concurring,
with whom Judge AMBRO joins.Justice Frankfurter may not have been the first to observe that “[wjisdom too often never comes, and so one ought not to reject it merely because it comes too late,” Henslee v. Union Planters Nat’l Bank & Trust Co., 335 U.S. 595, 600, 69 S.Ct. 290, 93 L.Ed. 259 (1949) (Frankfurter, J., dissenting), but he was surely right in so declaring. Had he the occasion, he might also have observed that sometimes belated wisdom does not arrive until a doctrinal *108shift removes the obstacles to its revelation, thereby exposing the unstable foundation of that which had been uncritically accepted before. I believe this to be such a case.
The doctrinal shift at'work here emanates from Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which 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.” Id. at 490, 120 S.Ct. 2348. This holding in turn exposed the instability of our prior holding that under 21 U.S.C. § 841 drug type and quantity are sentencing factors, requiring only proof by a preponderance of the evidence to a judge, instead of elements of the offense, which would require proof beyond a reasonable doubt to a jury. See, e.g., United States v. Gibbs, 813 F.2d 596, 600 (3d Cir.1987).
Today the Court partially retreats from our prior position in holding that, at least when drug quantity increases the statutory maximum penalty, it must, per Apprendi, be submitted to the jury and proved beyond a reasonable doubt. By not re-examining Gibbs and its progeny, however, the Court lets stand our interpretation of drug type and quantity as sentencing factors in all other instances. Indeed, by deciding this case on constitutional rather than statutory grounds, see opinion of the Court, ante, at 96, the Court implicitly signals that it is satisfied with our prior statutory construction of § 841, and will continue to apply it in cases where no constitutional— i.e., Apprendi — difficulty arises. Cf. Ashwander v. TVA, 297 U.S. 288, 346-47, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring) (articulating principle that cases should be decided on statutory grounds before reaching constitutional questions).
It has become clear to me, however, upon reconsidering § 841 in light of Ap-prendi, that our prior statutory construction ought to be abandoned altogether. I submit that drug type and quantity are always elements of an offense under § 841, and therefore must always be submitted to the jury for proof beyond a reasonable doubt. See United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (“[Cjriminal convictions [must] rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.”). Concomitantly, I believe that drug type and quantity should not be treated as element-like factors only when they increase the prescribed statutory maximum penalty.
In reaching this conclusion, I am guided primarily by the intent of Congress in drafting § 841. In my view, Congress’s intent to make drug type and quantity elements of a § 841 offense is evident from the statute’s legislative history. It is also evident from the structure of § 841, which, when interpreted according to the canons of construction used by the Supreme Court to distinguish between offense elements and sentencing factors, indicates that Congress intended for drug type and quantity to be elements of an offense. The doctrine of constitutional doubt, which requires that “constitutionally doubtful constructions be avoided where ‘fairly possible,’ ” Miller v. French, 530 U.S. 327, 336, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000) (quoting Communications Workers v. Beck, 487 U.S. 735, 762, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988)), buttresses the statutory interpretation I offer. Finally, on a practical level, I note that requiring drug type and quantity to be proved to the jury beyond a reasonable doubt would not cause problems in the *109prosecution and trial processes; indeed, in the wake of Apprendi, federal courts throughout the nation are easily accommodating this requirement. Nor, as I will explain below, would it require overturning large numbers of convictions.
I. Congress’s Intent
A. Legislative History
In support of our prior conclusion that drug type was not an element of a § 841 offense, this court has noted that “[w]hile Congress could have enacted separate statutes criminalizing the distribution of particular controlled substances, it did not do so.” United States v. Lewis, 113 F.3d 487, 491 (3d Cir.1997). Similarly, at least one federal appellate judge has concluded that drug type and quantity are not elements because “[i]t is simply not credible to hold that Congress knowingly and intentionally fashioned some 350 offenses in section 841.” United States v. Promise, 255 F.3d 150, 175 (4th Cir.2001) (Luttig, J., concurring in the judgment). The legislative history of § 841, however, points to the opposite conclusion.
