concurring in result only:
I agree that the sentences in this case should be affirmed because a sentence below the 20-year statutory maximum established by 21 U.S.C. § 841(b)(1)(C) for the violation of § 841(a) does not violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),1 and both Ignasio and Santiago Sanchez were sentenced to terms below 20 years. However, although the majority acknowledges that Apprendi error occurs when an indictment charging a violation of § 841(a) fails to allege drug quantity and a sentence in excess of 20 years pursuant to § 841(b)(1)(A) or (b)(1)(B) is nonetheless imposed, the majority proceeds to argue— hypothetically, because no Apprendi error occurred in the case before üs — that such an error would be a “trial type” error subject to harmless or plain error review. While I do not believe the majority’s discussion of this question is warranted by the instant case, I write separately because I believe its analysis is mistaken.
*1305I Does Apprendi Require That Drug Quantity Be Treated As An Essential Element Of The Crimes Set Forth In 21 U.S.C. §§ 8U And 816?
No one disputes that prior to Apprendi certain basic principles were clearly and unambiguously established: (1) A defendant has the constitutional right under the Fifth Amendment to be charged by an indictment returned by a grand jury; (2) The court has the power to act only within the parameters of the specific crime charged in the indictment or information; (3) A sentence imposed outside of the parameters of the crime charged in the indictment or information is per se reversible; (4) A defendant has the constitutional right under the Fifth and Sixth Amendments to an information or indictment that gives notice of all of the essential elements of the crime charged and the factual bases therefor; (5) A defendant has the constitutional right to a jury determination of guilt beyond a reasonable doubt as to each essential element of the crime charged; (6) Any waiver, by plea or otherwise, of the right to notice by indictment or information, or of the right to a jury determination of guilt beyond a reasonable doubt, must be voluntary and intelligent.
In Apprendi, the Court stated that a fact that increases the penalty for a crime beyond the otherwise-applicable statutory maximum “fits squarely within the usual definition of an ‘element’ of the offense.” Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348. The Court held’ that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348.
The fundamental question posed after Apprendi is whether these statements mean that drug quantity must be treated as an element of the offenses set forth in 21 U.S.C. §§ 841 and 846 in order to impose the enhanced penalties provided by § 841(b)(1)(A) and (b)(1)(B) for the increased amount of drugs involved in the offense.2 I see only three ways to answer this question. The first is that drug quantity is an essential element of the offenses punishable under § 841(b)(1)(A) and (b)(1)(B), and that, therefore, all of the basic principles established by long standing precedent that apply to traditional offense elements — involving the defendants’ rights under the Fifth and Sixth Amendments, as well as the boundaries of the court’s power to act — apply to the element of drug quantity in § 841(b)(1)(A) and (b)(1)(B). Application of these principles to 21 U.S.C. § 841 leads to the conclusion that when an indictment charging a violation of § 841(a) fails to allege drug quantity, any sentence in excess of 20 years is reversible per se for resentencing within the 20 year statutory maximum prescribed by § 841(b)(1)(C).
*1306The second option is that drug quantity is not an essential element of the crimes set forth in § 841(b)(1)(A) and (b)(1)(B), but remains a mere “sentencing factor.” If this is so, drug quantity need not be charged in the indictment or proved to a jury beyond a reasonable doubt, but may be found by the sentencing judge by a preponderance of the evidence.
The third possibility is that although drug quantity is an element necessary to be charged and proven to a jury beyond a reasonable doubt, it constitutes a new kind of element, a constitutionally novel creature that is an element for some purposes but not for others. On this unprecedented theory, which the majority appears to endorse, the “element” must be alleged in the indictment, but if it is not, that failure does not have the same effect as a failure to allege a “real” element. Whereas precedent teaches that the failure to allege an element essential to the crime charged is a fatal defect requiring reversal of the excess sentence for resentencing within the proper bounds of the offense charged, the failure to allege this new “quasi-element” may be excused by an appellate court if it thinks it harmless.
Our own circuit, and every other circuit to have spoken on the question, has determined that the only plausible interpretation of Apprendi, especially as read together with Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), is that drug quantity is an offense element of the crimes punishable by § 841(b)(1)(A) and (b)(1)(B) that must be alleged in the indictment as a prerequisite to the imposition of the sentences under those provisions.3 I believe this conclusion derives from both the language and holding of Apprendi.
In Apprendi, the Supreme Court reiterated that the Sixth and Fourteenth *1307Amendments “indisputably entitle a criminal defendant to ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ ” Apprendi, 530 U.S. at 477, 120 S.Ct. 2348 (quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)). The Court characterized any “fact that increases the penalty for a crime” as “the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict,” indeed, as noted above, as one that “fits squarely within the usual definition of an ‘element’ of the offense.” Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348. As Justice Thomas wrote in his concurring opinion, joined by Justice Scalia, “[o]ne need only look to the kind, degree, or range of punishment to which the prosecution is by law entitled for a given set of facts. Each fact necessary for that entitlement is an element.” Id. at 501, 120 S.Ct. 2348 (Thomas, J., concurring). Drug quantity, in 21 U.S.C. § 841 is precisely such a fact — that is, a fact that legally entitles the prosecution to increased ranges of punishment under § 841(b)(1)(A) and (b)(1)(B) that exceed the statutory maximum for drug crimes of indeterminate quantity set forth in §§ 841(a) and 841(b)(1)(C).4 Thus, as a result of Appren-di, it is clear that drug quantity must be treated as an element of the offenses described by these sections.
