specially concurring,
in which WILSON, Circuit Judge, joins:It is obvious from the start that there is no Apprendi error in this case. Because the Sanchezes’ sentences did not exceed the twenty-year maximum sentence prescribed by 21 U.S.C. § 841(b)(1)(C), Ap-prendi simply does not apply. Likewise, there is no error under this circuit’s post-Apprendi cases, United States v. Rogers, 228 F.3d 1318 (11th Cir.2000), and United States v. Camacho, 248 F.3d 1286 (11th *1290Cir.2001), because the mandatory minimums of neither section 841(b)(1)(A) nor (B) constrained the district court’s sentencing discretion provided by the sentencing guidelines. Hence, further discussion is unnecessary.1
Yet, the court commences to canvass every issue that could possibly arise out of a potential Apprendi error, and, in the process, composes a treatise of dicta that compromises this circuit’s commitment to the policies established by Apprendi. The majority, for instance, misinterprets Rogers ’ holding that drug quantity must be charged in the indictment when a court utilizes sections 841(b)(1)(A) or (B), and then sets about overruling it. Likewise, the court disavows Camacho after finding it inconsistent with McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986); yet, a closer reading of Camacho reveals it to be entirely consistent with McMillan and a significant decision in this circuit’s application of Appren-di to section 841(a) cases. Overruling these two cases undermines the progress of our post-Apprendi decisions and, because it is accomplished through dicta, creates a blurring array of contradictions through which trial court judges and practitioners must now sift. Not content to confine its decision to this dictum, the majority continues by tackling the task of deciding whether an Apprendi error, when it actually occurs, is jurisdictional and reversible per se or is, instead, subject to harmless or plain error analyses under Rule 52(a) or (b) of the Federal Rules of Criminal Procedure.2 Again, though the question is interesting, our task as judges is to decide the issues this appeal actually presents.
Anxious though it may be to establish a hornbook on Apprendi errors, the majority simply chose the wrong case as its vehicle, a decision which is both unfortunate and counterproductive. Dicta, especially erroneous dicta, creates a potential for mischief. “For the layperson, as well as for judges, confusion about the state of the law most often comes about by confusing the holding of a case with the dicta in the opinion.” Denno v. School Bd. of Volusia County, 218 F.3d 1267, 1280 (11th Cir.2000) (Forrester, J., concurring in part, dissenting in part) (emphasis in original). Faced with the majority’s opinion here and the earlier decisions it seeks to disavow, a trial judge or practitioner sits in an unenviable position in discerning our law. Our own court will face uncertainty; in analyzing any question answered by dictum, “we are ‘free to give that question fresh consideration.’” United States v. Hunter, 172 F.3d 1307, 1310 (11th Cir.1999) (Carnes, J., concurring) (quoting Great Lakes Dredge & Dock Co. v. Tanker Robert Watt Miller, 957 F.2d 1575, 1578 (11th Cir.1992)).
While I agree that the Sanehezes’ convictions and sentences should be affirmed, and therefore concur in the court’s judgment, I write separately to eliminate the confusion our decision may cause district judges and the lawyers who litigate drug cases. I begin in part I with a brief *1291recitation of the facts and procedural history leading up to this appeal. -I then explain in part II why Apprendi does not apply in this case and assert, moreover, that discussion of Rogers is entirely irrelevant. Rogers is irrelevant because the defendant there, unlike the Sanchezes, who pled guilty, stood on his not guilty plea and was tried by a jury. Putting this disposi-tive distinction aside, to address the majority’s disavowing of Rogers, I also explain in part II the proper interpretation of that decision and its importance in our caselaw. In part III, I turn to respond more fully to Judge Barkett’s argument that Apprendi errors are jurisdictional. In short, I believe that a closer look at Apprendi reveals the Supreme Court’s true concerns: that the defendant receive notice of the enhanced sentence and that the enhanced sentence be rehable. Two conclusions necessarily follow from this observation. First, when these two concerns are not alleviated, the error is not jurisdietionally fatal; in fact, analyzing the error under harmless or plain error analysis best fulfills the Apprendi Court’s mantra. I set out in part IV the second conclusion: as long as the defendant receives notice and a reliable sentence, then there is no Appren-di error. I then describe the various scenarios in which Apprendi errors arise and the sound approach in analyzing each one.
I.
Appellants Ignasio Sanchez and Santiago Sanchez were indicted, along with four others, for conspiring knowingly and intentionally to possess with intent to distribute methamphetamine and amphetamine, in violation of 21 U.S.C. §§ 841(a) and 846.3 The indictment did not include a specific drug quantity. Ignasio Sanchez subsequently moved to dismiss the indictment for “failure to allege facts that increase the maximum penalty,” arguing that “Jones [v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 1224 n. 6, 143 L.Ed.2d 311 (1999) ], clearly holds that the Constitution requires an indictment to allege ‘any fact (other than prior conviction) that increases the maximum penalty for a crime.’ ” Santiago Sanchez later adopted Ignasio’s motion. After the district court denied both motions, the defendants pled guilty conditioned on the right to appeal the court’s denial.4
The initial pre-sentence investigation reports (“PSIs”) recommended that the San-chezes be found responsible for various drug quantities of methamphetamine and amphetamine. Following objections from both the Government and the appellants, the reports were revised and the drug quantities were lowered. In the final PSIs, Santiago Sanchez was held accountable for 24,494.4 grams of amphetamine, 907.2 grams of methamphetamine, and 3.54 grams of cocaine, and Ignasio Sanchez was held responsible for 18,144 grams of amphetamine, 907.2 grams of methamphetamine, and 4,536 grams of marijuana. As the majority notes, the PSIs then converted these drug quantities into amounts of marijuana, according to the drug equivalency tables of the sentencing guidelines. For Santiago,' this yielded an equivalency of 6,713.99 kilograms of marijuana; for *1292Ignasio, the total was 5,447.74 kilograms of marijuana. Then, without citing any penal provision in 21 U.S.C. § 841(b), the reports stated that the “Statutory Penalty” for each defendant was “5 to 40 years.”5
The Sanchezes were sentenced at the conclusion of the second of two sentencing hearings. At the first hearing, after the court denied the Sanchezes’ renewed motion to dismiss the indictment (for failure to allege drug quantity), the prosecutor streamlined the drug transactions listed in the PSIs into essentially three categories. The first category included one significant drug transaction, one to which Santiago Sanchez never objected, that occurred at a Stone Mountain motel in June 1998 and involved 907.2 grams of methamphetamine.6 In the second category, the prosecutor described several transactions between the Sanchezes and a woman named C.J. Franks, which, according to the prosecutor, yielded approximately 2,718 grams of amphetamine. Finally, the prosecutor reported a third category of transactions involving the Sanchezes and a man named Kenneth Kish Green, which totaled 2,718 grams of amphetamine. While the San-chezes did not withdraw their objections to the initial PSIs, they both conceded that the prosecutor’s revision of the drug quan-titles had “the same effect on [their] sentencing guidelines as if [they had] won all of [their] objections.” Then, based on these three categories of transactions, the district court found by a preponderance of the evidence that the Sanchezes should be held responsible for 907.2 grams of methamphetamine and 5,436 grams of amphetamine, which together yielded a marijuana equivalency of 2,908.04 kilograms. Under the sentencing guidelines, the district court concluded, these drug quantities resulted in a base offense level of 32. At this first sentencing hearing, the San-chezes made an oral motion for a downward departure from the applicable guidelines range based on the prison conditions at the Atlanta Pretrial Detention Center. The court deferred ruling on the motion.