Congress enacted the original version of § 841 as part of the Controlled Substances Act (“CSA”) of 1970, Pub.L. No. 91-513, § 401, 84 Stat. 1242, 1260-62. In doing so, Congress’s intent was to unify in a single statute what was at that time a “plethora of legislation” creating drug offenses in diverse public health and revenue acts. H.R.Rep. No. 91-1444, in 1970 U.S.C.C.A.N. 4566, 4571; see also 116 Cong. Rec. 33,299-300 (1970) (statement of Rep. Springer) (describing the CSA as “a comprehensive approach” to the “big[ ] problem” of “many drug laws which have come about under different circumstances and with entirely separate and diverse histories”); id. at 33,304 (statement of Rep. Rogers) (explaining how the CSA “would consolidate all of the Federal drug laws into one act ... to enable more efficient administration of the laws”). Recognizing that enacting separate statutes for each type of drug would have been a needless legislative burden, Congress opted for the more efficient double-axis prosecution scheme, under which each act in violation of what is now § 841(a) (manufacture, distribute, etc.) could be prosecuted with respect to the different drug types. See, e.g., United States v. Grandison, 783 F.2d 1152, 1156 (4th Cir.1986) (holding that, at least for the purposes of double jeopardy, “Congress intended the possession of each scheduled substance to be a separate offense”).
Congress first included drug quantity as an operative fact in determining penalties for marijuana manufacture and distribution in its 1980 amendments to the CSA. See Infant Formula Act of 1980, Pub.L. No. 96-359, § 8(c)(2), 94 Stat. 1190, 1194. Both the House and Senate Reports reflect that Congress intended quantity to function as an element with respect to marijuana offenses; they state, “Individuals convicted of trafficking in over 1,000 pounds would be subject to a maximum 15-year prison sentence and/or a maximum $125,000 fine.” H.R.Rep. No. 96-936, at 13 (1980); S.Rep. No. 96-916, at 14 (1980) (emphasis added). As evidenced by the language used in 21 U.S.C. § 851, which was passed as part of the original CSA in 1970, Pub.L. No. 91-513, § 411, 84 Stat. 1269, Congress can be presumed to have been aware of the traditional legal distinction between conviction and sentencing at the time it adopted these quantity thresholds. See 21 U.S.C. § 851(b) (noting that the proceedings to establish prior convictions shall be undertaken by the court “after conviction but before pronouncement of sentence”).
In 1984 Congress again amended the CSA to account for drug quantity for ille*110gal substances other than marijuana. See S.Rep. No. 98-225, at 255 (1983) (noting that, with the exception of marijuana, the prior CSA did not specifically account for drug quantity). Thus, according to the Senate Report, Congress created “a new subparagraph (A) under section 841(b)(1) that would provide, for offenses involving large amounts of particularly dangerous drugs, higher penalties than those now provided under section 841.” Id. at 258 (emphasis added). The use of the plural “offenses” indicates Congress’s intention to create within the single statute a multitude of separate crimes depending on drug type and quantity.
The last relevant major changes to the CSA occurred in 1986 when Congress, using the internal structure of subparagraph (b)(1)(A) of the 1984 amendments, created new subparagraphs (b)(1)(A) and (b)(1)(B) and included mandatory minimum sentences for offenses under those subpara-graphs. See Narcotics Penalties and Enforcement Act of 1986, Pub.L. No. 99-570, § 1002, 100 Stat. 3207-2. The legislative record indicates that during its discussion of the proposed amendments, Congress understood that prosecutors would be required to introduce evidence of drug quantity during trial in order to obtain a conviction. See H.R.Rep. No. 99-845, at 12 (1986) (explaining that Congress had been informed by U.S. Attorneys that they would be able to meet the evidentiary burden for proving quantity to the jury).
