concurring.
I agree that the district court’s enhancement of defendant’s sentence for crack cocaine should be affirmed. The deficient indictment in this case, however, warrants closer scrutiny of applicable precedent and fuller analysis under the elements of plain error review.
On plain error review, this Court may reverse a decision only if there is an (1) error, (2) that is plain, (3) that affects substantial rights. United States v. Page, 232 F.3d 536, 543 (6th Cir.2000). I would find that defendant’s Apprendi claim satisfies the first two elements of plain error analysis, i.e., that the district court committed an error that was plain. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). A factual finding that a conviction under 21 U.S.C. § 841(a)(1) involved crack, which exposes a defendant to a higher sentencing range under § 841(b), triggers Apprendi requirements. See United States v. Strayhorn, 250 F.3d 462, 470-71 (6th Cir.2001); United States v. Ramirez, 242 F.3d 348, 351 (6th Cir.2001); United States v. Flo*480wal, 234 F.3d 932, 936 (6th Cir.2000). Thus, Apprendi requires that defendant’s possession of crack in this case be proven beyond a reasonable doubt.1
The majority contends that the Flowal line of cases has been limited by United States v. Garcia, 252 F.3d 838 (6th Cir.2001). Garcia found that exposure to a higher sentencing range under Ramirez triggers Apprendi requirements only when the actual sentence is “at the bottom of the higher statutory range,” which would indicate that the sentencing judge felt constrained when sentencing under the mandatory higher range. Garcia, 252 F.3d at 843-44.
I do not read Strayhom, Ramirez, Flowal, and Apprendi as establishing, as Garcia found, that Apprendi safeguards reach a defendant exposed to a higher sentencing range only when defendant’s sentence matches the statutory mandatory minimum. See Strayhorn, 250 F.3d at 469 (Apprendi applies where “ ‘a finding as to the weight of ... drugs determined the [applicable] range of penalties’ ”) (quoting Flowal, 234 F.3d at 936); Ramirez, 242 F.3d at 351 (“moving up the scale of mandatory minimum sentences [under § 841(b)] invokes the full range of constitutional protections [under Apprendi]”); Flowal, 234 F.3d at 937 (Apprendi requirements triggered when defendant was “deprived ... of the opportunity” to receive less than the mandatory minimum sentence under § 841(b)(1)(A)); Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (“ ‘[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.’ ”) (quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)). Unlike Garcia, I do not read Ramirez as requiring an indication of judicial constraint to trigger a defendant’s Fifth, Sixth, and Fourteenth Amendment rights under Apprendi. Such reasoning implies that a judge’s decision to impose a sentence greater than the statutory minimum is also a decision to halt operation of a defendant’s constitutional rights under Apprendi. Regardless, under Strayhom and Flowal, Apprendi requirements apply to a defendant who, as in this case, was deprived of the opportunity to receive less than the mandatory minimum sentence under § 841(b)(1)(A), the applicable sentencing range determined by the factual finding of crack. Therefore, the existence of crack as an element of the offense must be proven beyond a reasonable doubt.
The majority also questions the Flowal line of cases by citing United States v. Hill, 252 F.3d 919 (7th Cir.2001), which criticized Flowal and its progeny in light of McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). McMillan upheld a state statute that exposed defendants to a mandatory minimum sentence upon the finding, by a preponderance of the evidence, that the defendant “visibly possessed a firearm” during the commission of certain enumerated felonies. McMillan, 477 U.S. at 81, 106 S.Ct. 2411. Apprendi limited McMillan “to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict — a limitation identified in the McMillan opinion itself.” Apprendi, 530 U.S. at 487 n. 13, 120 S.Ct. 2348.