Accordingly, I agree with the majority that if a sentence under § 841(b)(1)(A) or (b)(1)(B) is to be imposed, the necessary elements of the crimes charged therein, including the threshold drug amount prerequisite to the application of these subsections of the statute,5 must be “charged in the indictment and proven to a jury beyond a reasonable doubt....” United States v. Rogers, 228 F.3d 1318, 1327; see also, e.g., United States v. Cotton, 261 F.3d 397 (4th Cir.2001). My disagreement with the majority and with Judge Tjoflat’s special concurrence is that I can find no reason in logic or law for failing to apply the consequences that flow from that determination.
The majority suggests that, on appeal, an Apprendi error in the indictment is susceptible to harmless error review if it has been preserved, and plain error review if it has not. The problem with this view is, first, that it fails to account for the court’s responsibility, in every criminal case, to ascertain precisely the bounds of its own jurisdiction as delineated by the offenses charged in the indictment or information. If, as the' majority agrees, drug quantity constitutes an element of the offenses in § 841(b)(1)(A) and (b)(1)(B), then failure to plead quantity in the indictment must, under all existing precedent, constitute jurisdictional error that requires any sentence in excess of 20 years to be reversed for resentencing within the limit of § 841(b)(1)(C). The majority, in its effort to sidestep this result, impermissibly creates a new class of “quasi-elements” not subject to this rule.6 At the same time, the majority fails to consid*1308er the constitutional principles that govern the validity of any waiver of constitutional rights — in this instance, the waiver of the right to a grand jury’s consideration of the charges, and the requirement that any guilty plea, and corresponding waiver of the right to a jury trial, be voluntary and intelligent. Again, if drug quantity is an element of § 841(b)(1)(A) and (b)(1)(B), then failure to plead it in the indictment deprives the defendant of the meaningful notice to which he is due, under the Fifth and Sixth Amendments, of each of the elements of the crime charged, rendering his plea unintelligent and hence invalid.
II Failure To Plead Drug Quantity In The Indictment Is A Fatal Jurisdictional Defect To Any Sentence In Excess of 20 Years
A. The Court’s Jurisdiction To Impose A Sentence Is Limited To the Offense Charged In The Indictment
When an indictment is not brought by the grand jury or does not contain all the essential elements of the crime charged and the necessary factual bases therefor, there is error in the subsequent criminal proceedings. When challenged, a conviction or sentence based on charges not ini*1309tially brought by the grand jury must be per se reversed because, unlike most ordinary trial errors, “an indictment found by a grand jury [i]s indispensable to the power of the court to try [the defendant] for the crime with which he was charged.” Ex Parte Bain, 121 U.S. 1, 12-13, 7 S.Ct. 781, 30 L.Ed. 849 (1887). Likewise, a “court cannot permit a defendant to be tried on charges that are not made in the indictment against him.” Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). The power, or lack thereof, to try defendants on the specific charges made in an indictment is the essence of the court’s criminal jurisdiction.7
The remedy required by the Supreme Court for a sentence imposed beyond the trial court’s jurisdiction is a remand for resentencing within the proper confines of its jurisdiction: “[T]he imposition of a sentence in excess of what the law permits does not render the legal or authorized section of the sentence void, but only *1310leaves such portion of the sentence as may be in excess open to attack.... [T]he sound rule is that a sentence is legal so far as it is within the provisions of law ... and only void as to the excess.... ” United States v. Pridgeon, 153 U.S. 48, 62, 14 S.Ct. 746, 38 L.Ed. 631 (1894).8 Therefore, any sentence imposed under § 841(b)(1)(A) or 841(b)(l)B) in excess of 20 years, where the indictment alleges only a violation of § 841(a), is “void as to the excess” sentence imposed beyond the court’s jurisdiction. Id.
The majority takes no account of this jurisdictional error that occurs when a court acts in excess of its authority. Indeed, even guilty pleas can not excuse such jurisdictional errors, for the court simply does not have authority to accept a plea to an offense greater than that charged in the indictment.
The objection that the indictment fails to charge an offense is not waived by a guilty plea. The violation of [the defendant’s] right to be free of prosecution for a nonoffense would bar his conviction even if his “factual guilt” had been established validly. The entry of a guilty plea does not act as a waiver of jurisdictional defects such as an indictment’s failure to charge an offense.