At the second sentencing hearing, the court denied the motion for the downward departure, finding that the conditions at the Atlanta Pretrial Detention Center were not “so atypical as to justify the highly infrequent exercise of a downward departure.” The court then noted that its sentencing option in this case was a mandatory minimum of five years and a maximum of forty years imprisonment, thus describing, but not citing, the statutory provision of section 841(b)(1)(B).7 Using *1293the sentencing guidelines, the drug amounts described in the first sentencing hearing, and other adjustments, the court then announced a guideline range of 87 to 108 months for Ignasio Sanchez and 108 to 135 months for Santiago Sanchez.8 The court then settled on the lower end of the guideline range for each defendant, taking into account the offensive conditions at the Atlanta Pretrial Detention Center, and sentenced Ignasio Sanchez to 87 months’ imprisonment and Santiago Sanchez to 108 months’ imprisonment.9 This appeal followed.
II.
The Sanehezes contend that the district court should have dismissed their indictment for failing to allege drug quantity. As I see it, they appear to advance two arguments. First, the Sanehezes assert that because drug quantity determines the range of punishment in a case prosecuted under 21 U.S.C. §§ 841(a) and 846, the Supreme Court’s decision in Apprendi requires quantity to be treated as an element. Second, noting that the district court believed that 21 U.S.C. § 841(b)(1)(B) prescribed their maximum and minimum sentences, the Sanehezes argue that drug quantity should have been alleged in the indictment and proven beyond a reasonable doubt under both Ap-prendi and Rogers.
Because the Sanchezes properly preserved this issue for appeal, the majority is correct in applying a de novo standard of review to their arguments. United States v. Candelario, 240 F.3d 1300, 1306-07 (11th Cir.2001).10
1.
The Sanehezes’ first argument, that the Supreme Court’s decision in Apprendi requires quantity to be treated as an element of any 21 U.S.C. § 841(a) offense, may be disposed of quickly. In Apprendi, the Supreme Court held that, “[o]ther than the *1294fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. As the majority correctly notes, in applying the rule of Apprendi to 21 U.S.C. § 841, this circuit has held in case after case that the rule of Apprendi does not apply to cases in which the ultimate sentence is no greater than the twenty-year maximum set out in section 841(b)(1)(C).11 See, e.g., Rogers, 228 F.3d at 1327; see also United States v. Gallego, 247 F.3d 1191, 1197 (11th Cir.2001); United States v. Gerrow, 232 F.3d 831, 834 (11th Cir.2000); United States v. Nealy, 232 F.3d 825, 829 (11th Cir.2000); United States v. Shepard, 235 F.3d 1295, 1296-97 (11th Cir.2000). That is to say, we have treated section 841(b)(1)(C) as the “catch-all [penalty] provision” of 'section 841(b) because under that section, a defendant may be sentenced up to a maximum of twenty years without regard to any drug quantity. Rogers, 228 F.3d at 1327, n. 15. Hence, if a defendant is sentenced under section 841(b)(1)(C) to a term no greater than twenty years, there is no Apprendi error. See, e.g., Rogers, 228 F.3d at 1327; see also Gallego, 247 F.3d at 1197; United States v. Pease, 240 F.3d 938, 943-44 (11th Cir.2001); Gerrow, 232 F.3d at 834; Nealy, 232 F.3d at 829; Shepard, 235 F.3d at 1296-97.
Therefore, I contend that the rule of Apprendi does not apply here, because the Sanchezes’ ultimate sentences did not exceed the twenty-year maximum of section 841(b)(1)(C).
2.
The Sanchezes persist, however, arguing that even though their sentences did not exceed section 841(b)(l)(C)’s maximum, they were imposed under section 841(b)(1)(B) because the district court, at the second sentencing hearing, referred to and felt limited by that section. Specifically, the Sanchezes argue that by mentioning section 841(b)(1)(B), the district court exposed the defendants to a possible prison term higher than the maximum penalty set out in section 841(b)(1)(C). Therefore, the Sanchezes assert, Apprendi requires that drug quantity be treated as an essential element of their offense and that, under Rogers, the quantity be charged in the indictment. It is this latter argument that most confuses the majority and leads unnecessarily to the dicta regarding Rogers and United States v. Camacho, 248 F.3d 1286 (11th Cir.2001). Before addressing the Sanchezes’ alleged Rogers ’ error, however, I review briefly the decisions disposing of the Sanchezes’ supposed Apprendi error.
