dissenting.
I agree with Part I of Judge Sloviter’s dissent. I write separately to express my view that the majority has written a new chapter in the book of plain error review of sentencing, and, I further suggest, has rewritten Apprendi and Williams.
In Apprendi, the Supreme Court held that the New Jersey statutory scheme “cannot stand,” because, after the jury convicted the defendant of a second degree offense, the statute allowed a judge to impose punishment identical to what New Jersey provides for crimes of the first degree, provided that the judge found, by a preponderance of the evidence, that the defendant’s purpose for unlawfully possessing the weapon was to intimidate his victim on the basis of a particular characteristic the victim possessed. 530 U.S. at 491-92, 120 S.Ct. 2348. In Williams, we determined that an Apprendi error will only be found to have occurred if the judge actually imposes a sentence that is above a certain threshold, namely, the maximum sentence allowable for the crime of which the defendant was convicted. 235 F.3d at 863.
I submit that we ignore the teachings of both of these cases in issuing the majority opinion today. I say this because we are advocating the judicial determination of the proof that supports a certain sentence, contrary to the specific dictates of Appren-di, and we are forgetting that, in *127Williams, our analysis was based upon our view that an Apprendi error is a sentencing error, not an error that occurs at trial. I submit that the majority opinion writes a new chapter regarding plain error analysis in the sentencing context, because the law as it presently exists requires resentencing in the event that a sentence has been imposed in violation of the law, 18 U.S.C. § 3742,1 and even under the microscope of plain error review, we have had little difficulty noticing an error and remanding cases for resentencing where substantial rights were affected and the integrity of our system had been undermined by illegal sentences.2
Today, we are not requiring a new sentencing proceeding, nor are we even saying that a new trial should occur, which could arguably follow from the logic and language of Apprendi. Rather, we search for a way to uphold an offensive, unconstitutional sentence, although there is no intimation in Apprendi that such a sentence can ever be countenanced, in the first instance, let alone preserved by the jurists’ view of what may have occurred.
The majority’s discussion of the “substantial rights” or “prejudice” inquiry that we must make under plain error review does not focus on the tenor and logic of the Supreme Court’s opinion in Apprendi,3 but, rather, it reaches out and follows the reasoning of Johnson and Neder. However, in doing so, the majority overlooks the fact that the Supreme Court in Apprendi never alludes to Johnson or Neder, and we, in Williams, never intimated that this is an appropriate exercise. I submit that we were right in not doing so, since Johnson and Neder involved trial errors rather than sentencing errors such as that implicated in Apprendi and the instant case.4 Thus, the Court’s method of analysis in those cases cannot be so easily imported into this distinctly different situation.
*128In Johnson, the error at issue was the district court’s failure, in a perjury prosecution, to submit the issue of materiality of the false statements to the jury. 520 U.S. at 467, 117 S.Ct. 1544. Rather than having the jury decide that issue, the district court instructed the jury that it had determined that the defendant’s statements were material, and the defendant did not object to'the instruction as such. On appeal, the defendant claimed that the district court committed plain error in failing to submit the issue of materiality to the jury, and that the error “rendered her conviction invalid” under Supreme Court precedent. Id. at 464, 117 S.Ct. 1544. The Supreme Court rejected that argument, and found that the error, while “plain,” did not warrant correction under the last prong of Olano because there was “overwhelming” and “uncontroverted” evidence that the statement was material, and thus, the “fairness, integrity or public reputation of the judicial proceedings” would not be seriously affected by its failure to correct the error. Id. at 470, 117 S.Ct. 1544. The Court expressly noted the fact that correcting the error in such a case would yield the opposite result because it would require “the reversal of a conviction.” Id.
Neder involved the same error — the failure to submit the element of materiality to the jury — and the Court there determined that the error was subject to harmless error review. 527 U.S. at 8-9, 119 S.Ct. 1827. In conducting its harmless error/prejudice inquiry, the Court applied the following test in view of the nature of the error at issue: “whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at 15, 119 S.Ct. 1827 (emphasis added). The Court answered that question by reference to the trial record, and concluded that “no jury could reasonably find” that the defendant’s actions were not material. Id. at 16, 119 S.Ct. 1827.