United States v. Meacham, 626 F.2d 503, 510 (5th Cir.1980).9
The majority argues that a sentence in excess of 20 years under an indictment alleging only a violation of § 841(a) can be affirmed because it is not a structural error but simply a trial type error “analogous to the jury-instruction error” in Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Although, prior to Apprendi no court had held that the omission of an essential element from an indictment was reviewable for harmless error, the majority, in applying this principle to Apprendi cases, would do just that.10 To categorize the error in this way ignores the initial question that must be asked when an essential element has not been alleged in the indictment: What is the extent of the court’s power to act or, put in the traditional way, the extent of its jurisdiction? 11 Neder is not applicable to this threshold issue.
*1311First, as Neder recognizes, an error in a petit jury instruction is “simply an error in the trial process itself.” Id. at 1833. Such errors can be assessed within the context of the trial and may consequently be deemed harmless. In contrast, the grand jury indictment confers initial jurisdiction upon the court and defines its scope. See, e.g., Gaither v. United States, 413 F.2d 1061 (D.C.Cir.1969). Thus, an error by which the scope of the indictment is expanded cannot be analyzed in the context of the trial, for such errors precede any consideration of trial process errors and challenge either the court’s initial jurisdiction or its reach.
As illustrated by Stirone, not every error in jury instructions is susceptible to harmless error review. Unlike the non-jurisdictional jury instruction error in Neder — to wit, failure to submit the issue of materiality to the jury when it was implicit in the jury instructions as a whole — the jury instructions given in Sti-rone varied from the indictment to such an extent that the substantial right to be tried only on charges presented in the indictment returned by a grand jury was abrogated. The defendant’s sentence was therefore vacated because the court had exceeded its jurisdiction. See also United States v. Tran, 234 F.3d 798, 809 (2d Cir.2000) (“If the district court acts beyond its jurisdiction by trying, accepting a guilty plea from, convicting, or sentencing a defendant for an offense not charged in the indictment, this Court must notice such error and act accordingly to correct it, regardless of whether the defendant has raised the issue.”).12
B. A Defendant Has A Right To Have A Grand Jury Consider The Crime For Which He or She Will be Punished And Can Only Waive This Right If The Waiver Is Voluntary
The conclusion that the failure to allege an element in the indictment is not susceptible to harmless error review flows from a recognition of the pivotal role played by the grand jury in the process of a criminal case. Under the Fifth Amendment the Constitution gives the grand jury complete discretion to provide the parameters of a criminal proceeding, vesting it with the power to indict based on the evidence presented to it and the absolute choice not to *1312indict, notwithstanding any evidence presented:
In the hands of the grand jury lies the power to charge a greater offense or a lesser offense; numerous counts or a single count; and perhaps most significant of all, a capital offense or a noncapi-tal offense — all on the basis of the same facts. Moreover, “[t]he grand jury is not bound to indict in every case where a conviction can be obtained.” Thus, even if a grand jury’s determination of probable cause is confirmed in hindsight by a conviction on the indicted offense, that confirmation in no way suggests that the discrimination did not imper-missibly infect the framing of the indictment and, consequently, the nature or very existence of the proceedings to come.
Vasquez v. Hillery, 474 U.S. 254, 263, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (quoting United States v. Ciambrone, 601 F.2d 616, 629 (2d Cir.1979) (Friendly, J., dissenting)).
Thus, even when there is overwhelming evidence of drug amounts to support conviction and sentence under § 841(b)(1)(A) or (b)(1)(B), the grand jury has the right to refuse to charge the defendant with those amounts. Whatever decision is made by the grand jury for whatever reason, it cannot be reversed by a later petit jury, or worse, by the decision of the sentencing judge.
The content of the charge, as well as the decision to charge at all, is entirely up to the grand jury — subject to its popular veto, as it were. The grand jury’s decision not to indict at all, or not to charge the facts alleged by the prosecutorial officials, is not subject to review by any other body.
Gaither v. United States, 413 F.2d 1061, 1066 (D.C.Cir.1969) (internal citations omitted); Russell, 369 U.S. at 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (harmless error analysis would allow a defendant to “be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.”).
Moreover, just as the grand jury alone has the power to return an indictment, any amendments to the indictment must be made by the grand jury as well. See Stirone, 361 U.S. at 215-16, 80 S.Ct. 270; Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849. If, in subsequent proceedings, “the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them,” United States v. Burster 453 F.2d 605, 607 (5th Cir.1971), the alteration is deemed a “constructive” or “effective” amendment. Id. Such substantial “broadening],” see Stirone, 361 U.S. at 216, 80 S.Ct. 270, constitutes per se reversible error because it violates the defendant’s constitutional right to be tried solely within the parameters of the charges returned by the grand jury.13 See id.; Bursten, 453 F.2d at 607. In reviewing instructions to a jury which differed from the charges in the indictment, the Court in Stirone held:
While there was a variance in the sense of a variation between pleading and proof, that variation here destroyed the defendant’s substantial right to be tried only on charges presented in an indictment returned by a grand jury. Deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error.