Bared to their essentials, these cases hold that there is no Apprendi error as long as the defendant’s sentence does not exceed the twenty-year maximum of section 841(b)(1)(C), no matter what the district court said or found during sentencing. Although I concur with the majority in its *1295treatment of the alleged Apprendi error, I believe it is important to show that our precedents, standing independent of Rogers, have long held that mere references to or rebanee on sections 841(b)(1)(A) or 841(b)(1)(B) do not create error under Ap-prendi.12 In United States v. Gerrow, 232 F.3d 831 (11th Cir.2000), for example, two defendants were tried and convicted under sections 841(a)(1) and 846 without regard to drug quantity. See id. at 833. At their sentencing hearing, the district court determined drug quantities for each and then sentenced them under the sentencing guidelines to terms well under the twenty-year maximum of section 841(b)(1)(C). See id. at 834. We found no error, plain or otherwise, under Apprendi because the terms of imprisonment did not exceed the statutory maximum set forth in section 841(b)(1)(C). See id. Moreover, in United States v. Gallego, 247 F.3d 1191 (11th Cir.2001), one of the defendants was charged in an indictment that did not include drug quantity and was tried and convicted under section 841(a)(1). See id. at 1194 n. 3. The district court sentenced this defendant under the sentencing guidelines to 168 months imprisonment, and we held that there was no Apprendi error because the sentence fell within the statutory maximum of section 841(b)(1)(C). See id. at 1197. Likewise, in Rogers, Nealy, Pease, Candelario, and Wims, this court found sentencing errors under Apprendi only because the lower courts had sentenced defendants to terms over the twenty-year maximum of section 841(b)(1)(C), meaning that the district courts had necessarily employed either section 841(b)(1)(A) or section 841(b)(1)(B) without properly treating drug quantity as an element.
In only one case has this court intimated that there could be an Apprendi error for not treating drug quantity as an element even when the defendant’s sentence did not exceed the twenty-year maximum of section 841(b)(1)(C). In United States v. Shepard, 235 F.3d 1295 (11th Cir.2000), although no drug quantity was alleged in the indictment, the district court “sentenced] [the defendant] under section 841(b)(1)(B)” for possessing the requisite drug quantity13 to 188 months imprisonment. Id. at 1296. On appeal, we found this to be an error under Apprendi because the “[defendant’s] sentence was controlled by section 841(b)(1)(C)” but the district court had applied section 841(b)(1)(B). Id. at 1297. Nevertheless, we affirmed the sentence because it fell “within the range authorized” by section 841(b)(1)(C); the error, we held, was not prejudicial. Id. As the majority correctly notes, however, we effectively limited Shepard in United States v. Candelario, 240 F.3d 1300 (11th Cir.2001). In Candelario, we explained that “Shepard’s holding was merely that a sentence that falls below the twenty year maximum, as set forth in 21 U.S.C. § 841(b)(1)(C), is not subject to reversal due to Apprendi ” and therefore “ ‘there is no error, plain or otherwise, under Ap-prendi where the term of imprisonment is within the statutory maximum set forth in *1296section 841(b)(1)(C).’ ” Id. at 1308 n. 11 (quoting in part Gerrow, 232 F.3d at 834).
The proper response, then, to the San-chezes’ second argument — that the district court committed an Apprendi error because it effectively sentenced them under section 841(b)(1)(B)—is straightforward. There is no Apprendi error because the defendants’ sentences do not exceed the twenty-year maximum of section 841(b)(1)(C). The district court’s reference to the penalty range of section 841(b)(1)(B) in sentencing the Sanchezes does not violate Apprendi, according to this circuit’s well-established law.
The Sanchezes are correct that there may be another kind of error, however, even when the sentence falls under the twenty-year maximum of section 841(b)(1)(C). Termed the “Rogers ’ error” after our decision in United States v. Rogers, 228 F.3d 1318 (11th Cir.2000), this mistake occurs when the indictment fails to allege a drug quantity, none is proven at trial, and yet the district court utilizes section 841(b)(1)(A) or 841(b)(1)(B) in sentencing. See id. at 1327; Camacho, 248 F.3d at 1290 n. 7. It is in addressing this argument that the majority errs. Rather than determining whether Rogers even applies to the case at hand, the majority incorrectly assumes that it does and then attempts to overrule parts of Rogers and the cases which apply it. To respond, I first explain that Rogers has no application in a case like the one before us because, unlike the defendant in Rogers, the San-chezes pled guilty. I then demonstrate how exactly a sentencing court commits a Rogers’ error, show why no such error was ever committed here (even assuming Rogers’ application), and, finally, assert that the majority’s overruling of Rogers and its progeny is both wrong and pure dictum.
The holding in Rogers is inapplicable in the case before us. In Rogers, we held that “drug quantity in section 841(b)(1)(A) and section 841(b)(1)(B) cases must be charged in the indictment and proven to a jury beyond a reasonable doubt in light of Apprendi” Rogers, 228 F.3d at 1327. Unlike the Sanchezes, however, the defendant in Rogers chose to stand on his not-guilty plea and was tried before a jury. See id. at 1319. If the mantra of Apprendi is to provide the defendant with notice (and a reliable sentence), as I have already stated and explain more fully in part III, then the only way to satisfy that imperative in a case to be tried to a jury is to allege the sentence-enhancing fact in the indictment. Thus, we held in Rogers that in light of Apprendi a fad like drug quantity, which enhances the sentence of a section 841(a) offense, must be charged in the indictment.
Clarifying our holding in Rogers in this way illustrates its inapplicability in the case before us. Here, the Sanchezes pled guilty, waiving their right to a jury trial. Moreover, because, as I point out in part III, the failure to allege drug quantity did not deprive the court of subject matter jurisdiction, the guilty pleas also waived notice of the drug quantity the Government would rely upon at sentencing. The Sanchezes, however, actually did receive notice of the drug quantity involved in the charged offense. Federal Rule of Criminal Procedure 11(c), “Advice to Defendant,” required the court to inform the defendants of “the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.” Fed. R. of Crim. Pro. 11(c). In order to inform the defendants of such penalties, the court had to know the quantity of drugs the Government would establish at sentencing. In fact, after summarizing the various drug transactions later included in the PSIs, the prosecutor stated, “[0]ur evidence would indicate the distributions were probably more than one *1297kilogram of methamphetamine.” Likewise, the court informed the Sanchezes that if their offense involved one kilogram or more of methamphetamine, they would be facing a maximum penalty of life imprisonment and a mandatory minimum penalty of ten years imprisonment. If their offense involved “more than 100 grams but less than 1,000 grams of methamphetamine and amphetamine,” the maximum penalty would be forty years imprisonment and a mandatory minimum penalty of five years imprisonment. Our command in Rogers, that all sentence-enhancing facts be included in the indictment, simply does not apply to cases such as this, in which the defendants were put on notice of drug quantity well in advance of the sentencing hearing.