Based on the Court’s analysis in Neder, the majority pretends' to ask the same question in assessing prejudice to the defendant, but it actually asks a different one: “whether [the sentence] would have been the same absent the failure to submit drug quantity for a jury determination.” Maj. Op. at 104. However, given that I view the Apprendi error as having occurred at sentencing, and given the question asked in Neder (if we really are to draw on Neder as a guide), the appropriate question to ask in assessing the third element of the plain error analysis under Olano is whether, in the context of the sentencing proceedings, it appears beyond a reasonable doubt that the Apprendi error complained of — sentencing a defendant to a greater term of imprisonment than that permitted under the law-contributed to the sentence obtained. E.g., Sochor v. Florida, 504 U.S. 527, 540, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992) (applying harmless error analysis and asking whether, in the context of the sentencing proceedings, a sentencing error “ ‘was harmless beyond a reasonable doubt’ in that ‘it did not contribute to the sentence obtained’ ”) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)); Richmond v. Lewis, 506 U.S. 40, 49, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992) (explaining when a sentencing error occurs, such as consideration of invalid aggravating circumstance, harmless error review requires courts to “actually perform a new sentencing calculus, if the sentence is to stand”); Parker v. Dugger, 498 U.S. 308, 319, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991) (describing harmless error analysis in the context of sentencing proceedings as requiring a determination of.whether the sentencing error “would have made no difference to the sentence”); Clemons v. Mississippi, *129494 U.S. 738, 753, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) (stating that harmless error analysis in the context of sentencing proceedings must ask whether “it was beyond a reasonable doubt that the sentence would have been the same” had there been no sentencing error). Plainly, the answer is “yes,” because if the District Court had not sentenced Vazquez to more than the prescribed statutory maximum for the offense for which he was convicted, he would have received less prison time than he actually received. Thus, his substantial rights were affected.
Similarly, in assessing whether we should correct the error under the last prong of Olcmo, the issue is not, as it was in Johnson, whether the trial proofs indicate that the fairness and integrity of the trial proceedings would not be impugned by the fact that judge rather than the jury made the determination at issue, given the strength of the evidence. Rather, given the language and logic of Apprendi, we should ask whether the error affected the sentencing in a way that affects the fairness and integrity of the judicial proceedings. And, unlike the situation presented in Johnson, our correction of the error would not result in the reversal of a conviction; rather, the remedy for the unconstitutionally imposed sentence is a remand for resentencing in accordance with the jury’s verdict.
Clearly, one cannot read Apprendi without realizing that, not only are substantial rights affected by the Apprendi sentencing error,5 but also the public reputation of judicial proceedings is affected by the sentencing of a defendant to more prison time than the maximum permissible based on the crime charged and the jury’s verdict. In Apprendi, the focus was on New Jersey’s statutory scheme, and the Court was not faced with having to apply Fed.R.Crim.P. 52(b) because the issue came before the Court on an appeal from a guilty plea entered in New Jersey state court. ' Thus, we must speculate from its language precisely what the Court really would do in a situation such as this. But the language in Apprendi does not make this a difficult exercise. There the Court referenced the differential in sentencing between what Apprendi would have received without the finding of a biased purpose, and what he could receive with it, stating that it was “more than a nominal effect.” Apprendi, 530 U.S. at 495, 120 S.Ct. 2348. The Court then stated: “Both in terms of absolute years behind bars, and because of the more severe stigma *130attached, the differential here is unquestionably of constitutional significance.”6 Id. It concluded its opinion by stating that “[t]he New Jersey procedure challenged in this case is an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.” Id. at 497, 120 S.Ct. 2348.
To my mind, in order to read Apprendi in a way that would be what the majority holds today, we would have to read into, or add to, the Court’s closing statement the following:
Of course, on the other hand, if reasonable jurists can determine from the record that the jury would have found the necessary element or sentencing factor beyond a reasonable doubt, then the jury’s actual finding on that element, and its verdict, is not such an indispensable part of our criminal justice system. In such circumstances, the otherwise unconstitutional sentence may nevertheless stand.
I believe the tone and language of Appren-di preclude any such reading. In fact, the very language of Apprendi quoted by the majority seems to negate this idea. Maj. Op. at 98-99 (stating that the Court in Apprendi “endorsed the following concept: ‘It is unconstitutional for the legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.’ ”) (quoting Apprendi, 530 U.S. .at 490, 120 S.Ct. 2348) (internal quotation marks omitted).
If we follow the logic of the majority, the government can charge and convict a defendant of manslaughter, but sentence him for murder, and, as long as the government produced evidence at trial that would support that sentence, we would not notice or correct the error under Rule 52(b) and require resentencing in accordance with the jury’s verdict. That result is not what Johnson and Neder stand for, nor is it what the Supreme Court envisioned. E.g., United States v. Promise, 255 F.3d 150, 190 (4th Cir.2001) (Motz, J., concurring in part, dissenting in part). If anything, it is just the opposite. In fact, in Apprendi, the Supreme Court noted disapprovingly, “Indeed, the effect of New Jersey’s sentencing ‘enhancement’ here is unquestionably to turn a second-degree offense into a first-degree offense under the state’s own criminal code.” 530 U.S. at 494, 120 S.Ct. 2348.