*1313Id. at 217, 80 S.Ct. 270. In United States v. Peel, 837 F.2d 975, 979 (11th Cir.1988), this court reiterated that “a constructive amendment of a grand jury indictment is reversible error per se.” Id. (emphasis in original).14
Because it is necessary to allege the requisite drug quantity in the indictment to sentence a defendant under § 841(b)(1)(A) or 841(b)(1)(B), it is clearly error to sentence the defendant in excess of 20 years under those provisions in the absence of such an allegation. By such a sentence, the court, in place of the grand jury, supplies the missing allegation in the indictment, and, in place of the petit jury, “finds” it as a “fact.” This “fact” is “legally essential to the punishment to be inflicted,” thereby increasing the penalty under § 841(b)(1)(A) or 841(b)(1)(B). Thus, by such a sentence the court is constructively amending the indictment in just as substantial a manner as that prohibited in Stirone, and thus, like in Stirone, the error is per se reversible. Because the court’s sentence exceeds the jurisdiction established by the indictment, the erroneous sentence is not susceptible to harmless or plain error review on direct appeal, or procedural default on collateral review.
If the indictment has charged a violation of 21 U.S.C. § 841(a), alleging only some indeterminate drug quantity, the sentence for that crime is set out in § 841(b)(1)(C). Clearly the court has the jurisdiction or the power to sentence a convicted defendant under these allegations pursuant to this provision. However, any sentence “beyond the prescribed statutory maximum” of § 841(b)(1)(C) must necessarily be based on a “fact” not alleged in the indictment, namely drug quantity, that has “increas[ed] the penalty beyond the prescribed statutory maximum” and that is “legally essential to the punishment to be inflicted.” See Apprendi, 530 U.S. at 490 n. 15, 120 S.Ct. 2348. When drug quantity is not alleged in the indictment, such a sentence is invalid.15
*1314III The Defendant’s Fifth and Sixth Amendment Rights To Notice Also Require That, Where The Indictment Does Not Allege Drug Quantity, Sentences In Excess Of 20 Years Be Per Se Reversed
When the grand jury does return an indictment, due process requires that the indictment must provide a defendant with adequate notice of the crime with which he or she has been charged:
The criteria [for a valid indictment] are, first, whether the indictment contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, secondly, in case any other proceedings are taken against him for a similar offense whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.
Russell, 369 U.S. at 763-764, 82 S.Ct. 1038 (collecting cases) (internal quotations omitted). As our own Circuit has emphasized,
A grand jury indictment must set forth each essential element of the offense in order for the conviction to stand.... [T]he Sixth Amendment to the Constitution requires that every criminal defendant “be informed of the nature and cause of the accusation.” Inclusion of the essential elements of an offense in an indictment provides the accused with the bare minimum of information necessary to meet this requirement.... [T]he Fifth Amendment guarantees the right of a grand jury indictment to each defendant to be prosecuted for an “infamous,” or serious, crime. A grand jury can perform its function of determining probable cause and returning a true bill only if all elements of the offense are contained in the indictment.
United States v. Outler, 659 F.2d 1306, 1310 (5th Cir. Unit B 1981)16; see also United States v. Ramos, 666 F.2d 469, 474 (11th Cir.1982) (an indictment is valid only “as long as those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute an offense under the laws of the United States”).17 “[T]he language of the statute may be used ... but it must be aceompa-*1315nied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.” Hamling v. United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1984).
Defects in the charging document compromise the defendant’s Sixth Amendment guarantee requiring that any guilty plea be made with full and meaningful notice of the criminal charges lodged against him. How a defendant prepares to answer the charges brought against him and whether or not he will choose to enter a guilty plea is dictated by the contours of the charging document. Consider the example of a defendant charged with a drug crime of indeterminate quantity, who pleads guilty, and in his guilty plea, does not contest the government’s allegations of a drug quantity which bring him within the increased range of § 841(b)(1)(A). Laboring under the justifiable but erroneous belief that the Government was not required to charge that quantity in the indictment, or prove it beyond a reasonable doubt to the jury in the first place, the defendant forewent his right to take the quantity issue to the jury. Such a waiver obviously cannot be deemed voluntary and intelligent, because the defendant’s erroneous belief caused him to forego a fundamental constitutional right which he might otherwise have chosen to exercise. The exacting standard for guilty pleas, See Brady v. United States, 397 U.S. 742, 747-48, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (“That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized”), mandates that any such waiver must not be deemed voluntary and intelligent. Thus, any sentence based on such a waiver violates a defendant’s Sixth Amendment right to adequate notice of the charges against him upon which he can reasonably and knowledgeably base a defense or a plea.18
*1316CONCLUSION
In sum, if this court were presented with a case in which a defendant received a sentence in excess of 20 years pursuant to § 841(b)(1)(A) or § 841(b)(1)(B) and the indictment did not allege the requisite drug quantity, I believe we would be required to vacate the sentence and remand for resentencing under § 841(b)(1)(C). Apprendi’s requirement that drug quantity be alleged in the charging document establishes that the error would be jurisdictional to the extent that the court imposed a sentence in excess of that provided by § 841(b)(1)(C) and therefore reversible per se. The defendant would have to be resentenced within the 20 year maximum of § 841(b)(1)(C). As a jurisdictional error, it cannot be waived by the defendant; it is not subject to harmless or plain error analysis on direct appeal; and it cannot be procedurally defaulted on collateral review. But because Ignasio and Santiago Sanchez received sentences below the statutory maximum of 20 years, I do not believe this court needed to reach any of these questions.19 I agree that their sentences created no Apprendi error and should be affirmed.