Furthermore, the record reflects that Congress did not consider subparagraph (a) to lay out all of the elements of a § 841 offense; rather, Congress deemed drug type and quantity essential elements of a crime as specified in subparagraphs (b)(1)(A) & (B). The House Report, for instance, specifically notes that “[a] person convicted under those subparagraphs [ (b)(1)(A) & (B) ] shall not be eligible for parole until the individual has served the minimum sentences required by such sub-paragraphs.” Id. at 19 (emphasis added). Again, as noted above, Congress can be presumed to have been aware of the traditional legal distinction between conviction and sentencing. If Congress had intended for the drug types and quantities listed in § 841(b)(1)(A) & (B) to be sentencing factors, the accompanying legislative record would have referred to a person sentenced — rather than convicted' — under those subparagraphs.
Immediately following the 1986 amendments, the Justice Department itself, which had been consulted by Congress throughout the amendment process, see H.R.Rep. No. 99-845, at 12 (1986), seemed to conclude that drug type and quantity were elements of separate offenses defined in § 841(b). See Handbook on the Anti Drug Abuse Act of 1986, at 20-21 (Dep’t of Justice Mar. 1987) (“1986 Handbook”). Notably, the 1986 Handbook repeatedly referred to “convictions” under the subpar-agraphs of § 841(b)(1), which lay out the penalties for the different drug types and quantities. Id. at 3-4, 6-7. Most importantly, the Department “recommend[ed] that where the enhanced and mandatory minimum penalty provisions of 21 U.S.C. §§ 841(b)(1) and 960(b), as amended, are based on the kind and quantity of drug involved in particular offenses ... both the kind and the quantity of the drug be specified in the indictment and proven at trial.’’ Id. at 20 (third emphasis added). I acknowledge that the Department only “recommend[edj” such an approach, and that it later retreated from this position. See, e.g., United States v. Jenkins, 866 F.2d 331 (10th Cir.1989). But the fact that it expressed this view in its initial “bible” on the critical 1986 drug law, obviously written after high-level deliberations and at a time when vision was not clouded by *111subsequent events and perceptions, seems to me very persuasive.
In addition to what Congress did, what Congress did not do in adding drug type and quantity in the 1980, 1984, and 1986 amendments is also informative. Specifically, Congress never expressly denoted drug type and quantity as sentencing factors to be determined by the judge and not the jury. See United States v. Brough, 243 F.3d 1078, 1079 (7th Cir.2001) (“[T]he statute [§ 841] does not say who makes the findings or which party bears what burden of persuasion.”). In contrast, in the aforementioned § 851, which covers proceedings to establish prior convictions for sentence-enhancement purposes, the statute expressly provides that “the court shall after conviction but- before pronouncement of sentence” make its determination regarding prior conviction. 21 U.S.C. § 851(b) (emphasis added). My point is further advanced by reference to the now-repealed Dangerous Special Drug Offender Sentencing provision of the original CSA, which created sentencing factors. See Pub.L. No. 91-513, § 409, 84 Stat. 1242, 1266-69 (1970) (repealed 1984). Under that provision, prior felon status was to be assessed by a judge after conviction using a preponderance-of-the-evidence standard. See id. at 1267.
In sum, Congress’s failure to include drug type and quantity within its express sentence-enhancement provisions indicates its intent to treat these factors as elements of a crime. See United States v. McQuilkin, 78 F.3d 105, 108 (3d Cir.1996) (“It is a canon of statutory construction that the inclusion of certain provisions implies the exclusion of others.”) (“inclusio unius est exclusio alterius”).
B. Nomenclature and Structure of the Statute
In construing drug type and quantity as sentencing factors rather than elements, this court, as well as the other courts of appeals, have relied on the presence of the labels “Unlawful Acts” and “Penalties” preceding subsections (a) and (b) of the statute. See, e.g., United States v. Lewis, 113 F.3d 487, 490-91 (3d Cir.1997). This approach is deeply flawed. Although one of our sister courts has noted that this approach “took Congress at its caption,” Brough, 243 F.3d at 1079, a close examination reveals that the caption was never really Congress’s at all. The original version of the CSA passed by Congress and signed by the President did not affix the label “Unlawful Acts” to § 841(a) or “Penalties” to § 841(b). See CSA, Pub.L. No. 91-513, 1970 U.S.C.C.A.N. (84 Stat. 1260-62) 1466-68. Nor were these captions added in any of the subsequent amendments to the CSA. Rather, these section headings can be traced to the Office of the Federal Register, National Archives and Records Services, which added a reference to “penalties” as a margin note to the predecessor of § 841(b) in the Statutes at Large simply for user convenience. 84 Stat. 1261 (1970). Unfortunately, when the CSA was reproduced in the United States Code, the margin notes were converted into subsection headings by the codification committee, but have never been officially adopted by the Congress, and, therefore, do not have the force of law. See U.S.C. at vii (1994 & Supp. V 1999) (noting that Title 21 has never been officially codified).