*481I would not find the Flowal line of cases invalid under McMillan simply because of McMillan's own self-imposed limitations, which were referenced in Apprendi: McMillan limited itself to a state statutory scheme that “ ‘neither alter[ed] the maximum penalty for the crime committed nor create[d] a separate offense calling for a separate penalty; [instead, the scheme] operate[d] solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it[.]’ ” Apprendi, 530 U.S. at 486, 120 S.Ct. 2348 (quoting McMillan, 477 U.S. at 87-88, 106 S.Ct. 2411). Thus, unlike McMillan, exposing a defendant to § 841(b)(1)(A) does more than limit a sentencing court’s discretion in selecting a penalty within the range already available to it; rather, it empowers a court to consider a sentence of up to life imprisonment. In addition, § 841(b)(1)(A) is itself a separate offense, which calls for a penalty separate from § 841(b)(1)(C). See Flowal, 234 F.3d at 938 (quoting Apprendi, 530 U.S. at 501, 120 S.Ct. 2348) (Thomas, J., concurring). The Ninth Circuit has similarly distinguished McMillan from § 841(b). See United States v. Velasco-Heredia, 249 F.3d 963, 968 (9th Cir.2001). Moreover, Apprendi “reservefd] for another day” the question of whether stare decisis considerations precluded full reconsideration of McMillan. Apprendi, 530 U.S. at 487 n. 13, 120 S.Ct. 2348. Thus, I would find, under the Flowal line of cases, that Ap-prendi requirements apply to defendant’s possession of crack in this case, notwithstanding McMillan and Garcia.
Unlike the majority, I would not apply United States v. Pruitt, 156 F.3d 638, 648 (6th Cir.1998), to establish that defendant expressly admitted, by failing to object to the findings of the presentence report, that the cocaine involved was crack. The indictment in Pruitt, as well as the indictments in the case relied on by Pruitt, United States v. Nesbitt, 90 F.3d 164 (6th Cir.1996), included specific drug quantities and/or types. The indictment in this case included neither drug quantity nor drug type, failing to reference “crack”, or even '“cocaine base”.2 Because defendant was only charged with possessing an undetermined amount of cocaine, I would not infer from defendant’s failure to object to the findings of .the presentence report that defendant “ ‘expressly agreed that he should be held accountable’ ” for 235.42 grams of crack. Pruitt, 156 F.3d at 648 (quoting Nesbitt, 90 F.3d at 168).3 Accordingly, because the presentence report does *482not resolve the reasonable doubt issue in this case, I would find an Apprendi error under Strayhorn, Ramirez and Flowal.
In addition, I would not apply United States v. Duarte, 246 F.3d 56, 62 (1st Cir.2001), to the substantial rights analysis in this case. Defendant’s sentence in Duarte, unlike this case, exceeded the default statutory maximum. Duarte, 246 F.3d at 59. Nevertheless, the court in Duarte found that “the proof of [defendant’s] complicity in distributing more than 1,000 kilograms of marijuana is so overwhelming that his substantial rights could not have been affected by sentencing him based on that quantity.” Id. at 62. In contrast, there is no overwhelming evidence of crack in this case.4 Defendant’s plea agreement referenced cocaine base, not crack, and the relevant physical evidence has been destroyed.5
Nevertheless, I concur given the authority of United States v. Pease, 240 F.3d 938 (11th Cir.2001). In Pease, the Eleventh Circuit found that the first two elements of plain error review, an (1) error, that was (2) plain, were satisfied by the Apprendi violation arising from defendant’s conviction. Id. at 944. Although the error in Pease was tied to the indictment’s failure to include drug quantity, a requirement which this Court, according to the majority, has not yet expressly incorporated under Apprendi,6 an error, that was plain, *483may nevertheless be found under Stray-horn, Ramirez, and Flowal, as noted above. Accordingly, I depart from the majority’s conclusion that the district court committed no error in this case, “plain or otherwise.”7 However, I join the majority’s ultimate finding that because defendant’s sentence did not exceed the statutory maximum for the quantity of cocaine to which he clearly stipulated, the sentence did not affect substantial rights under Pease.8
Defendant’s plain error claim, however, extends beyond Apprendi Defendant argues generally that the government failed to meet its burden to show, even by a mere preponderance of the evidence, that the form of cocaine involved was crack. When considering this claim, we should again hesitate to apply precedent, as noted above when considering Pruitt, which did not involve government failure to include drug quantity or type in the indictment.
