sandbagging is critically important
in determining whether to notice plain error. See, e.g., Johnson, 520
U.S. at 466; United States v. Young, 470 U.S. 1, 15, 16 n.13 (1985);
United States v. Frady, 456 U.S. 152, 163 (1982); United States v.
Socony-Vacuum Oil Co., 310 U.S. 150, 238-39 (1940).

Hence, in cases in which the Supreme Court has refused to notice
plain error, a timely objection in the trial court could have eliminated,
or substantially ameliorated, any error by means well short of the
drastic relief -- ordering a new trial -- necessary to remedy the error
on appeal. For example, in [Joyce B.] Johnson, 520 U.S. at 464, if the
defendant had timely objected to the trial court's determination of
materiality, that court could have submitted the question to the jury;
in Olano, 507 U.S. at 727-29, if the defendant had timely objected to
the presence of alternate jurors during jury deliberations, the trial
court could have refused to permit the alternates to be present; in
Young, 470 U.S. at 13 and Socony-Vacuum Oil, 310 U.S. at 239-42,
if the defendant had timely objected to the prosecutor's arguments,
the trial court could have halted the arguments; and in [Enoch T.]
Johnson v. United States, 318 U.S. 189, 199-200 (1943), if the defen-
dant had timely objected to the prosecutor's comments on the defen-
dant's failure to testify on certain matters, the trial court could have
prohibited the comments or instructed the jury to disregard them. Pos-
sible sandbagging by the defendant was, indeed, a problem in all of
these cases; correcting the error was necessary to prevent future use
of the tactic which created the error.

In contrast, had Promise timely objected to imposition of the 30-
year sentence as contrary to Apprendi, the trial court could only have
avoided error by giving Promise precisely the relief that we should
now order -- vacating the sentence and remanding for imposition of
the proper 20-year sentence. As the court recognizes,
"[u]nquestionably, had the district court been aware of Apprendi at
the time of trial, it would have imposed a sentence of 20 years impris-
onment, instead of the term of 30 years it actually imposed." Ante at
16 n.8. Accordingly, noticing the plain error here would not permit

68
Promise (unlike Olano and the others) to obtain any strategic benefit
from his failure to timely object to the error in a timely manner.

The vital rights and critical error involved here, alone or in con-
junction with the most relevant factors the Supreme Court has exam-
ined in determining whether to notice less fundamental errors,
unquestionably demonstrate that the court abuses its discretion in
refusing to notice and correct the error.

V.

Today, this court, on the basis of what it believes the grand jury
would have done if the government had sought an indictment for a
more serious crime, affirms the sentence Marion Promise received for
that more serious crime -- even though Promise was never charged,
never indicted, never tried, and never convicted of that crime. Long
ago, the Supreme Court warned against allowing a court to "change
the charging part of an indictment to suit its own notions of what it
ought to have been, or what the grand jury would probably have made
if their attention had been called to suggested changes." Ex parte
Bain, 121 U.S. at 10. If this is permitted, the Court cautioned, "the
great importance which the common law attaches to an indictment by
a grand jury . . . may be frittered away until its value is almost
destroyed." Id. Unfortunately, that has happened today.

For the foregoing reasons, I would vacate Promise's sentence and
remand to the district court for re-sentencing, with instructions to
impose a sentence not exceeding 20 years, the statutory maximum for
the sole offense for which Promise was indicted and convicted, as the
decision of the en banc court in United States v. Angle, No. 96-
4662(L) (4th Cir. June 29, 2001) (en banc), requires. Respectfully, I
dissent from the majority's refusal to do so.

Judge Widener has authorized me to indicate that he joins parts I,
II, III, and V of this opinion. Judges Michael and King have autho-
rized me to indicate that they join in the entire opinion.

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