dissenting,
with whom Judges MANSMANN, NYGAARD, and McKEE join, and with whom Judges ROTH and RENDELL join as to Part I.The majority’s opinion is based on the following logic: Vazquez was convicted after a jury trial of conspiracy to possess *117and distribute more than 5 kilograms of cocaine in violation of 21 U.S.C. §§ 846 and 841 respectively; the jury was instructed to find whether Vazquez conspired to possess and distribute cocaine but was not instructed to find the quantity of cocaine involved; following the Supreme Court’s opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), a jury is required to find beyond a reasonable doubt any fact that increases the prescribed range of penalties to which the defendant is exposed by the jury’s verdict; in this case the jury’s verdict exposed Vazquez to sentencing under § 841(b)(1)(C) for which the maximum penalty is 20 years (240 months) imprisonment; the trial judge, applying a preponderance of the evidence standard, determined that Vazquez had been involved with 992 grams of powder cocaine and 859 grams of crack cocaine and therefore sentenced Vazquez to 292 months imprisonment; this constituted a violation of Ap-prendi, but the court will affirm because Vazquez didn’t contest the amount of drugs at trial, and the court is confident that the jury would have made the same determination that the trial judge made, so the Apprendi violation was not plain error.
There are many bases on which one might take issue with the logic of the majority’s opinion, but I begin by approaching the majority’s opinion on its own terms. That requires consideration of whether the Apprendi violation can meet the plain error inquiry.
I.
A.
The Apprendi Decision
Apprendi, who had fired several shots into the home of an African-American family, was charged in state court with, inter alia, two counts of second-degree possession of a firearm for an unlawful purpose and one count of third-degree unlawful possession of an antipersonnel bomb. Under New Jersey law, a second-degree offense carries a penalty range of 5 to 10 years of imprisonment. After Ap-prendi pleaded guilty to these counts pursuant to a plea agreement, the prosecutor, as permitted by that agreement, filed a motion to enhance Apprendi’s sentence under New Jersey’s hate crime statute which authorized an enhanced sentence upon the finding of a trial judge, by a preponderance of the evidence, that the defendant committed the crime with a purpose to intimidate a person or group because of race. See N.J. Stat. Ann. § 2C:44-3(e) (West Supp.1999-2000). Based on Ap-prendi’s own statements made after his arrest, the trial court found that the shooting was racially motivated and sentenced him to 12 years of imprisonment. Appren-di appealed his sentence through the New Jersey courts, contending that the Due Process Clause requires that racial bias be proven to a jury beyond a reasonable doubt, but they upheld the enhanced sentence.
The United States Supreme Court reversed. In reaching its conclusion, the Court noted among the “constitutional protections of surpassing importance” the provision of the Fourteenth Amendment that liberty can be deprived only with due process and the Sixth Amendment guarantee of a trial by jury, which entitle the defendant to a jury determination that s/he is guilty of every element of the crime beyond a reasonable doubt. Apprendi, 530 U.S. at 476, 120 S.Ct. 2348. The Court cited to its earlier decision in In re Win-ship, where it stated: “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is *118charged.” Id. at 477, 120 S.Ct. 2348 (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)) (brackets omitted).
The Apprendi Court examined the historical underpinnings of these principles and, while recognizing that discretion had been accorded to trial judges in their sentencing decisions, reasoned that such discretion cannot deprive a defendant at the time of sentencing “of protections that have, until that point, unquestionably attached.” Id. at 484, 120 S.Ct. 2348.
Finding that the New Jersey statutory scheme under which a judge may enhance the punishment based on a finding by a preponderance of the evidence violated due process, the Court held that “[ojther 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. In doing so, the Court rejected New Jersey’s argument that racial bias was only a sentencing factor and not an element of the crime, stating: “the relevant inquiry is one not of form, but of effect— does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Id. at 494.
B.
Vazquez’s Sentence
The count of the Superseding Indictment on which Vazquez was tried and found guilty, and which is at issue here, charges him with conspiracy to possess with intent to distribute, and to distribute, more than 5 kilos of cocaine in violation of 21 U.S.C. § 841, and, following the setting forth of 10 paragraphs constituting the Overt Acts, states, “All in violation of Title 21 United States Code, Section 846.”
