United States v. Ignasio Maldenaldo Sanchez, United States of America v. Santiago Gilberto Sanchez

269 F.3d 1250, 2001 WL 1242087

Opinions

HULL, Circuit Judge:

Defendants-Appellants Ignasio Maldenaldo Sanchez and Santiago Gilberto Sanchez (“the Sanchezes”) appeal their convictions and sentences after pleading guilty to a single-count indictment that charged them with conspiracy to distribute and to possess with intent to distribute methamphetamine and amphetamine, in violation of 21 U.S.C. §§ 841, 846. They challenge their convictions and sentences primarily based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). A panel of this Court affirmed. See United States v. Sanchez, 242 F.3d 1294 (11th Cir.2001). Relying on United States v. Rogers, 228 F.3d 1318 (11th Cir.2000), the panel concluded that “in light of Apprendi, drug quantity is an element of the offense that must be charged in the indictment.” Sanchez, 242 F.3d at 1298 (citing Rogers, 228 F.3d at 1324). The panel opinion repeated Rogers’s statement that “ ‘drug quantity in sections 841(b)(1)(A) and 841(b)(1)(B) cases must be charged in the indictment and proven to a jury beyond a reasonable doubt.’ ” Id. (quoting Rogers, 228 F.3d at 1327). Because the indictment did not allege a specific drug quantity, the panel opinion found that both defendants’ plea colloquies were “technically inadequate.” Id. The panel opinion held, however, that there was “no prejudice” because, inter alia, the Sanchezes’ sentences fell below the maximum penalty permitted under 21 U.S.C. § 841(b)(1)(C). Id. at 1300.

We subsequently sua sponte vacated the panel opinion and, by vote of a majority of the judges in active service, ordered that the case be reheard en banc. See United States v. Sanchez, 247 F.3d 1306 (11th Cir.2001). We address en banc: whether, in light of Apprendi, drug quantity is now always an element of an offense under § 841 that must be charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt; whether the district court properly denied the San-chezes’ motion to dismiss the indictment; whether the district court’s drug quantity findings under § 841(b)(1)(B) and utilization of that sentencing scheme, which exposed the Sanchezes to enhanced sentences under that section but did not result in an actual term of imprisonment beyond the otherwise applicable maximum penalty in § 841(b)(1)(C), violated Apprendi; whether Apprendi applies to the San-chezes’ § 841 indictment, guilty pleas, convictions, and sentences given that the district court’s drug quantity findings did not increase their ultimate sentences beyond the otherwise applicable maximum penalty in § 841(b)(1)(C); in this regard, whether we should adopt the analyses of Apprendi’s impact on § 841 cases in United States v. Rogers, 228 F.3d 1318 (11th Cir.2000) and United States v. Camacho, 248 F.3d 1286 (11th Cir.2001), or the analyses in United States v. Gerrow, 232 F.3d 831 (11th Cir.2000), cert. denied, — U.S. —, 122 S.Ct. 75, — L.Ed.2d — (2001), and other circuits’ decisions finding that Ap-prendi does not apply unless a judge-made determination of drug quantity increases a defendant’s sentence beyond the otherwise applicable maximum penalty in § 841(b)(1)(C); whether Apprendi rendered the Sanchezes’ plea colloquies inadequate under Rule 11 and their guilty pleas unintelligent or involuntary if the court advised them about the higher statutory maximum penalties under §§ 841(b)(1)(A) and 841(b)(1)(B); whether terms of supervised release for § 841 convictions are controlled by 21 U.S.C. § 841(b)(1)(C) or 18 U.S.C. § 3583(b)(2) and whether the Sanchezes’ four-year terms violated Apprendi; and what is the proper standard of review for each issue.

After such review and for the reasons discussed herein, we see no error, under Apprendi or otherwise, in the Sanchezes’ indictment, plea colloquies, convictions, or sentences. We therefore affirm their convictions and their sentences.

This opinion proceeds as follows. In Part I, we review the proceedings in the district court. In Part II, we review the Supreme Court’s decisions in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) and Appren-di. We then discuss the federal drug statute, our precedent construing that statute, and Apprendi’s effect on both. In Part III, we address the Sanchezes’ challenges to their indictment, guilty pleas, and sentences, along with the corresponding standards of review. In Part IV, we summarize our conclusions.

I. PROCEDURAL BACKGROUND

In the district court, the Sanchezes challenged not only their sentences but also their indictment and convictions based on Jones, and on appeal, they rely primarily on Apprendi Additionally, for the first time on appeal they challenge their plea colloquies under Rule 11 based on Appren-di. The Sanchezes emphasize that from the outset of their cases the government sought enhanced penalties under § 841(b)(1)(B) based on drug quantities. They seek to expand Apprendi’s constitutional principle to, and thereby show constitutional error at, all stages of their cases. Thus, we first review in detail the proceedings in the district court.

A. Sanchezes’Indictment

In late 1998, a federal grand jury returned a single-count indictment charging that the Sanchezes “did combine, conspire, confederate, agree, and have a tacit understanding with each other, and with others known and unknown to the Grand Jury, to violate Title 21, United States Code, § 841, to wit: to knowingly and intentionally possess with the intent to distribute and distribute quantities of methamphetamine and amphetamine, both being Schedule II controlled substances, in violation of Title 21, United States Code, Section 846.”¹ The indictment referenced 21 U.S.C. §§ 841, 846 and the type of drugs involved but not the quantities. Both defendants pled not guilty.

On April 21, 1999, defendant Ignasio Sanchez filed a “Motion to Dismiss Indictment for Failure to Allege Facts that Increase Maximum Penalty,” specifically relying on Jones. The motion stated, “Jones clearly holds that the Constitution requires an indictment to allege ‘any fact (other than prior conviction) that increases the maximum penalty for a crime.’ Furthermore, such a fact must be submitted to a jury for a decision as to proof beyond a reasonable doubt.”² On this basis, Ignasio Sanchez argued that the indictment had to be dismissed because the various statutory maximum penalties under 21 U.S.C. § 841(b) for a violation of 21 U.S.C. § 841(a) were determined by drug quantity, and the indictment against him did not allege a specific drug quantity.

The district court denied the motion, noting that under this circuit’s precedent “[t]he statutory scheme set forth in § 841 establishes that drug quantity is a sentencing consideration.” The court continued that “the Constitution does not require drug quantity to be considered as an element of the criminal offense defined by § 841.” The court noted that Jones “does not stand for the proposition that every fact which exposes a criminal defendant to a higher maximum penalty must be alleged in an indictment.” Subsequently, the court granted, without objection, Santiago Sanchez’s request to adopt Ignasio Sanchez’s motion to dismiss the indictment and denied that motion as well.³

B. Guilty Pleas and Rule 11 Colloquies

In early 2000, the district court conducted separate, but substantially similar, plea colloquies for each defendant pursuant to Rule 11. See Fed.R.Crim.P. 11. The court advised both defendants of their various constitutional rights and asked whether each defendant understood that, by pleading guilty to the single-count indictment, he waived those constitutional rights and there would not be a trial of any kind. Each defendant responded in the affirmative. The court read the entire indictment and advised the Sanchezes that before a jury could find them guilty, the government was required to prove the various elements of the offense, as stated in the indictment, beyond a reasonable doubt.

Regarding sentencing, the district court advised Ignasio Sanchez that depending on the amount of drugs found to be attributable to him, he faced a sentence of either (a) ten years to life imprisonment, five years’ supervised release, and a $4,000,000 fine, or (b) five to forty years’ imprisonment, four years’ supervised release, and a $2,000,000 fine. The court advised Santiago Sanchez only of the first of these two sentences. Although not citing any particular subsections within § 841(b), the court, in effect, described the content of §§ 841(b)(1)(A) and 841(b)(1)(B).⁴ The court also discussed the Sentencing Guidelines and stated that a sentencing range would be developed for each defendant within which the court had discretion to impose a sentence depending on the circumstances of the case.

Both defendants, after acknowledging that they understood the nature of the charge against them, pled guilty to the single-count indictment. Ignasio Sanchez entered a written plea of guilty which, pursuant to Rule 11(a)(2),⁵ was conditional on his reservation of the right to appeal the denial of his motion to dismiss the indictment.⁶ See Fed.R.Crim.P. 11(a)(2). Santiago Sanchez likewise was allowed to enter a conditional guilty plea.⁷

C. Pre-Sentence Reports

The initial pre-sentence reports recommended that the Sanchezes be held accountable for specific quantities of methamphetamine and amphetamine which resulted in marijuana equivalencies of 38,106.94 kilograms for Ignasio Sanchez and 50,803.91 kilograms for Santiago Sanchez. Although § 841 specifies grams of methamphetamine and amphetamine, the Sentencing Guidelines convert certain drug quantities into marijuana equivalencies as part of calculating the offense level for the guideline range. See United States Sentencing Guidelines § 2Dl.l(c), cmt. n.10 (drug equivalency tables). The statutory penalty for the Sanchezes’ drug quantities was ten years’ to life imprisonment, as set forth in 21 U.S.C. § 841(b)(l)(A)(viii).⁸ Regarding the guideline range within this statutory range, the initial pre-sentence reports recommended a custodial term of 210 to 262 months for both defendants.⁹

Both defendants and the government timely filed written objections. For example, Ignasio Sanchez objected “to all factual findings of the presentence report as a matter of due process under the Jones rationale.” Ultimately, revised pre-sen-tence reports recommended that Ignasio Sanchez and Santiago Sanchez be held accountable for reduced amounts of methamphetamine and amphetamine, resulting in reduced marijuana equivalencies of 5,447.74 kilograms and 6,713.99 kilograms, respectively. These reduced amounts resulted in a reduced guideline range for both defendants of 135 to 168 months.¹⁰ The revised reports stated that the “Statutory Penalty” was “5 to 40 years.”¹¹ While this penalty corresponded to § 841(b)(1)(B), the revised reports did not specifically cite to that section of the statute.

D. Sentencing

The Sanchezes were sentenced in two joint sentencing hearings. At the outset of the first hearing, Ignasio Sanchez orally renewed his motion to dismiss the indictment based on Jones and specifically “based upon the lack of specificity and quantity in the indictment.” He continued that this argument “would have an effect at this time ... in that the findings must be beyond a reasonable doubt under my motion.” Both defendants, however, agreed that if validly charged and convicted under this indictment, the court could find that they were accountable for (a) one transaction involving two pounds of methamphetamine, which is equivalent to I,814.4 kilograms of marijuana, and (b) two other transactions each involving six pounds of amphetamine, the combination of which is equivalent to 1,087.2 kilograms of marijuana. On the basis of the government’s evidentiary proffer and the San-chezes’ concessions, the district court found “as a matter of fact by a preponderance of the evidence” that each defendant was responsible for drug amounts result ing in a total marijuana equivalency of 2,903.04 kilograms.¹²

Regarding the statutory penalty, the district court then stated that its sentencing option was a statutory mandatory minimum sentence of five years up to forty years. While not expressly referencing § 841(b)(1)(B), the court described the content of that section. In calculating the guideline range within that statutory range, the court determined that the above drug amounts, along with other guideline calculations, produced a custodial guideline range of 87 to 108 months for Ignasio Sanchez and 108 to 135 months for Santiago Sanchez.¹³ Stating an intention to sentence at the bottom end of those ranges, the court sentenced Ignasio Sanchez to 87 months’ imprisonment and Santiago Sanchez to 108 months’ imprisonment, followed by four years’ supervised release for each defendant.

After imposing the sentences, the court asked for objections. Citing Jones, Igna-sio Sanchez’s counsel objected to drug quantity not being charged in the indictment and not being proved beyond a reasonable doubt. Santiago Sanchez’s counsel adopted the Jones objection made by Igna-sio Sanchez’s counsel. Subsequently, both defendants timely appealed.¹⁴

II. DISCUSSION

The Sanchezes challenge their single-count indictment, plea colloquies, convictions, and sentences based on Jones and Apprendi We can discern no error in any of these phases of the Sanchezes’ cases. We begin by analyzing Jones and Appren-di We then review the federal drug statute, this circuit’s precedent construing that statutory scheme, and what effect Appren-di has on that landscape.

A. Jones v. United States

Jones was a ease of statutory interpretation, in which a grand jury charged the defendant with violating the federal carjacking statute, 18 U.S.C. § 2119.¹⁵ A jury found the defendant guilty. The Supreme Court stated, “This case turns on whether the federal carjacking statute, 18 U.S.C. § 2119, ... defined three distinct offenses or a single crime with a choice of three maximum penalties, two of them dependent on sentencing factors exempt from the requirements of charge and jury verdict.” 526 U.S. at 229, 119 S.Ct. 1215. After analyzing the carjacking statute’s text, structure, and legislative history, and after comparing the statute to others in which “serious bodily injury” was “unmistakably identified” as an offense element, the Supreme Court adopted the former interpretation of the statute, concluding that “the fairest reading of § 2119 treats the fact of serious bodily harm as an element, not a mere enhancement.” Id. at 239, 119 S.Ct. 1215.

While resolving Jones based on this statutory interpretation, the Supreme Court further justified its construction by invoking the doctrine of constitutional doubt. The Supreme Court observed that under the alternative statutory interpretation, in which serious bodily injury was construed as a sentencing factor, “the statute would be open to constitutional doubt in light of a series of cases over the past quarter century, dealing with due process and the guarantee of trial by jury.” Id. at 240, 119 S.Ct. 1215 (citing cases). In the now-famous footnote six, the Supreme Court described the principle “animating” its view that this alternative interpretation “may violate the Constitution,” as follows: “[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id. at 243 n. 6, 119 S.Ct. 1215. The Supreme Court continued that “[b]ecause our prior cases suggest rather than establish this principle, our concern ... rises only to the level of doubt, not certainty.” Id.

B. Apprendi v. New Jersey

In contrast to its task of statutory interpretation in Jones, the Supreme Court in Apprendi squarely addressed the constitutionality of a statutory sentencing scheme that allowed judge-made findings to increase a defendant’s statutory maximum penalty. The defendant, Charles Apprendi, admitted to firing several bullets into the home of an African-American family who had recently moved into a previously all-white neighborhood in New Jersey. Apprendi, 530 U.S. at 469, 120 S.Ct. 2348. A New Jersey grand jury returned a 23-count indictment charging Apprendi with various shootings and with the unlawful possession of various weapons. Id.

Apprendi pled guilty to only three counts in the indictment, including two counts of the second-degree offense of possession of a firearm for an unlawful purpose, in violation of § 2C:39-4(a) of the New Jersey Statutes. Id. at 469-70, 120 S.Ct. 2348. That state firearm statute provided, “Any , person who has in his possession any firearm with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the second degree.” N.J. Stat. Ann. § 2C:39-4(a) (West 1995). As a second-degree crime, this firearm offense was punishable by a term of imprisonment “between five years and 10 years.” Id. § 2C:43-6(a)(2) (“Except as otherwise provided, a person who has been convicted of a crime may be sentenced to imprisonment ... [i]n the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years”).

An entirely separate New Jersey statute, however, provided for higher minimum and maximum sentences than those normally applicable to second-degree crimes if the sentencing court made certain factual findings. That statute provided, “The court shall, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime ... to an extended term if it finds, by a preponderance of the evidence, the grounds in subsection e,” specifically, that “[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.” N.J. Stat. Ann. § 2C:44-3(e) (West Supp.2000) (emphasis added).

The “extended term” permitted for a second-degree crime, such as possession of a firearm for an unlawful purpose, was “between 10 and 20 years.” N.J. Stat. Ann. § 2C:43-7(a)(3) (“In the cases designated in section 2C:44-3, a person who has been convicted of a crime may be sentenced ... to an extended term of imprisonment ... [i]n the case of a crime of the second degree, for a term which shall be fixed by the court between 10 and 20 years.”). This “extended term” of imprisonment was identical to the penalty normally applicable to first-degree crimes. See id. § 2C:43-6(a)(l).