. Although I initially believed that imposing a mandatory minimum pursuant to § 841(b)(1)(A) or (b)(1)(B) where no amount of drugs was alleged in the indictment would violate Apprendi, I have reconsidered that view. Apprendi held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. But the Apprendi Court expressly limited its holding so as not to overrule McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), in which the Court upheld a state statute that required a sentencing judge to impose a mandatory minimum sentence if the judge found, by a preponderance of the evidence, that the defendant possessed a firearm during the commission of the offense of conviction. See Apprendi, 530 U.S. at 487 n. 13, 120 S.Ct. 2348. Reading McMillan and Apprendi together, until the Supreme Court says otherwise, it appears that a sentence is not constitutionally defective unless the sentence exceeds the statutory maximum authorized by the indictment and the jury’s ultimate verdict.
. 21 U.S.C. § 841(a) provides that it is "unlawful for any person knowingly or intentionally" to "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” This section does not set forth any specific drug quantity that must be involved in the crime. 21 U.S.C. § 841(b)(1)(C) sets forth a maximum penalty of 20 years imprisonment for a violation of § 841(a).
21 U.S.C. § 841(b)(1)(A) and (b)(1)(B) criminalize the same conduct as § 841(a) but establish specific threshold drug quantities that must be involved in the crime. These sections provide for correspondingly more severe penalties than that set forth in § 841(b)(1)(C) for a violation of § 841(a). Specifically, § 841(b)(1)(A) establishes a penalty of 10 years to life imprisonment or, if death or serious bodily injury results from use of the drug involved in the crime, a penalty of 20 years to life. Section 841(b)(1)(B) establishes a penalty of 5 to 40 years imprisonment, or, if death or serious bodily injury result from use of the drug involved in the crime, a penalty of 20 years to life.
. Our circuit reached this conclusion in United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir.2000), as has every other circuit to address the question. See United States v. Promise, 255 F.3d 150, 156-57 (4th Cir., 2001) ("Accordingly, Apprendi dictates that in order to authorize the imposition of a sentence exceeding the maximum allowable without a jury finding of a specific threshold drug quantity, the specific threshold quantity must be treated as an element of an aggravated drug trafficking offense, i.e., charged in the indictment and proved to the jury beyond a reasonable doubt."); United States v. Fields, 242 F.3d 393, 395 (D.C.Cir.2001) ("[I]t is now clear that, in drug cases under 21 U.S.C. §§ 841 and 846, before a defendant can be sentenced to any of the progressively higher statutory máximums ... in subsections 841(b)(1)(A) or (B), the Government must state the drug type and quantity in the indictment, submit the required evidence to the jury, and prove the relevant drug quantity beyond a reasonable doubt.”) (emphasis added); United States v. Nance, 236 F.3d 820, 826 (7th Cir.2000) (“Under Apprendi, before the defendant could receive a sentence greater than 20 years but no more than 40 years, the indictment should have charged that he had conspired to distribute 5 grams or more of the cocaine base mixture and that issue should have been submitted to the jury and proven beyond a reasonable doubt by the government.”) (emphasis added); United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir.2000) ("[W]e 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.”) (emphasis added); United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.2000) ("[I]f 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.”) (emphasis added); cf. United States v. Tran, 234 F.3d 798, 808 (2d Cir.2000) (aggravating firearm enhancement must be charged in the indictment and proved to the jury beyond a reasonable doubt because "[a] prosecutor cannot make an end run around the jurisdictional prerequisite of an indictment by charging any federal offense, and then proceeding to prosecute a defendant for a different, albeit related, federal offense. Likewise, a prosecutor cannot make this jurisdictional end run, and then urge the court to sentence the defendant for an offense for which the defendant was neither charged nor convicted.”).
. See supra, n. 3.
. Although the Government does not need to allege the precise amount of drugs involved, the Government must allege drug quantity with sufficient specificity to apprise the defendant under which subsections of § 841 the Government is proceeding. See Jones, 526 U.S. at 230-37, 119 S.Ct. 1215 (failure of indictment to refer to either of federal carjacking statute’s two subsections criminalizing activity involving certain aggravating facts, coupled with indictment’s failure to allege any of the specific facts set forth by those subsections, amounted to a failure to charge either of the aggravated crimes).