Courts regularly look to the indictment when considering whether the government has met its burden to prove that the form of cocaine involved was crack. In particular, this Court, in United States v. Williams, 176 F.3d 301, 309 (6th Cir.1999), found that the district court did not corn-mit plain error when enhancing a sentence for crack where “crack” had been included in the indictment, used at the plea hearing, and included in the uncontested facts of the presentence report. Thus, the only relevant distinction between this case and Williams is that “crack”, indeed “cocaine base”, was not mentioned in the indictment. Nevertheless, the question of whether including “crack” in the indictment was essential to the holding of Williams does not seem to concern the majority.9 The Third Circuit has also highlighted the need to include “crack” in the indictment for enhancement purposes: (“[T]he problem [for the government in proving crack] arises because the indictment, the defendant, and the court at the plea colloquy speak in terms of cocaine base [rather than crack].”). United States v. James, 78 F.3d 851, 856 (3d Cir.1996). The indictment in United States v. Washington 115 F.3d 1008, 1009 (D.C.Cir.1997), a case relied on by the majority, included specific quantities of cocaine base, as well as reference to the applicable sentencing provisions under §§ 841(b)(1)(A) and (B).
Pruitt, Williams, and Washington are distinguishable because the indictments in *484those cases included drug quantities and/or types. I would affirm only under Pease, which cannot be distinguished by reference to the deficient indictment in this case, and which, unlike Duarte, did not base its substantial rights analysis on “overwhelming” proof of drug quantity. Thus, under Pease, the Apprendi error in this case, that defendant was sentenced under § 841(b)(1)(A) even though crack had not been proven beyond a reasonable doubt, nevertheless did not affect substantial rights.
I also depart from the majority’s position that failure to include crack in the indictment or plea agreement may be cured if otherwise inapplicable sentencing ranges are provided in the plea agreement and at the plea hearing. “ ‘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.’ ” Russell v. United States, 369 U.S. 749, 771, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (quoting Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960)). Drug quantity is an element of a § 841(b)(1)(A) offense which must be included in the indictment and proven beyond a reasonable doubt. Strayhorn, 250 F.3d at 467-68. As a corollary, I would not find that recitation of a sentencing range for murder in a plea agreement or at a plea hearing empowers a court to sentence for murder where defendant was only charged with, and expressly pleaded to, manslaughter. I would find error in this case and affirm only under Pease.
. The total amount of cocaine chargeable to defendant, in any form, was 249.90 grams, which would fall under the penalty range of zero to twenty years of imprisonment set forth in § 841(b)(1)(C). However, the 100:1 enhancement for crack exposed defendant to the penalty range of imprisonment for ten years to life set forth in § 841(b)(1)(A).
. The indictment charged, in relevant part, as follows: "defendant ... did knowingly and intentionally possess with intent to distribute cocaine, a Schedule II controlled substance as defined by Title 21, United States Code, Section 812. In violation of Title 21, United States Code, Section 841(a)(1).” (J.A. at 5.)
. The majority contends that the indictment distinctions between this case and Pruitt are irrelevant as to whether defendant expressly admitted to possessing 235.42 grams of crack. The indictment in Pruitt included drug type, and may or may not have included drug quantity. Pruitt, 156 F.3d at 642. The indictment in Nesbitt included drug type and quantity, as well as reference to § 841(b)(1)(A). Nesbitt, 90 F.3d at 166. I would not seize upon the possibility that the Pruitt indictment failed to include drug quantity to infer an express admission of crack in this case. Whether or not Strayhorn has settled the indictment issue under Apprendi, this Court has repeatedly found that drug weight is an element of an offense under § 841(b)(1)(A). See Strayhorn, 250 F.3d at 468; Ramirez, 242 F.3d at 351-52; Flowal, 234 F.3d at 938. When the indictment, the plea agreement, and the court, in carrying out its obligation under Fed. R.Crim. Pro. 11 to inform the defendant of the nature of the charge to which he is pleading guilty, fail to mention both the relevant offense, § 841(b)(1)(A), and the determinative element of that offense, crack, I would not find that defendant expressly admitted to 235.42 grams of crack, falling under § 841(b)(1)(A).
