concurring:
I join the court’s opinion regarding its disposition of the Sixth Amendment and “safety valve” issues. I additionally agree that based on binding precedent in this circuit, the district court properly calculated the amount of methamphetamine attributable to Treft in imposing the minimum statutory sentence of ten years under 21 U.S.C. § SJRbXlXAXviii).1 However, I write separately because I respectfully suggest that the court, en banc, should reconsider its construction of 21 U.S.C. § 841 (b)(l)(A)(viii) and its interpretation of the Supreme Court’s decision in Chapman v. United States.2 How the Supreme Court would apply the rationale of Chapman to the facts before us is far from clear, but it at least seems clear that the “market-oriented approach” discussed in Chapman applies to methamphetamine the same way that it applied to LSD in Chapman.3
To me, the question distills to this: in light of Chapman, would the Supreme Court hold that only the weight of the illegal drug can be used in sentencing when it is a small percentage of an unusable, unmarketable mixture that resulted from a “bad batch” or an interruption in the manufacturing process, or conversely, would the Court hold that a “bad batch” or substance seized in mid-processing is a mixture within the meaning of section 841 (b)(1)(A)(viii) either because the mixture is a “tool of the trade” or because the illegal drug chemically bonded or was mixed with the other material. On balance, it seems the plain meaning of the statute should govern. In the case before us, the “bad batch” was a mixture weighing 500 grams or more that contained a detectable amount of methamphetamine, and therefore, the statutory minimum sentence applies. Whether due process would be implicated is another question left open in Chapman, but it is not a question raised in this appeal.
I
Officers arrested Treft at his home after finding considerable evidence that he was manufacturing methamphetamine. They found .66 grams of methamphetamine in finished form and two jars containing a liquid mixture that weighed 4,128.8 grams. Testing revealed that the mixture in the jars contained less than two grams of methamphetamine. Treft told the officers that the liquid was “a batch that didn’t turn out,” and the evidence was undisputed that the 4,128.8 grams of liquid was unusable and unmarketable.
*428Treft’s case proceeded to a jury trial, and the jury was instructed that in order to find Treft guilty, they had to find that “the quantity of the substance was at least 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine.” During deliberations, the jury sent the judge a note inquiring whether the mixture could be 500 grams or more or whether there had to be 500 grams of methamphetamine. The district court responded that the “substance” need not be pure methamphetamine and that the “mixture or substance” must be at least 500 grams or more. The jury then found Treft guilty. The district court imposed a 120-month sentence, the minimum sentence required under 21 U.S.C. § 841(b)(l)(A)(viii).
II
Treft contends that the evidence is insufficient to support the jury’s finding and thus the statutory minimum sentence. If the two grams or less of methamphetamine in the 4,128.8-gram mixture is all that can be counted, then Treft is correct. The outcome depends on the construction of the phrase “500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers,” which is found in section 841(b)(1)(A)(viii), a minimum sentencing provision.4
In Chapman, the Supreme Court construed an almost identical phrase used in another sentencing provision in section 841(b), prescribing a minimum sentence of five years for distributing one or more grams “ ‘of a mixture or substance containing a detectable amount of ” LSD.5 The defendants in Chapman sold 10 sheets of blotter paper containing 10,000 doses of LSD. The LSD alone weighed about 50 milligrams, but if the weight of the paper was included, the weight was 5.7 grams. The Supreme Court held that the weight of the paper should be included.6 The Court discussed the anomalous results that could obtain from its conclusion that section 841(b) required the inclusion of a drug carrier medium (such as blotter paper or a sugar cube), but was nevertheless convinced that Congress intended those results.7 The Court explained that “[s]o long as it contains a detectable amount, the entire mixture or substance is to be weighed when calculating the sentence.”8 The Court also concluded, “Congress adopted a ‘market-oriented’ approach to punishing drug trafficking, under which the total quantity of what is distributed, rather than the amount of pure drug involved, is used to determine the length of the sentence.”9
During the course of the opinion in Chapman, the Supreme Court contrasted the subpart of section 841(b) addressing sentences involving LSD with sentences involving PCP or methamphetamine. The Court said,
The statute refers to a “mixture or substance containing a detectable amount.” So long as it contains a detectable amount, the entire mixture or substance is to be weighed when calculating the sentence.