Section 841(a) is entitled “.Unlawful acts” and provides that “it shall be unlawful for any person knowingly or intentionally' — (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” Section 841(a) does not prescribe penalties. It is § 841(b), entitled “Penalties,” that prescribes the range of penalties for certain quantities of controlled substances. Under § 841(b)(l)(A)(iii), the sentence for a defendant convicted of violating § 841(a) with 50 grams or more of a mixture containing cocaine base (i.e., crack cocaine) is not less than 10 years of imprisonment and no more than life. The sentence under § 841(b)(l)(B)(iii) for a defendant with 5 grams or more of a mixture containing cocaine base is not less than 5 years and not more than 40 years of imprisonment. Section 841(b)(1)(C), often referred to as the catch all provision, contains no drug quantity requirement and provides a maximum possible sentence of 20 years of imprisonment.
The majority concedes that § 841(b)(1)(C) “defines Vazquez’s prescribed statutory maximum sentence as 20 years.” Maj. Op. at 99. The majority then states: “The Apprendi violation occurred when the judge, rather than the jury, determined drug quantity and then sentenced Vazquez to a more than 24-year sentence.” Maj. Op. at 99. Surprisingly, it does not remand so that Vazquez can be resentenced to a sentence that does not exceed the maximum authorized by the statute. Instead, it devises a rationale to affirm the sentence that was arrived at in an unconstitutional manner.
I do not understand why the majority’s disposition is appropriate, necessary, or just. I note that in Apprendi, the Supreme Court, after finding that the procedure that led to the enhancement of Apprendi’s sentence was unconstitutional, *119reversed and remanded. Of course, Ap-prendi came to the Court from the New Jersey Supreme Court, not from a federal court, but I see no justification in Ap-prendi itself for us to do anything different with a District Court judgment.
The majority, however, after noting that Vazquez did not challenge the evidence of drug quantity or object to the court’s failure to submit the issue to the jury,1 sustains the sentence that was unconstitutionally enhanced by applying the plain error standard. Under Rule 52(b) of the Federal Rules of Criminal Procedure, “[pjlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” In United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Supreme Court explained that there must be (1) “error,” (2) that is “plain,” and (3) that “affect[s] substantial rights.” Id. at 732, 113 S.Ct. 1770 (quotation marks omitted). The appellate court will then have discretion to correct such an error if it (4) “seriously affectfs] the fairness, integrity or public reputation of judicial proceedings.” Id. (quotation marks omitted).
The majority agrees that in sentencing Vazquez, the court committed error and that it was plain. It concludes that the error was harmless because Vazquez cannot show that the error affected his substantial rights. The majority bases that conclusion on its determination that the evidence established that Vazquez sold more than 5 grams, which is sufficient to carry a statutory maximum penalty under 21 U.S.C. § 841(b)(l)(B)(iii) of 40 years imprisonment, more than the 24 plus years to which he was sentenced. The majority states that based on its consideration of the evidence “we can say without a doubt that Vazquez conspired to possess and/or distribute the 992 grams of powder cocaine and 859 grams of crack cocaine the authorities found at the Columbia rooming house.” Maj. Op. at 103-104. Therefore, the majority concludes that the Apprendi error did not affect Vazquez’s substantial rights.
Completing its plain error inquiry, the majority holds that even if the Apprendi violation affected Vazquez’s substantial rights, he cannot establish the fourth factor, i.e., that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. The majority so holds because, it says, Vazquez was the leader of a drug trafficking operation that distributed cocaine in Lancaster County, and a rational jury would certainly have found that he conspired to possess and distribute more than the amount necessary to support a “slightly more than 24-year sentence pursuant to § 841(b)(l)(B)’s 5-to-40-year sentencing range.” Maj. Op. at 105.
C.
The Substantial Rights Inquiry
I agree with the majority that there was error in sentencing Vazquez and that it *120was plain. I disagree that the error did not affect Vazquez’s substantial rights. Under the plain error inquiry, “the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. It is the defendant who bears the burden of persuasion. See id. Vazquez’s sentence to more than 24 years imprisonment, which exceeds the statutory maximum of 20 years imprisonment under § 841(b)(1)(C) authorized by the jury verdict, clearly affects Vazquez’s substantial rights. An error that will cause a defendant to spend four plus years more in prison than statutorily authorized by the jury’s verdict necessarily adversely affects the defendant’s substantial rights.