Even if the subsection titles had been officially adopted by Congress, we would be wrong to ascribe to subsection (b)’s “Penalties” label the talismanic power to indicate that drug type and quantity are sentencing factors rather than elements of separate crimes. See Castillo v. United States, 530 U.S. 120, 125, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000) (noting that the *112mere fact that a statutory section is entitled “Penalties” does not indicate whether that section creates sentencing factors or entirely new crimes for “[t]he title alone does not tell us which are which”). Although § 841(a) is entitled “Unlawful Acts,” this subsection alone does not define a complete offense because it includes no punishment. A jury verdict finding only that the defendant had committed the acts described in subsection (a), without more, would not render the defendant guilty of a crime requiring any ascertainable punishment. Compare Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (construing 8 U.S.C. § 1326(b)(2) as a sentencing factor where an earlier portion of the statute— § 1326(a) — already provided for specific penalties), with Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (construing the provisions of 18 U.S.C. § 2119(2)-(3) as elements where the prefatory statutory text did not provide for penalties but only described prohibited conduct).
Furthermore, the wide variation in penalties for the manufacture and distribution of different combinations of drug type and quantity counsels in favor of construing these factors as elements. In two recent cases, Jones and Castillo, the Supreme Court observed that the degree to which the commission of a proscribed act increases the maximum penalty reflects Congress’s intent to make the particular act an element or a sentencing factor. In Castillo, the Government argued that under 18 U.S.C. § 924(c), which prohibits the use or carrying of a firearm in relation to a crime of violence, the particular type of firearm used by the defendant was a sentencing factor for the judge to determine. In rejecting this argument, the Court deemed it important that the mandatory penalty for using or carrying a machinegun was “six times more severe” than the penalty for using or carrying a mere “firearm,” such as a pistol, thereby demonstrating Congress’s intent to make each of these a “separate crime.” 530 U.S. at 127, 120 S.Ct. 2090.
Likewise, in Jones, the Court considered “serious bodily injury” an element of the crime of carjacking rather than a sentencing factor under 18 U.S.C. § 2119 in large part because it increased the authorized penalty by two-thirds. 526 U.S. at 243, 119 S.Ct. 1215. The Court worried that leaving such consequential determinations to a judge rather than the jury would relegate the jury to the role of “low-level gatekeeping,” resulting in “the erosion of the jury’s function.” Id. at 244, 119 S.Ct. 1215. Such a diminution of the jury’s role, the Court cautioned in language foreshadowing Apprendi, “would merit Sixth Amendment concern.” Id. at 248, 119 S.Ct. 1215.1
*113Applying the lessons of Castillo and Jones, it seems clear to me that § 841 establishes multiple offenses based on the elements of drug type and quantity. The maximum penalties authorized by the statute vary greatly depending on type and quantity of the controlled substance. For example, assuming no prior convictions, the maximum penalty for the distribution of a schedule V substance of any quantity is one year, see § 841(b)(3), while the maximum penalty for the distribution of more than 500 grams of cocaine not resulting in any death or serious bodily injury is forty years. See § 841(b)(l)(B)(ii)(II). Even within the same drug type, penalties can vary significantly by quantity alone. Compare, e.g., § 841(b)(l)(B)(vii) (providing a maximum of forty years imprisonment for a violation of subsection (a) involving “100 kilograms or more of a mixture or substance containing a detectable amount of marijuana” for a defendant with no prior convictions), with § 841(b)(1)(D) (providing a maximum of five years imprisonment “[i]n the case of less than 50 kilograms of marihuana [sic]” for a defendant with no prior convictions). I believe that these dramatic differences in the severity of punishment further signal Congress’s intent to make drug type and quantity elements of the several offenses established under § 841.