It was this separate state statute — providing for an “extended term” of imprisonment upon a finding that the defendant acted “with a purpose to intimidate ... because of race” — that was the focus of the Supreme Court’s decision in Apprendi. Only after Apprendi pled guilty to the second-degree crime of firearm possession for an unlawful purpose, which carried a maximum penalty of ten years’ imprisonment, the state requested that the sentencing court impose an enhanced sentence on one of the two firearms counts, pursuant to N.J. Stat. Ann. § 2C:44-3(e). Following an evidentiary hearing on whether Apprendi’s “purpose” for the shooting at issue in that count was “to intimidate ... because of race,” the trial judge found by a preponderance of the evidence “that the crime was motivated by racial bias” and thus that Apprendi acted “with a purpose to intimidate ... because of race” as stated in the statute. Apprendi, 530 U.S. at 471, 120 S.Ct. 2348.

Under the terms of the state statute, this judge-made finding triggered an “extended term” of imprisonment of ten to twenty years. Accordingly, the trial judge, over Apprendi’s constitutional objection, sentenced Apprendi to twelve years’ imprisonment on that count. Id. This sentence was two years above the ten-year maximum ordinarily applicable to the second-degree offense with which Apprendi had been charged and to which he had pled guilty. Id. In addition to this sentence on one of the firearm counts, the court sentenced Apprendi to shorter, concurrent terms on the remaining two counts of the indictment to which Apprendi had pled guilty. Id.

Apprendi appealed his twelve-year sentence on the one firearm count. Id. He argued that the Due Process Clause of the Constitution required that the finding of racial bias upon which his sentence was increased be made by a jury beyond a reasonable doubt, rather than by a judge based on a preponderance of the evidence standard. Id. The state supreme court affirmed Apprendi’s sentence, and he petitioned for certiorari to the Supreme Court of the United States. Id. at 472, 120 S.Ct. 2348.

The Supreme Court framed the issue as follows: “The question presented is whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt.” Id. at 469, 120 S.Ct. 2348. The Supreme Court noted that the answer to this question was “foreshadowed” by its earlier opinion in Jones. Id. at 476, 120 S.Ct. 2348.

The Supreme Court stated that the rights set forth in the Sixth and Fourteenth Amendments “indisputably entitle a criminal defendant to ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ ” Id. at 477, 120 S.Ct. 2348 (quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)). After conducting a historical examination of this entitlement, the Court noted that the “due process and associated jury protections extend, to some degree, to determinations that [go] not to a defendant’s guilt or innocence, but simply to the length of his sentence.” 530 U.S. at 484, 120 S.Ct. 2348 (internal quotation marks omitted).

The Supreme Court continued that its decision did not strip the term “sentencing factor” of all meaning, but rather, the “term appropriately describes a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury’s finding that the defendant is guilty of a particular offense.” Id. at 494 n. 19, 120 S.Ct. 2348. The Court recognized, “On the other hand, when the term ‘sentence enhancement’ is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict. Indeed, it fits squarely within the usual definition of an ‘element’ of the offense.” Id. (emphasis added).

The Supreme Court then squarely adopted the following constitutional principle, which was foreshadowed by Jones and has since provided the Sanchezes and so many other criminal defendants ammunition with which to attack their sentences: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. Applying this principle to the facts of Apprendi’s case, the Supreme Court concluded that the sentencing procedure permitted by the New Jersey statutory scheme — which allowed a judge-made finding of racial bias by a preponderance of the evidence to increase a defendant’s term of imprisonment for a firearm offense beyond the prescribed statutory maximum of ten years and up to twenty years — was invalid. Id. at 491,120 S.Ct. 2348. The Court therefore reversed Apprendi’s twelve-year sentence on the firearm offense.¹⁶ Id. at 497, 120 S.Ct. 2348.

Thus, Apprendi’s holding does not paint with the wide brush suggested by the Sanchezes. Rather, Apprendi was a sentencing case, presented a narrow sentencing issue, and made only a narrow holding about New Jersey’s sentencing procedure, specifically: A trial judge cannot find a fact, such as racial bias, and then use that fact to impose a sentence higher than the prescribed statutory maximum penalty for the underlying criminal offense. Indeed, the Court itself characterized the question presented in Apprendi as a “narrow issue.” Id. at 474, 120 S.Ct. 2348.

Moreover, the Apprendi opinion expressly limited the applicability of the constitutional principle it described. Fundamentally, Apprendi did not require that all sentencing factors be submitted to a jury and proven beyond a reasonable doubt. Instead, Apprendi expressly reaffirmed the long-established general principle that a judge-decided fact may affect a defendant’s sentence within the applicable statutory range without invoking the constitutional principles articulated in Ap-prendi. In describing the origins of the requirement that all elements of a crime be proven to a jury, the Court stated, “We should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case.” Id. at 481, 120 S.Ct. 2348 (citing Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)). The Court continued that its “periodic recognition of judges’ broad discretion in sentencing ... has been regularly accompanied by the qualification that that discretion was bound by the range of sentencing options prescribed by the legislature.” 530 U.S. at 481, 120 S.Ct. 2348.

In this same vein, the Supreme Court in Apprendi also expressly preserved its earlier opinion in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), in which the Court permitted a fact triggering a mandatory minimum sentence to be decided by a judge based on a preponderance of the evidence standard. Id. at 86-88, 106 S.Ct. 2411.¹⁷ In Apprendi, the Supreme Court specifically stated, “We do not overrule McMillan. We limit its holding to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict — a limitation identified in the McMillan opinion itself.” Apprendi, 530 U.S. at 487 n. 13, 120 S.Ct. 2348. Thus, Apprendi actually reaffirmed the longstanding practice of allowing judge-decided facts to affect the length of a defendant’s sentence, including leaving the imposition of a mandatory minimum sentence within the purview of the trial judge. Apprendi carved out only a limited exception to this general rule for facts that actually cause the sentence imposed on a defendant to exceed the prescribed statutory maximum, requiring that such facts be proven to a jury beyond a reasonable doubt rather than decided by a judge based on a preponderance of the evidence standard.

Likewise, Apprendi does not apply to judge-made determinations pursuant to the Sentencing Guidelines. See, e.g., United States v. Nealy, 232 F.3d 825, 829 n. 3 (11th Cir.2000) (“The Sentencing Guidelines are not subject to the Apprendi rule.”); United States v. Harris, 244 F.3d 828, 829-30 (11th Cir.2001) (holding that Apprendi does not apply to the relevant conduct provision of the Sentencing Guidelines); see also United States v. Diaz, 248 F.3d 1065, 1105 (11th Cir.2001) (noting that “Sentencing Guideline issues are not subject to the Apprendi rule and, thus, there is no requirement that sentencing facts be submitted to a jury and found beyond a reasonable doubt”). As the Supreme Court in Apprendi noted, “The Guidelines are, of course, not before the Court. We therefore express no view on the subject beyond what this Court has already held.” Apprendi, 530 U.S. at 497 n. 21, 120 S.Ct. 2348. While Apprendi was silent on the issue, its inapplicability to the Sentencing Guidelines follows from its holding. A factual finding under the Guidelines determines the sentence within the statutory range rather than outside it. Because Apprendi only addresses facts that increase the penalty for a crime beyond the statutory maximum, it does not apply to those findings that merely cause the guideline range to shift within the statutory range.¹⁸

Apprendi also did not hold that judge-decided facts that expose a defendant to a higher statutory maximum penalty must be proven to a jury beyond a reasonable doubt. The analysis employed in, and the holding of, Apprendi make clear that any consideration of a defendant’s sentence in light of Apprendi is to be conducted retrospectively rather than prospectively. The defendant in Apprendi was not merely exposed to a higher sentence than otherwise applicable but was actually sentenced to twelve years’ imprisonment under New Jersey’s entirely separate “hate crime” statute, which was above the prescribed statutory maximum of ten years’ imprisonment for his firearm offense. Our reading of Apprendi anchors its holding to the facts involved. In sum, Apprendi is implicated only when a judge-decided fact actually increases the defendant’s sentence beyond the prescribed statutory maximum for the crime of conviction.¹⁹

C. The Federal Drug Statute

We next examine the impact of Apprendi on the federal drug statute, 21 U.S.C. § 841. To do so, we review initially the plain language and structure of the statutory scheme itself and then our precedent regarding that statute. We then ascertain the effect of Apprendi on both. In reviewing a statutory scheme, “[o]ur task is to construe what Congress has enacted. We begin, as always, with the language of the statute.” Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 2124, 150 L.Ed.2d 251 (2001).²⁰

The Sanehezes were charged with conspiring to distribute and to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a).²¹ Section 841(a), entitled “Unlawful acts,” describes the prohibited conduct and the state of mind required for a drug offense. Specifically, § 841(a)(1) renders it “unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1) (emphasis added).²² The Sanehezes pled guilty to conspiring to violate § 841(a)(1).

According to the plain language of § 841(a)(1), a “controlled substance” is a distinct element of that drug offense. Because § 841(a) makes it unlawful for a person knowingly or intentionally to possess with intent to distribute a “controlled substance,” then necessarily there must be an actual “controlled substance” of some quantity involved in that drug offense.²³ Thus, to some extent, when a defendant pleads guilty to, or a jury finds the defendant guilty of, an indictment charging possession with intent to distribute a “controlled substance,” a drug quantity of some amount is already part of the underlying crime of conviction.

Section 841(b), entitled “Penalties,” provides the penalties for violations of § 841(a). It states that “any person who violates subsection (a) of this section shall be sentenced as follows.” 21 U.S.C. § 841(b) (emphasis added). What follows in § 841(b) are myriad sentencing factors (including serious bodily injury, prior felony drug convictions, and drug types and quantities) and associated penalties. Thus, the penalties in § 841(b) become applicable only after a defendant has been duly convicted of a substantive violation of § 841(a).

Section 841(b)’s penalties begin with a statutory maximum of life imprisonment in § 841(b)(1)(A) and decrease in severity based on this host of sentencing factors, including drug types and quantities.²⁴ The first three subsections of § 841(b)(1) govern offenses involving controlled substances listed in schedules I and II, such as the methamphetamine and amphetamine involved in this case. Accordingly, those three subsections will receive the brunt of our attention.

Section 841(b)(1)(A) provides that “[i]n the case of a violation of subsection (a)” of § 841 “involving” certain enumerated quantities of certain enumerated drug types, the defendant “shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life.” 21 U.S.C. § 841(b)(1)(A). Section 841(b)(1)(B) largely mirrors § 841(b)(1)(A), providing that “[i]n the case of a violation of subsection (a)” of § 841 “involving” certain lesser amounts of those same drugs set forth in § 841(b)(1)(A), the defendant “shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years.” Id. § 841(b)(1)(B).

Section 841(b)(1)(C) applies to all other violations of § 841(a) involving schedule I or II substances and provides, “In the case of a controlled substance in schedule I or II, ... except as provided in subpara-graphs (A), (B), and (D), such person shall be sentenced to a term of imprisonment of not more than 20 years.” 21 U.S.C. § 841(b)(1)(C).²⁵ Section 841(b)(1)(C) sets a term of imprisonment for offenses without regard to drug quantity.²⁶

Thus, § 841 is bifurcated, providing a clear dichotomy, of offense elements and sentencing factors. Specifically, the plain language and structure of the statute reflect a congressional intent to create a single offense, defined in § 841(a), and to provide for penalties in § 841(b) dependent upon sentencing factors, such as drug types and quantities.²⁷

D. Circuit Precedent Prior to Apprendi

On multiple occasions prior to both Jones and Apprendi, this Court construed the federal drug statute and concluded that while a “controlled substance” is an element of an offense under § 841(a), neither the nature nor the quantity of that substance is an element of that offense that must be submitted to a jury or proved beyond a reasonable doubt. Instead, this Court held that in order to obtain a conviction, the government need show only that some controlled substance was involved.²⁸ The defendants in these pre-Apprendi cases often argued that drug quantity was an essential element of their offenses.²⁹ We consistently rejected this claim, construing § 841(a) as setting forth a single, complete offense and § 841(b) as setting forth sentencing factors relevant only to determining a defendant’s sentence for having violated § 841(a).³⁰

We preserved this interpretation of § 841 even after Jones. See United States v. Hester, 199 F.3d 1287 (11th Cir.), vacated and remanded, 531 U.S. 941, 121 S.Ct. 336, 148 L.Ed.2d 270 (2000).³¹ Hester represented the first serious encounter between our prior statutory interpretation and the constitutional rule of Apprendi, which at that time existed in more embryonic form as footnote six of Jones. In Hester, we noted that our precedent construing § 841 constituted “binding authority” in which we “clearly rejected the characterization of the amount of drugs as an element of the offense under [section] 841.” Id. at 1291 (citing eases). We then noted that this precedent foreclosed any argument that drug quantity was an element of an offense under § 841 “unless the Supreme Court decided otherwise in Jones.” Id. After quoting and discussing footnote six, we adopted a narrow reading of Jones and concluded that the constitutional principles referenced in Jones did not disrupt our prior approach to § 841 cases.³² Id. at 1291-92. We therefore continued to follow our precedent holding that § 841 is clear and unambiguous and reaffirmed that “[a]s we have announced in our previous cases, Congress decided that the elements of a § 841 offense do not include the weight of the drugs.” Id. at 1292.³³

E. Apprendi’s Impact on § 8Jpl and Our Precedent

Such was the landscape applicable to the federal drug statute before Apprendi squarely adopted the constitutional principle that “[o]ther 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.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Our reading of the tenor of the Supreme Court’s decisions is that § 841 is impacted by Apprendi but only to the limited extent that judge-decided facts actually increase a defendant’s sentence above the prescribed statutory maximum. We explain the narrow manner in which Apprendi affects § 841.³⁴

Fundamentally, Apprendi did not announce any new principles of statutory construction. Rather, Apprendi addressed only the constitutionality of a state statutory sentencing scheme, and its holding only described constitutional principles affecting such statutory sentencing schemes. Apprendi thus does not change our precedent interpreting § 841 outlined above but instead imposes only an external constitutional restraint under the Sixth Amendment and the Due Process Clause. While Apprendi does not affect our prior statutory construction of § 841(b) as setting forth purely sentencing factors, it does alter our prior conclusion that such judge-decided facts satisfy a defendant’s constitutional rights to due process and a jury trial even when those factors increase a defendant’s sentence beyond the prescribed statutory maximum.³⁵

This external constitutional restraint, however, does not apply to the vast majority of sentencing scenarios. To repeat the oft-repeated, Apprendi explicitly limited its holding to facts “that increase[] the penalty for a crime beyond the prescribed statutory maximum.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). Therefore, Apprendi has no effect on cases in which a defendant’s actual sentence falls within the range prescribed by the statute for the crime of conviction. As stated above, § 841(b)(1)(C) provides a statutory penalty range applicable to all drug offenses involving the controlled substances listed on schedules I or II without regard to drug quantity. Apprendi thus does not even apply when a defendant’s actual sentence for a § 841 drug offense falls within that range. See United States v. Gerrow, 232 F.3d 831, 834 (11th Cir.2000) (“[T]here is no error, plain or otherwise, under Apprendi where the term of imprisonment is within the statutory maximum set forth in § 841(b)(1)(C) for a cocaine offense without regard to drug quantity.”), cert. denied, — U.S. -, 122 S.Ct. 75, — L.Ed.2d - (2001); United States v. Gallego, 247 F.3d 1191, 1197 (11th Cir.2001) (noting that because the defendant’s sentence of 168 months’ imprisonment fell “below the twenty year maximum prescribed by section 841(b)(1)(C),” there is “no error under Apprendi”)-, United States v. Le, 256 F.3d 1229, 1240 (11th Cir.2001) (stating in a case under the Hobbs Act that because the defendant’s sentence was below the statutory maximum, “Apprendi is inapplicable”).³⁶ Accordingly, in a § 841 case, when a defendant’s sentence falls at or below the statutory maximum penalty in § 841(b)(1)(C), there is no Apprendi error and there is no need for drug quantity to be submitted to a jury and proven beyond a reasonable doubt.³⁷