Despite Rogers’ inapplicability to the case before us, the majority assumes that it applies and then sets about overruling it and Camacho. The source of the majority’s confusion is its acceptance of the San-chezes’ argument that because the district court cited section 841(b)(1)(B) they were sentenced as if their case was “a section 841(b)(1)(B) case.” It is true that, in Rogers, we stated that “sections 841(b)(1)(A) and 841(b)(1)(B) may not be utilized for sentencing without a finding of drug quantity by the jury.” Rogers, 228 F.3d at 1327. Both the Sanchezes and the majority, however, misinterpret and misapply the phrase “utilizing sections 841(b)(1)(A) or 841(b)(1)(B).” Essentially, a district court utilizes those sections when its sentencing discretion dictated by the sentencing guidelines is eliminated or cut short by the sections’ mandatory mínimums. If, for example, the defendant requests a downward departure from the applicable guideline range, and the court’s compliance with section 841(b)(1)(A) or 841(b)(1)(B) is the only reason it refuses the departure, then that court would be “utilizing section 841(b)(1)(A) or 841(b)(1)(B).” Though this would not result in an Apprendi error, we have held that it constitutes a “Rogers ’ error.” See United States v. Camacho, 248 F.3d 1286, 1289 (11th Cir.2001). If a Rogers ’ error occurs in a case tried before a jury, then drug quantity would need to be alleged in the indictment and proven to the jury beyond a reasonable doubt. We have never held, however, that a sentencing judge utilizes section 841(a)(1)(A) or 841(b)(1)(B) simply by referring to it during the imposition of a sentence.
The prototypical Rogers ’ error occurred in Camacho. In Camacho, the defendant was indicted and convicted at trial under section 841(a)(1) without regard to drug quantity. See id. at 1288. At the sentencing hearing, the defendant stipulated to a drug quantity sufficient for a sentence under section 841(b)(1)(A), which prescribes a mandatory minimum sentence of ten years. See id. When the district court determined the defendant’s sentence range under the sentencing guidelines, it arrived at a range of 108 to 135 months. Id. at 1289 n. 6. The court applied the mandatory minimum of section 841(b)(1)(A), however, which narrowed the range to 120 to 135 months and effectively limited the district court’s sentencing discretion. See Camacho, 248 F.3d at 1289 n. 6. The court then sentenced the defendant to 120 months. Id. at 1289. On appeal, this court found no Apprendi error because the sentence was less than the statutory maximum of section 841(b)(1)(C). Id. We nevertheless found an error under Rogers because “Rogers ... went beyond Apprendi to hold that ‘drug quantity in section 841(b)(1)(A) and section 841(b)(1)(B) cases must be charged in the indictment and proven to a jury beyond a reasonable doubt.’ ” Camacho, 248 F.3d at 1289. Because the district court had used the ten-year mandatory minimum of section 841(b)(1)(A), narrowing the applicable guidelines range, we found that there was “no doubt that the district court applied the regime of section *1298841(b)(1)(A) when sentencing Camacho ... [which] is error under this circuit’s precedent in Rogers.” Id.
Even assuming that Rogers ’ command to charge quantity in the indictment applies to the case before us, I maintain that the district court never “utilized sections 841(b)(1)(A) or 841(b)(1)(B)” because it never relied on the mandatory minimum of either section. Thus, unlike Camacho, the statutory provisions of section 841(b)(1)(A) and 841(b)(1)(B) did not constrain the district court or narrow the guidelines sentence range of either defendant. Rather, in sentencing the Sanchezes, the district court determined and applied the sentencing guidelines without any interference from section 841(b) at all. Even after they moved for a downward departure, the district court denied the motion because the motion lacked merit — not because any provision in section 841(b) prevented it from doing so. Because the district court did not “utilize section 841(b)(1)(A) or (B),” the Sanchezes^ cases were not “section 841(b)(1)(B) cases.” Rogers and Camacho, therefore, are simply inapplicable.14
III.
I now turn to the discussion of whether hypothetical Apprendi errors are jurisdictional. I reiterate here that, like its treatment of Rogers and Camacho, the court’s discourse about Apprendi error is unnecessary because there was no such error in this case. While I join the court’s conclusion that an Apprendi error, when it occurs, should be subject to harmless or plain error analysis under Rule 52(a) or (b), I write separately to respond more fully to Judge Barkett’s argument that Apprendi errors are jurisdictional.15
*1299The argument that any fact which enhances a defendant’s sentence becomes an element of the offense and must be included in the indictment in order to sustain a court’s jurisdiction derives from a simple misunderstanding of the Court’s opinion in Apprendi. The Court did not hold that such facts become elements; rather, Ap-prendi commands courts to treat a sentence-enhancing fact as the “functional equivalent of an element.” Apprendi, 530 U.S. 466, 494 n. 19, 120 S.Ct. 2348, 147 L.Ed.2d 435. In this part, I show that the Court’s concern was twofold: first, that a defendant have notice that the Government seeks to use a fact to enhance his sentence; and, second, that the enhanced sentence itself be reliable. As long as these two concerns are satisfied, then the district court has properly treated a sentence-enhancing fact as the functional equivalent of an element under Apprendi. I contend, therefore, that because a section 841(a) indictment would still state an offense even without including the drug quantity, a court would have subject matter jurisdiction under federal law. Hence, failing to allege drug quantity in the indictment is not jursidictionally fatal.