II. Constitutional Doubt
Undergirding my interpretation of § 841 is the time-honored maxim that “constitutionally doubtful constructions should be avoided where ‘fairly possible.’ ” Miller v. French, 530 U.S. 327, 336, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000) (quoting Communications Workers v. Beck, 487 U.S. 735, 762, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988)). To be sure, a statutory construction of § 841 that requires proving drug type and/or quantity to the jury beyond a reasonable doubt only when either factor increases the maximum statutory penalty avoids constitutional doubt. See, e.g., United States v. Brough, 243 F.3d 1078, 1080 (7th Cir.2001). In choosing between that construction and the one offered here, however, we ought to be guided by a realistic appraisal of Congress’s intent, for although it is our duty to “strain to construe legislation so as to save it against constitutional attack,” we “must not and will not carry this to the point of perverting the purpose of a statute ... ’ or judicially rewriting it.” Aptheker v. Secretary of State, 378 U.S. 500, 515, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964) (quoting Scales v. United States, 367 U.S. 203, 211, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961)).
Although I believe that the legislative history and statutory structure indicate that drug type and quantity are elements of a § 841 offense, it is possible that Congress intended them to be sentencing factors for the judge to determine. See United States v. Buckland, 259 F.3d 1157, 2001 U.S. App. LEXIS 17867 (9th Cir.2001) (reaffirming, despite Apprendi, an earlier holding finding drug type and quantity always to be sentencing factors for the judge to determine, thereby rendering § 841 unconstitutional). It strains credulity, however, to assert that Congress intended for type and quantity to be treated as sentencing factors in some cases and as elements in others. I know of no statute written in such a manner, nor am I aware of any statutes construed this way. See also Promise, 255 F.3d at 185 (Luttig, J., concurring in the judgment) (“Either facts *114that affect the sentence a defendant receives are elements or they are not; they are not elements for some purposes and not for others.”).
Furthermore, in this case we cannot assume that Congress might have adopted such an unusual approach simply to avoid an Apprendi violation. See Rust v. Sullivan, 500 U.S. 173, 191, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (explaining that the canon of constitutional doubt “is followed out of respect for Congress, which we assume legislates in the light of constitutional limitations”). Congress enacted the most recent relevant structural changes to § 841 in 1986; the Supreme Court issued its Apprendi decision just last year. Indeed, Congress has not amended § 841 at all since the Apprendi decision. The constitutional limitation of Apprendi perforce did not exist at any time at which Congress wrote or re-wrote § 841. Although we can never be entirely certain of what Congress did intend in drafting § 841, we can be sure that Congress did not intend to design § 841 to fit precisely within the contours of a constitutional rule that did not yet exist. It is much more likely that Congress intended for drug type and quantity always to be elements of a § 841 offense. I would, therefore, overrule our prior cases — e.g., United States v. Lewis, 113 F.3d 487 (3d Cir.1997); United States v. Chapple, 985 F.2d 729 (3d Cir.1993); United States v. Gibbs, 813 F.2d 596 (3d Cir.1987) — that hold to the contrary.
III. Administrability
While the foregoing discussion explicates my position, it is necessary that I respond to the suggestion that “the sky will fall” if my interpretation prevails. Requiring the prosecution to prove drug type and quantity to the jury beyond a reasonable doubt will not needlessly complicate the trial process. See Promise, 255 F.3d at 157 n. 6 (“It will not be unduly difficult for juries to determine whether an offense involved a specific threshold drug quantity.”). Since Apprendi, federal district courts have proceeded in this manner, submitting special interrogatories to the jury for determination of drug type and quantity, and many have been operating in this manner since Jones. In the Appendix to this opinion I attach an example of a special interrogatory on drug quantity prepared by the Office of the United States Attorney for the Eastern District of Pennsylvania and used without incident or problem by the judges of the district court since Jones. Furthermore, in some state systems, juries have been routinely performing this function for at least five years. See Promise, 255 F.3d at 157 n. 6 (citing State v. Virgo, 190 Ariz. 349, 947 P.2d 923, 926 (1997); State v. Moore, 304 N.J.Super. 135, 698 A.2d 1259, 1264 (1997)).