Additionally, Apprendi has no application to cases in which statutory sentencing factors trigger a mandatory minimum sentence. As noted above, Apprendi expressly preserved McMillan, in which the Supreme Court approved the use of judge-made factual findings to sentence a defendant to a mandatory minimum penalty. Apprendi, 530 U.S. at 487 n. 13, 120 S.Ct. 2348. Therefore, in a § 841 case, Apprendi does not prohibit a judge from making drug quantity findings and sentencing a defendant to one of the mandatory minimum sentences in § 841(b), provided that the mandatory minimum term does not exceed the otherwise applicable statutory maximum. This important proposition leaves intact our pre-Apprendi cases involving the imposition of mandatory minimum sentences under § 841(b). See, e.g., United States v. Gomez, 905 F.2d 1513, 1514 (11th Cir.1990) (“As to sentencing, it is now equally well-settled that a defendant need not know the quantity of drug involved in the offense in order to be subject to a mandatory minimum sentence based on quantity under § 841(b)(1).”). Thus, we join six other circuits in concluding that there is no error under Apprendi when the district court sentences a defendant to a mandatory minimum sentence under § 841(b).³⁸

Instead, Apprendi applies to § 841 cases only in this limited sense: In light of Ap-prendi, there is constitutional error in a defendant’s sentencing procedures when drug quantity increases a defendant’s sentence beyond the prescribed statutory maximum under § 841(b)(1)(C), unless it was submitted to a jury and proven beyond a reasonable doubt. Conversely, in a § 841 case in which a defendant’s ultimate sentence falls at or below the statutory maximum penalty in § 841(b)(1)(C), there is no Apprendi error and drug quantity need not have been submitted to a jury and proven beyond a reasonable doubt. Moreover, judge-made findings of drug quantity may be used to sentence a defendant anywhere within the applicable statutory range and, as outlined above, may be used in ah guidelines calculations. All of these rules on the effect of Apprendi on § 841 have the additional benefit of being consistent with the views adopted in virtually every other circuit to address these matters to date.³⁹

III. THE SANCHEZES’ CLAIMS

Having described Apprendi and its effect on § 841 and our precedent, we turn to the Sanchezes’ challenges to their indictment, plea colloquies, convictions, and sentences. The Sanchezes seek to stretch Apprendi’s constitutional rule and Jones’s dicta to apply to the beginning, middle, and end of the criminal procedures in their cases. Specifically, they emphasize that from the outset of their cases, the government sought enhanced penalties under § 841(b)(1)(B) based on the quantity of the methamphetamine and amphetamine involved in their offense. As a result, they contend that their cases were “§ 841(b)(1)(B) cases” and thus that drug quantity was an element of their offense that not only had to be submitted to the jury and proven beyond a reasonable doubt but that also had to be charged in their indictment. Consistent with these views, the Sanchezes timely moved in the district court to dismiss the indictment for failure to allege the required element of drug quantity, specifically citing Jones. Upon denial of that motion, they entered conditional plea agreements preserving that issue for appeal.

On appeal, the Sanchezes also contend that because their cases are “§ 841(b)(1)(B) cases,” the failure to comply with this trio of procedural requirements — indictment, jury submission, and . proof beyond a reasonable doubt — was constitutional error under Apprendi or at least under United States v. Rogers, 228 F.3d 1318 (11th Cir.2000), which the Sanchezes assert expanded Apprendi to all “§ 841(b)(1)(A) and § 841(b)(1)(B) cases.” They further argue that the failure to comply with this procedural triumvirate constituted constitutional error that is so fundamental as to be structural error and reversible per se. They also assert that the omission of an essential element from the indictment constituted a jurisdictional error requiring dismissal of the indictment.

Alternatively, the Sanchezes claim that the lack of a specific drug quantity in their indictment meant that their maximum sentence was limited to twenty years under § 841(b)(1)(C) and that their plea colloquies thus did not comply with Rule 11. Although their indictment charged “quantities of methamphetamine and amphetamine,” they submit that it had to charge a specific drug quantity in order to support an enhanced sentence under § 841(b)(1)(B). They argue that the district court erred not only by advising them of the increased penalty ranges corresponding to §§ 841(b)(1)(A) and 841(b)(1)(B) in Ignasio Sanchez’s case and § 841(b)(1)(A) in Santiago Sanchez’s case but also by not mentioning § 841(b)(1)(C) and by not advising them that only the lower penalty range under § 841(b)(1)(C) was applicable to the charges in their indictment. In short, the Sanchezes challenge not merely then-sentences, as defendant Apprendi did, but also their indictment, plea colloquies, and convictions stemming from that indictment. We are not persuaded by their arguments and address each issue in turn.

A. Motion to Dismiss the Indictment

Of course, the correct response to an argument that the Sanchezes make about the lack of a specific drug quantity in a § 841 indictment is usually that by entering a guilty plea and ultimately stipulating to or not contesting drug quantity, defendants thereby waive the right to appeal on the basis of Apprendi.40 The San- chezes’ plea agreements, however, were conditional on their right to appeal the sufficiency of the indictment. Because the Sanchezes’ conditional plea agreements preserved the indictment issue for appellate review, their guilty pleas do not resolve the matter as would normally be the case. Thus, in light of Jones and Apprendi we address whether the district court erred in denying the Sanchezes’ motion to dismiss their indictment. In other words, we consider whether the Sanchezes correctly claimed in that motion that drug quantity is an essential element that now must always be charged in an indictment for a § 841 offense. We first address the standard of review and then why we conclude that the district court did not err in denying the Sanchezes’ motion to dismiss the indictment.

1. Standard of Review

Because the Sanchezes timely raised and thus preserved for appeal the issue of error in their indictment under Apprendi we review it de novo, but we will reverse only for harmful error. See United States v. Mills, 138 F.3d 928, 938-39 (11th Cir.1998). As we have held, Apprendi error is constitutional error, subject to harmless or plain error review depending on the timing of the constitutional objection. See, e.g., United States v. Smith, 240 F.3d 927, 929 (11th Cir.2001) (affirming thirty-year sentence); United States v. Candelario, 240 F.3d 1300, 1308 (11th Cir.) (same), cert. denied, — U.S. -, 121 S.Ct. 2535, 150 L.Ed.2d 705 (2001); United States v. Nealy, 232 F.3d 825, 829-30 & n. 4 (11th Cir.2000) (affirming thirty-two-year sentence).

Given our precedent, we reject the San-chezes’ claims that Apprendi error is either structural or jurisdictional. In Smith, Candelario, and Nealy, we correctly outlined why an Apprendi error did not create a structural error. In Nealy, we explained, “Structural error occurs only in the rare instance involving a ‘structural defect affecting the framework within [which] the trial proceeds, rather than simply an error in the trial process itself.’ ” Nealy, 232 F.3d at 829 n. 4 (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)).⁴¹ “Failure to submit the issue of drug quantity to the jury is just an element of the trial process and does not rise to the level of structural error.... ” Id. It “is not structural error because it ‘does not necessarily render a criminal trial fundamentally unfair or [an] unreliable vehicle for determining guilt or innocence.’ ” Id. (quoting Neder v. United States, 527 U.S. 1, 9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). Harmless error review is “appropriate” in the Apprendi context “because it ‘block[s] setting aside [sentences] for small errors or defects that have little, if any, likelihood of having changed the result of the trial.’ ” Id. at 829-30 (quoting Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).

Our precedent follows Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), where the Supreme Court held that “the omission of an element [in a jury instruction] is an error that is subject to harmless-error analysis.” Id. at 15, 119 S.Ct. 1827. Any Apprendi error arising from the omission of a specific drug quantity in a § 841 indictment is analogous to the jury-instruction error in Neder,⁴² Indeed, part of the Sanchezes’ argument is precisely that a specific drug quantity must be charged in the indictment so that it will then be submitted to the jury and proven beyond a reasonable doubt. A defendant’s right to have a petit jury find each element of the offense is no less important than his right to have that same element presented to the grand jury.⁴³

Likewise, we have rejected the claim, which the Sanchezes also make, that an Apprendi error creates a jurisdictional error. See United States v. Cromartie, 267 F.3d 1293 (11th Cir.2001); McCoy v. United States, 266 F.3d 1245 (11th Cir.2001).⁴⁴ A jurisdictional defect occurs only where a federal court lacks power to adjudicate at all. Id⁴⁵ The constitutional rights to be charged by a grand jury, be informed of an accusation, and to have a jury trial are the personal rights of the defendant and do not go to the district court’s subject matter jurisdiction. Indeed, Federal Rule of Criminal Procedure 7(b) provides that certain offenses “may be prosecuted by information” if the defendant “waives in open court prosecution by indictment.” Fed.R.Crim.P. 7(b). Such waiver would not be possible if the indictment-related right were jurisdictional, as parties cannot confer subject matter jurisdiction on federal courts by consent. See United States v. Griffin, 303 U.S. 226, 229, 58 S.Ct. 601, 82 L.Ed. 764 (1938).

The notion that any Apprendi-based challenge has a jurisdictional dimension is also implicitly rejected by our precedent’s consistent application of plain or harmless error review. See, e.g., United States v. Pease, 240 F.3d 938, 943-44 (11th Cir.2001) (finding plain error under Apprendi in a thirty-year sentence where the indictment did not allege drug quantity but finding no effect on defendant’s substantial rights); United States v. Swatzie, 228 F.3d 1278, 1282-84 (11th Cir.2000) (assuming arguen-do a life sentence was plain error under Apprendi where indictment did not allege drug quantity but finding no effect on defendant’s substantial rights), cert. denied, — U.S. -, 121 S.Ct. 2600, 150 L.Ed.2d 757 (2001).⁴⁶

The Tenth Circuit, sitting en banc, explicitly endorsed this approach. See United States v. Prentiss, 256 F.3d 971 (10th Cir.2001) (en banc) (concluding that “the failure of an indictment to allege an essential element of a crime does not deprive a district court of subject matter jurisdiction; rather, such failure is subject to harmless error review”). Two other circuits have handled omissions of an element from an indictment in a similar manner.⁴⁷ See United States v. Nance, 236 F.3d 820, 825-26 (7th Cir.2000) (stating in a § 841 case involving an Apprendi challenge that indictment and jury-instruction errors are “analogous to the instructional error the Court considered in Neder” and did not constitute structural error, and affirming the defendant’s 262-month sentence under plain-error review); United States v. Mojicar-Baez, 229 F.3d 292, 310-12 (1st Cir.2000) (stating in a 18 U.S.C. § 924(c)(1) case where the indictment did not charge a type of firearm that the court was “compelled by the Supreme Court’s decision in Neder to subject the indictment error in this case to plain error review,” and thus finding error was not structural and affirming the defendants’ ten-year sentences under 18 U.S.C. § 924(c)(1)(B)), cert. denied, - U.S. -, 121 S.Ct. 2215, 150 L.Ed.2d 209 (2001).⁴⁸ We now turn to the Sanchezes’ Apprendi-based challenge to their indictment.

£ The Sanchezes’ Indictment

By sparing no expense in the foundational discussion above, the case-specific application of Apprendi that follows will enjoy the luxury of brevity. The correct response to the Sanchezes’ argument is that they ultimately were sentenced below the otherwise applicable statutory maximum in § 841(b)(1)(C), and thus, drug quantity never was an element of their offense under § 841 and never became an element under Apprendi. Therefore, there is no Apprendi error in their indictment or in their convictions and sentences stemming from that indictment.

Both before and after Apprendi, in any § 841 case, an indictment charging that a defendant violated § 841 properly charges a complete federal crime without any reference to either drug type or quantity. While under Apprendi the allowable maximum sentence for a § 841 violation may differ depending on how drug quantity was handled at the plea, trial, or sentencing phases, and on the timeliness of an Ap-prendi-based objection, Apprendi has no effect whatsoever on whether a complete federal crime under § 841 is charged in an indictment that does not specify drug quantity. Therefore, even if an indictment for a § 841 offense does not allege a specific drug quantity, it is legally and constitutionally sufficient both before and after Apprendi, and a district court may still accept the defendant’s guilty plea to, or try a defendant on, a § 841 charge and then sentence the defendant for that charge. Thus, the district court did not err in denying the Sanchezes’ motion to dismiss their indictment.⁴⁹

We fully recognize that from the outset of the Sanchezes’ cases the government sought enhanced sentences, particularly under § 841(b)(1)(B), and that the district court made drug quantity findings and purported to sentence both Sanchezes under that section. Accordingly, the San-chezes argue that their cases were “ § 841(b)(1)(B) cases” and thus that there is not only Apprendi error in their cases but also “Rogers error” as coined in United States v. Camacho, 248 F.3d 1286, 1289-90 (11th Cir.2001) (citing United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir.2000)).

As explained above, being sentenced under § 841(b)(1)(A) or § 841(b)(1)(B) and being potentially exposed to a higher sentence under either section do not create Apprendi error. Indeed, the condition that the Sanchezes describe — that of facing theoretical or potential exposure to a particular fate under § 841(b)(1)(B) but actually being consigned to one of less severity under § 841(b)(1)(C) — borders on the metaphysical. Contrary to the San-chezes’ suggestion, Apprendi did not hold that judge-made factual findings that merely expose a defendant to a higher statutory maximum penalty, without actually resulting in a sentence beyond the applicable maximum, must be proven to a jury beyond a reasonable doubt. We thus agree with those circuits that have concluded that theoretical exposure to a higher sentence does not constitute error under Apprendi. See, e.g., United States v. Robinson, 241 F.3d 115, 121-22 (1st Cir.2001) (“[T]heoretical exposure to a higher sentence, unaccompanied by the imposition of a sentence that in fact exceeds the otherwise-applicable statutory maximum, is of no consequence.... In fine, the Apprendi rule applies only in situations in which a judge-made factual determination actually boosts the defendant’s sentence beyond the basic statutory maximum. Theoretical exposure to a higher maximum punishment, in and of itself, is not enough.”) (emphasis added) (citation omitted), cert. denied, — U.S. -, 122 S.Ct. 130, — L.Ed.2d - (2001). As stated above, there is no error at all under Ap-prendi unless a judge-made factual finding actually increases the defendant’s sentence beyond the statutory maximum in § 841(b)(1)(C).⁵⁰

We also recognize that, prior to this en banc decision, our circuit precedent regarding the impact of Apprendi on § 841 cases stemmed largely from United States v. Rogers, 228 F.3d 1318 (11th Cir.2000) and its progeny. See, e.g., United States v. Camacho, 248 F.3d 1286 (11th Cir.2001); United States v. Candelario, 240 F.3d 1300 (11th Cir.), cert. denied, — U.S. -, 121 S.Ct. 2535, 150 L.Ed.2d 705 (2001); United States v. Shepard, 235 F.3d 1295 (11th Cir.2000), cert. denied, — U.S. -, 122 S.Ct. 130, — L.Ed.2d - (2001). Rogers was correct in some aspects of its analysis but wrong in others. Rogers properly recognized, “Applying Apprendi ’s constitutional principle to § 841 cases, it is clear that the principle is violated if a defendant is sentenced to a greater sentence than the statutory maximum based upon the quantity of drugs, if such quantity is determined by the sentencing judge rather than the trial jury.” Rogers, 228 F.3d at 1327 (emphasis added). Rogers continued that such a sentence — that is, one greater than the statutory maximum — violates Apprendi unless drug quantity was charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt. See id.⁵¹ To this extent, Rogers correctly analyzed Apprendi’s effect on § 841.⁵²

Rogers, however, extended Apprendi substantially beyond its holding, and we are not prepared to go that far. Rogers suggested that the mere fact that a sentence arose in “section 841(b)(1)(A) and section 841(b)(1)(B) cases” meant that drug quantity must be charged in the indictment and proven to a jury beyond a reasonable doubt even if the sentence did not exceed the statutory maximum in § 841(b)(1)(C). See id. at 1827. As we have explained, this is not so unless the factual finding of drug quantity boosts the actual sentence imposed under §§ 841(b)(1)(A) or 841(b)(1)(B) beyond the statutory maximum otherwise permissible under § 841(b)(1)(C) absent drug quantity.

