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, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), Jones v. *169United, States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000), on the one hand, and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), on the other, outright substituting Apprendi's constitutional analysis (and a mistaken understanding of that analysis, at that) for the statutory 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 unknowingly 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, compare McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), with Apprendi, 530 U.S. at 487 n. 13, 120 S.Ct. 2348, 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 aicthorized for the statutory offense. And. the holdings of Almendarez-Torres, Jones, and Castillo — that 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 Appren-di, except to the extent that the finding of a legislatively-defined sentencing 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 legislature, subject only to constitutional"limitations, see, e.g., Staples v. United States, 511 U.S. 600, 604, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (“[T]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute.” (quoting Liparota v. United States, 471 U.S. 419, 424, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985))), I would hold without any hesitation whatsoever that Congress’ manifest 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 counterfeit 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 punishment authorized by the jury’s verdict of guilt of a section 841 offense, is life imprisonment, plus fine, with the actual sentence imposed dependent upon judicial findings *170of 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 commission 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 statutory 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 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 interpretation 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 conclusions, 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 colleagues were the issue addressed, I believe that, based upon conventional 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 concluding that the facts at issue in those cases were intended by the legislature to be elements rather than sentencing factors, or at least for concluding, as in Jones, that there was sufficient question as to congressional 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 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, 118 S.Ct. 1219 (“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, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947))). That conduct is, *171and 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 dispense, such substance.
Second, Congress expressly distinguished the conduct that it criminalized 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 conduct 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 233-34,119 S.Ct. 1215.
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 unambiguously 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 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)(l)(D)(4) (“[A]ny person %oho violates subsection (a) of this section by distributing ... shall be treated as provided in ....”) (emphasis added); § 841(b)(l)(D)(5) (“Any person who violates subsection (a) of this section by cultivating a controlled substance on Federal property shall be imprisoned as provided ....”) (emphasis added); § 841(b)(l)(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 interrelationship between the conduct in section 841(a) and the facts in section 841(b) is that between criminal offense and sentence when it introduced section 841(b) with the command that “any person who violates 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 confirm 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, *172not elements of the statutory offenses.1 In this respect, section 841 is as close as possible to. a “statute[ ] [that] comes with the benefit of provisions straightforwardly addressing the distinction between elements and sentencing factors.” Jones, 526 U.S. at 232, 119 S.Ct. 1215 (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, 119 S.Ct. 1215 (emphasis added), which section 841 is not, were there any ambiguity in the text and structure of the section as to this congressional intent, the ambiguity would have to be resolved in favor of the very same conclusion by virtue of the practice, 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, 119 S.Ct. 1215 .(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, 118 S.Ct. 1219 (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, 120 S.Ct. 2090 (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 century, drug quantity, if not drug type also, has uniformly been considered 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 section 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 a reliable guide to congressional intentions.” Jones, 526 U.S. at 233, 119 S.Ct. 1215. For the reasons identified above, however, section 841 not only has far more of the “look” of a statute that defines its offenses in subsection (a) and then provides only penalties in subsection (b) than did section 2119, cf. id., section 841 by all appearances is such a statute.
*173More importantly, though, section 841(a), which, like section 2119, “begins with a principal paragraph listing a series of obvious elements,” does not merely “comet ] close to standing on its own,” as did section 2119, id. at 232, 119 S.Ct. 1215; it does stand on its own. Not only does section 841(a), unlike section 2119, stand alone as a grammatically complete sentence, but, unlike section 2119, it also stands alone as a substantive sentence. It does not “merely describe some very obnoxious behavior, leaving any reader assuming that it must be a crime, but never being actually told that it is,” id. at 233, 119 S.Ct. 1215 (describing opening paragraph of section 2119); it describes the “obnoxious” conduct and “complete^] 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, 119 S.Ct. 1215 (citations omitted).
In short, whereas text and structure “[did] not justify any confident inference,” id. at 234, 119 S.Ct. 1215, about Congress’ intent whether “serious bodily injury” was an element of the section 2119 offense or merely a sentencing factor, just the opposite is the case with section 841. Congress’ 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 quantity (and perhaps type also) is, as noted, fully consistent with the “traditional treatment,” id., of these facts. Unlike the section 2119 fact of “serious bodily injury” at issue in Jones, which Congress had “unmistakably identified [ ] as an offense element in any number of statutes,” id. at 235, the fact of drug quantity, like the fact of recidivism in Almenda-rez-Torres, has seldom (if ever) in recent history explicitly been identified by Congress as an offense element.