*429This reading is confirmed by the structure of the statute. With respect to various drugs, including heroin, cocaine, and LSD, it provides for mandatory minimum sentences for crimes involving certain weights of a “mixture or substance containing a detectable amount” of the drugs. With respect to other drugs, however, namely phencycli-dine (PCP) or methamphetamine, it provides for a mandatory minimum sentence based either on the weight of a mixture or substance containing a detectable amount of the drug, or on lower weights of pure PCP or methamphetamine. For example, § 841(b)(1)(A)(iv) provides for a mandatory 10-year minimum sentence for any person who distributes “100 grams or more of ... PCP ... or 1 kilogram or more of a mixture or substance containing a detectable amount of ... PCP .... ” Thus, with respect to these two drugs, Congress clearly distinguished between the pure drug and a “mixture or substance containing a detectable amount of’ the pure drug. But with respect to drugs such as LSD, which petitioners distributed, Congress declared that sentences should be based exclusively on the weight of the “mixture or substance.” Congress knew how to indicate that the weight of the pure drug was to be used to determine the sentence, and did not make that distinction with respect to LSD.10
The foregoing contrast forms the basis of the Fifth Circuit’s conclusion that the market-oriented approach discussed in Chapman does not apply to methamphetamine or PCP offenses.11 I respectfully submit that Chapman does not require such a conclusion. The Supreme Court was simply .saying that with regard to methamphetamine or PCP, a statutory minimum sentence applies if the offense involved either a certain weight of a pure drug or a mixture of a specified weight containing a detectable amount of a drug. In reality, methamphetamine will rarely be entirely pure.12 The statutory minimum sentence applies if. the offense involves “50 grams or more of methamphetamine ... or 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine.”13 A substance that is 99% methamphetamine and 1% inert materia} weighing 51 grams would trigger the minimum sentence, regardless of whether it is considered “methamphetamine” or “a-mixture or substance.” As the Seventh Circuit has pointed out, “[a]s a practical matter, this means that the higher thresholds for mixtures will matter only when the PCP or methamphetamine mixture contains less than 10 percent active ingredient.”14'
In determining what is or is not a “mixture or substance,” the same principles apply, including the market-oriented ap*430proach, regardless of whether the drug is methamphetamine, POP, LSD or one of the other drugs identified in section 841(b). Congress used the same phrase, “[specified weight] or more of a mixture or substance containing a detectable amount of [specified drug],” at least sixteen times in section 841(b).15 Only the quantity and the drug vary among those subsections. There is no indication from the text of section 841(b) or from Chapman that Congress intended the same phrase to have different meanings, depending on the type of drug to which the phrase was appended.
The question not clearly resolved by Chapman is how its rationale applies when detectable amounts of a drug are contained in an unmarketable mixture or substance. Not only did the Supreme Court say that “Congress adopted a ‘market-oriented’ approach to punishing drug trafficking, under which the total quantity of what is distributed, rather than the amount of pure drug involved, is used to determine the length of the sentence,”16 the Court also said that the quantity of drugs is to be measured by the “ ‘street weight’
The penalty scheme set out in the Anti-Drug Abuse Act of 1986 is intended to punish severely large-volume drug traffickers at any level .... It assigns more severe penalties to the distribution of larger quantities of drugs. By measuring the quantity of the drugs according to the “street weight” of the drugs in the diluted form in which they are sold, rather than according to the net weight of the active component, the statute and the Sentencing Guidelines increase the penalty for persons who possess large quantities of drugs, regardless of their purity. That is a rational sentencing scheme.17
The discussion of a market-oriented approach and the street weight of drugs has led some circuits to conclude that only the amount of a drug in an unusable or non-marketable mixture containing detectable amounts of a drug should be used for sentencing purposes under section 841(b)’s “mixture or substance” provisions, or that the sentence should be based on the amount of the drug that likely could have been manufactured.18 This is a logical, *431reasonable method of sentencing, but it is not necessarily the scheme section 841(b), as interpreted by Chapman, intended. As this circuit has noted, there are passages in Chapman that support the conclusion that the entire amount of a mixture or substance containing a detectable amount of a drug should be used for sentencing purposes even if the mixture or substance is waste or unmarketable.19 The Supreme Court said in Chapman, “So long as it contains a detectable amount, the entire mixture or substance is to be weighed when calculating the sentence,” and “if the carrier is a ‘mixture or substance containing a detectable amount of the drug,’ then under the language of the statute the weight of the mixture or substance, and not the weight of the pure drug, is controlling.”20 The Court also held in Chapman that the terms “mixture” and “substance” “must be given their ordinary meaning” and discussed the definition of “mixture” found in a dictionary.21 The Court additionally observed that “[b]lotter paper makes LSD easier to transport, store, conceal, and sell. It is a tool of the trade for those who traffic in the drug, and therefore it was rational for Congress to set penalties based on this chosen tool.”22 “Bad batches” and waste products containing small amounts of illegal drugs would seem just as much a “tool of the trade” as the blotter paper.23
The Chapman decision seems to have focused primarily, if not exclusively, on the distribution of drugs. The defendants in that case were convicted of distributing, not manufacturing, an illegal drug.24 The arguments and examples the defendants put forth focused on distributing, not manufacturing, as did the Court’s responses to those arguments and examples. Perhaps this accounts for the Court’s statements regarding a market-oriented approach and the street weight of drugs and the Court’s failure to discuss the implications those concepts might have when a conviction *432involved manufacturing.25 But we can only speculate on that score.