Specifically, Rogers also stated; (1) that “sections 841(b)(1)(A) and 841(b)(1)(B) may not be utilized for sentencing without a finding of drug quantity by the jury,” Rogers, 228 F.3d at 1327 (emphasis added); (2) “that drug quantity in section 841(b)(1)(A) and section 841(b)(1)(B) cases must be charged in the indictment and proven to a jury beyond a reasonable doubt in light of Apprendi ” id. (emphasis added); (3) that when a defendant is sentenced under the wrong subsection of § 841(b), “this alone is reason for us to vacate and remand the sentence,” id. at 1321; and (4) that “[a]pplying the rule [of Apprendi] to the facts.at hand, it is clear that Rogers must be sentenced under section 841 without reference to drug quantity,” id. at 1328; and decided (5) to “overrule Hester to the extent it is inconsistent with this holding,” id.

As we have explained, however, a district court’s drug quantity findings and utilization of the § 841(b)(1)(A) and § 841(b)(1)(B) sentencing schemes in § 841 cases in no manner violate Apprendi unless the actual sentence ultimately imposed exceeds the catchall maximum penalty in § 841(b)(1)(C). Thus, for example, mandatory minimum sentences do not violate Apprendi’s constitutional rule because they do not exceed the catchall statutory maximum penalty in § 841(b)(1)(C) that is otherwise applicable when no specific drug quantity is charged or found by the jury.⁵³ We therefore expressly disavow these five propositions in Rogers and any repetition of them in Rogers’s progeny.

Apprendi does not prohibit all uses of drug quantity in sentencing under § 841, or any use of drug quantity in guideline calculations under the Sentencing Guide lines for that matter. Rather, it prohibits such use only to the extent that a factual finding of drug quantity increases a defendant’s sentence beyond the otherwise applicable statutory maximum penalty under § 841(b)(1)(C) absent drug quantity. We limit Rogers’s analysis and conclusion about Apprendi to those § 841 cases where the defendant’s sentence is both (1) directly affected by a judge-made finding of drug quantity under either § 841(b)(1)(A) or § 841(b)(1)(B), and (2) as a direct result of that drug quantity finding actually exceeds the statutory maximum otherwise permissible under § 841(b)(1)(C).⁵⁴ As explained above, in all circumstances other than this, there is no Apprendi error.

In sum, a defendant is not entitled to dismissal of a § 841 indictment that does not allege a specific drug quantity, whether that indictment was issued before or after Apprendi. Instead, whether a specific drug quantity is charged affects only the permissible statutory maximum sentence and not the sufficiency of a § 841 indictment. In the context of § 841, Ap-prendi involves error in sentencing and necessarily looks retrospectively, rather than prospectively, at whether the criminal procedures that culminated in the actual sentence pass constitutional muster.⁵⁵ Thus, for all of these reasons, the San-chezes have not shown that the district court erred in denying their motion to dismiss the indictment.

B. Plea Colloquies

The Sanchezes next attempt to make use of Apprendi by arguing—for the first time on appeal—that their convictions must be reversed because their guilty pleas were unintelligent and involuntary under Apprendi. The Sanchezes’ challenge to their guilty pleas rests on two branches of the Apprendi tree.

First, the Sanchezes assert that the district court failed to comply with Rule 11 before accepting their guilty pleas because it did not address drug quantity, which they believe Apprendi converted into an element of their offense. The second aspect of their argument is that Apprendi vitiated the voluntariness of their guilty pleas by reducing the legally permissible maximum penalty they faced for their drug offense. More specifically, they aver that their guilty pleas were induced by the threat of a harsher punishment—up to forty years or life imprisonment—than was possible given Apprendi, under which they faced a maximum penalty of only twenty years’ imprisonment under § 841(b)(1)(C).

1. Standard of Review

The Sanchezes raise the Apprendi issues concerning their guilty pleas for the first time on appeal. This Court has held “that a defendant who has not presented his objection to the district court—for example, through a motion to withdraw the plea—must show plain error on direct appeal.” United States v. Quinones, 97 F.3d 473, 475 (11th Cir.1996).⁵⁶ Thus, the San- chezes must show that there is (1) “error,” (2) “that is ‘plain/ ” and (3) “that ‘affect[s] substantial rights.’ ” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770) (other internal quotation marks omitted).

2. Rule 11

The Sanchezes claim that the district court failed to comply with the requirements of Rule 11 when it accepted their guilty pleas. Rule 11 provides that “[b]efore accepting a plea of guilty ... the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands,” certain matters. Fed. R.Crim.P. 11(c). At issue in this case are the requirements in Rule 11 that the court properly advise the defendant of “the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term.” Fed.R.Crim.P. 11(c)(1). Under Rule 11, a “court shall not accept a plea of guilty ... without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement.” Fed.R.Crim.P. 11(d).

Rule 11 serves two purposes: “to assist the district judge in making the constitutionally required determination that a defendant’s guilty plea is truly voluntary” and “to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination.” McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). “Thus, the more meticulously the Rule is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous post-conviction attacks on the constitutional validity of guilty pleas.” Id.

“No simple or mechanical rule determines whether the district court complied with Rule IPs mandate to satisfy itself that [the defendants] understood the nature of the charges against them.” United States v. DePace, 120 F.3d 233, 237 (11th Cir.1997) (citing United States v. Bell, 776 F.2d 965, 968 (11th Cir.1985)). “Rather, the inquiry varies from case to case depending on ‘the relative difficulty of comprehension of the charges and of the defendant’s sophistication and intelligence.’ ” Id. (quoting Bell, 776 F.2d at 968). .This Court has described “the spectrum of complexity of charges and the concomitant degree of required explication” as follows:

“For simple charges ... a reading of the indictment, followed by an opportunity given the defendant to ask questions about it, will usually suffice. Charges of a more complex nature, incorporating esoteric terms or concepts unfamiliar to the lay mind, may require more explication. In the cases of extreme complexity, an explanation of the elements of the offense like that given the jury in its instructions may be required.”

Id. (quoting United States v. Dayton, 604 F.2d 931, 937-38 (5th Cir.1979) (en banc)). We recently stated that “[possession with intent to distribute crack and conspiracy to do the same are not of course the most complicated of offenses.” United States v. Telemaque, 244 F.3d 1247, 1249 (11th Cir.2001).

In assessing whether a district court’s failure to comply with Rule 11 constitutes plain error, this Court has identified three “core concerns” of that rule: “(1) ensuring that the guilty plea is free of coercion; (2) ensuring that the defendant understands the nature of the charges against him; and (3) ensuring that the defendant is aware of the direct consequences of the guilty plea.” Quinones, 97 F.3d at 475 (citing United States v. Zickert, 955 F.2d 665, 668 (11th Cir.1992)). “Failure to satisfy any of the core objectives violates the defendant’s substantial rights.” Id.

3. Elements of the Offense

The Sanchezes maintain that the district court failed to comply with Rule 11 because it did not inform them of all of the elements of the offense with which they were charged. Because both Sanchezes were sentenced below the prescribed maximum penalty otherwise permissible under § 841(b)(1)(C), a specific drug quantity was not, nor did it ever become, an element of their drug offenses.⁵⁷ Thus, that the district court did not discuss any specific drug quantity in their plea colloquies was not error, plain or otherwise, under Apprendi.

h. “Maximum Possible Penalty”

Alternatively, the Sanchezes assert that if drug quantity never became an element of their offense, their guilty pleas were nonetheless involuntary and unknowing because they were misadvised during their plea colloquies as to the “maximum possible penalty” they faced. See Fed. R.Crim.P. 11(c)(1). The argument is that their guilty pleas were induced by the threat of a harsher punishment than was legally permissible under the indictment in this case. Specifically, the Sanchezes’ contention is that they entered their guilty pleas while laboring under the understanding that they could face up to forty years’ or life imprisonment, when actually they could have been sentenced only to a maximum of twenty years’ imprisonment because their indictment did not allege a specific drug quantity.

The Sanchezes first must establish that they were in fact misadvised about the “maximum possible penalty” under Rule 11. See Fed.R.Crim.P. 11(c)(1). To do so, they argue that, in light of Apprendi, their indictment would not have supported an enhanced sentence of forty years under § 841(b)(1)(B) because it did not allege a drug quantity. The Sanchezes emphasize that to obtain a sentence beyond that otherwise provided under § 841(b)(1)(C), Ap-prendi requires that drug quantity be charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt. Since their indictment did not charge a specific drug quantity, the San-chezes argue that it was insufficient for an enhanced sentence and that their, maximum possible penalty, in light of Appren-di, was actually twenty years’ imprisonment under § 841(b)(1)(C). The issue presented by this argument, however, is not whether drug quantity should be alleged in some form in the indictment when it increases a sentence beyond the maximum in § 841(b)(1)(C) — a question already answered by Rogers — but whether the wording of the Sanchezes’ indictment is sufficient to satisfy that indictment requirement.⁵⁸

We need not resolve this issue, however, because even assuming arguendo that the Sanchezes were misadvised about the “maximum possible penalty” they faced, their challenge to their plea colloquies lacks merit due to Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The Supreme Court in Brady expressly held that a guilty plea was not rendered involuntary by a subsequent legal pronouncement that reduced the statutory maximum sentence below what the defendant was advised of at the time of his plea. In Brady, the defendant was charged with violating the Federal Kidnap-ing Act, 18 U.S.C. § 1201(a), which authorized a penalty of death or imprisonment.⁵⁹ Id. at 743, 90 S.Ct. 1463. Although initially pleading not guilty, he later changed his plea to guilty.⁶⁰ Id. The trial judge twice questioned the defendant as to the volun-tariness of his plea, and the defendant affirmed that the plea was voluntary. Id. at 743 n. 2, 90 S.Ct. 1463 (excerpt from the defendant’s plea colloquy).⁶¹ The trial judge then sentenced the defendant to fifty years’ imprisonment, which was later reduced to thirty years. Id. at 744, 90 S.Ct. 1463.

After the defendant pled guilty and was sentenced, the Supreme Court invalidated the portion of § 1201(a) that permitted the death penalty. See United States v. Jackson, 390 U.S. 570, 572, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).⁶² The defendant filed a federal habeas petition pursuant to 28 U.S.C. § 2255 and claimed that, after Jackson, his guilty plea could not be considered voluntary because § 1201(a) had operated to coerce his plea. Brady, 397 U.S. at 744, 90 S.Ct. 1463. The Supreme Court thus was faced with the questions of whether “it violates the Fifth Amendment to influence or encourage a guilty plea by opportunity or promise of leniency” and whether “a guilty plea is coerced and invalid if influenced by the fear of a possibly higher penalty for the crime charged if a conviction is obtained after the State is put to its proof.” Id. at 750-51, 90 S.Ct. 1463.

The Supreme Court answered in the negative, stating:

A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. A plea of guilty triggered by the expectations of a competently counseled defendant that the State will have a strong case against him is not subject to later attack because the defendant’s lawyer correctly advised him with respect to the then existing law as to possible penalties but later pronouncements of the courts, as in this case, hold that the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered.

The fact that [the defendant] did not anticipate [the later change in the law] does not impugn the truth or reliability of his plea. We find no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that the State would have had a weaker case than the defendant had thought or that the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions.

Id. at 757, 90 S.Ct. 1463 (citation omitted) (emphasis added). The Supreme Court concluded that the defendant’s guilty plea was voluntary at the time it was made:

[The defendant] first pleaded not guilty; prior to changing his plea to guilty he was subjected to no threats or promises in face-to-face encounters with the authorities. He had competent counsel and full opportunity to assess the advantages and disadvantages of a trial as compared with those attending a plea of guilty; there was no hazard of an impulsive and improvident response to a seeming but unreal advantage. His plea of guilty was entered in open court and before a judge obviously sensitive to the requirements of the law with respect to guilty pleas. [The defendant’s] plea ... was voluntary.

Id. at 754-55, 90 S.Ct. 1463.⁶³

The Supreme Court further concluded that even if the fear of the death penalty in fact caused the defendant to enter a guilty plea rather than go to trial, that did not render the plea involuntary, explaining, “But even if we assume that [the defendant] would not have pleaded guilty except for the death penalty provision of [the statute at issue], this assumption merely identifies the penalty provision as a ‘but for’ cause of his plea. That the statute caused the plea in this sense does not necessarily prove that the plea was coerced and invalid as an involuntary act.” Id. at 750-51, 90 S.Ct. 1463.

When distilled to its essence, the San-chezes’ argument here is no different from that rejected by the Supreme Court in Brady. The Sanchezes claim, as did the defendant in Brady, that a subsequent judicial pronouncement — namely, Appren-di — reduced the maximum possible penalty they faced for their offense and that this new knowledge, of which they did not have the benefit during their plea colloquies, retroactively invalidated their guilty pleas. We agree with the Supreme Court, however, that there is “no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that ... the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions.” Id. at 757, 90 S.Ct. 1463. Thus, we reject the Sanchezes’ claim that Ap-prendi invalidated their guilty pleas.⁶⁴

The Sanchezes’ plea colloquies were otherwise sufficient. Like the defendant in Brady, both defendants here were represented by counsel. The requirements of Rule 11 were met by the district court’s advice to the Sanchezes before accepting their guilty pleas.⁶⁵ Also like the defendant in Brady, the Sanchezes’ argument is based on a speculative “but-for” argument — that is, they appear to suggest that but for the district court’s statement that they faced a possible life sentence, they would not have pled guilty. The San-chezes were ultimately sentenced well below the maximum penalties of which they had been advised.⁶⁶ Under these circumstances, the Sanchezes cannot correctly claim that their guilty pleas were involuntary and unintelligent, and they can claim no harm or detriment whatsoever resulting from their plea colloquies.⁶⁷

C. Sentences

In addition to challenging their prison terms — an argument we have already rejected — the Sanchezes, for the first time on appeal, make an Apprendibased attack on their terms of supervised release.⁶⁸ Specifically, they contend that their supervised release was limited by statute to three years and that the four-year terms imposed violated Apprendi. We conclude that there was no Apprendi error in the supervised release portion of the Sanchezes’ sentences.

The central question presented is what statute provides the prescribed term of supervised release applicable to the San-chezes’ convictions.⁶⁹ Section 841(b)(1)(C) requires a term of supervised release of “at least three years.” 21 U.S.C. § 841(b)(1)(C) (emphasis added). The Sanchezes rely, however, on 18 U.S.C. § 3583(b)(2), which provides that “[e]xcept as otherwise provided,” the term of supervised release for a “Class C felony” may be “not more than three years.” 18 U.S.C. § 3583(b)(2). A Class C felony is a felony for which the “maximum term of imprisonment authorized” is “less than twenty-five years but ten or more years.” 18 U.S.C. § 3559(a)(3). Thus, § 841(b)(1)(C), which provides for a maximum prison term of twenty years, constitutes a Class C felony.

The Sanchezes argue that, based on the facts of their cases, § 3583(b)(2) creates a maximum term of supervised release of three years, while § 841(b)(1)(C) authorizes a minimum term of supervised release of three years. The issue presented, then, is whether § 841(b)(1)(C) or § 3583(b)(2) controls the length of their terms of supervised release.

A term of supervised release of four years, as the Sanchezes received, is permitted under 21 U.S.C. § 841(b)(1)(C). As emphasized above, § 3583(b)(2) limits the maximum term of supervised release for a Class C felony to three years, “[e]xcept as otherwise provided.” 18 U.S.C. § 3583(b)(2). Section 841(b)(1)(C), in fact, expressly “otherwise provide[s]” — specifically, § 841(b)(1)(C) provides that the term of supervised release for that particular Class C felony must be “at least three years.” 21 U.S.C. § 841(b)(1)(C).