I find it curious that the majority never acknowledges that additional time in prison could affect substantial rights. In other contexts, courts of appeals have not hesitated to conclude that an error resulting in an increase in the defendant’s sentence affected the defendant’s substantial rights. See, e.g., United States v. Anderson, 201 F.3d 1145, 1152 (9th Cir.2000) (“An error that results in a longer sentence undoubtedly affects substantial rights.”); United States v. Martinez-Rios, 143 F.3d 662, 676 (2d Cir.1998) (finding clerical error which increased defendant’s sentence by several months to affect substantial rights). Indeed, the Supreme Court recently held in Glover v. United States, 531 U.S. 198, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001), that an increase in a defendant’s sentence of at least six months was prejudicial in relation to an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Of relevance here, the Court noted that “any amount of actual jail time has Sixth Amendment significance.” Glover, 531 U.S. at 203, 121 S.Ct. 696; see also United States v. Knight, 2001 WL 1042458, (3d Cir. Sept.6, 2001) (holding application of an incorrect sentencing guideline range affected substantial rights and was plain error even though sentence was also within correct range).
In Apprendi violation cases, numerous courts have recognized that extra prison time affects substantial rights. In United States v. Nordby, the Ninth Circuit stated that “[f]ive additional years of imprisonment were imposed beyond that authorized by this verdict, which easily affected [defendant’s] substantial rights.” 225 F.3d 1053, 1060 (9th Cir.2000). It reiterated that holding the following year in United States v. Buckland, 259 F.3d 1157, 2001 WL 893440, *9, reh’g en banc granted, 2001 WL 1091167 (9th Cir.2001) (“Imposing a sentence that is seven years more than the maximum sentence constitutionally permitted under the facts as found by the jury undoubtedly ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ”). Morever, the Tenth Circuit in United States v. Jones, 235 F.3d 1231 (10th Cir.2000), recognized that it “regularly has found reversible error when the sentence imposed by the district court exceeded the statutory maximum penalty applicable to the offense of conviction.” Id. at 1238. Even courts that did not ultimately reverse on the basis of an Apprendi error have recognized that prison sentences in excess of the applicable maximum affect substantial rights. See United States v. Promise, 255 F.3d 150, 150, 160-61 (4th Cir.2001); see also United States v. Mietus, 237 F.3d 866, 875 (7th Cir.2001) (assuming that Apprendi error that increased defendant’s sentence by over 7 years affected his substantial rights); Nance, 236 F.3d at 825-26 *121(same).2
Because the majority opinion would leave intact a sentence beyond the statutory maximum that was not based on a jury finding under the beyond-a-reasonable-doubt standard, thereby ignoring established constitutional principles, I cannot see how the effect could be other than to impugn the “fairness, integrity and public reputation” of the judicial process. The fact that the majority condones a process by which a judge usurped a determination within the jury’s province strikes at the reputation of the judicial proceedings here. Cf. Apprendi, 530 U.S. at 498, 120 S.Ct. 2348 (Scalia, J. concurring) (“Judges, it is sometimes necessary to remind ourselves, are part of the State.... The founders of the American Republic were not prepared to leave [criminal justice] to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free.”) (parenthesis omitted).
In determining that Vazquez’s substantial rights were not affected, the majority relies on the Supreme Court’s decisions in Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), and Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), where the Court held that erroneous jury instructions did not require reversal. However, the substantial rights inquiry in those cases was not the same as it is here.
In Johnson, the trial judge had instructed the jury that the materiality of the statements was an issue for the judge and not the jury to decide, and the defendant did not object to this instruction. Johnson, 520 U.S. at 463, 117 S.Ct. 1544. After Johnson’s conviction, the Supreme Court decided United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), which held that the materiality of a false statement must be decided by a jury. Johnson, 520 U.S. at 463, 117 S.Ct. 1544. The Supreme Court held that Johnson had not established the fourth prong of the plain error standard — that the error seriously affected the fairness, integrity or public reputation of judicial proceedings. In so holding, the Court noted that the evidence supporting materiality was overwhelming and that the defendant presented no plausible argument that her false statements under oath were not material. See id. at 470, 117 S.Ct. 1544.
In Neder, the error was similar, i.e., the trial court’s failure to charge the jury on the materiality of the false statements or omissions for which the defendant was convicted. The defendant in Neder had objected to the instruction, so the Court’s discussion on prejudice was in the context of a harmless error analysis. See 527 U.S. at 6-7, 15, 119 S.Ct. 1827. The Court held there was overwhelming evidence of the materiality of the statements, and hence the omission of the charge was harmless error. See id. at 16-20, 119 S.Ct. 1827.
In neither case was the sentence at issue; rather the issue was whether to uphold or reverse the jury’s verdict of guilt. Here, we must decide whether an increase in prison time as a result of the error affects the defendant’s substantial rights. As a result, those cases are inapposite here.