.In his special concurrence, Judge Tjoflat explains why, in his view, Apprendi does not require that drug quantity be deemed an "ele*1308ment" of the crimes laid out in § 841(b)(1)(A) and (b)(1)(B). Judge Tjoflat points out that the question before the Apprendi Court, properly conceived, was: "What protection does the Constitution afford criminal defendants against being sentenced based on facts not proved to a jury beyond a reasonable doubt?" In characterizing the responsive holding of Apprendi, Judge Tjoflat concludes that the Supreme Court was concerned only with the twin requirements that: (a) a defendant be given notice that the government seeks to use a particular fact to enhance his sentence, and (b) that the resulting enhanced sentence be "reliable.” Problems regarding the constitutional rights to notice and "reliability," Judge Tjoflat argues, are reviewed under the rubrics of harmless or plain error. Thus, Judge Tjoflat concludes, the absence of drug quantity from an indictment cannot constitute jurisdictional error, reversible per se.
However, this analysis begs the question of Apprendi's applicability. If notice is required (and I believe it is), that notice must come when the government first charges the offense so that the defendant can effectively respond to the charge; if "reliability" is constitutionally required, the reliability of a sentence based on an enhancing fact is to be derived, according to Apprendi, by a jury determination of that fact beyond a reasonable doubt. Appren-di clearly dictates that sentence-enhancing facts be treated as the functional equivalents of an element. If we are required to treat drug quantity as an element, then we ought to consider cases in which an element, properly-so-called, was omitted from an indictment, and act accordingly, treating drug quantity the same way. Constructive amendment of the indictment cases like Bain and Stirone provide the best guide. In these cases, the Supreme Court has spoken precisely on the functions of "elements”, and on the consequences of omitting an element from the indictment. Specifically, the Court has recognized that only the grand jury has the power to charge, or refuse to charge, a defendant with a fact that results in a more serious crime and accordingly, where an indictment fails to charge "an element of the offense, any sentence for the enhanced offense is per se invalid.
Judge Tjoflat states in his special concurrence that “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.’ ” Tjoflat Concurrence at 1301. As explained infra, in note 15, § 3231 cannot function to give the district court the power to try and sentence a defendant for a crime with which he is not charged. Section 3231 indeed gives the district courts original jurisdiction over crimes against the United States, but it does not give a district court the power to sentence a defendant for a crime of its own choosing. Such a rule would leave the district court with the functional power to define its sentencing jurisdiction subject only to the limits of its own imagination. As the Second Circuit explained in Tran, such a rule would allow prosecutors to avoid the jurisdictional prerequisite of a grand jury indictment by charging any federal offense at all, and then proceeding to prosecute the defendant for a different offense. See supra, n. 3.
. The majority refers to three recent circuit •cases that have held that failure to charge an essential element of an offense in the indictment does not constitute a ‘'jurisdictional'' defect, but is subject only to review for harmless or plain error. Maj. at 1274, citing United States v. Prentiss, 256 F.3d 971 (10th Cir.2001) (en benc), United States v. Mojica-Baez, 229 F.3d 292, 310-12 (1st Cir.2000), and United States v. Nance, 236 F.3d 820, 825-26 (7th Cir.2000). Although, like the majority here, these cases utilized harmless or plain error review, none of them explains why, if drug quantity is an essential element of the crime charged, the ordinary consequences established by precedent for the indictment's failure to allege such an element should not be applied.
While Nance reviewed the failure of an § 841 indictment to charge drug quantity for plain error, it simply did not address the question whether the error was jurisdictional in nature. The Nance Court merely assumed, without discussion, that since the defendant had not challenged his sentence on Apprendi grounds in the trial court, review on appeal was for plain error. See Nance, 236 F.3d at 824.
Nor, as the Second Circuit recently pointed out in United States v. Tran, 234 F.3d 798, 809 (2d Cir.2000), did the Mojica-Baez case directly address this issue. Indeed, Mojica-Baez expressly noted that an indictment’s failure to charge an essential element of an offense must be recognized by the court at any time during the proceedings, either sua sponte or on motion of the parties, (which, if anything, suggests that the error is jurisdictional in nature). See id. at 308-09 ("We accept as true two general propositions.... The first proposition is that an objection that an indictment fails to state an essential element of an offense ‘shall be noticed by the court at any time during the pendency of the proceedings.' Fed. R.Crim. Proc. 12(b)(2).... The second proposition is that a statutory citation standing alone in an indictment does not excuse the government’s failure to set forth each of the elements of an offense.’’) (internal citations omitted). Notwithstanding its recognition of these propositions, the court did not address the question whether the alleged indictment error in the case before it was jurisdictional, instead simply holding that any error in the indictment was harmless. Presumably, because of this deficiency in reasoning, the Second Circuit stated, “to the extent that Mojica-Baez can be read to conclude that this type of error is not jurisdictional, we reject that. conclusion here.” Tran, 234 F.3d at 809.