In understanding Apprendi’s holding that sentence-enhancing facts are to be treated like elements, rather than made elements, it is useful to compare Apprendi with the Supreme Court’s earlier opinion in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). In Apprendi, the Court’s task was determining whether and to what extent the Constitution protects a defendant from a penalty exceeding the statutory maximum based on a fact found by a judge by a preponderance of the evidence. See Apprendi, 530 U.S. at 476, 120 S.Ct. at 2355. The engines propelling the Court’s decision were the due process clause of the Fourteenth Amendment and the Sixth Amendment right to trial by jury, which, taken together, the Court held, “entitle a criminal defendant to a jury determination” of any fact which enhances his sentence beyond the statutory maximum. Id. at 476-77, 120 S.Ct. at 2356. In order that courts honor these constitutional protections, Ap-prendi declared that such sentence-enhancing facts are to be treated as “the functional equivalent of an element” and are “ ‘elemental’ [in] nature.” Id. at 494 & n. 19, 120 S.Ct. at 2365 & n. 19 (emphasis mine). The Court’s focus in Jones, on the other hand, was determining whether Congress intended that a sentence-enhancing fact be an element or a sentencing factor of an offense set out in the federal carjacking statute, 18 U.S.C. § 2119. See Jones, 526 U.S. at 229, 119 S.Ct. at 1217. The Jones Court, then, was not driven by any constitutional provision but by the federal statute. Based on its interpretation of that statute, the Court held that Congress had intended that serious bodily injury or death, a fact which resulted in higher penalties, be an element of the offense. See id. at 233-39, 119 S.Ct. at 1219-1223. In Apprendi, the Court brought the distinction to light, noting that while Jones discussed the “constitutionality of allowing penalty-enhancing findings to be determined by a judge by a preponderance of the evidence ..., the [Jones ] court concluded that those doubts were not essential to our holding.” Apprendi, 530 U.S. at 472-73, 120 S.Ct. at 2353. Not only were the sources of the two opinions different, but their conclusions were dissimilar as well: in Jones, the Court found the sentence-enhancing fact to be an element; in Apprendi, on the other hand, the Court found that the fact was to be treated like an element.16
*1300The focus of the Apprendi Court was not on legislative intent, but, rather, on the constitutional protections to which a defendant is entitled when a prosecutor seeks to enhance his sentence beyond the offense’s maximum penalty. In focusing on these constitutional protections, I contend that the Court in Apprendi was fundamentally concerned with giving the defendant notice of the sentence enhancement and ensuring that any increased sentence be reliable. The Court began with the historical foundations of due process, noting that criminal proceedings have traditionally been initiated by an indictment that includes all facts in order “that the defendant ... may be enabled to determine the species of of-fence they constitute, in order that he may prepare his defence accordingly ... and that there may be no doubt as to the judgment which should be given, if the defendant be convicted.” Id. at 478, 120 S.Ct. at 2356 (quoting J. Archbold, Pleading and Evidence in Criminal Cases 44 (15th ed. 1862) (emphasis mine)). Honing in on the concern for reliability, the Court submitted that one way to ensure the fairness and accuracy of the sentence is to require the prosecutor to prove all the facts of the offense to a jury beyond a reasonable doubt. See id. at 483-84, 120 S.Ct. at 2359. “The ‘reasonable doubt’ requirement ‘has a vital role in our criminal procedure for cogent reasons,’ ” not the least of which is to “reduce the risk of imposing [due process] deprivations erroneously.” Id. at 484, 120 S.Ct. at 2360 (quoting In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)).
The Court’s two-part concern for fair notice and sentence reliability are highlighted in its discussion in Jones and Ap-prendi of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), in which the Court found that recidivism is a sentencing factor that does not need to be treated as an element. Although the Court pointed out that its conclusion in Almendarez-Torres relied partly on the tradition of treating recidivism as a sentencing factor and not an element, the Court in Jones and Ap-prendi illuminated other reasons. Unlike most sentence-enhancing facts, the Court observed, a prior conviction has already “been established through procedures satisfying fair notice, reasonable doubt, and jury trial guarantees.” Jones, 526 U.S. at 249, 119 S.Ct. at 1227. In Apprendi the Court further explained that the defendant in Almendarez-Torres had admitted his earlier convictions, all three of which “had been entered pursuant to proceedings with substantial procedural safeguards of their own,” and thus there was “no question [before the Court] concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact.” Apprendi, 530 U.S. at 488, 120 S.Ct. at 2361.
The command of Apprendi, therefore, is not to transform sentence-enhancing facts into elements, the allegation of which is necessary in the indictment in order to state an offense, but, rather, to treat sentence-enhancing facts like elements in order to provide the defendant with notice of the sentence enhancement and to make certain the resulting sentence is reliable. Even though a sentence-enhancing fact like drug quantity should be included in the indictment in order to provide the defendant with notice,17 its absence is not a jurisdictionally fatal error. On the con*1301trary, a court’s power to adjudicate a federal criminal prosecution comes from 18 U.S.C. § 3231, which gives federal courts original jurisdiction of “all offenses against the laws of the United States.” 18 U.S.C. § 3231. In many instances, an indictment may sufficiently charge a federal offense, and thus sustain the court’s jurisdiction, without including the sentence-enhancing fact. In a section 841(a)(1) case, for example, an indictment charging the defendant with possessing or distributing a controlled substance properly states an offense against the United States without alleging a specific drug quantity. 18 U.S.C. § 841(a)(1). See also Prou v. United States, 199 F.3d 37, 45 (1st Cir.1999) (“Whether or not the prosecution files a timely section 851(a)(1) information, a federal district court plainly possesses subject-matter jurisdiction over drug cases. See 18 U.S.C. § 3231 (conferring original jurisdiction of ‘all offenses against the laws of the United States’).”); United States v. Prentiss, 256 F.3d 971, 982 (10th Cir.2001) (finding that the elements of the crime of arson (in Indian country) are “jurisdictional only in the sense that in the absence of those elements, no federal crime exists”). Failing to include drug quantity in a section 841(a) offense, therefore, is not jurisdictional.
Furthermore, it is well-established that failing to include an element in a jury instruction (or wrongly putting the burden on the defendant to prove an element) is not jurisdictional error but is subject to harmless error analysis. In Franklin v. Francis, 720 F.2d 1206 (11th Cir.1983), for example, this court, after finding that the jury instructions had improperly shifted the burden of proving an essential element of the offense to the defendant, evaluated the error under the harmless error standard. See Franklin, 720 F.2d at 1212.18 We upheld this analysis in Collins v. Zant, 892 F.2d 1502 (11th Cir.1990), stating that impermissibly shifting the burden of proof of an essential element to the defendant “does not automatically require reversal of an otherwise valid conviction; it is subject to the harmless error analysis under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).” Collins, 892 F.2d at 1506. This approach was explicitly adopted by the Supreme Court in Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), in which the Court held outright that omitting an element from the judge’s charge to the jury can be harmless error under Rule 52(a). See Neder, 527 U.S. at 7-8, 119 S.Ct. at 1833. Such an error, the Court held, “differs markedly from the constitutional violations we have found to defy harmless-error review.” Id. at 8, 119 S.Ct. at 1833.