Nor will requiring drug type and quantity to be proved to the jury unduly burden the defendant. Justice Breyer and others have objected to the interpretation I offer because it “could easily place the defendant in the awkward (and conceivably unfair) position of having to deny he committed the crime yet offer proof about how he committed it, e.g., ‘I did not sell drugs, but I sold no more than 500 grams.’ ” Apprendi, 530 U.S. at 557, 120 S.Ct. 2348 (Breyer, J., dissenting); see also United States v. Buckland, 259 F.3d 1157, 2001 U.S.App. LEXIS 17867, at *29-30 (9th Cir. Aug.9, 2001) (quoting same). However, if drug quantity were classified as a sentencing factor for which preponderance of the evidence is the burden of proof, the defendant would lose the advantage of forcing the government to prove this oft-disputed *115fact beyond a reasonable doubt.2
Even if the defendant would be advantaged by having the issue decided by a judge rather than a jury, as Justice Breyer contends, such is not the system envisioned by our Constitution. That system puts its faith in the fairness of a trial by a jury of one’s peers. See Apprendi, 530 U.S. at 498, 120 S.Ct. 2348 (Scalia, J., concurring) (“[I]t is not arguable that, just because one thinks [having a judge determine the facts that affect the length of a sentence] is a better system, it must be, or is even more likely to be, the system envisioned by a Constitution that guarantees trial by jury.”).
Additionally, I do not believe that my construction of § 841 will result in the overturning of the myriad convictions obtained where drug type and/or quantity were not proved to the jury beyond a reasonable doubt, thereby imposing huge burdens on the court system. Any appeal from such a conviction is likely to be reviewed under the plain error standard. Evidenced by the decision of this court today, plain error analysis will rarely result in the overturning of a conviction. Most of the other courts of appeals engaging in plain error review have similarly declined to exercise them discretion to reverse convictions that have violated Ap-prendi by not proving drug type and quantity to the jury beyond a reasonable doubt. See cases cited in opinion of the Court, ante, at 20 nn. 102-105. Even under the harmless error standard, the evidence of drug quantity adduced at trial, as the cases I have seen in the last decade suggest, is usually so overwhelming as to have not affected the defendant’s substantial rights. See, e.g., United States v. Lawson, 16 Fed.Appx. 205, 2001 U.S.App. LEXIS 18153, at *4 (4th Cir.2001) (per curiam).3
*116IY. Conclusion
Construing § 841 in the manner explained, I nonetheless join the judgment of the Court because I believe, as set forth in Section II.B of the Court’s opinion, that the failure to submit drug quantity to the jury did not affect Vazquez’s substantial rights and that, even if it did, it did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.
APPENDIX
8. Dmg case special interrogatories and verdict form re quantity
COUNT 1 (Conspiracy)
_ Guilty
_ Guilty
Jury Interrogatory Number One— Count 1 (Conspiracy) If you find the defendant guilty of the conspiracy charged in Count 1, please answer the following question:
—Do you unanimously agree, by proof beyond a reasonable doubt, that the quantity of cocaine base (“crack”) which was distributed and/or intended to be distributed as part of the conspiracy was 50 grams or more?
_ Yes
__ No
If your answer to this question is “yes,” that concludes Jury Interrogatory Number One. Do not go on to the next question on this page. Proceed to Count 2 of this verdict form.
If your answer to this question is “no,” please answer the following question:
—Do you unanimously agree, by proof beyond a reasonable doubt, that the quantity of cocaine base (“crack”) which was distributed and/or intended to be distributed as part of the conspiracy was five (5) grams or more?