To adopt the Sanchezes’ interpretation of the statute would require us to ignore the words “at least” in § 841(b)(1)(C), thus rendering that statutory language superfluous. Furthermore, the legislative history of both statutes indicates that Congress did not intend for a term of supervised release ordered pursuant to § 841(b)(1)(C) to be limited to three years. As noted by the Second Circuit when faced with the identical question, “the supervised release terms authorized by Congress for drug offenses, including section 841, were added in the same statute that amended section 3583(b) by adding the introductory phrase ‘Except as otherwise provided.’ ” United States v. Eng, 14 F.3d 165, 172-73 (2d Cir.1994) (citing the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, § 1006, 100 Stat. 3207). As the Second Circuit concluded from this legislative history, “It is apparent that in enacting ... the Anti-Drug Abuse Act of 1986, Congress intended to enhance the penalties available to combat drug offenses. That Congress intended these penalties to override the máximums set by 18 U.S.C. § 3583(b) is clear from the fact that Congress simultaneously amended that section to add the phrase ‘[e]xcept as otherwise provided.’ ” Id. at 173.

In light of its language and history, § 841(b)(1)(C) cannot be understood to provide for a term of supervised release not greater than three years, as the San-chezes contend. Relying on these principles of statutory interpretation, six other circuits have held that § 3583(b) does not limit the term of supervised release authorized in § 841(b)(1)(C) and that a term of supervised release over the minimum set forth in § 841(b)(1)(C) may be imposed notwithstanding the provisions of § 3583(b). See United States v. Pratt, 239 F.3d 640, 647 (4th Cir.2001) (holding that § 3583 “does not cap the period of supervised release that a district court may impose under § 841(b)(1)(C)”); United States v. Shorty, 159 F.3d 312, 315-16 n. 6 (7th Cir.1998) (noting that the provision for the term of supervised release in § 841(b)(1)(C) “sets a floor requirement, leaving the ceiling open, closed only by a defendant’s death”); United States v. Page, 131 F.3d 1173, 1177-80 (6th Cir.1997), abrogated on other grounds by Johnson v. United States, 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000); United States v. Garcia, 112 F.3d 395, 398 (9th Cir.1997); United States v. Orozco-Rodriguez, 60 F.3d 705, 707-08 (10th Cir.1995); United States v. Eng, 14 F.3d 165, 172-73 (2d Cir.1994); United States v. LeMay, 952 F.2d 995, 998 (8th Cir.1991).⁷⁰ We therefore conclude that the Sanchezes’ four-year terms of supervised release are authorized by § 841(b)(1)(C) and not limited by § 3583(b)(2).⁷¹ Therefore, the San-chezes’ Apprendi-based challenges to the supervised release portions of their sentences lack merit.

IV. CONCLUSION

In conclusion, we recognize the following principles. Apprendi is implicated only when a judge-decided fact actually increases a defendant’s sentence beyond the prescribed statutory maximum penalty for the crime of conviction and has no application to, or effect on, cases where a defendant’s sentence falls at or below that maximum penalty. This means, among other things, that Apprendi has no application to, or effect on, either mandatory minimum sentences or Sentencing Guidelines calculations, when in either case the ultimate sentence imposed does not exceed the prescribed statutory maximum penalty. Thus, in a § 841 case when a specific drug quantity triggers a mandatory minimum sentence or is used in a Sentencing Guidelines calculation, and results in a sentence at or below the otherwise applicable maximum penalty in § 841(b)(1)(C), there is no Apprendi error and there is no requirement that a specific drug quantity be alleged in the indictment, submitted to a jury, and proven beyond a reasonable doubt.

More specifically, we conclude that: 1) the various Apprendi errors that the San-chezes assert are constitutional errors subject to harmless or plain error review, depending on the timing of their constitutional objections, and are not structural or jurisdictional errors; 2) the district court’s drug quantity findings under § 841(b)(1)(B) and utilization of that sentencing scheme, which exposed the San-chezes to enhanced sentences under that section but did not result in an actual term of imprisonment beyond the otherwise applicable maximum penalty in § 841(b)(1)(C), did not violate Apprendi; 3) because the district court’s drug quantity findings did not increase the Sanchezes’ ultimate sentences beyond the otherwise applicable maximum penalty in § 841(b)(1)(C), Apprendi does not apply to their § 841 indictment, guilty pleas, convictions, and sentences, and there was no requirement that a specific drug quantity be alleged in their indictment, covered in their plea colloquies, submitted to a jury, or proven beyond a reasonable doubt; 4) in this regard, we adopt the analyses of Apprendi in United States v. Gerrow, 232 F.3d 831 (11th Cir.2000), cert. denied, — U.S. -, 122 S.Ct. 75, — L.Ed.2d - (2001), and other circuits’ decisions concluding that Apprendi does not apply to § 841 cases unless drug quantity actually increases a defendant’s sentence beyond the otherwise applicable maximum penalty, and we reject the extension of the Appren-di rule contemplated by the five propositions identified above in United States v. Rogers, 228 F.3d 1318 (11th Cir.2000) and reflected by the subsequent coining of the term “Rogers error” in United States v. Camacho, 248 F.3d 1286 (11th Cir.2001); 5) the district court thus properly denied the Sanchezes’ motion to dismiss their indictment because drug quantity was not an essential element of their § 841 offense, and their indictment charging a violation of § 841 without alleging a specific drug quantity properly charged a completed federal crime both before and after Ap-prendi; 6) a specific drug quantity also never became an element of the Sanchezes’ § 841 offense under Apprendi because their ultimate sentences did not exceed the otherwise applicable maximum penalty under § 841(b)(1)(C); 7) Apprendi also did not render the Sanchezes’ plea colloquies inadequate and their guilty pleas unintelligent or involuntary even assuming that the district court misadvised them about the higher statutory maximum penalties under §§ 841(b)(1)(A) and 841(b)(1)(B); and 8) the Sanchezes’ four-year terms of supervised release were permitted by § 841(b)(1)(C) and thus did not implicate Apprendi.72

For the foregoing reasons, no error exists in the Sanchezes’ indictment, plea colloquies, convictions, or sentences. Thus, we affirm both the convictions and the sentences of defendants Ignasio Sanchez and Santiago Sanchez.

AFFIRMED.

Footnotes

1

. Four other defendants were charged in the indictment, but this appeal involves only the Sanchezes.

2

. The motion quoted in full the now-famous footnote six from Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and in particular relied on its statement that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id. at 243 n. 6, 119 S.Ct. 1215; see also infra Section II.A (discussing footnote six in Jones and Jones more generally).

3

. The Supreme Court decided Jones on March 24, 1999, and Apprendi on June 26, 2000. The present case exemplifies how, well before Apprendi, defendants in this circuit were asserting that drug quantity under § 841 had to be charged in the indictment and decided by a jury, even though prior circuit precedent repeatedly had held otherwise. See infra note 28. As explained in United States v. Candelario, 240 F.3d 1300 (11th Cir.), cert. denied, — U.S. —, 121 S.Ct. 2535, 150 L.Ed.2d 705 (2001), "[a] defendant may be deemed to have made a constitutional objection if his objection invokes Apprendi or Jones." Id. at 1304 (citations omitted).

4

.A sentence of ten years to life imprisonment, five years’ supervised release, and a $4,000,000 fine — of which both defendants were advised — corresponds to § 841(b)(1)(A). A sentence of five to forty years’ imprisonment, four years’ supervised release, and a $2,000,000 fine corresponds to § 841(b)(1)(B).

5

. "A defendant who wishes to preserve appellate review of a non-jurisdictional defect while at the same time pleading guilty can do so only by entering a 'conditional plea' in accordance with [Federal Rule of Criminal Procedure 11(a)(2) ]." United States v. Pierre, 120 F.3d 1153, 1155 (11th Cir.1997) (quoting Fed.R.Crim.P. 11(a)(2)). Rule 11(a)(2) provides:

Conditional Pleas. With the approval of the court and the consent of the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea.

Fed.R.Crim.P. 11(a)(2).

6

. Ignasio Sanchez's plea agreement stated, “Pursuant to Rule 11(a)(2), the defendant reserves the right to appeal the District Court’s Order ... denying the defendant's motion to Dismiss the Indictment....”

7

. We note that Santiago Sanchez’s reservation of his right to appeal this issue did not comply with the requirements of Rule 11(a)(2), because it was not in writing. See Pierre, 120 F.3d at 1155 (noting that "[t]he conditional plea must be in writing and must be consented to by the court and by the government”) (citing Fed.R.Crim.P. 11(a)(2)). Because the government agreed to Santiago Sanchez’s oral reservation of his right to appeal this issue and because the district court later granted Santiago Sanchez permission to do so, we, however, treat Santiago Sanchez's orally entered guilty plea as having properly reserved the right to appeal the denial of his motion to dismiss the indictment. Indeed, the prosecutor stated:

Your honor, the government's not going to have an objection for the late adoption of the motion by counsel for Santiago Sanchez, wouldn't put on extra work for the government to file its responsive brief. I would advise the court that, normally, when defendants tender a plea of guilty, that such motions would be waived by the plea of guilty. [Counsel for Ignasio Sanchez] had requested that he be allowed to retain that right to appeal that issue, and that was specifically addressed in his [written] plea agreement for Ignasio Sanchez. We consented to that in light of the fact the two defendants are brothers or related and that there's been a closeness in terms of the defense by the defendants; that the government would be willing to permit, with the court's permission, to allow Santiago Sanchez, if he feels so inclined, to raise that issue on appeal in terms of failure to allege any drug quantities in the indictment.

Only after the government agreed did the district court grant permission to Santiago Sanchez to reserve the right to appeal this issue. We note, however, that the district court was not required to do so.

8

. At the time of the Sanchezes’ offenses, the penalty provisions applicable to a drug offense involving methamphetamine and amphetamine required that the offense involve "100 grams or more of methamphetamine ... or 1 kilogram or more of a mixture or substance containing a detectable amount of methamphetamine,” or "10 grams or more of methamphetamine ... or 100 grams or more of a mixture or substance containing a detectable amount of methamphetamine.” 21 U.S.C. §§ 841(b)(1)(A)(viii), 841(b)(1)(B)(viii) (1994). In 1998, Congress amended these provisions to require methamphetamine quantities of 50 to 500 grams, and 5 to 50 grams, respectively. See 21 U.S.C. §§ 841(b)(1)(A)(viii), 841 (b)(1)(B)(viii) (1998).

9

. The drug quantities in the initial pre-sen-tence reports resulted in a base offense level of 38 for both defendants. The reports recommended a two-level increase for possession of a weapon during the offense and a three-level reduction for acceptance of responsibility. Both reports concluded that the San-chezes' total adjusted offense level was level 37 with a criminal history of Category I. There was never any contention that either Sanchez had a prior drug felony conviction.

10

.Both amounts resulted in a base offense level of 34. The recommended two-level increase for possession of a weapon and three-level reduction for acceptance of responsibility resulted in a total adjusted offense level of 33, which, with a criminal history of Category I, yielded a guideline range of 135 to 168 months.

11

. The revised reports noted that a mandatory minimum penalty of five years' imprisonment applied. Those reports also stated that the "Fine Guideline Range” was $17,500 to $2,000,000 and that the term of "Supervised Release” was four years.

12

. We note that the total of the drug quantities to which the Sanchezes pled guilty is actually 2,901.6 kilograms. This slight error in arithmetic, however, would not change the base offense level.

13

. The different custodial guideline ranges for the defendants resulted from Ignasio Sanchez's receiving a minor role adjustment. The Sanchezes’ drug quantities resulted in the same base offense level of 32. The district court applied a two-level increase for firearm possession, resulting in an offense level of 34. Regarding Ignasio Sanchez, the court then applied a two-level reduction for playing a minor role in the offense and a three-level reduction for acceptance of responsibility. These adjustments produced an offense level of 29, which with a criminal history of Category I carried a guideline range for Ignasio Sanchez of 87 to 108 months. Regarding Santiago Sanchez, the court applied only a three-level reduction for acceptance of responsibility. This adjustment produced an offense level of 31, which with a criminal history of Category I carried a guideline range for Santiago Sanchez of 108 to 135 months.

14

. The record shows that the two pounds of methamphetamine agreed to in the sentencing hearing was referenced in the pre-sentence reports as 907.2 grams of methamphetamine. (A pound of methamphetamine equals 453.6 grams, so that two pounds equal 907.2 grams of methamphetamine.) This 907.2 gramá of methamphetamine is greater than the 500-grams threshold required to trigger a sentence of not less than 10 years under 21 U.S.C. § 841 (b)( 1)(A)(viii). The government, however, never requested a mandatory minimum sentence of 10 years, never made any objections to the sentences imposed, and has not cross appealed. At the conclusion of the sentencing hearing, the government even affirmatively indicated that it had "no exceptions.”

15

. At the time that the grand jury in Jones returned the indictment, § 2119 read:

"Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title, or imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.”

Jones, 526 U.S. at 230, 119 S.Ct. 1215 (quoting 18 U.S.C. § 2119 (1988 ed., Supp. V)). The Jones indictment did not cite the statute’s three numbered subsections, and neither the indictment nor the jury instructions mentioned the facts of "serious bodily injury” or "death.” Id. at 230-31, 119 S.Ct. 1215. After the jury found the defendant guilty, the pre-sentence report recommended a twenty-five year sentence under § 2119(2) because a victim suffered "serious bodily injury” during the carjacking offense. Id. at 231, 119 S.Ct. 1215. The defendant objected, arguing that "serious bodily injury was an element of the offense defined in part by § 2119(2), which had been neither pleaded in the indictment nor proven before the jury.” Id. Over this objection, the district court sentenced the defendant to twenty-five years’ imprisonment. Id.

16

. Apprendi challenged only his sentence and did not seek to withdraw his guilty plea or attack his indictment. The Supreme Court ordered that the "judgment” of the state court be reversed and that the case be "remanded for further proceedings not inconsistent with this opinion." Apprendi, 530 U.S. at 497, 120 S.Ct. 2348. Thus, we read Apprendi as reversing only the defendant's sentence and not his conviction. This conclusion is supported by the fact that the indictment was not at issue. Indeed, the Supreme Court expressly noted that "Apprendi has not here asserted a constitutional claim based on the omission of any reference to sentence enhancement or racial bias in the indictment.” Id. at 477 n. 3, 120 S.Ct. 2348. The Court noted that Apprendi relied "entirely on the fact that the 'due process of law’ that the Fourteenth Amendment requires the States to provide to persons accused of crime encompasses the right to a trial by jury, and the right to have every element of the offense proved beyond a reasonable doubt,” and it continued that the Fourteenth Amendment "has not ... been construed to include the Fifth Amendment right to ‘presentment or indictment of a Grand Jury.’ ” Id. (citation omitted). Thus, the Court expressly did "not address the indictment question separately.” Id.

17

. At issue in McMillan was Pennsylvania’s Mandatory Minimum Sentencing Act, 42 Pa. Const. Stat. § 9712, which provided that anyone convicted in state court of certain enumerated felonies was subject to a mandatory minimum sentence of five years’ imprisonment if the sentencing judge found by a preponderance of the evidence that the defendant "visibly possessed a firearm” during the commission of the offense. McMillan, 477 U.S. at 81, 106 S.Ct. 2411. As the Supreme Court explained, "The Act operates to divest the judge of discretion to impose any sentence of less than five years for the underlying felony; it does not authorize a sentence in excess of that otherwise allowed for that offense.” Id. at 81-82, 106 S.Ct. 2411. The Act expressly provided that visible possession was not an element of the crime. Id. at 81 n. 1, 106 S.Ct. 2411 (quoting Pa. Const. Stat. § 9712(b)).