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, Castillo, 530 U.S. at 124, 120 S.Ct. 2090, the literal language of section 841 is not, for the reasons discussed above, at all neutral as to the intended treatment 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 separated into subsections,” id. at 125, 120 S.Ct. 2090, 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 statutory provisions, and the former in a self-contained, offense-defining sentence. Moreover, unlike section 924(c)(1), in which the first sentence, which *174included the undisputed elements of the offense, was followed 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 “ma-chinegun” referenced in the first sentence was an element also, section 841’s inviolate 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 “suggested] 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 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 “penalties” 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 section 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 restruetur-ing[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 Castillo with respect to section 924(c) that “courts have typically or traditionally used firearm types (such as ‘shotgun’ or ‘machinegun’) as sentencing factors,” id. at 126, 120 S.Ct. 2090, 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 congressional 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, 120 S.Ct. 2090 (noting that a requirement that the jury decide whether the firearm was a machine-gun 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 as a matter of statutory *175construction. 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 requirement — 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, “[historically, 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 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 quantity); 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. Delano, 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. Jen*176kins, 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. Nomnandeau, 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
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 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, 531 U.S. 953, 121 S.Ct. 376, 148 L.Ed.2d 290 (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, 531 U.S. 1062, 121 S.Ct. 749, 148 L.Ed.2d 653 (2001), reh’g en banc granted, 248 F.3d 76, 2000 WL 33281680 (Apr. 20, 2001); United States v. Rios-Quintero, 204 F.3d 214 (5th Cir.), cert, denied, 531 U.S. 925, 121 S.Ct. 301, 148 L.Ed.2d 242 (2000); United States v. Swiney, 203 F.3d 397, 404 n. 5 (6th Cir.), cert. denied, 530 U.S. 1238, 120 S.Ct. 2678, 147 L.Ed.2d 288 (2000); United States v. Hester, 199 F.3d 1287, 1292 (11th Cir.), vacated and remanded for further consideration in light of Apprendi, 531 U.S. 941, 121 S.Ct. 336, 148 L.Ed.2d 270 (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, 120 S.Ct. 2739, 147 L.Ed.2d 1002 (2000); United States v. Williams, 194 F.3d 100, 106-07 (D.C.Cir. 1999), cert, denied — U.S. —, 121 S.Ct. 1156, 148 L.Ed.2d 1017 (2001).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 *177States 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 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 preponderance of the evidence standard. We have maintained this holding 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 language 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 Ap-prendi, 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 Appren-di’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 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 misunderstood Appren-di’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 Ap-prendi in this way is evidenced by their failure even to undertake a statutory analysis of the kind prescribed in Almendarez-Torres, Jones, and Castillo to determine the maximum statutory punishment for the offenses defined in section 841, an analysis which would, consistent with their prior holdings that drug quantity and type are not elements of the section 841 offenses, dictate a conclusion that the maximum punishment authorized for commission of the section 841 offenses is life. Rather, they in effect reason backwards from the *178fact 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 punishment 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 sentencing 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 provision.
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 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 section 811, the court concluded:
In effect, the jury verdict convicted [Rogers] only of manufacturing, possessing, or distributing an undetermined quantity 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 section 841(b)(1)(C), which provides punishment for conviction 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 ‘inerease[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 marijuana 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 Nord-by’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 maximum 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 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 sentence imposed.... The jury merely found that defendants conspired to distribute and possess to distribute some *179undetermined amount of crack cocaine. As such, defendants cannot 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 152-53 (Wilkins, J.) (“[BJecause the indictment that charged Promise did not allege a specific threshold quantity of cocaine or cocaine base and the jury did not make a finding regarding whether the offense involved'such a quantity, Promise’s conviction subjected him to a maximum penalty of 20 years imprisonment.” (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 sentence 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 congressional intent; Congress1 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 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 Congress unarm biguously intended that the section 841 offenses are defined in their entirety in section 841(a), it remains for me only to determine the eongressionally-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 imposition 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 *180841, I appreciate that I am brought foursquare to the constitutional question, lurking in the Supreme Court’s majority opinions 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 ivithin the range of punishments authorized by statute — must be charged in the indictment and proven to the jury beyond a reasonable doubt. See, e.g., Apprendi, 530 U.S. at 498-99, 120 S.Ct. 2348 (Scalia, J., concurring) (“What ultimately 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, 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, 120 S.Ct. 2348 (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, 119 S.Ct. 1215 (Stevens, J., concurring) (“Indeed, in my view, a proper understanding of this principle [of due process on which the Court’s prior eases 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 different 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 McMillan 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. 13,120 S.Ct. 2348.