Because Chapman does not resolve the question of how to treat unmarketable mixtures created in a manufacturing process with clarity, we are left with the statute as written. Section 841(b) does not make any distinction between manufacturing and marketing drugs. Both are crimes under section 841(a) for which the punishments in section 841(b) are imposed. If a substance or mixture contains a detectable amount of a drug, then the weight of that substance or mixture should be used for sentencing purposes even if it is a “bad batch” and unusable.
The Sentencing Commission amended the Guidelines after the Chapman decision to make it clear that the weight of waste materials containing a detectable amount of a drug should not be included in determining the base offense level.26 The Guidelines were also amended to provide that the weight of an LSD carrier medium, such as blotter paper, cannot be used to determine an offender’s base offense level.27 The Supreme Court has held, however, that its interpretation of section 841(b) in Chapman remains unchanged by Commission amendments.28 To the extent there are conflicts between section 841(b) as interpreted by the Supreme Court and the Guidelines, the mandatory mínimums in section 841(b) govern.29
The Court today reaches the correct result, and I concur.
.The statute provides: “In the case of a violation of subsection (a) of this section involving ... 50 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, it salts, isomers, or salts of its isomers; such person shall be sentenced to a term of imprisonment which may not be less than 10 years
. 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991).
. See id. at 461, 111 S.Ct. 1919 (discussing the method for calculating the weight of an LSD mixture or substance for purposes of determining the appropriate statutory penalty for illegal distribution of LSD).
. 21 U.S.C. § 841(b)(1)(A)(viii) (prescribing penalties for manufacturing, distributing, dispensing or possessing methamphetamine).
. Chapman, 500 U.S. at 455, 111 S.Ct. 1919 (quoting and construing 21 U.S.C. § 841(b)(1)(B)(v)).
. Id. at 468, 111 S.Ct. 1919.
. Id. at 458, 111 S.Ct. 1919.
. Id. at459, 111 S.Ct. 1919.
. Id. at 461, 111 S.Ct. 1919.
. Id. at 459-, 111 S.Ct. 1919.
. See, e. g., United States v. Palacios-Molina, 7 F.3d 49, 53 (5th Cir.1993) (observing in dicta that “the Supreme Court embarked on its market-oriented analysis only after specifically recognizing that the drugs methamphetamine and PCP were singled out for different treatment under the Guidelines .... [I]t would appear that the market-oriented analysis was not intended to apply to methamphetamine or PCP” (citation omitted)); United States v. Sherrod, 964 F.2d 1501, 1510 (5th Cir.1992) (“[I]t does not appear that the Chapman Court intended its market-oriented analysis to be applied to methamphetamine or PCP.”).
. See United States v. Blake, 116 F.3d 1202, 1203-04 (7th Cir.1997) (discussing the chemical composition of methamphetamine and the likelihood that most samples of the drug will contain contaminants).
. 21 U.S.C. § 841(b)(1)(A)(viii).
. Blake, 116 F:3d at 1204.
. 21 U.S.C. § 841(b)(l)(A)(i) (heroin); id. § 841(b)(l)(A)(ii) (coca leaves, cocaine, and other drugs); id. § 841(b)(l)(A)(iv)(PCP); id. § 841(b)(l)(A)(v)(LSD); id. § 841(b)(l)(A)(vi) (N-phenyl-N-[l-(2-phenylethyl)-4-piperidi-nyl] propanamide); id. § 841(b)(l)(A)(vii) (marijuana); id. § 841(b)(l)(A)(viii) (methamphetamine); id. § 841(b)(l)(B)(i) (heroin); id. § 841(b)(l)(B)(ii) (coca leaves, cocaine, and other drugs); id. §. 841(b)(l)(B)(iv)(PCP); id. § 841(b)(l)(B)(v)(LSD); id. § 841(b)(l)(B)(vi) (N-phenyl~N-[l-(2-phenylethyl)-4-piperidi-nyl] propanamide); id. § 841(b)(l)(viii) (methamphetamine).
. Chapman v. United States, 500 U.S. 453, 461, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991).
. Id. at 465, 111 S.Ct. 1919.