. Similarly, I would not apply United States v. Harper, 246 F.3d 520, 530 (6th Cir.2001), to this case, because defendant in Harper, unlike defendant in this case, clearly stipulated to a drug quantity falling under § 841(b)(1)(B), which provided the range within which he was sentenced.
. "[T]he definition of 'cocaine base' ... makes it clear that only the 'crack' form of cocaine base should receive the 100:1 sentencing enhancement under § 2D 1.1 [of the sentencing guidelines] for 'cocaine base.'" United States v. Jones, 159 F.3d 969, 982 (6th Cir.1998).
. The majority contends that this Court, unlike several of our sister circuits, has not yet "squarely addressed” whether Apprendi requirements include listing drug quantities in an indictment. I would find that Strayhom squarely addressed this issue. “Already, we have held, pursuant to Apprendi, that the government must name in the indictment the quantity of drugs for which it seeks to hold the defendant responsible under 21 U.S.C. § 841(a)[,]” Strayhorn, 250 F.3d at 467-68 (citing Ramirez, 242 F.3d 348; Flowal, 234 F.3d at 938). Specifically, drug weight is an element of a § 841(b)(1)(A) offense. See Strayhorn, 250 F.3d at 468. Under Strayhom, I would find error where a defendant, whose indictment did not include drug quantity, was sentenced under § 841(b)(1)(A).
Indeed, the position that Strayhom left the indictment issue for another day departs from my understanding of stare decisis. The relevant indictment language in Strayhorn, quoted above, is undeniably direct. Moreover, language in Harper, Ramirez, and Flowal clearly anticipated Strayhom: See Harper, 246 F.3d at 530 ("[defendant's] Apprendi argument clearly would have merit if the indictment failed to charge him with conspiracy to distribute a specific quantity of drugs[,]"); Ramirez, 242 F.3d at 352 (“Because in this case the government did not charge [in the indictment] or attempt to prove to the jury a quantity of drugs that would permit a mandatory sentence, we remand[,]”); Flowal, 234 F.3d at 936 (noting that the Supreme Court, in Jones, 526 U.S. at 243 n. 6, 119 S.Ct. 1215, "announce[d] the principle that became law in Apprendi: 'any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.' ”).
In support of its position that Strayhom did not squarely address the indictment issue, the majority cites a string of cases that preceded Strayhorn, claiming that the cases are "irreconcilable” with the position that Strayhorn answered the indictment question. This reasoning, of course, would render any decision that included the indictment within Apprendi requirements irreconcilable with earlier precedent, and predetermines the answer to a question that the majority purports to save for another day. The one case subsequent to Strayhom, Garcia, denied defendant's claim *483regarding an indictment’s failure to include drug quantity without, remarkably, citing Strayhom. However, the Garcia decision was reached only "[t]o the extent we understand [the indictment] claim,” and ultimately on plain error grounds that a deficient indictment would not have affected substantial rights. Garcia, 252 F.3d 838, 844. My concurrence in this case implies that I would also not find that an indictment’s failure to include drug quantity affected substantial rights on plain error review.
. To clarify, whether or not Apprendi requires drug amounts to be included in an indictment to expose a defendant to a higher sentencing range under § 841(b), an indictment that charges only cocaine casts doubt on defendant's subsequent "express admission” of possessing crack under Pruitt and Nesbitt.
. As discussed by the majority, defendant clearly stipulated to possessing over 249.90 grams of cocaine, some of which may have been crack. Defendant's sentence of 188 months of imprisonment does not exceed the statutory maximum of twenty years of imprisonment under § 841(b)(1)(C), applicable to cocaine amounts under 500 grams.
. Williams relied on an unpublished case involving nearly identical facts, United States v. West, No. 96-3595, 1997 WL 640133 (6th Cir. Oct. 15, 1997), which relied primarily on the inclusion of "crack” in the indictment, with only supplemental reference to the inclusion of "crack” in the uncontested presentence report.