concurring specially:
I concur in the judgment; the conviction and sentence are affirmed.
As I see it, there was no error under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and I conclude that there is, in any case, no institutional reason for the court to devote its time and talent to find out if there was error.
I acknowledge that the indictment did not charge a quantity of drugs sufficient to the provisions of 21 U.S.C. § 841(b)(1)(A). But it did not make a contrary charge. As was the practice before Apprendi, it charged merely the violation of § 841(a)(1), without specifying one of the subpara-graphs (A), (B), or (C), of § 841(b)(1). Therefore, at trial before the jury, Camacho could have — successfully, I apprehend — objected to an attempt by the prosecutor to prove any quantity beyond a “detectable amount.” Large quantity would have been immaterial and obviously prejudicial.
But Camacho did not object. Indeed, he assisted the government by entering into — and consenting to the publication to the jury of — a stipulation that the quantity of cocaine involved was large — 39.77 kilograms. This stipulation was not entered into at sentencing, after conviction, and presented to the judge. It was entered into during trial, when the jury was present to determine facts. In short it was put to the jury by agreement. When the jury convicted Camacho, they convicted him of violating § 841(a)(1), and of unlawful conduct involving the quantity provided for in § 841(b)(1)(A).1
Although § 841(b)(1)(A) was not alleged in the indictment, the element of the crime for which it provides, was, as Apprendi requires, proven beyond a reasonable doubt to the jury. No error.
At the point in the trial when the stipulation was proposed to be published to the jury, Camacho could have, but did not, object. Thus, this element of the crime-quantity — was tried by consent before the jury.
Without further elaboration, I feel that this implied clarification — not a change from one charge to a different one — of the indictment would not rise to the level of an unlawful amendment of the indictment, but was a mere variance of which we may take notice without condemnation. See generally 3 Charles Alan Wright, Federal Practice and Procedure § 516.
I feel that, by consent and agreement, the parties treated the indictment as having charged the elements necessary and suffered the proof of them.
Even so, I cannot see why we are debating whether there was error under these circumstances. What Camacho asserts as error, two of us conclude was harmless error and one of us opines that it was not error at all. The reason we all agree to affirm is not dependent upon error vel non. We affirm because, whatever label we place on the occurrence, Camacho is not entitled to any relief.2
*1292We assume that district judges apprehend, via Apprendi, the need of indictment and proof to the jury, and therefore our need to investigate this sort of claimed error will soon end. We are not undertaking to crystalize a body-of law for future guidance. We should instead just decide cases.3
The panel majority’s finding of harmlessness brings us all together in the correct judgment. The sentence is affirmed.
. If there been no stipulation, and the prosecution had presented evidence of quantity, including chain of custody from seizure to testing, qualifications of those involved in testing, accuracy of the scales used to determine quantity, etc., and Camacho had, without objection, disputed credibility of these witnesses, offered evidence of little weight, etc., a special verdict by the jury that the material was cocaine weighing 39.77 kilograms would have been no more than the equivalent of the stipulation.
. Nearly two decades ago, the Supreme Court dealt with this sort of issue in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 *1292L.Ed.2d 674 (1984), when it reversed this circuit's en banc decision in Washington v. Strickland, 693 F.2d 1243 (11th Cir.1982). Strickland was a death penalty habeas corpus case in which the petitioner alleged that his trial counsel had been inadequate in certain particulars. Our majority en banc opinion wrestled with the issue of whether counsel had been ineffective for having failed in the stated particulars. Id. A dissent found the district judge's approach better; finding that the claimed defective performances by trial counsel to have had no harmful effect upon petitioner’s trial, the district judge found no reason to "grade the paper” of the lawyer. There was no reason to analyze adequacy or inadequacy vel non. Id. at 1288. The Supreme Court found this approach preferable stating "[i]n particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies ... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.
The same reasoning applies here. The panel majority and this separate concurring opinion debate error vel non. Both agree that it makes no difference as Camacho suffered no prejudice. Id. Then, why have I written to support my opinion that there was no error? Hard to say.
. Were we to undertake a cyclopaedia analysis of Apprendi and this case, we might as an academic exercise elaborate on the claimed error, itself. The sentence here does not exceed the maximum available, regardless of quantity of contraband, under § 841(b)(1)(C), however § 841(b)(1)(A) provides for a mandatory minimum sentence not included in (C). So far it appears that six circuits have held that this doesn’t implicate Apprendi at all. See United States v. Robinson, 241 F.3d 115 (1st Cir.2001); United States v. Harris, 243 F.3d 806 (4th Cir.2001); United States v. Keith, 230 F.3d 784 (5th Cir.2000); United States v. Williams, 238 F.3d 871 (7th Cir.2001); United States v. Rodgers, 245 F.3d 961 (7th Cir.2001); United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir.2000); United States v. Rios-Araiza, No. 00-50132, 2001 WL 232631 (9th Cir. Feb. 15, 2001) (unpublished decision). One circuit is to the contrary. See United States v. Ramirez, 242 F.3d 348 (6th Cir.2001); United States v. Flowal, 234 F.3d 932 (6th Cir.2000).
In this case the circuit split is of academic interest. Whether error or not, Camacho's sentence is affirmed.