The Supreme Court concluded that the terms of the Act did not violate the Due Process Clause, thereby following its precedent that rejected the contention that "whenever a State links the ‘severity of punishment’ to 'the presence or absence of an identified fact' the State must prove that fact beyond a reasonable doubt.” Id. at 84, 106 S.Ct. 2411 (quoting Patterson v. New York, 432 U.S. 197, 214, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)). The Court noted, "Section 9712, which comes into play only after the defendant has been convicted of an enumerated felony, neither provides for an increase in the maximum sentence for such felony nor authorizes a separate sentence; it merely requires a minimum sentence of five years, which may be more or less than the minimum sentence that might otherwise have been imposed.” 477 U.S. at 83, 106 S.Ct. 2411.

18

. In this regard, the Sanchezes also assert that the district court erred in applying the two-level increase for firearm possession. Specifically, they contend that the firearm increase must be proven beyond a reasonable doubt in light of Apprendi and that the testimony of the sole government witness did not connect any weapons to the drug conspiracy. This argument lacks merit. First, Apprendi does not apply to the Sentencing Guidelines. Second, the government’s evidence satisfied its burden of proof. Sentencing Guideline § 2D 1.1 (b)(1) provides for a two-level increase for possession of a firearm during the offense. The accompanying commentary ex plains that this “adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1(b)(1), cmt n.3. "Once the prosecution has shown by a preponderance of the evidence that the firearm was present at the site of the charged conduct, the evidentiary burden shifts to the defendant to show that a connection between the firearm and the offense is clearly improbable.” United States v. Hall, 46 F.3d 62, 63 (11th Cir.1995). Here, Kenneth Green testified that he delivered guns to the Sanchezes as partial payment for drugs and that later he took law enforcement authorities to a storage center where he had stored four or five rifles and shotguns. The district court specifically found Green’s testimony to be credible, and this finding was not clearly erroneous. See id. ("We review findings of fact for clear error only.”).

19

. The Sanchezes emphasize certain language in Apprendi convenient for the contrary position. See, e.g., Apprendi, 530 U.S. at 482-83, 120 S.Ct. 2348 (“The historic link between verdict and judgment and the consistent limitation on judges’ discretion to operate within the limits of the legal penalties provided highlight the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.”) (emphasis added); id. at 483 n. 10, 120 S.Ct. 2348 (“Put simply, facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition 'elements’ of a separate legal offense.”); id. at 494, 120 S.Ct. 2348 (“Despite what appears to us the clear 'elemental' nature of the factor here, 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 495, 120 S.Ct. 2348 (“But it can hardly be said that the potential doubling of one's sentence — from 10 years to 20 — has no more than a nominal effect.”). As discussed above, however, Apprendi's holding was itself limited to judge-decided facts that actually increased the defendant’s sentence beyond the prescribed statutory maximum penalty. The opinion's “exposure” language quoted by the Sanchezes does not supercede Apprendi's actual decision. See generally Crawford-El v. Britton, 523 U.S. 574, 585, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) ("There is, of course, an important difference between the holding in a case and the reasoning that supports that holding.”)

20

. Within broad constitutional limits, "[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute.” Staples v. United States, 511 U.S. 600, 604, 114 S.Ct. 1793, 128 (1994) (internal quotation marks omitted).

21

. Conspiracy is made a separate offense by 21 U.S.C. § 846. That statute provides, "Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” 21 U.S.C. § 846. The "subchap-ter” to which this conspiracy statute refers is 21 U.S.C. § 841. Thus, for simplification, we will discuss only § 841 in this opinion. Given that the penalties for a violation of § 846 track the penalties for a violation of § 841(a), our discussion applies equally to both statutes.

22

. Similarly, § 841(a)(2) makes it "unlawful for any person knowingly or intentionally .. . to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.” 21 U.S.C.' § 841(a)(2). Again, while for simplification we focus on § 841(a)(1), our discussion applies equally to § 841(a)(2).

Likewise, while we discuss in this opinion methamphetamine and amphetamine, our discussion applies equally to any drug meeting the definition of a "controlled substance” as set forth in the statute. Specifically, the statute provides, "The term 'controlled substance’ means a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter.” 21 U.S.C. § 802(6). Those schedules are contained in 21 U.S.C. § 812(c), and the drugs included in each schedule share certain characteristics. For example, the statute provides that the inclusion of a drug on Schedule II— on which methamphetamine and amphetamine, the drugs involved in this case, are included — requires "findings” that:

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.

(C) Abuse of the drug or other substances may lead to severe psychological or physical dependence.

21 U.S.C. § 812(b)(2).

23

.Although the indictment here charged "quantities” of two controlled substances, specifically, methamphetamine and amphetamine, an indictment charging simply possession with intent to distribute "a controlled substance” equally charges some drug type and amount.

24

. One estimate is that if the factors in § 841(b) are treated as elements of an offense for constitutional purposes, and not sentencing factors as clearly enacted by Congress, then this analysis results in approximately 350 different offenses based on these factors. See United States v. Promise, 255 F.3d 150, 175 (4th Cir.2001) (en banc) (stating a "rough estimation” that "some 350 separate offenses” would exist in § 841 under "an interpretation of that provision that deems the facts in subsection (b) to be elements of the § 841(a) offenses”) (Luttig, J., concurring).

25

. Section 841(b)(1)(D), referred to in § 841(b)(1)(C), governs offenses involving certain amounts of marijuana and other drugs and provides for a maximum term of imprisonment of five years in the absence of a prior conviction for a felony drug offense. 21 U.S.C. § 841(b)(1)(D); see infra note 37.

26

. We have described § 841(b)(1)(C) as a "catchall provision.” United States v. Trout, 68 F.3d 1276, 1280 (11th Cir.1995). Other circuits have adopted the same terminology. See United States v. Houle, 237 F.3d 71, 79 (1st Cir.) ("Section 841(b)(1)(C), the statutory catchall[,] authorizes a term of imprisonment for a schedule I or II narcotic, such as cocaine, without reference to drug quantity, of not more than 20 years.' "), cert. denied, - U.S. -, 121 S.Ct. 2234, 150 L.Ed.2d 224 (2001); United States v. Allison, 953 F.2d 870, 873 (5th Cir.1992) (stating that § 841(b)(1)(C) “is a more lenient catchall provision for all Schedule II drugs not addressed in” §§ 841(b)(1)(A) or 841(b)(1)(B)), opinion amended on other grounds, 986 F.2d 896 (5th Cir.1993); United States v. Marshall, 908 F.2d 1312, 1322 (7th Cir.1990) (describing § 841(b)(1)(C) as "the catchall statute”).

27

.In contrast, other federal statutes that were the subject of the Supreme Court's attention in recent cases lack this bifurcated structure, clear dichotomy, and indisputable congressional intent. See Jones, 526 U.S. at 235, 119 S.Ct. 1215 (construing the carjacking statute); Castillo v. United States, 530 U.S. 120, 124-25, 131, 120 S.Ct. 2090, 147 (2000) (construing 18 U.S.C. § 924(c)(1) (1988 ed., Supp. V), and noting that "Congress placed the element uses or carries a firearm' and the word 'machinegun' in a single sentence, not broken up with dashes or separated into subsections” and that this structure indicated that "Congress intended that the firearm type-related words ... referred] to an element of a separate, aggravated crime”).

28

.See, e.g., United States v. Rutherford, 175 F.3d 899, 906 (11th Cir.1999) (concluding that to prove completely the elements of an offense under § 841(a), the government need not prove that a particular controlled substance was involved in the offense conduct, it need only show that some controlled substance was involved); United States v. Mejia, 97 F.3d 1391, 1392-93 (11th Cir.1996) ("To sustain a conviction for possession of cocaine with intent to distribute, the government must prove beyond a reasonable doubt that the defendant knowingly possessed the cocaine and that he intended to distribute it.”); United States v. Perez, 960 F.2d 1569, 1574 (11th Cir.1992) ("The rule that has developed in this circuit ... is that the weight or quantity of a controlled substance is not an element of the offense that must be included in a § 841(a)(1) indictment.”); United States v. Gomez, 905 F.2d 1513, 1514 (11th Cir.1990) ("[I]t is well-settled that to sustain a conviction for possession with intent to distribute a controlled substance, it need not be proved that the defendant had knowledge of the particular drug involved, as long as he knew he was dealing with a controlled substance.”); United States v. Williams, 876 F.2d 1521, 1525 (11th Cir.1989) (“A violation of section 841(a)(1) occurs when the government proves beyond a reasonable doubt that a defendant possessed and intended to distribute a 'controlled substance,' regardless of whether that substance is cocaine or cocaine base.”); United States v. Smith, 840 F.2d 886, 888 (11th Cir.1988) (noting that the express language of § 841(a) "puts no quantity requirement on the amount of controlled substance possessed”), abrogated on other grounds, Gozlon-Peretz v. United States, 498 U.S. 395, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991); United States v. Simmons, 725 F.2d 641, 643 (11th Cir.1984) ("The statute makes it a crime for a person to possess with intent to distribute a controlled substance.... [T]he crime can be proved without any consideration of the amount involved. ...").

29

. Indeed, in our circuit, defendants were raising the due process issue long before Jones and Apprendi were decided. In United States v. Perez, 960 F.2d 1569, 1574 (11th Cir.1992), we summarized some of our decisions starting in 1984 that involved defendants' challenges to the enhanced penalties in § 841(b) based on the failure of the indictment to allege a specific drug quantity. Those decisions, however, focused on whether the specific allegation of drug quantity was needed in the indictment in order to give the defendant fair notice of the government’s intent to seek enhanced penalties, rather than on whether the jury was required to make that determination beyond a reasonable doubt. Subsequently, beginning in 1990, our decisions began to address not only whether a specific drug quantity must be alleged in the indictment to give the defendant notice of the enhanced penalties but also whether it must be proven to a jury beyond a reasonable doubt. See United States v. Cross, 916 F.2d 622, 623-24 (11th Cir.1990).

30

. Our reading of the statute was consistent with that of every other circuit to address the issue. See United States v. Promise, 255 F.3d 150, 176 (4th Cir.2001) (en banc) (listing cases and observing, "[s]ignificantly, even in the wake of Jones, which raised the spectre of a constitutional limitation on the legislative power to define offenses, and thus would have prompted a more searching, cautious statutory interpretation, every single court still held that Congress intended the facts in section 841(b) to be sentencing factors”) (Luttig, J., concurring); id. at 167 (Niemeyer, J., concurring) (noting that "no court reached a different conclusion in interpreting this statute”).

31

. The defendant in Hester was sentenced to a twenty-year mandatory minimum sentence, and this Court affirmed. See Hester, 199 F.3d at 1288-89. On October 16, 2000, the Supreme Court summarily vacated the judgment and remanded the case "for further consideration in light of” Apprendi. Hester v. United States, 531 U.S. 941, 121 S.Ct. 336, 148 L.Ed.2d 270 (2000) (mem.). Hester remains pending in this Court.

32

. We determined in Hester that the language used in footnote six "allow[ed] two plausible readings of Jones." Hester, 199 F.3d at 1291. The first was that “footnote six means exactly what it says,” thus resulting in "a broad rule” that we presciently observed “would have sweeping implications for factors that Congress has traditionally considered sentencing considerations, not elements of the crime.” Id. at 1291-92. The alternative, and narrower, reading was that "when a court finds a statute and its legislative history unclear,” as the Supreme Court found regarding the federal carjacking statute at issue in Jones, the court “should err in favor of the defendant and consider an element of the offense any factor which increases the maximum penalty for the offense.” Id. We adopted this latter, narrower reading of Jones, concluding that the Jones Court proceeded with the statutory analysis "only because it first found Congress' intent ambiguous.” Id. at 1292.

33

.We noted also that other circuits had, at that time, "adopted the narrower reading of Jones,” a reading that the Tenth Circuit deemed a " 'more reasonable reading of Jones, one that anchors its holdings to its facts, i.e., the statutory provision involved.’ " Hester, 199 F.3d at 1292 (quoting United States v. Eads, 191 F.3d 1206, 1213-14 (10th Cir.1999), cert. denied, 530 U.S. 1231, 120 S.Ct. 2663, 147 L.Ed.2d 277 (2000)).

34

. In this case, the government does not ask that we construe § 841(b) as prescribing an overall statutory maximum sentence of life imprisonment for all § 841(a) violations, a view recently endorsed by four judges of the Fourth Circuit. See United States v. Promise, 255 F.3d 150, 169-70 (4th Cir.2001) (era banc) ("As a consequence of th[e] indisputable congressional definition of the section 841 offenses, ... the statutory maximum sentence for commission of these offenses, and therefore the punishment authorized by the jury's verdict of guilt of a section 841 offense, is life imprisonment, plus fine, with the actual sentence imposed dependent upon judicial findings of the presence or absence of the various sentencing factors, including drug amount and type, identified in section 841(b).”) (Lut-tig, J., concurring); see also id. at 165 (Wilkinson, C.J., concurring); id. at 167-68 (Niemeyer, J., concurring); id. at 186 (Gregory, J., concurring). This approach, which we have adopted when permitted by the plain statutory language, effectively immunizes § 841 from any Apprendi problem. See United States v. Pounds, 230 F.3d 1317, 1319 (11th Cir.2000) (holding in a case involving 18 U.S.C. § 924(c)(1) that “Apprendi is inapplicable under the present facts because every conviction under § 924(c)(1)(A) carries with it a statutory maximum sentence of life imprisonment, regardless of what subsection the defendant is sentenced under”), cert. denied, U.S. -, 121 S.Ct. 1631, 149 L.Ed.2d 492 (2001).

35

. Because Apprendi announced a new rule of constitutional law, we apply it to criminal cases pending on direct review. See Griffith v. Kentucky, 479 U.S. 314, 322, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). This is especially true here, as the Sanchezes timely raised the issues decided by Apprendi not only in this Court but in the district court as well.

36

.In United States v. Shepard, 235 F.3d 1295 (11th Cir.2000), cert. denied, - U.S. -, 122 S.Ct. 130, - L.Ed.2d - (2001), we utilized a slightly different approach to reach the same result, stating that there was Appren-di error but concluding that because the defendant's sentence "falls within the authorized range, we find no prejudice.” Id. at 1297. In United States v. Candelario, 240 F.3d 1300 (11th Cir.), cert. denied, - U.S. -, 121 S.Ct. 2535, 150 L.Ed.2d 705 (2001), we discussed Shepard and pointed out:

Shepard's holding was merely that a sentence that falls below the twenty year maximum, as set forth in 21 U.S.C. § 841(b)(1)(C), is not subject to reversal due to Apprendi. Shepard thus stands only for the proposition, along with Gerrow, that "there is no error, plain or otherwise, under Apprendi where the term of imprisonment is within the statutory maximum set forth in § 841(b)(1)(C) for a cocaine offense without regard to drug quantity.”

Id. at 1308 n. 11 (quoting Gerrow, 232 F.3d at 834) (internal citation omitted). To resolve any doubt, however, we hereby limit Shepard 's holding to the above proposition and reject its prejudice-based analysis. When a sentence for a § 841 offense does not exceed the prescribed statutory maximum under § 841(b)(1)(C), Apprendi is irrelevant.

37

. The only exception involves quantities of marijuana, hashish, hashish oil, and the other drugs specified in § 841(b)(1)(D), for which the maximum sentence is five years’ imprisonment. See 21 U.S.C. § 841(b)(1)(D). The same rules discussed in this opinion, however, also apply to those cases, with the only difference being that the prescribed statutory maximum penalty is five years' imprisonment.