. See, e.g., United States v. Stewart, 361 F.3d 373, 382 (7th Cir.2004) (holding that only the amount of pure drug contained in an 825-gram solution generated during a thwarted attempt to produce methamphetamine or the amount of usable drug likely to be produced after the solution was fully processed could be used in sentencing under the statute); United States v. Jennings, 945 F.2d 129, 136 (6th Cir.1991) (holding, where the mixture was seized during processing, "[i]t seems fortuitous, and unwarranted by the statute, to hold the defendants punishable for the entire weight of the mixture when they could have neither produced that amount of methamphetamine nor distributed the mixture containing methamphetamine”); cf. United States v. Gori, 324 F.3d 234, 238 (3d Cir.2003) (holding in a methamphetamine case that “whether a drug plus its carrier is a mixture turns not on the purity of the controlled substance contained therein, but rather on how 'combined' the substances are and whether the impure drug is 'marketable' ") (citation omitted). But see United States v. Sprague, 135 F.3d 1301, 1306 n. 4 (9th Cir.1998) (stating “[w]e held that a defendant should be *431given the mandatory minimum sentence under Section 841 based on the entire weight of a liquid solution containing methamphetamine and by-products of the production process”); United States v. Richards, 87 F.3d 1152, 1158 (10th Cir.1996) (en banc) (holding that unusable and unmarketable portion of a methamphetamine mixture seized in the midst of manufacturing should be included for sentencing purposes under section 841(b)); United States v. Innie, 7 F.3d 840, 845, 847 (9th Cir.1993) (holding that entire weight of unfinished methamphetamine mixture should be included even though it was poisonous if ingested).
.United States v. Anderson, 987 F.2d 251, 257-58 (5th Cir.1993) (rejecting argument that a sentence for attempting to manufacture methamphetamine should be based on the amount of the pure drug, not on the weight of the substance that contained a detectable amount, and observing that “the argument now advanced by Anderson [is] inconsistent with § 841(b), the sentencing guidelines, and passages in Chapman”); United States v. Walker, 960 F.2d 409, 412 (5th Cir.1992) (concluding that “much of the language in Chapman supports” the conclusion that “the total weight of a liquid substance containing methamphetamine” should be used in calculating a sentence "despite [the] fact that most of the liquid was waste material”).
. Chapman, 500 U.S. at 459, 460, 111 S.Ct. 1919.
. Id. at 462, 111 S.Ct. 1919 (citing Webster's Third New International Dictionary 1449 (1986)).
. Id. at 466, 111 S.Ct. 1919.
. See, e. g. United States v. Innie, 7 F.3d 840, 845, 847 (9th Cir.1993) (concluding that entire mixture seized during manufacturing, which contained four to eight percent methamphetamine and would be poisonous if ingested, “can be said to facilitate the distribution of methamphetamine because methamphetamine could not have been produced without it”).
. Chapman, 500 U.S. at 455-56, 111 S.Ct. 1919.
. But see United States v. Stewart, 361 F.3d 373, 381 (7th Cir.2004) (rejecting the Government’s argument that unusable portions of a solution should be included when the conviction was for manufacturing and holding that "[i]t would be illogical to include the entire weight of the 825-gram solution in the drug-quantity — thus subjecting [the defendant] to a mandatory minimum sentence — merely because [the defendant] was caught after he had combined the raw materials, but before he had produced usable methamphetamine”).
. U.S. Sentencing Guidelines Manual § 2D1.1, cmt. n. 1 (2005) (defining "mixture or substance” to exclude "materials that must be separated from the controlled substance before the controlled substance can be used” such as "waste water from an illicit laboratory used to manufacture a controlled substance”); id. app. C, amend. 484 (effective November 1, 1993) (citing United States v. Sherrod, 964 F.2d 1501 (5th Cir.1992), as a case the amendments were addressing and stating "chemicals seized before the end of processing are also not usable in that form because further processing must take place before they can be used”); see also United States v. Levay, 76 F.3d 671, 673 (5th Cir.1996) (holding that Amendment 484 to the Guidelines "specifically addresses precursor chemicals mixed with controlled substances,” and therefore only 5.96 grams of a mixture weighing 9,892 grams could be used to calculate the base offense level because "the disputed material here has to be separated from the remaining liquid before it can be used").
. Id. § 2D1.1(c), cmt. n.(H) (2005); see also id. app. C, amend. 488 (effective November 1, 1993).
. Neal v. United States, 516 U.S. 284, 290, 116 S.Ct. 763, 133 L.Ed.2d 709 (1996) ("[W]e conclude that the Commission's choice of an alternative methodology for weighing LSD does not alter our interpretation of the statute in Chapman. In any event, principles of stare decisis require that we adhere to our earlier decision.”).
. Id. at 296, 116 S.Ct. 763 ("We hold that § 841(b)(1) directs a sentencing court to take into account the actual weight of the blotter paper with its absorbed LSD, even though the Sentencing Guidelines require a different method of calculating the weight of an LSD mixture or substance.”); see also United States v. Morgan, 292 F.3d 460, 465 (5th Cir.2002) ("Amendments to the Guidelines do not override Chapman for the purpose of statutory mandatory minimums.”).