For these reasons, I join in Judge Slovi-ter’s dissent in Part I.
However I. disagree with Judge Slovi-ter’s conclusion that the error is structural, because it is, again, a sentencing error. It did not occur until the sentence exceeding the maximum allowed was pronounced. The error did not “infect the entire trial process” and “unnecessarily render [the] trial fundamentally unfair.” Neder, 527 U.S. at 8, 119 S.Ct. 1827. I can find no Supreme Court opinion that suggests that a sentencing error can be “structural.” In fact, Judge Sloviter appears to fall some*131what into the trial error trap of Neder and Johnson in her discussion in Part II, when she speaks of the need for the jury, not the judge, to determine the offense. While that is the nature of the discussion in Apprendi, because it focuses on the statutory scheme, in light of Williams, that is not the nature of the error before us. What kind of error is it if a defendant is sentenced to a term greater than the maximum allowable for that offense? I submit that it is a sentencing error, that it is constitutional, not structural, and that the error is plain in any event.
. 18 U.S.C. § 3742(0(1) provides:
(0 Sentence and disposition — If the court of appeals determines that the sentence— (1) was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate....
Id.
. For example, we previously have addressed sentencing errors such as those implicated by a trial court's improper guideline calculation, and have found that such mistakes are sufficiently prejudicial to warrant relief under the plain error standard. E.g., United States v. Felton, 55 F.3d 861, 869 n. 3 (3d Cir.1995) (“This circuit and others have found that the miscalculation of a defendant’s offense level 'certainly is error that seriously affect[s] [the defendant's] rights, and so amounts to plain error.' ") (quoting United States v. Pollen, 978 F.2d 78, 90 (3d Cir.1992) (alteration in original)); Pollen, 978 F.2d at 90 (“The district court’s improper calculation ..., resulting in a significantly higher Guideline sentencing range, certainly is an error that seriously affected [defendant’s] substantial rights and so amounts to plain error.”).
. As the Supreme Court explained in Olano\
The third and final limitation on appellate authority under Rule 52(b) is that the plain error "affec[t] substantial rights.” This is the same language employed in Rule 52(a), and in most cases it means that the error must have been prejudicial: It must have affected the outcome of the judicial proceedings.
507 U.S. at 734 (alteration in original) (quoting Fed.R.Crim.P. 52(b)).
. The majority states that we are presented with a combination of trial and sentencing errors. I am not sure what that means, and the majority has provided no supporting authority for its new .category of error. Maj. Op. at 101. Clearly, we have a sentencing error, probably due to someone’s error at trial — most likely, the government's — but I submit that there is no argument that the District Court actually committed error during the trial itself, and there has been no request for a new trial on that basis.
. As Judge Sloviter’s dissent points out, several of our sister circuits have recognized that an Apprendi violation constitutes an error that affects a defendant’s substantial rights. E.g., United States v. Buckland, 259 F.3d 1157, 1168, reh’g en banc granted, 265 F.3d 1085 (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 affects the fairness, integrity or public reputation of the judicial proceedings.”) (internal quotation marks omitted); United States v. Maynie, 257 F.3d 908, 2001 WL 856142, at *8 (8th Cir. July 30, 2001) (finding "that greater, and improper, infringement of defendants’ liberty substantially affected their rights”); United States v. Miranda, 248 F.3d 434, 444 (5th Cir.2001) (“Because Appellants were sentenced to serve between 20-30 years of incarceration — considerably longer than the maximum sentences available pursuant to the jury determination under the federal drug offense statute, ... the error clearly affected ... substantial rights.”); United States v. Noble, 246 F.3d 946, 955 (7th Cir.2001) (concluding that "[t]he Apprendi error substantially prejudiced Noble's rights by extending his sentence 10 years in excess of the statutory maximum”); United States v. Page, 232 F.3d 536, 544 (6th Cir.2000) (stating that "[tjhere is no doubt that imposing additional years of imprisonment beyond that authorized by a jury's verdict affects a defendant’s substantial rights”), cert. denied, 121 S.Ct. 2202 (2001).
. As an aside, I should note that by concentrating on our divergence from Apprendi and Williams, I do not downplay the constitutional significance of the fact that Vazquez was never indicted for the crime for which he has been sentenced. As eloquently stated by Judge Motz in her powerful partial dissent in United States v. Promise, 255 F.3d 150 (4th Cir.2001), the end result of the Apprendi violation meant that “the district court sentenced [the defendant] as if he had been indicted and convicted of a far more serious offense, imposing on[him] ten more years of imprisonment than the offense for which he was actually indicted and convicted permits.” Id. at 189 (Motz, J., concurring in part, dissenting in part).