I contend, as the majority of this court does, that jury instruction errors, like the one that occurred in Neder, are no different from Apprendi errors occurring when *1302an indictment fails to charge a sentence-enhancing fact (and the jury is not instructed to find such fact beyond a reasonable doubt).19 Indeed, we have already held as much, finding in United States v. Swatzie, 228 F.3d 1278 (11th Cir.2000), cert. denied, — U.S. -, 121 S.Ct. 2600, 150 L.Ed.2d 757 (2001), that “the error in Neder is in material respects indistinguishable from error under Apprendi ” because both Neder and Apprendi involve facts that were to be resolved by a jury under a reasonable-doubt standard but, instead, were resolved by the judge using a less-exacting standard. Swatzie, 228 F.3d at 1283. Under Neder, therefore, failing to include a sentence-enhancing fact in the indictment is not jurisdictional error but is, instead, subject to harmless or plain error analysis under Rule 52(a) or (b).
Though failing to include a sentence-enhancing fact could create an error under Apprendi and Rogers, it is not a “structural error,” but a constitutional error, which is subject to harmless or plain error review. We review section 841(a) cases on direct appeal under Rule 52. If an Ap-prendi error occurs and is properly preserved, then Rule 52(a) applies, and we “must disregard [the] error[] [if it is] harmless ‘beyond a reasonable doubt.’ ” Neder, 527 U.S. at 7, 119 S.Ct. at 1833 (1999) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967)); see also United States v. Nealy, 232 F.3d 825, 829 (11th Cir.2000) (applying Rule 52(a)’s harmless error analysis and using Chapman’s standard to section 841(a) cases). In other words, Apprendi errors that are not harmless beyond a reasonable doubt “affect [the defendant’s] substantial rights” within the meaning of Rule 52(a). When a defendant fails to preserve an Apprendi error, then we may reverse under Rule 52(b) only if the error is plain, affects substantial rights, and “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997).20
*1303IV.
In my view, focusing on Apprendi’s two-part concern — notice of the drug quantity and reliability of the sentence — - better illuminates our task in resolving the cases that come before us. In this part, I divide those cases into two groups: those arising after Apprendi and those arising before. My comments on the first group are short. It is apparent that, in section 841(a) cases, the indictments returned in this circuit (and elsewhere) are alleging drug quantity when the government’s proof will trigger the application of section 841(b)(1)(A) or (b)(1)(B). Thus, whether the defendant pleads guilty or goes to trial, the defendant will be on notice of the quantity of drugs the prosecution contends is involved in the offense.21 In both cases, the drug quantity involved in the offense of conviction will be found by the trier of fact — whether jury or judge — beyond a reasonable doubt as Apprendi requires.
I turn now to those cases arising before Apprendi and further divide them into two groups: those in which the defendant was tried before a jury and those in which the defendant pled guilty. In cases tried before a jury, if the drug quantity involved in the offense was not found by the jury beyond a reasonable doubt and the court used section 841(b)(1)(A) or 841(b)(1)(B) in imposing the sentence, we review the defendant’s sentence under Rule 52(a) or (b), depending on whether the defendant objected to the court’s failure to instruct the jury to find the drug quantity or the court’s failure to find such quantity beyond a reasonable doubt. In cases adjudicated on a plea of guilty, the defendant would have been informed at the Rule 11 plea hearing of the quantity of drugs involved in the offense to which he tendered his plea.22 The Apprendi error — the failure of *1304the court to determine the quantity of drugs involved in the offense of conviction beyond a reasonable doubt — will have arisen at sentencing. If the defendant objected to the court’s finding such quantity by a preponderance of the evidence, we consider whether the error was harmless beyond a reasonable doubt under Rule 52(a). Absent a defense objection, we conduct this harmless error analysis under Rule 52(b).
V.
In sum, Apprendi does not apply in this case because the Sanchezes’ sentences did not exceed the twenty-year maximum of section 841(b)(1)(C). Nor does Rogers apply: (1) unlike the instant case, Rogers involved a case tried to a jury, and (2) the five-year mandatory minimum provision of section 841(b)(1)(B) played no role in the court’s decision making. For these reasons, much of what the majority and I have written is pure dicta. My objective is that it cause the district courts no mischief.
. Rule 35 of the Federal Rules of Appellate Procedure advises that an en banc hearing “is not favored ... unless (l)[it] is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.” Fed. R. Appl. Pro. 35. This appeal satisfies neither test. Therefore, the court should vacate the order talcing this case for rehearing en banc as improvidently granted.
. Federal Rule of Criminal Procedure 52 states;
(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.
(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. Id.
. 21 U.S.C. § 841(a)(1) makes it unlawful "for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” Id. 21 U.S.C. § 846 is the corresponding attempt and conspiracy provision. Id.
. Ignasio Sanchez properly preserved his right to appeal under Federal Rule of Criminal Procedure 11(a)(2). As the majority notes, Santiago Sanchez, though not complying with the Rule 11(a)(2) "writing requirement,” should be treated as having properly preserved his right to appeal because the Government agreed to the oral reservation and the district court granted permission.
. "Statutory Penalty” is most likely a reference to 21 U.S.C. § 841(b)(1)(B), one of the three penalty provisions of section 841. This provision requires a finding of a particular drug quantity and prescribes a penalty range of five to forty years’ imprisonment. As I explain more fully infra, note 7, however, tire methamphetamine quantity actually corresponds to the methamphetamine quantity set out in section 841(b)(1)(A), which prescribes a penalty range of 10 years to life imprisonment.
. The PSIs and the prosecutor reported that "two pounds” of methamphetamine were involved in the Stone Mountain transaction; two pounds is equivalent to 907.2 grams. Unlike the other substances described in the PSIs, "approximately 230 grams” of the drugs exchanged at the Stone Mountain hotel were seized by the Government and tested positive for the presence of methamphetamine.