Although Prentiss did squarely hold that the failure to charge an essential element of an offense in the indictment does not constitute jurisdictional error, it, like the majority, in large part, based its reasoning on Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). See Prentiss, 256 F.3d at 984 ("To us, a defendant's right to have a petit jury find each element of the charged offense beyond a reasonable doubt is no less important than a defendant's right to have each element of the same offense presented to the grand jury. If denial of the former right is subject to harmless error analysis, we believe denial of the latter right must be as well.”). As detailed below, I do not believe that Neder is applicable to the issue of whether the omission of an essential element from an indictment is a fatal deficiency precluding the imposition of a sentence beyond that prescribed for the crime which has been charged.
. In Pridgeon, the defendant was sentenced to a 5 year term of imprisonment at a penitentiary that subjected inmates to "hard labor.” See Pridgeon, 153 U.S. at 50, 14 S.Ct. 746. The defendant sought a writ of habeas corpus on the grounds that the statute under which he was charged and convicted authorized only "imprisonment,” and the requirement of hard labor was therefore in excess of the court's power rendering his entire conviction void. See id. As an initial matter, the Court held that the defendant's subjection to "hard labor” was not beyond the power of the Court because hard labor was merely one of the rules of the penitentiary to which defendant was duly committed. Nevertheless, the Court held, even if the hard labor were in excess of the Court's authority, the appropriate remedy would be invalidation of the excess sentence rather than reversal of the entire conviction. See id. at 62, 14 S.Ct. 746.
. In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981.
. See also United States v. Moss, 252 F.3d 993, 1004 (8th Cir.2001) (Arnold, J., dissenting) ("As far as I am aware, no case has ever held that the omission of an element of a crime from an indictment can be harmless error.”).
. The majority states that "the notion that any Apprendi-based challenge has a jurisdictional dimension is implicitly rejected by our precedent's consistent application of plain or harmless error review” Maj. at 1273, citing United States v. Pease, 240 F.3d 938, 943 (11th Cir.2001), and United States v. Swatzie, 228 F.3d 1278, 1282-83 (11th Cir.2000). However, in Swatzie, the Court found no indictment error, explaining that the indictment cited § 841(b)(1)(B) in the indictment and that "Swatzie does not even argue that he did not know before trial that the quantity or type *1311of drags could affect his sentence....” Swatzie, 228 F.3d at 1283. In Pease, we found that the failure to allege drug quantity constituted plain error but did not substantially affect the defendant's rights because he did not contend that he distributed a lesser amount of drugs than that necessary to support his sentence. Although I believe Pease was wrongly decided, I also note that the jurisdictional aspect of the indictment error does not appear to have been raised by the defendant, nor did the Court address the question whether a sentence in excess of 20 years constituted a constructive amendment of the indictment. In any event, this Circuit's own precedent is subject to analysis and reconsideration on en banc review, and, in light of the reconsideration of some of our Apprendi precedent, should be analyzed and reconsidered as well.
. The majority’s position also leads to the highly anomalous result of requiring greater specificity from a civil complaint than from a criminal indictment or information. Rule 8(a) of the Federal Rules of Civil Procedure requires that a civil complaint include "a short and plain statement of the grounds upon which the court’s jurisdiction depends,” and ”a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Proc. 8(a). The pleading must "give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). By holding that a sentence under § 841(b)(1)(A) or 841(b)(1)(B) could be upheld even where the indictment failed to allege drug quantity, the majority would functionally exempt the criminal indictment or information from even these minimal requirements.
. Minor and insubstantial errors in the indictment that do not broaden its scope are obviously not construed as such amendments. However, as explained above, sentencing for more than the offense charged constructively amends the indictment, and no one but the grand jury has the power do this.
. The majority, in footnote 48, appears to suggest that the authority of Stirone has somehow been diminished by the Supreme Court's decision in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Chapman held that some constitutional errors could be deemed harmless; it did not state that constitutional errors already deemed harmful by the Supreme Court could henceforth be regarded as harmless. Put differently, Chapman did not give appellate courts license to survey the landscape of constitutional errors and recategorize them as they wish. Until the Supreme Court holds that Stirone errors are harmless, its statement that some constitutional errors may be harmless has no effect whatsoever on the precedential force of its holding in Stirone. Our own court in Peel, decided long after Chapman, recognized that the law deems constructive amendments of a grand jury indictment to be reversible per se.