To believe otherwise, i.e., that this is the issue actually decided by the Court in Ap-prendi, as I believe my colleagues on this and other courts believe, is simply to confuse the Supreme Court’s decisions in Al-mendarez-Torres, Jones, and Castillo, on the one hand, and its decision in Apprendi on the other. Even post-Apprendi, the Court’s decisions in Almendarez-Torres, Jones, and Castillo remain sound and controlling precedents, as to whether, as a matter of statutory interpretation, 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 interpretation such as analysis of text, structure, context, tradition, and legislative history. The Court in Apprendi addressed the entirely different, 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 *181an 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 legislature 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 challenged 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 Ap-prendi received a punishment greater than that authorized by the jury’s verdict.) Consequently,' 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 matter, irrelevant that a particular fact will increase a defendant’s sentence — 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 sentence 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 unmistakably 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, 119 S.Ct. 1215 (Stevens, J., concurring). Indeed, despite assurances that its holding is quite narrow,4 it is even plain that the 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 However, it is equally *182clear 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 decisis effect accorded the Court’s prior decisions in McMillan v. Pennsylvania, 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 permitted, 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. Promise, the Department of Justice apprised its attorneys that they may, but 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 sentencing 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 Almen*183darez-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 government 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 maximum 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 section 841 is indeed life imprisonment:
Counsel: I think that there is an argument in just the way the statute has been written out to say that the offense is contained 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 notv 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 imprisonment. But as a drug prosecutor for so many years, I — looking at the way the statute toas phrased and where it was written by Congress — I don’t see tvhere the argument is that they ivere saying all drug offenses are twenty years except for fifty grams of crack, which is a small amount ivhich 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 minimum 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 hoiv do you understand it?
Counsel: I, well ...
Court: Piece by piece, hoiv ivould you construct that argument for the opposite position?
Counsel: Um, I would say ... well, your honor, you knoiv, in all, in all ... Court: You really can’t.
*184Counsel: 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 811 (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 discussion back and forth between the Narcotics Section of Main Justice, and much discussion within each U.S. Attorney’s Office about this particular argument. But we’ve basically 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 representation 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 representing 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 vieio 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 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 statutoi'y maximum 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, Appellate 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 reasonable doubt, the United States now takes the novel position *185that 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, 120 S.Ct. 2348, with a fact that increases a sentence, but only within the range of punishments authorized by the legislature. And as if this position were not untenable enough, the United States assures us that, even though this “non-element” must be proven 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 argument before the Supreme Court. Either facts that affect the sentence a defendant receives are elements or they are not; they are not elements 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, 120 S.Ct. 2090 (“The question before us is whether Congress intended the statutory references to particular firearm types in § 924(c)(1) to define a separate crime or simply to authorize 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, 119 S.Ct. 1215 (“Much turns on the determination that a fact is an element of an offense rather than a sentencing 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 consequence 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 penalties for violations of Section 841(a)(1), authorizes increased maximum 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 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 congressional 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 *186offense of unlawful manufacture or distribution of a controlled 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 Congress’ intent with regard to drug quantity and type, or as to the effective 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 interpretation 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.
. 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 legislative 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. 98-225, at 255 (1983), U.S. Code Cong. & Admin. News at 3182, 3437; and Chapman v. United States, 500 U.S. 453, 461, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) (noting that the Comprehensive Crime Control Act of 1984 “made punishment dependent upon the quantity of the controlled substance involved”)).
. 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 quantity); 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).
. 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).
. See, e.g., Apprendi, 530 U.S. at 474, 120 S.Ct. 2348 (characterizing as "narrow” the issue before the Court); id. at 481, 120 S.Ct. 2348 ("We should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute.”); id. at 484 n. 19, 120 S.Ct. 2348 ("This is not to suggest that the term 'sentencing factor’ is devoid of meaning. The term appropriately describes a circumstance ... 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, 120 S.Ct. 23.48 ("The historic link between verdict and judgment and the consistent limitation on judges' discretion to operate within the limits of the legal penalties provided highlight the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, .exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.”) (footnote omitted).
. See, e.g., Apprendi, 530 U.S. at 469, 120 S.Ct. 2348 ("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, 120 S.Ct. 2348 ("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, 120 S.Ct. 2348 ("Since [In re] Winship [397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)7 we have made clear beyond peradventure that Win-*182ship'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, 120 S.Ct. 2348 ("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. T3, 120 S.Ct. 2348 ("[W]e reserve[d] for another day the question whether stare decisis considerations preclude reconsideration of [McMillan’s] narrower holding.”); id. at 489, 120 S.Ct. 2348 ("Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested ....”); id. at 494, 120 S.Ct. 2348 (characterizing as "constitutionally novel and elusive” the "distinction between 'elements’ and ‘sentencing factors' ”); id. at 495, 120 S.Ct. 2348 ("When a judge’s finding based on a mere preponderance of the evidence authorizes an increase in the maximum punishment, it is appropriately characterized as 'a tail which wags the dog of the substantive offense.' ”) (citation omitted).
. 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 affectfs] substantial rights” and “seriously 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 substantial 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.”).