Instead of affirming the sentence on the ground that Vazquez’s substantial rights were not affected, as the majority does, I *122would follow the disposition recently reached by some of our sister circuits who, after finding an Apprendi error in sentencing the defendant, vacated the sentence and remanded for resentencing within the statutory maximum sentence authorized by the jury verdict. See, e.g., United States v. Martinez, 253 F.3d 251, 255-56 (6th Cir.2001) (vacating the defendants’ sentences and remanding for resentencing because the sentences exceeded the maximum sentence authorized by the jury verdict by 12 and 15 years respectively); United States v. Ray, 250 F.3d 596, 603 (8th Cir.2001) (remanding for resentencing because the defendant’s 97-month sentence of imprisonment exceeded the statutory maximum of 60 months); United States v. Velazquez, 246 F.3d 204, 218-19 (2d Cir.2001) (vacating the defendant’s sentence and remanding for sentencing because the sentence exceeded by four months the maximum that could be imposed without a jury determination of an element of the crime); United States v. McWaine, 243 F.3d 871, 875-76 (5th Cir.2001) (vacating the sentence and remanding for resentencing because the defendant’s life sentence exceeded the 20-year statutory maximum sentence authorized by the jury); United States v. Jones, 235 F.3d 1231, 1238 (10th Cir.2000) (remanding for resentencing because the actual sentence of 30 years exceeded the 20-year statutory maximum sentence authorized by the jury verdict); United States v. Nordby, 225 F.3d 1053, 1060 (9th Cir.2000) (remanding for resentencing because “[f]ive additional years of imprisonment were imposed beyond that authorized by this verdict, which easily affected [defendant’s] substantial rights.”). Although not every court that has found an Apprendi violation followed .the course of these cases, I believe that course is the one demanded by justice.
II.
In reaching its conclusion to affirm Vazquez’s sentence, the majority rejects Vazquez’s argument that the Apprendi error was a structural defect. Structural defects are per se prejudicial and preter-mit the substantial rights inquiry. Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). The majority reasons that “Apprendi violations result in both trial and sentencing errors, albeit ones that rise to a constitutional dimension,” Maj. Op. at 104; that the Supreme Court has instructed that most constitutional errors can be harmless; that both trial errors and sentencing errors have been subjected to harmless or plain error analysis; and that therefore “an Ap-prendi violation is not a structural defect.” Maj. Op. at 104.
I believe the majority’s syllogism is flawed and that the issue of an Apprendi violation as a structural defect merits more analysis than has been given to it in the cases, including even those cases that have reversed sentences imposed in violation of Apprendi and remanded for resentencing.
In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), even though the Court held that constitutional errors could be harmless, it also recognized that there are some constitutional errors that are not subject to harmless error analysis. Chief Justice Rehnquist referred to them in Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), as involving rights “so •basic to a fair trial that them infraction can never be treated as harmless error.” Id. at 308, 111 S.Ct. 1246 (quoting Chapman, 386 U.S. at 23, 87 S.Ct. 824). Structural defects occur in a limited class of cases, such as where there has been a complete denial of counsel, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 *123L.Ed.2d 799 (1963), a biased trial judge, see Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), unlawful exclusion of grand jurors of defendant’s race, see Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986), denial of self-representation, see McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), denial of public trial, see Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), or a defective reasonable-doubt instruction to the jury, see Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). Such errors have been termed “structural” because each involves a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Johnson, 520 U.S. at 468, 117 S.Ct. 1544 (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)).
Perhaps the Sullivan case best illustrates a structural error. As explained in Justice Scalia’s opinion for a unanimous Court, a constitutionally defective reasonable-doubt instruction violated the Sixth Amendment right to trial by jury, a right that is “ ‘fundamental to the American scheme of justice.’ ” 508 U.S. at 277, 113 S.Ct. 2078 (quoting Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)).
Sullivan was convicted by a jury following a charge that defined a reasonable doubt in terms of “a grave uncertainty,” a definition that did not meet constitutional standards. Justice Scalia began his discussion why such an error was not amenable to harmless-error analysis with the principle that the most important element in the Sixth Amendment right to trial by jury is “the right to have the jury, rather than the judge, reach the requisite finding of ‘guilty.’ ” Id. He continued, “although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence.” Id. (emphasis added).
Having established the constitutional principle, he then considered whether the Court could uphold the jury verdict on the basis of harmless error, stating that “[hjarmless-error review looks ... to the basis on which ‘the jury actually rested its verdict.’ ” Id. at 279, 113 S.Ct. 2078 (alteration in original) (quoting Yates v. Evatt, 500 U.S. 391, 404, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991)). The inquiry “is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Id. “That must be so, because to hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the findings to support that verdict might be— would violate the jury-trial guarantee.” Id.