.The PSIs, the district court, and the parties failed to recognize that 21 U.S.C. § 841 (b)( 1 )(A)(viii), specifying a prison term of 10 years to life, actually controlled the sentences in this case. Instead, the PSIs described the "Statutory Penalty” as being from "5 to 40 years,” which corresponds to the penalty range set out in section 841(b)(1)(B); the district court at the second sentencing hearing declared that its sentencing option was "a statutory minimum mandatory sentence of five years up to forty years ... ”; and, the parties in their briefs to this court assumed that section 841(b)(1)(B) is controlling. Yet, as the PSIs indicated and the court found *1293at the sentencing hearing, the Sanehezes were responsible for 5,436 grains of amphetamine and 907.2 grams of methamphetamine, the latter of which requires the application of section 841(b)(1)(A)(viii). Under that section, the proper sentence was 10 years to life imprisonment, not five to forty years. After arriving at the marijuana equivalency for the drugs, the district court nevertheless sentenced the Sanchezes to 87 and 108 months, respectively, both sentences falling below the 10-year mandatory minimum of section 841(b)(1)(A). Because the Government has not cross-appealed, however, this court cannot address the issue. See, e.g., McKinney v. Pate, 985 F.2d 1502, 1507 n. 11 (11th Cir.1993) ("The failure to cross-appeal renders this point waived and without merit.”); Baker v. Montgomery, 811 F.2d 557, 558 n. 1 (11th Cir.1987) ("Having failed to brief and argue these issues on appeal, defendant has abandoned these claims.”).
.Under the sentencing guidelines, this final drug amount — a marijuana equivalency of 2,903.04 kilograms — resulted in a base offense level of 32 for each defendant. The court then applied a two-level increase for firearm possession, resulting in an offense level of 34. For Ignasio Sanchez, the court applied a two-level reduction for playing a minor role and a three-level reduction for acceptance of responsibility, producing a final offense level of 29. With a criminal history category of I, the guideline range for Ignasio Sanchez was 87 to 108 months. For Santiago Sanchez, the court reduced the offense level of 34 by only three for acceptance of responsibility. This produced an offense level of 31, which, with a criminal history of Category I, resulted in a guideline range for Santiago Sanchez of 108 to 135 months.
. After the court imposed the sentences, the Sanehezes renewed for a second time their motion to dismiss the indictment for failure to allege a drug quantity. The court denied their motion.
. Because I believe that Apprendi does not apply to this case, in part III I discuss whether an Apprendi error, when it occurs, is jurisdictional or merely subject to harmless or plain error analysis under Rule 52.
. At this point, a review of the statutory framework of 21 U.S.C. § 841 is helpful. The first section of the statute, section 841(a), sets out the offense without regard to drug quantity. See supra, note 3. The second section, section 841(b), then describes the various penalty provisions to which the defendant may be subject after being, found guilty of section 841(a). Section 841(b)(1)(A) applies a mandatory minimum sentence of 10 years up to life imprisonment for certain drug quantities, while section 841(b)(1)(B) applies a mandatory minimum of five years up to forty years imprisonment for lesser drug quantities. It is under section 841(b)(1)(C), however, that a defendant may be sentenced without a finding of any drug quantity. Section 841(b)(1)(C) states, "In the case of a controlled substance in schedule I or II ... such person shall be sentenced to a term of imprisonment of not more than 20 years ...” Id.
. It is unclear from the majority’s response to this particular Apprendi argument on what basis the majority rejects it. The majority first implies that the Sanchezes' argument derived from Rogers and, rather than laying out this circuit’s well-established precedents, it then cites to nine other circuits' decisions to dispose of both the argument and Rogers. I believe that our own cases, including Rogers, however, have long held that there can be no Apprendi error when the sentence does not exceed the statutory maximum of section 841(b)(1)(C).
. In Shepard, the defendant was indicted for violating 21 U.S.C. § 841(a)(1) without regard to drag quantity. See Shepard, 235 F.3d at 1296. After the defendant pled guilty, the district court, relying on the PSI report, found him responsible for 50 grams of cocaine base and then “considered and sentenced [him] under section 841(b)(1)(B).” Id.
. In overruling Rogers and Camacho, tire majority opinion appears to rest its reasoning on two pillars: first, that under Apprendi there can be no error when the ultimate sentence does not exceed the twenty-year maximum of 841(b)(1)(C); and, second, that Apprendi preserved McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), and the use of mandatory minimum sentences. The opinion’s first reason that Apprendi is not violated unless the sentence surpasses the twenty-year maximum, does nothing to advance the majority’s argument because the Rogers ’ error is one independent of Apprendi. As the majority concedes, in cases tried to a jury Rogers requires drug quantity to be alleged in the indictment and proven to a jury beyond a reasonable doubt if the district court utilizes either section 841(b)(1)(A) or 841(b)(1)(B) in sentencing. I assert, then, that Camacho simply holds that a district court necessarily used section 841(b)(1)(A) or 841(b)(1)(B) in sentencing if the court allowed the mandatory minimum to constrain its sentencing discretion under the guidelines. This reasoning, moreover, is completely consistent with Apprendi's preservation of McMillan, in which the Supreme Court held that mandatory mínimums may be imposed based on facts found by a judge by a preponderance of the evidence. See Ap-prendi v. New Jersey, 530 U.S. 466, 487 n. 13, 120 S.Ct. 2348, 2361 n. 13, 147 L.Ed.2d 435 (2000). Camacho itself recognized that the district court’s use of the mandatory minimum of section 841(b)(1)(A) did not violate Apprendi or McMillan. See Camacho, 248 F.3d at 1289 n. 5. Camacho went on to explain, however, that sentencing the defendant to the mandatory minimum of that section necessarily meant that it was utilizing that section for sentencing. See id. at 1289. This, we held, violated Rogers ’ mantra that when section 841(b)(1)(A) or (B) is used, drug quantity must be alleged in the indictment and proven to a jury beyond a reasonable doubt.
. I also join the court's conclusion that Ap-prendi error is not structural, and our cases have already held as much. See United States v. Nealy, 232 F.3d 825, 829 & n. 4 (2000) (holding that "Apprendi did not recognize or create a structural error that would require per se reversal.” and further noting that "Structural error occurs only in the rare instance involving a 'structural defect affecting the framework within the trial proceeds, rather than simply an error in the trial process itself.’ ") (quoting Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991)).