38

. All but one of the seven circuits to consider the issue have decided that Apprendi does not invalidate the imposition of a mandatory minimum sentence under §§ 841(b)(1)(A) or 841(b)(1)(B), as long as the sentence does not exceed the statutory maximum sentence under § 841(b)(1)(C). See United States v. Rodgers, 245 F.3d 961, 965-68 (7th Cir.2001); United States v. Harris, 243 F.3d 806, 809 (4th Cir.2001); United States v. Robinson, 241 (1st Cir.2001), cert. denied, U.S. -, 122 S.Ct. 130, — L.Ed.2d - (2001); United States v. Garcia-Sanchez, 238 F.3d 1200, 1201 (9th Cir.2001); United States v. Keith, 230 F.3d 784, 787 (5th Cir.2000), cert. denied, 531 U.S. 1182, 121 S.Ct. 1163, 148 L.Ed.2d 1023 (2001); United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.), cert. denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000). But see United States v. Ramirez, 242 F.3d 348, 351-52 (6th Cir.2001); United States v. Flowal, 234 F.3d 932, 936-38 (6th Cir.2000).

39

. See infra note 50.

40

. This Court has indicated that when a defendant pleads guilty and accepts the drug quantity determination contained in the pre-sentence report or agrees to drug quantity at sentencing or in his plea colloquy, he waives any right to appeal his sentence on the basis of Apprendi, regardless of what sentence is ultimately imposed. See United States v. Walker, 228 F.3d 1276, 1278 n. 1 (11th Cir.2000) (affirming the defendant's life sentence, noting that "[i]n Apprendi, the Supreme Court required that during a jury trial, the government must be made to prove and the jury convict on the factual evidence necessaiy for a sentence enhancement beyond the statutory maximum” and concluding that since the defendant "pled guilty in this case and accepted the contents of the PSI, he lost any right to appeal on the basis of this argument”), cert. denied, - U.S. -, 121 S.Ct. 1408, 149 L.Ed.2d 350 (2001). This is so because a defendant’s stipulation as to drug quantity serves to waive the right to a jury trial on that issue, even when that drug quantity results in a sentence in excess of the otherwise applicable statutory maximum. Indeed, just as the defendant's guilty plea to a substantive offense serves as the equivalent to a jury's finding beyond a reasonable doubt of that defendant’s guilt, so does a stipulation to a specific drug quantity — whether as part of a written plea agreement, part of a jury trial, or at sentencing — serve as the equivalent of a jury finding on that issue, since the stipulation takes the issue away from the jury.

Accordingly, in prior cases in which defendants pled guilty to violating § 841, we have affirmed sentences that violated Apprendi when there was agreement about the drug quantity. See United States v. Pease, 240 F.3d 938, 944 (11th Cir.2001) (affirming the defendant's thirty-year sentence where he admitted in both his plea agreement and plea colloquy that he had accepted delivery of three kilograms of cocaine); United States v. Gallego, 247 F.3d 1191, 1200 (11th Cir.2001) (affirming the defendant’s life sentence when his counsel stated "there is no question but that [the defendant] had the ten kilograms of cocaine, he pled guilty to possessing the ten kilograms of cocaine”). Similarly, we have affirmed sentences that violated Apprendi when the defendant elected to go to trial but where evidence of drug quantity was uncontested. See United States v. Nealy, 232 F.3d 825, 830 (11th Cir.2000) (holding that a preserved Apprendi error was harmless where the evidence of drug quantity was "undisputed” such that "no reasonable jury could have rationally concluded that Defendant was guilty of the substantive offense ... but that the amount of [crack] cocaine possessed was less than” the five grams necessaiy for sentencing him to the penalty range in § 841(b)(1)(B), and thus affirming the defendant’s thirty-two-year sentence); Gallego, 247 F.3d at 1198-99 (affirming a defendant’s life sentence when he admitted in an objection to the pre-sentence report and at sentencing that he personally possessed four kilograms of cocaine during the offense, and affirming another defendant's life sentence when there was "undisputed testimony” that 326 kilograms of cocaine were involved in the offense); United States v. Wims, 245 F.3d 1269, 1272-74 (11th Cir.2001) (affirming the defendant's concurrent sentences of forty years and life imprisonment when he did not contest drug quantity); United States v. Candelario, 240 F.3d 1300, 1311-12 (11th Cir.) (affirming the defendant’s sentence where, based on the testimony of the sole witness, "no reasonable jury could have concluded that Candelario was guilty of the substantive offense ..., but that the amount was less than five grams”), cert. denied, - U.S. -, 121 S.Ct. 2535, 150 L.Ed.2d 705 (2001); United States v. Swatzie, 228 F.3d 1278, 1283 (11th Cir.2000) (affirming the defendant’s life sentence because there was "no serious dispute that [he] possessed at least 5 gm of cocaine base, enough for the increased statutory maximum, and no evidentiary basis existed for the jury reasonably to have found that [the defendant] possessed drugs with intent to distribute, but did not possess both cocaine base and powder at least in the amounts the authorities bagged at [the defendant’s house”), cert. denied, - U.S. -, 121 S.Ct. 2600, 150 L.Ed.2d 757 (2001). We reaffirm all of the actual holdings in those decisions.

41

. There is no separate category of structural error apart from constitutional error. The only question is whether any constitutional errors under Apprendi rise to the level of structural error. Structural error occurs only in "a very limited class of cases,” Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), and "necessarily render[s] a trial fundamentally unfair.” Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).

42

. Ultimately, Nealy determined that the jury-instruction error was harmless but that the defendant abandoned the indictment issue by not raising it in his initial brief. Because the Sanchezes timely raised the indictment issue and their conditional plea agreements preserved the issue for appellate review, we address the standard of review applicable to that issue in the Apprendi context. In United States v. Swatzie, 228 F.3d 1278 (11th Cir.2000), cert. denied, - U.S. -, 121 S.Ct. 2600, 150 L.Ed.2d 757 (2001), we emphasized that the error at issue in Neder was “in material respects indistinguishable from error under Apprendi.” Id. at 1283.

43

. Neder explained that " ‘most constitutional errors can be harmless.’ ” 527 U.S. at 8, 119 S.Ct. 1827 (quoting Fulminante, 499 U.S. at 306, 111 S.Ct. 1246). “[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.” Id. (quoting Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)). The list in Neder of structural errors not subject to harmless-error review is a short one. See id. (mentioning complete denial of counsel, biased trial judge, racial discrimination in grand jury selection, denial of self-representation at trial, denial of public trial, and defective reasonable doubt instruction as structural errors).

44

. For the reasons outlined in more detail in McCoy and Cromartie, we disagree with the position in Judge Barkett's concurring opinion and conclude that Apprendi error based on failure to allege a specific drug quantity does not constitute a jurisdictional defect in a § 841 indictment even if the defendant has been sentenced in excess of twenty years under § 841(b)(1)(A) or § 841(b)(1)(B).

45

. See also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (describing subject matter jurisdiction as "the courts' statutory or constitutional power to adjudicate the case”); Escareno v. Carl Nolte Sohne GmbH & Co., 77 F.3d 407, 412 (11th Cir.1996) (noting that a jurisdictional defect is one that "strip[s] the court of its power to act and make[s] its judgment void”).

46

. Our application of plain error review in the indictment context is consistent with our practice in other Apprendi cases, centering on the failure to submit an element to the jury, where we also applied harmless or plain error analysis based on the timing of the objection. See United States v. Gallego, 247 F.3d 1191, 1198 (11th Cir.2001) (affirming life sentences); United States v. Wims, 245 F.3d 1269, 1272 (11th Cir.2001) (affirming life sentence); United States v. Candelario, 240 F.3d 1300, 1311 (11th Cir.) (affirming 360-month sentence), cert. denied, - U.S. -, 121 S.Ct. 2535, 150 L.Ed.2d 705 (2001); United States v. Pease, 240 F.3d 938, 943 (11th Cir.2001) (affirming thirty-year sentence); United States v. Smith, 240 F.3d 927, 930 (11th Cir.2001) (affirming thirty-year sentence); United States v. Swatzie, 228 F.3d 1278, 1282-83 (11th Cir.2000) (affirming life sentence), cert. denied, - U.S. -, 121 S.Ct. 2600, 150 L.Ed.2d 757 (2001). Our approach is consistent with decisions from other circuits. See, e.g., United States v. Vazquez, 271 F.3d 93 (3d Cir.2001) (stating that “Apprendi violations do not constitute structural defects,” affirming the defendant's 292-month sentence under plain error review, and listing in footnotes 5-10 other circuits’ decisions also applying plain error review).

47

. But see United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir.1999) (concluding in a Hobbs Act case where the indictment failed to state the required mens rea that "if properly challenged prior to trial, an indictment’s complete failure to recite an essential element of the charged offense is not a minor or technical flaw subject to harmless error analysis, but a fatal flaw requiring dismissal of the indictment”); United States v. Spinner, 180 F.3d 514, 516 (3d Cir.1999) (interstate commerce element). While the Second Circuit has held that the failure to include the type of firearm in a 18 U.S.C. § 924(c) indictment is jurisdictional error not subject to plain error review, see United States v. Tran, 234 F.3d 798, 806-09 (2d Cir.2000), that issue is being addressed en banc. See United States v. Thomas, 248 F.3d 76, 78 (2d Cir.2001) (en banc) (order asking the parties to brief whether Tran's reasoning was “sound”).

48

. For the reasons set forth in detail in these opinions, we do not believe that the Supreme Court's decision in Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), which discussed the interstate commerce requirement under the Hobbs Act, dictates a contrary result. See Prentiss, 256 F.3d at 984 n. 11; Mojica-Baez, 229 F.3d at 310. Furthermore, Stirone was decided before Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), in which the Supreme Court first stated that some constitutional errors could be deemed harmless.

Additionally, the Sanchezes rely on United States v. Tomeny, 144 F.3d 749 (11th Cir.1998), but that decision is inapposite. The issue there was whether the statute under which the defendants were indicted was preempted by another statute, not whether the indictment failed to allege an element of the charged offense. Also, this Court ultimately affirmed the defendants’ convictions based on the indictment.

49

. Although the Sanchezes preserved the indictment issue for appellate review, many defendants making a similar argument have not. Under our precedent, "[a] contention that the indictment lacked sufficient specificity is waived ... if the defendant fails to raise it before entering a guihy plea.” United States v. Pease, 240 F.3d 938, 942 (11th Cir.2001) (citing Fed.R.Crim.P. 12(b)(2)). While entry of a guilty plea does not act as a waiver of the objection that the indictment failed to charge any offense at all, id. at 942-43, such a scenario is usually not presented by an indictment charging a § 841 drug offense. This is so because an indictment- charging a drug offense under § 841 but failing to state a specific drug quantity does charge a complete federal offense under § 841.

50

. Other circuits have adopted a similar approach. See, e.g., United States v. Robinson, 241 F.3d 115, 119 (1st Cir.2001) ("No Appren-di violation occurs when the district court sentences a defendant below the default statutory maximum, even though drug quantity, determined by the court under a preponderance-of-the-evidence standard, influences the length of the sentence imposed.”), cert. denied, - U.S. -, 122 S.Ct. 130, - L.Ed.2d - (2001); United States v. Williams, 235 F.3d 858, 863 (3d Cir.2000) ("First and foremost, though the District Court’s finding regarding the amount of drugs substantially increased the possible statutory maximum sentence under 21 U.S.C. § 841(b)(1), we hold that Apprendi is not applicable to [the defendant’s] sentence, because the sentence actually imposed (seven years and one month) was well under the original statutory maximum of 20 years.”), cert. denied, - U.S. -, 122 S.Ct. 49, - L.Ed.2d - (2001); United States v. Obi, 239 F.3d 662, 667 (4th Cir.2001) (concluding that a sentence of 200 months’ imprisonment "does not offend the standards set forth in Apprendi, despite the fact that [the defendant's] sentence is based, in part, on factual findings of drug quantity made by the sentencing judge by a preponderance of the evidence”), cert. denied, - U.S. -, 122 S.Ct. 86, - L.Ed.2d - (2001); United States v. Doggett, 230 F.3d 160, 165-66 (5th Cir.2000) ("As [the defendant's] sentence of 235 months falls short of this statutory maximum [of 240 months as provided in § 841(b)(1)(C)], his claim fails. [The defendant's] sentence was not enhanced beyond the statutory maximum by a factor not contained in the indictment or submitted to the jury.... The decision in Apprendi was specifically limited to facts which increase the penalty beyond the statutory maximum, and does not invalidate a court’s factual finding for the purposes of determining the applicable Sentencing Guide lines.”), cert. denied, 531 U.S. 1177, 121 S.Ct 1152, 148 L.Ed.2d 1014 (2001); United States v. Jones, 245 F.3d 645, 649 (7th Cir.2001) (“[B]ecause [the defendant's] sentence was forty-eight months below the statutory maximum for a defendant who has a prior felony drug conviction, Apprendi is inapplicable....”); United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.) (“If the non-jury factual determination only narrows the sentencing judge’s discretion within the range already authorized by the offense of conviction, such as with the mandatory mínimums applied to [the defendant], then the governing constitutional standard is provided by McMillan .... [Bjecause [the defendant's sentences] are within the statutory range authorized by § 841(b)(1)(C) without reference to drug quantity, [they are] permissible under Apprendi ... even where the drug quantity was not charged in the indictment or found by the jury to have been beyond a reasonable doubt.”), cert. denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000); United States v. Garcia-Sanchez, 238 F.3d 1200, 1201 (9th Cir.2001) (noting in a case involving a sentence of 121 months, "Apprendi has no application here. Apprendi dealt with the consideration of facts in sentencing enhancement beyond the statutory maximum. In the instant case, the sentence imposed was nine years and eleven months below the statutory maximum.”); United States v. Thompson, 237 F.3d 1258, 1262 (10th Cir.) (noting in a case involving a 121-month sentence, "[B]ecause the indictment set forth all the necessary elements of a crime as defined by 21 U.S.C. § 841(a) and 21 U.S.C. § 846, and because the minimum statutory range (within which [the defendant] was sentenced) does not specify a drug amount, neither the indictment nor the conviction was defective.... [W]here the sentence is fully supported, as it is in this case, by allegations in the indictment which are subsequently proven beyond a reasonable doubt, there can be no violation of Appren-di.’’), cert. denied, - U.S. -, 121 S.Ct. 1637, 149 L.Ed.2d 497 (2001); see also United States v. Fields, 251 F.3d 1041, 1043-44 (D.C.Cir.2001) ("Apprendi does not apply to sentencing findings that elevate a defendant’s sentence within the applicable statutory limits. In other words, Apprendi does not apply to enhancements under the Sentencing Guidelines when the resulting sentence remains within the statutory maximum.”) (citation omitted).

51

. Rogers appears to have assumed that compliance with Apprendi requires that drug quantity be subjected to this full procedural triumvirate, including being charged in the indictment. Indeed, we stated in a case involving concurrent sentences of forty years and life imprisonment that Rogers “required” that the indictment specify drug quantity. United States v. Wims, 245 F.3d 1269, 1272 n. 6 (11th Cir.2001) (citing Rogers, 228 F.3d at 1327). Other cases in this circuit echoed this sentiment, generally attributing it to Rogers. See United States v. Gallego, 247 F.3d 1191, 1196-97 (11th Cir.2001); United States v. Candelario, 240 F.3d 1300, 1306 (11th Cir.), cert. denied, - U.S. -, 121 S.Ct. 2535, 150 L.Ed.2d 705 (2001); United States v. Pease, 240 F.3d 938, 943 (11th Cir.2001); United States v. Shepard, 235 F.3d 1295, 1297 (11th Cir.2000), cert. denied, - U.S. -, 122 S.Ct. 130, -L.Ed.2d - (2001); United States v. Geirow, 232 F.3d 831, 834 (11th Cir.2000), cert. denied, - U.S. -, 122 S.Ct. 75, - L.Ed.2d - (2001); cf. United States v. Swatzie, 228 F.3d 1278, 1282 (11th Cir.2000) (assuming arguendo that a failure to charge drug quantity in the indictment and submit it to a jury constituted Apprendi error, in part because the indictment issue was not adequately briefed), cert. denied, - U.S. -, 121 S.Ct. 2600, 150 L.Ed.2d 757 (2001).