It appears that the majority in this case rejects the possibility that the Apprendi violation was a structural defect by reliance on the Supreme Court’s decisions in Johnson and Neder. Johnson had argued that the error, the failure to instruct the jury that it must decide the materiality of the false statements, was a structural defect and therefore outside the scope of Rule 52(b). The Johnson Court stated that “{i]t is by no means clear” whether the failure to submit an element of the offense to the jury was a structural error. 520 U.S. at 469, 117 S.Ct. 1544. It continued, “Sullivan v. Louisiana, the case most closely on point, held that the erroneous definition of ‘reasonable doubt’ vitiated all of the jury’s findings because one could only speculate what a properly charged jury might have done.” Id. The Court *124then noted that the failure to submit materiality to the jury “can just as easily be analogized to improperly instructing the jury on an element of the offense, an error which is subject to harmless-error analysis, as it can be to failing to give a proper reasonable-doubt instruction altogether.” Id. (citations omitted). The Court did not resolve this question because it affirmed the conviction notwithstanding the error on the ground that Johnson had not established the fourth prong of the plain error standard. Id. at 469-70, 117 S.Ct. 1544.
In Neder, the Court undertook the analysis of structural defects it avoided in Johnson. The Court considered and rejected the defendant’s argument that the error — the trial court’s omission of an element of the offense from the jury instruction — was a structural defect. 527 U.S. at 8-15, 119 S.Ct. 1827. The Court reviewed the numerous cases in which it held that various trial errors were not structural defects. Among those were cases dealing with improperly instructing the jury on an element of the offense, see California v. Roy, 519 U.S. 2, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996), erroneous mandatory conclusive presumptions, see Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989), and erroneous mandatory rebuttable presumptions, see Yates v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991). Similarly, it noted that the Court had previously held that harmless-error analysis applies to the erroneous admission of evidence in violation of the Fifth Amendment’s guarantee against self-incrimination, see Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), and the erroneous exclusion of evidence in violation of the Sixth Amendment right to confront witnesses, see Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).
The error in Neder’s case was not a structural defect because it “[did] not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Neder, 527 U.S. at 9, 119 S.Ct. 1827 (emphasis omitted). That is, “where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” Id. at 17, 119 S.Ct. 1827.
Therefore, if the majority is correct that the error here was the failure to submit an element of the offense to the jury, then there would be no basis to argue that the error in this case was a structural defect. However, I believe that an Apprendi error is an error of a different dimension. There were at least two constitutional violations identified in Apprendi. One dealt with the issue of the respective roles of the jury and judge. See Apprendi, 530 U.S. at 477, 120 S.Ct. 2348. The other dealt with the standard of proof, the requirement that the government prove a criminal defendant guilty beyond a reasonable doubt. See id. at 478, 120 S.Ct. 2348. It is arguable that after Neder, a trial error that enables a judge, rather than a jury, to determine one of the elements of the offense is not a structural defect, although Justice Scalia’s dissent in Neder persuades me (albeit not a majority of the Court) that it should be so regarded.
In his Neder opinion, Justice Scalia characterized Johnson as standing “for the proposition that, just as the absolute right to trial by jury can be waived, so also the failure to object to its deprivation at the point where the deprivation can be remedied will preclude automatic reversal.” Neder, 527 U.S. at 35, 119 S.Ct. 1827. Following Justice Scalia’s reading of John*125son in Neder, one might argue that even if Vazquez waived his jury trial right by failing to contest the trial court’s arrogation of the jury’s obligation to decide drug quantity, an element of the crime, this case is unlike both Johnson and Neder because an Apprendi violation also implicates the right to be convicted under a beyond-a-reasonable-doubt standard.3
Nothing in either Johnson or Neder, or any other case of which I am aware, justifies treating the failure to apply the beyond-a-reasonable-doubt standard to drug quantity as anything other than a structural defect. That failure, I believe, is comparable to the structural defect in the constitutionally deficient beyond-a-reasonable-doubt instruction found in Sullivan. The Due Process Clause, Sullivan explains, requires that the prosecution persuade the factfinder “beyond a reasonable doubt” of the facts necessary to establish all elements of the offense. 508 U.S. at 277-78, 113 S.Ct. 2078. If there is no jury verdict finding petitioner guilty beyond a reasonable doubt, “[t]he most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt.” Id. at 280, 113 S.Ct. 2078. “That,” said the Court in Sullivan, “is not enough.” Id. And further, “[t]he Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal.” Id.