_ Yes
_ No
COUNT 2 (Distribution)
_ Guilty
_ Not Guilty
Jury Interrogatory Number Two— Count 2 (Distribution)
If you find the defendant guilty of the distribution charged in Count 2, please answer the following question:
—-Do you unanimously agree, by proof beyond a reasonable doubt, that the quantity of cocaine base (“crack”) which was distributed was 50 grams or more?
_ Yes
_ No
If your answer to this question is “yes,” that concludes Jury Interrogatory Number Two. Do not go on to the next question on this page.
If your answer to this question is “no,” please answer the following question:
—-Do you unanimously agree, by proof beyond a reasonable doubt, that the quantity of cocaine base (“crack”) which was distributed was five (5) grams or more?
__ Yes
_ No
JURY FOREPERSON
. In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), a case that preceded Jones and Castillo, the Supreme Court construed a provision of immigration law that increased the maximum prison term for a deported alien who has illegally reentered the country from two to twenty years if his initial deportation was subsequent to an aggravated felony conviction. Despite the tenfold increase in maximum prison time, the Court construed the provision as a sentencing factor rather than an element in large part because recidivism "is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender's sentence.” Id. at 243, 118 S.Ct. 1219. The Court again limited the breadth of this holding a year later in Jones when it noted that Almendarez-Torres "rested in substantial part on the tradition of regarding recidivism as a sentencing factor, not as_ an element....” 526 U.S. at 249, 119 S.Ct. 1215. The Court’s refusal to consider prior conviction an element in Almendarez-Torres despite the tenfold increase in penalty, therefore, ought not to be considered in tension with its approach to statutory construction in Jones *113and Castillo, for, as the Court subsequently made clear in Apprendi, sentence enhancements for prior conviction are sui generis. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (announcing the Apprendi rule as applying to "any fact that increases the penalty beyond the prescribed statutory maximum” except "the fact of a prior conviction”).
. Moreover, it seems to me that the kind of scenario feared by Justice Breyer is often intrinsic to criminal statutes in which penalties vary according to different elements. In Castillo, the Court concluded that the type of weapon used in violation of 18 U.S.C. § 924(c), which prohibits the use or carrying of a "firearm” in relation to a crime of violence, was an element of an offense under the statute. In an opinion written by Justice Breyer himself, the Court noted:
[IJnasmuch as the prosecution’s case under § 924(c) usually will involve presenting a certain weapon (or weapons) to the jury and arguing that the defendant used or carried that weapon during a crime of violence within the meaning of the statute, the evidence is unlikely to enable a defendant to respond both (1) “I did not use or carry any firearm,” and (2) "even if I did, it was a pistol, not a machinegun.”
530 U.S. at 128, 120 S.Ct. 2090. I fail to see any principled distinction between § 924(c) and the position in which the defendant would be placed under my interpretation of § 841. In either case, the defendant might be forced, as a matter of trial strategy, to choose between denying the commission of the crime outright and admitting a lesser amount of wrongdoing in order to receive a shorter sentence. Perhaps Justice Breyer’s distinction is that under § 924(c), the prosecution will present to the jury a tangible, discrete object — the weapon — whereas in the drug context, the prosecution will present only a plastic bag of powder or pills, whose type and quantity may not be readily apparent to the jury. Such a distinction, I submit, is too slender a reed upon which to hinge the determination of element or sentencing factor.
. In this case, the indictment alleged drug type and quantity, so Vazquez cannot (and does not) raise the argument that the failure to allege drug type and quantity in the indictment raises different issues on review than failure to prove these factors to a jury beyond a reasonable doubt. Cf. United States v. Gonzalez, 259 F.3d 355, 361 (5th Cir.2001) (noticing plain error where drug quantity was not included in the indictment for a § 841 offense because "the district court lacks the jurisdiction to impose a sentence exceeding the statutory maximum of the offense alleged in the indictment”); cf. also United States v. Tran, 234 F.3d 798, 809 (2d Cir.2000) (reversing conviction where the indictment failed to allege "all of the material elements of an of*116fense” without requiring any showing of prejudice by the defendant because the district court lacked jurisdiction to convict the defendant of an offense not properly charged).