. II is also beneficial to consider the language of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), in which the Court discussed whether the due process clause required a prior conviction to be treated as an element. There, the Court described its purpose as de*1300termining "whether, or when, the Constitution requires the Government to 'treat a particular fact as an element, i.e., as a Tact necessary to constitute the crime,’ even where the crime-defining statute does not do so." Almendarez-Torres, 523 U.S. at 239-40, 118 S.Ct. at 1229.
. The Court in Apprendi avoided the issue of whether such facts should be charged in the indictment because the appellant there had not asserted a claim "based on the omission of any reference to sentence enhancement or racial bias in the indictment.” Apprendi, 530 U.S. at 477 n. 3, 120 S.Ct. at 2356 n. 3. We *1301nevertheless held in Rogers, a case in which the defendant pled not guilty and chose to be tried before a jury, that drug quantity in section 841(b)(1)(A) or 841(b)(1)(B) cases must be charged in the indictment and proven to a jury beyond a reasonable doubt. See United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir.2000). In cases in which the defendant pleads guilty, however, the defendant is informed of drug quantity, the maximum penalty, and the mandatory minimum penalty, if any, when the court entertains his plea under Rule 11. Such a defendant, therefore, receives the notice Apprendi requires.
. Although the opinion in Franklin does not cite the “harmless beyond a reasonable doubt” standard of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967), as the harmless error standard it employed, the opinion cites the harmless error standard used by the court in Lamb v. Jernigan, 683 F.2d 1332 (11th Cir.1982). Lamb, in turn, relied on the standard the court used in Mason v. Balkcom, 669 F.2d 222, 226 (11th Cir.1982), which was Chapman 's "harmless beyond a reasonable doubt” standard.
. We are not alone in this conclusion. See, e.g., United States v. Mojica-Baez, 229 F.3d 292, 311 (1st Cir.2000) (holding that failure to include an element in the indictment is no different from the failure to submit an element to the jury, and under Neder, harmless error review applies); United States v. Nance, 236 F.3d 820, 825 (7th Cir.2000) (same); United States v. Prentiss, 256 F.3d 971 (10th Cir.2001) (same).
. The Supreme Court has made clear that, before an appellate court may reverse, both Rule 52(a) and (b) require a showing that the error, whether preserved under (a) or not preserved under (b), "affect[ed the defendant's] substantial rights.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993). Indeed, in comparing Rule 52(a) with Rule 52(b), the Court stated, "[The language of Rule 52(b) ] is the same language employed in Rule 52(a), and in most cases it means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” Id. There is, however, one important difference: Under Rule 52(b), "[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” Id. (emphasis mine). I contend that when analyzing whether the defendant has met this burden under Rule 52(b), Neder's command to reverse only if the error is prejudicial "beyond a reasonable doubt” likewise controls. Although Olano and Johnson are silent on the applicable standard in assessing Rule 52(b) errors, I believe that Neder incorporates the beyond a reasonable doubt standard from Chapman into Rule 52. See Neder, 527 U.S. at 15, 119 S.Ct. at 1837 (“In Chapman ... we set forth the test for determining whether a constitutional error is harmless. That test, we said, is whether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' ” (quoting Chapman, 386 U.S. at 24, 87 S.Ct. 824)). Because Olano makes clear that Rule 52(a) and (b) employ the same language and mean essentially the same, it follows that the beyond a reasonable doubt standard of Rule 52(a) applies in the Rule 52(b) context. That is to say, under Rule *130352(b), a defendant bears the burden of proving beyond a reasonable doubt that the error affected his substantial rights, i.e., that he was prejudiced. But see United States v. Hastings, 134 F.3d 235, 243 (4th Cir.1998) (requiring the defendant to show, under Rule 52(b) that the error actually affected his substantial rights). A question I find unanswered in the Rule 52(b) cases, and one which this appeal does not present, is whether a constitutional error that is not harmless beyond a reasonable doubt "seriously affects the fairness, integrity, or public reputation of judicial proceedings” as a matter of law.
. In using the term "involve,” I am referring specifically to section 841(b), which establishes maximum sentences and, in sections 841(b)(1)(A) and (B), mandatory minimum sentences for violations of section 841(a) "involving” particular drug quantities. See 21 U.S.C. § 841(b). For example, in determining which provision of section 841(b) applies when the defendant has been convicted of the substantive section 841(a) offense of heroin distribution, the district court decides the quantity of heroin the defendant distributed, or aided or abetted the distribution of, on the date alleged in the indictment. If, in determining the appropriate sentence range under the guidelines, the court holds the defendant accountable for additional heroin as "relevant conduct” under U.S.S.G. § 1B1.2, the court cannot also use such additional amount in determining the applicable section 841(b) provision, since the offense of conviction did not involve such additional heroin.
. As explained supra, in pleading guilty, the defendant waives all non-jurisdictional defects in the indictment, including that the indictment fails to charge the quantity of drugs involved in the offense. Rule 11(c), however, in its application in a case brought under section 841(a) (and, as here, section 846), indirectly informs the defendant of drug quantity. It does so because the Rule requires the district court to inform the defendant, in entertaining his plea of guilty, of "the mandatory minimum penalty provided by law, if any, and the maximum possible penalty by law,” that is, of the penalties specified in section 841(b). If the court fails to do so, the plea is subject to vacation. United States v. Siegel, 102 F.3d 477, 481 (11th Cir.1996). For this reason, if the prosecution is going to contend at sentencing that 21 U.S.C. §§ 841(b)(1)(A) or 841(b)(1)(B) applies, it must inform the court so that the court can discharge its Rule 11(c) responsibility. In taking the Sanchezes pleas (without a plea *1304agreement), the court discharged such responsibility by having the prosecutor state for the record the quantity of methamphetamine involved in the offense and then informing the defendants that they faced sentencing under subsections (A) or (B) depending on the quantity of drugs involved in the offense. We can take judicial notice of the fact plea agreements always indicate the maximum penalty and the mandatory minimum, if any, the defendant faces in pleading guilty. More often than not the plea agreement also specifies the quantity of drugs involved in the offense. Not infrequently, the parties agree to the appropriate offense level under the guidelines.