In Apprendi, the Court discussed separately the two rights — the one that requires trial by jury and “the companion right to have the jury verdict based on proof beyond a reasonable doubt.” 530 U.S. at 478, 120 S.Ct. 2348. The Court commented, “The ‘demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula “beyond a reasonable doubt” seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.’ ” C. McCormick, Evidence § 321, pp. 681-682 (1954); see also 9 J. Wigmore, Evidence § 2497 (3d ed.1940). Id. (quoting In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). Apprendi reaffirmed the pronouncement in Winship that “the ‘reasonable doubt’ standard among common-law jurisdictions ‘reflect[s] a profound judgment about the way in which law should be enforced and justice administered.’” Id. (quoting Winship, 397 U.S. at 361-62, 90 S.Ct. 1068) (quotation omitted).
In the Supreme Court cases discussing structural defects, the Court consistently lists among the errors that it has found to be structural the defective reasonable-doubt instruction in Sullivan. It did so in Johnson and it did so in Neder. See Neder, 527 U.S. at 8, 119 S.Ct. 1827; Johnson, 520 U.S. at 469, 117 S.Ct. 1544. In contrast, in Vazquez’s case, the trial judge made the finding of drug quantity by a *126preponderance of the evidence. It is the majority that first applies the beyond-a-reasonable-doubt standard to drug quantity-
While it is true that the jury made findings sufficient to sustain a § 841(b)(1)(C) verdict under a beyond-a-reasonable-doubt standard, it did not so find as to the amount of drugs under any other provision of § 841(b). It is this defect, which, while it did not “infect the entire trial process,” Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), as most structural defects have done, infected the portion of the criminal proceedings at issue here, i.e., the sentence, and I see no reason why the same structural defect analysis that applies in the other cases which the Court agrees defy harmless-error review would not apply to the sentence. I believe that the majority opinion undermines, indeed nullifies, the long tradition in American constitutional criminal jurisprudence that it is the jury, rather than the judge, that must determine the offense for which the defendant has been sentenced and that it must so find beyond a reasonable doubt.4 I would therefore hold that we must remand for a new sentencing hearing.5
. Because Apprendi was decided after Vazquez's conviction and sentence, it is understandable that Vazquez did not timely object in the District Court either before or after the instruction on the ground that drug quantity should be submitted to the jury. In United States v. Nance, 236 F.3d 820, 823-24 (7th Cir.2000), the court considering a similar question stated that because of earlier indications, primarily the opinion of the Supreme Court in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the defendant could have argued that the quantity of the drugs should have been charged in the indictment and proved beyond a reasonable doubt. As a result, the court concluded it would review for plain error. Nance, 236 F.3d at 825. In light of the position I take, I need not consider whether the Jones decision provided a sufficient basis to forewarn criminal defendants that an objection was called for.
. In affirming the sentences, these courts shifted the inquiry from the effect on substantial rights to the discretionary question referred to in Olano, which was whether the error was one that "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings,” 507 U.S. at 732, 113 S.Ct. 1770.
. As the Neder majority observed, appellate inquiry into “whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element .... ‘serve[s] a very useful purpose insofar as [it] block[s] setting aside convictions for small errors or defects that have little, if any likelihood of having changed the result of the trial.' ” Neder, 527 U.S. at 19, 119 S.Ct. 1827 (quoting Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). At the conclusion of its rejection of the structural error claim, the Court observed: “Reversal without any consideration of the effect of the error upon the verdict would send the case back for retrial — a retrial not focused at on the issue of materiality, but on contested issues on which the jury was properly instructed.” Id. at 15, 119 S.Ct. 1827. In Vazquez’s case, there would be no retrial, only a remand for resentencing.
. Justice Scalia closes his Neder dissent with the following quote from Blackstone,
However convenient [intrusions on the jury right] may appear at first, (as doubtless, all arbitrary powers, well executed, are the most convenient,) yet let it be again remembered that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread to the utter disuse of juries in questions of the most momentous concern.
Neder, 527 U.S. at 39-40 (quoting 4 Blackstone, Commentaries *350).
. Although I believe that Chief Judge Becker’s concurrence may have much to commend it, it is not the rationale adopted by the majority opinion. I would therefore leave the question of the interpretation of the relevant drug statutes for decision in another case where the defendant's sentence is not inconsistent with the teaching of Apprendi, as the government concedes in this case.