. Obviously, as the majority points out, the defendant has the right to waive indictment by grand jury. In such a case, a court would, of course, undertake the usual constitutional inquiry as to whether the waiver was voluntary and intelligent and whether the substituting information complied with other constitutional protections. See United States v. Moore, 37 F.3d 169, 173 (5th Cir.1994) (waiver of right to indictment by grand jury requires that the "court must be satisfied that the waiver was knowingly, understanding^, and voluntarily made.”). The majority seems to argue that the fact that Fed. R.Crim. Proc. 7(b) allows a defendant to waive his Fifth Amendment right to be prosecuted by indictment and proceed instead on a criminal information somehow proves that failure to allege an essential element in an indictment is not a jurisdictional error but rather a trial type error that is subject to harmless or plain error review. It is difficult to discern the logic in this view. Rule 7(b) simply recognizes that a defendant can waive the grand jury’s involvement in initiating the charges against him. The ability to waive the right to prosecution by indictment has nothing to do with whether errors at the charging phase are jurisdictional. If anything, the fact that the prosecution must alternatively proceed by information confirms that there is a vital jurisdictional step that cannot be waived: some charging document is essential to confer jurisdiction on *1314the court and to define its scope. Waiving the right to a grand jury indictment does not mean a defendant waives either his own right, or the court's obligation, to assure subject matter jurisdiction over the relevant crime and punishment.
To use an admittedly extreme example to make the point, a defendant waiving indictment by the grand jury cannot be permitted to be sentenced for manslaughter under an information that only charges theft, even should he want to. The bottom line is that in every case, the court has an independent obligation to ensure that the charging document— whether indictment or information — outlines the elements of the crime. See DeBenedictis v. Wainwright, 674 F.2d 841 (11th Cir.1982). Failure to allege an element constitutes jurisdictional error that renders any sentence relying on the unalleged element invalid. See id.
Moreover, the discussion of the right to waive a grand jury's indictment seems almost irrelevant in the Apprendi context. In future cases, one assumes that the Government would, at least in an abundance of caution, present the indictment to the grand jury in a way that includes the requisite drug quantity for the conviction and sentence it seeks. In reviewing those cases that arose before Apprendi, courts must analyze whether any waiver of the right to have the grand jury pass on the crime it wants to charge, i.e., have the ability to choose from among the crimes delineated by §§ 841(a), 841(b)(1)(A), and 841(b)(1)(B), has been made knowingly, intelligently and voluntarily. In all fairness, how can a waiver possibly be made knowingly, intelligently, and voluntarily if the defendant did not know that the grand jury should have had that opportunity?
. In Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.1982), the Eleventh Circuit adopted as binding precedent all decisions of Unit B of the former Fifth Circuit handed down after September 30, 1981.
. Although a defendant may waive his right to be charged by the grand jury through indictment, and plead or be tried under a crimi*1315nal information, Fed. R.Crim. Proc. 7(b), the criminal information, which substitutes for the indictment, must likewise comply with constitutional guarantees. Specifically, the information must satisfy the defendant’s Sixth Amendment right to have notice of the specific offense that he has allegedly committed so that he may defend against the case or make a fully informed plea to the charge. See, e.g., United States v. Morales-Rosales, 838 F.2d 1359, 1361 (5th Cir.1988) (citing United States v. London, 550 F.2d 206, 211 (5th Cir.1977)); DeBenedictis v. Wainwright, 674 F.2d 841, 842-843 (11th Cir.1982). In accordance with the defendant's Fifth Amendment right to be free from double jeopardy, the information must likewise provide him with a basis for determining whether a subsequent charge punishes him for the same illegal conduct charged in the information. Equally important, the information provides the court with the means to ascertain the scope of its own jurisdiction when a defendant enters a plea, and to be aware of the range of penalties it is authorized to impose at sentencing. See Smith v. United States, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959).
. The majority states that even if the trial judge misadvised the Sanchezes of their maximum potential sentence pursuant to § 841(b)(1)(A) or 841(b)(1)(B), the Sanchezes’ guilty pleas were valid under Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The majority cites Brady for the proposition that misinformation provided to the Sanchezes’ by the court could not possibly have sufficed to render their guilty pleas involuntary or unintelligent. But Brady does not stand for any such broad proposition.
In Brady, the Supreme Court held that the federal kidnaping statute could not condition a defendant’s right to opt for a jury trial on his willingness to risk the death penalty (which, under the statute, could be imposed only by a jury). Nevertheless, the Court rejected the defendant's challenge to the volun-tariness of his guilty plea, but not, as the majority suggests, because the defendant’s misunderstanding of his sentencing exposure could not possibly have shown his plea to be involuntary. Instead, the court rejected defendant's argument because the trial court *1316and the Tenth Circuit explicitly found that the defendant voluntarily chose to plead guilty when he learned that his co-defendant was cooperating with the prosecution and was available to testify against him. Indeed, contrary to the majority's suggestion, the Brady Court reaffirmed the existing standards for analyzing guilty pleas holding that they must always be both voluntary and intelligent. See id. at 747 n. 4, 90 S.Ct. 1463. The Court wrote: "Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Id. at 748, 90 S.Ct. 1463.
. As we have previously stated, "appellate courts best serve the law in deciding 'each case on the narrow ground that leads to a decision.’ " Clay v. Riverwood Intern. Corp., 157 F.3d 1259, 1264 (11th Cir.1998) (summarizing and quoting Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1481 (11th Cir.1985)).