Rogers expanded Apprendi in this regard, because neither Jones nor Apprendi held that a congressionally enacted sentencing factor must also be alleged in the indictment. The government argues that this expansion is not inevitable. Under the government's view, a fact such as drug quantity that increases a sentence beyond a default maximum does not in all respects equate to a "traditional element”; it is, rather, "the functional equivalent of an element of a greater offense than the one covered by the juiy’s guilty verdict.” Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348. Drug quantity in § 841 thus may occupy an ambiguous place somewhere in the middle of a hazy spectrum marked by traditional "elements” on one end and "sentencing factors” on the other, two endpoints that themselves represent a "constitutionally novel and elusive distinction.” Id. at 494, 120 S.Ct. 2348. The government can find comfort in at least one of our cases, which suggested that if an indictment did not charge a specific drug quantity but "the evidence established a" drug quantity that would authorize a sentence under section 841(b)(1)(A) or (B), the Government would be entitled to a special jury verdict specifying the quantity of drugs.” United States v. Candelario, 240 F.3d 1300, 1305 n. 7 (11th Cir.), cert. denied, - U.S. -, 121 S.Ct. 2535, 150 L.Ed.2d 705 (2001). According to the government, in sum, drug quantity is an "element lite” that is not subject to the indictment requirement, but still must be submitted to the jury and proven beyond a reasonable doubt.

We are not persuaded, and we thus preserve our precedent in Rogers and its progeny to this limited effect. Of course, our holding with respect to the Sanchezes' motion to dismiss the indictment shows that drug quantity, even in Aogers-like cases, is not a "traditional element” in the sense that a failure to allege it could entitle the defendant to dismissal of a § 841 indictment. Instead, as outlined in this opinion, the omission of that element would first have to be established and then, if shown, would be reviewed for harmless or plain error, depending on the timing of the objection. See supra section III.A. 1.

52

. Although Rogers added a third procedural protection of charging drug quantity in the indictment, we hasten to specify that drug quantity need be alleged only in the narrow circumstances "described above in which Ap-prendi 's jury-submission and reasonable-doubt requirements apply — that is, when the sentence imposed exceeds the maximum in § 841(b)(1)(C). Drug quantity need not be alleged when it has effects that Apprendi's doctrine does not reach, such as mandatory minimum sentences, guideline sentencing calculations, and sentences at or below the otherwise applicable maximum in § 841(b)(1)(C).

53

. This Court previously suggested that the imposition of a mandatoiy minimum sentence based on a judge-made factual determination does not violate Apprendi. See United States v. Pounds. 230 F.3d 1317, 1319-20 (11th Cir.2000), cert. denied, - U.S. -, 121 S.Ct. 1631, 149 L.Ed.2d 492 (2001). In Pounds, the defendant was sentenced to the mandatory minimum sentence of ten years under 18 U.S.C. § 924(c)(1)(A)(iii), based on the sentencing court’s finding that his co-defendant had discharged a firearm. Pounds, 230 F.3d at 1318. This Court affirmed the sentence, holding on the basis of the statutory text that the discharge of a firearm was a sentencing factor and not an element of the offense. Id. at 1319. Furthermore, this Court noted that Apprendi did not alter this result, stating, "The discharge of a firearm does not increase the maximum possible penalty of life under § 924(c)(1)(A); rather, it increases only the mandatory minimum penalty.” Id.

Thus, consistent with the analysis in this en banc opinion, our decision in Pounds, and the holdings of the majority of circuits, we hereby overrule the holding ábout mandatory minimum sentences in United States v. Camacho, 248 F.3d 1286, 1289 (11th Cir.2001) (concluding that, because the district court sentenced the defendant to the mandatoiy minimum of ten years' imprisonment under § 841(b)(1)(A), it "necessarily used section 841(b)(1)(A) for sentencing,” and concluding that this constituted error). We also reject Camacho's adoption of “Rogers error,” a concept that Camacho conceded "went beyond Apprendi ” and would hold as error any sentence obtained when the court utilized drug quantities in §§ 841(b)(1)(A) and 841(b)(1)(B) that were not charged in the indictment and proven to a jury beyond a reasonable doubt, regardless of the actual sentence imposed.

We preserve, however, that portion of Camacho which reaffirmed the principle that "a defendant may obtain re-sentencing under Ap-prendi only if the sentence he actually receives exceeds the maximum allowable sentence he should have received under section 841(b)(1)(C), i.e., twenty years’ imprisonment, without regard to quantity.” Camacho, 248 F.3d at 1288 (citing Gerrow, 232 F.3d at 834). Applying this rule, the Camacho Court stated that "[bjecause Camacho’s sentence of 120 months’ imprisonment was less than the twenty year maximum prescribed by section 841(b)(1)(C), there is arguably no Apprendi error, even though the court utilized a mandatory minimum when sentencing Camacho,” id. at 1289 (emphasis added) (footnote omitted), but concluded that “[rjegardless of whether there is Apprendi error, there is error in Camacho’s sentence under” Rogers. Id. We now clarify that nothing was "arguable]” about the lack of Apprendi error in Camacho's sentence. Because Camacho was sentenced below twenty years, Apprendi did not apply to his case.

54

. In Rogers, the defendant actually received a thirty-year prison sentence, and this Court found, under the particular circumstances of that case, that the defendant’s prescribed statutory maximum sentence was twenty years under § 841(b)(1)(C). We observe, however, that a thirty-year" sentence is permitted under § 841(b)(1)(C) when a defendant's prior felony drug conviction is properly shown.

55

. Accordingly, in United States v. Candelario, 240 F.3d 1300 (11th Cir.), cert. denied, - U.S. -, 121 S.Ct. 2535, 150 L.Ed.2d 705 (2001), we stated that a “constitutional objection for Apprendi purposes is timely if a defendant makes the objection at sentencing.” Id. at 1304 (citations omitted).

56

. Although Rule 11(h), entitled "Harmless Error,” provides that "[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded,”. Fed.R.Crim.P. 11(h), such review does not supercede the plain error standard of review. See Quinones, 97 F.3d at 475 ("We see no reason why the plain error rule should not apply in the Rule 11 context, though we recognize that many non-technical deviations from Rule 11 will constitute plain error.”).

57

. The Sanchezes’ conditional plea agreements did not preserve the right to appeal any error in their plea colloquies, nor did they ever move to withdraw their pleas in the district court.

58

. Our precedent strongly implies that naming a number is not the only way of alleging drug quantity in the indictment. See United States v. Nealy, 232 F.3d 825, 830 & n. 5 (11th Cir.2000) (stating "that the indictment likely only needs to reference the statute” but finding that the defendant abandoned the indictment issue and affirming his thirty-two-year sentence) (citing United States v. Fern, 155 F.3d 1318, 1325 (11th Cir.1998)); Fern, 155 F.3d at 1325 ("If an indictment specifically refers to the statute on which the charge was based, the reference to the statutory language adequately informs the defendant of the charge.”) (citing United States v. Stefan, 784 F.2d 1093, 1101-02 (11th Cir.1986)); see also United States v. Wims, 245 F.3d 1269, 1272 n. 6 (11th Cir.2001) (affirming concurrent sentences of forty years and life imprisonment and stating that "by alleging violations of section 841(b)(1)(A), the indictment served [the defendant] with notice that the Government was charging him with possessing (or conspiring to possess) at least five kilograms of a mixture containing a detectable amount of cocaine or at least fifty grams of a mixture containing cocaine base”). Because the San-chezes' challenges to their guilty pleas lack merit even if they were misadvised, we need not imagine here or resolve all the ways in which an indictment may adequately allege drug quantity.

59

.At the time of the defendant’s plea colloquy in 1959, § 1201(a) provided, in pertinent part:

Whoever knowingly transports in interstate ... commerce, any person who has been unlawfully ... kidnaped ... and held for ransom ... shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.

Brady, 397 U.S. at 743 n. 1, 90 S.Ct. 1463 (quoting 18 U.S.C. § 1201(a)).

60

. The habeas court found that Brady changed his plea upon learning that his co-defendant would plead guilty and would be available to testify against him. Id. at 745, 90 S.Ct. 1463.

61

. While the Supreme Court’s opinion indicates that Brady alleged that the district court did not comply with Rule 11 in its plea colloquy, neither that opinion nor the circuit court opinion under review indicate what advice the district court gave concerning the possible penalties. The Supreme Court’s opinion does state that "Brady’s counsel advised him that § 1201(a) empowered the jury to impose the death penalty.” Brady, 397 U.S. at 756, 90 S.Ct. 1463. Nonetheless, its discussion centered on whether the subsequent change in the law rendered the guilty plea invalid.

62

. In Jackson, the Supreme Court concluded that the death penalty provision of § 1201(a) "impose[d] an impermissible burden upon the exercise of a constitutional right.” Jackson, 390 U.S. at 572, 88 S.Ct. 1209. Specifically, the Court observed that under § 1201(a), "the defendant who abandons the right to contest his guilt before a jury [i.e., by pleading guilty] is assured that he cannot be executed; the defendant ingenuous enough to seek a jury acquittal stands forewarned that, if the jury finds him guilty and does not wish to spare his life, he will die.” Id. at 581, 88 S.Ct. 1209. The Court further noted that "[t]he inevitable effect of any such provision, is of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial.” Id. (footnote omitted). The Supreme Court concluded, "Whatever the power of Congress to impose a death penalty for violation of the Federal Kidnaping Act, Congress cannot impose such a penalty in a manner that needlessly penalizes the assertion of a constitutional right.” Id. at 583, 88 S.Ct. 1209 (citing Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)). The Court further decided, however, that the unconstitutionality of the death penalty provision did not invalidate the entire statute, and it thus upheld the remainder of the statute after excising the death penalty provision. See id. at 591, 88 S.Ct. 1209 ("Thus the infirmity of the death penalty clause does not require the total frustration of Congress’ basic purpose — that of malting interstate kidnaping a federal crime. By holding the death penalty clause of the Federal Kidnaping Act unenforceable, we leave the statute an operative whole, free of any constitutional objection.”).

63

. The Supreme Court in Brady found support for this conclusion in Jackson itself, stating,

“The Court made it clear in Jaclcson that it was not holding § 1201(a) inherently coercive of guilty pleas: 'the fact that the Federal Kidnaping Act tends to discourage defendants from insisting upon their innocence and demanding trial by jury hardly implies that every defendant who enters a guilty plea to a charge under the Act does so involuntarily.’ ” Brady, 397 U.S. at 746-47, 90 S.Ct. 1463 (quoting Jackson, 390 U.S. at 583, 88 S.Ct. 1209).

64

. Indeed, even if the Sanchezes had been misadvised about the maximum possibly penalty under the law as it existed at the time of their plea colloquy, their guilty pleas would not be invalid. In United States v. Woodall, 438 F.2d 1317 (5th Cir.1971) (en banc), the defendant challenged his guilty pleas to two related indictments on the ground that he had been incorrectly advised that the trial judge would pyramid the sentences rather than consider them as graduated penalties for a single offense. Id. at 1327. We upheld the pleas, stating:

Isolating all other facts that could influence a defendant in determining to enter a plea of guilty, the court is of the opinion that even if [the defendant] had been told that the district judge could pyramid the maximum sentences under each of the separate counts of the two indictments to which he pled, this factor would not invalidate his plea. The probability such information would have influenced [the defendant] not to change his plea so far outweighs the possibility that the prospect of stiffer punishment may have caused the change, that we refuse to consider the latter as relevant.

Id. at 1329.

65

. The Sanchezes' reliance on United States v. Brown, 117 F.3d 471 (11th Cir.1997), does not help them. The defendant Brown was informed that willfulness was not an element of his crime, based on the then-applicable law in our circuit. Fourteen months after Brown pled guilty, the Supreme Court overruled our precedent in that regard. Id. at 473 (citing Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994)). The defendant moved to vacate his conviction and sentence on the ground that he had been misinformed of a critical element of his offense. Id. at 474. The district court denied the motion, id., but this Court reversed and remanded. Id. at 480. We stated, "Because the misinformation [the defendant] was given about one of the critical elements of the charge against him caused him to plead guilty, it necessarily follows that his guilty plea was not voluntary in a constitutional sense.” Id. at 477. We decided that Brady did not require a different result, noting that the defendant in Brown misapprehended the elements of his offense, while the defendant in Brady misapprehended the possible penalties. See id. at 478 ("Unlike Brady's strategic miscalculations, Brown’s misapprehension concerning the critical elements of his charged offense substantially undermines the reliability of this plea. Brown has never admitted all the elements of the crime with which he was charged.”).

66

. Although the Sanchezes were advised about the mandatory minimum sentences in § 841(b), they were not misadvised about them, as Apprendi does not affect mandatory minimum sentences under § 841(b). See supra notes 38, 53.

67

. This result is consistent with other cases in which we have decided that a district court’s failure to inform a defendant that he faces a specified term of supervised release or to inform the defendant of the effect of supervised release is harmless error where the sentence is well below the sentence that the defendant was informed that he faced. See United States v. Bejarano, 249 F.3d 1304, 1306 n. 1 (11th Cir.2001).

68

. Thus, we review their argument for plain error. See United States v. Candelario, 240 F.3d 1300, 1306 (11th Cir.) ("If the defendant either does not raise the constitutional objection or does not raise it in a timely fashion, he is entitled only to plain error review.”), cert. denied, - U.S. -, 121 S.Ct. 2535, 150 L.Ed.2d 705 (2001).

69

. In United States v. Gerrow, 232 F.3d 831 (11th Cir.2000), cert. denied, - U.S. -, 122 S.Ct. 75, - L.Ed.2d - (2001), we addressed a similar challenge and concluded that the district court did not commit plain error in imposing a supervised release term of five years. That conclusion was based primarily on the facts that there was no Supreme Court or Eleventh Circuit precedent and that the circuits were split on the issue, under which circumstances " 'there can be no plain error in regard to that issue.’ ” Id. at 835 (quoting United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir.2000)). While Ger-row suggested that there was no error under any standard of review by noting that the majority of circuits resolved the issue against the defendants, we now clarify that there is no error at all in a supervised release term of four years for an offense where the term of imprisonment is governed by § 841(b)(1)(C).

70

. But see Suveges v. United States, 7 F.3d 6, 10 & n. 6 (1st Cir.1993) (indicating that a term of supervised release imposed pursuant to § 841(b)(1)(C) is limited to three years); United States v. Kelly, 974 F.2d 22, 25 (5th Cir.1992) (same).

71

. To the extent that the Sanchezes rely on the fact of their four-year terms of supervised release to demonstrate that they were "sentenced under” § 841(b)(1)(B), that argument fails because of our conclusion that a term of supervised release of four years is in fact authorized by § 841(b)(1)(C).

72

. In response to the statement in Judge Tjoflat's concurring opinion that this case is not en banc worthy because the Apprendi answer is obvious, we note that it was not obvious (1) to the Sanchezes (or their counsel) who, notwithstanding their guilty pleas, preserved the right to challenge the absence of drug quantity in their indictments as part of their plea agreements and have pressed their contention that there is Apprendi error requiring reversal of their convictions and sentences; (2) to the Sanchez panel whose opinion followed Rogers and Shepard, but ultimately found no prejudice and any error was harmless; or (3) to "All Federal Public and Community Defenders within the Eleventh Circuit Court of Appeals” and the "National Association of Criminal Defense Lawyers and Families Against Mandatory Mínimums Foundation” who filed Amicus Curiae briefs supporting the Sanchezes’ requests for reversal of their convictions and sentences based in part on their readings of Apprendi, Rogers, and Camacho. For example, as noted in one Amicus Curiae brief, "[planels of this court have split on the question of what effect Apprendi has on § 841’s type- and amount-base provisions.” That brief then contrasts the approach taken in Gerrow versus that in Rogers and Camacho. We heard this case en pane precisely (1) because of the need to clarify in our circuit the impact of Apprendi on drug convictions, sentences, and plea colloquies, especially where a §§ 846, 841 indictment does not allege drug quantity, and (2) because it involves issues of exceptional importance affecting a plethora of criminal cases.