United States v. Marion Promise, A/K/A Mario,defendant-Appellant

255 F.3d 150

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 17, 2001
• Docket: 99-4737
• Status: Published

Opinions

Affirmed by published opinion. Judge WILKINS announced the judgment of the court and delivered the opinion of the court with respect to Parts I and II A-C, in which Judges WIDENER, WILLIAMS, MICHAEL, MOTZ, TRAXLER, and KING joined, and an opinion with respect to Part IID, in which Chief Judge WILKINSON and Judges WILLIAMS and TRAXLER joined. Chief Judge WILKINSON wrote an opinion concurring in part and concurring in the judgment.

Judge NIEMEYER wrote an opinion concurring in the judgment, in which Judge GREGORY joined. Judge LUTTIG wrote an opinion concurring in the judgment, in which Chief Judge WILKINSON and Judges NIEMEYER and GREGORY joined as to Parts I, II, and III. Judge MOTZ wrote an opinion concurring in part, dissenting in part, and dissenting in the judgment, in which Judge WIDENER joined as to Parts I, II, III, and V and Judge MICHAEL and Judge KING joined in its entirety.

WILKINS, Circuit Judge:

Appellant Marion Promise was charged in a single-count indictment with conspiring to possess with the intent to distribute “a quantity of cocaine and cocaine base,” J.A. 33, and was convicted by a jury. Promise was sentenced to 360 months imprisonment based upon a determination by the district court that he should be held accountable for more than 1.5 kilograms of cocaine base. Promise maintains that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court committed plain error in failing to treat the specific amount of cocaine base attributed to him as an element of the offense.

For the reasons set forth below, we conclude that under Apprendi, in order to authorize the imposition of a sentence exceeding the maximum allowable without a jury finding of a specific threshold drug quantity, such drug quantities must be treated as elements of aggravated drug trafficking offenses under 21 U.S.C.A. § 841 (West 1999 & Supp.2001), ie., charged in the indictment and proved to the jury beyond a reasonable doubt.¹ We further conclude that because the indictment that charged Promise did not allege a specific threshold quantity of cocaine or cocaine base and the jury did not make a finding regarding whether the offense involved such a quantity, Promise’s conviction subjected him to a maximum penalty of 20 years imprisonment. His sentence of 30 years was therefore erroneous. Although this error was plain and affected Promise’s substantial rights, we decline to exercise our discretion to notice the error. Accordingly, we affirm.

I.

Evidence presented at trial established that Promise supplied cocaine base to a drug distribution ring operated by William Moore, Jr. in Gastonia, North Carolina. Moore testified that Promise supplied him with up to two kilograms of cocaine base every other week during the course of their involvement. Promise also provided substantial quantities of cocaine and cocaine base to several of Moore’s cohorts. Based upon this evidence, Promise was convicted of conspiracy to possess with the intent to distribute cocaine and cocaine base, see 21 U.S.C.A. § 846 (West 1999)'. The indictment did not allege a specific quantity of cocaine base, and the jury was not instructed to make a finding regarding the quantity of cocaine base attributable to Promise.²

At sentencing, the district court determined by a preponderance of the evidénce that Promise should be held accountable for more than 1.5 kilograms of cocaine base and, after further determinations, concluded that Promise’s sentencing range under the United States Sentencing Guidelines was 360 months to life imprisonment. The court sentenced Promise to 860 months imprisonment. Promise subsequently appealed, arguing for the first time that the district court had erred in treating the quantity of drugs as a sentencing factor rather than as an element of the offense, thereby violating his right to due process. Promise based his argument on Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), in which the Supreme Court had held that serious bodily injury was an element of an aggravated offense under the federal carjacking statute rather than a sentencing factor. See Jones, 526 U.S. at 251-52, 119 S.Ct. 1215.

Promise’s appeal was consolidated with that of a codefendant, William Patrick Miller. In June 2000, a panel of this court affirmed as to both Promise and Miller. See United States v. Miller, 217 F.3d 842, 2000 WL 774804 (4th Cir.) (per curiam) (unpublished table decision), ceti. denied, 531 U.S. 971, 121 S.Ct. 410, 148 L.Ed.2d 317 (2000) (denying Miller’s petition for writ of certiorari). With respect to Promise’s due process challenge, the panel concluded that Promise could not demonstrate plain error because “[n]o circuit to address this question has extended Jones to” 21 U.S.C.A. § 841.³ Id., 2000 WL 774804, at *1 (citing cases). Promise petitioned for panel and en banc rehearing, arguing that the recent decision of the Supreme Court in Apprendi required this court to reconsider its refusal to extend Jones to § 841. The panel granted panel rehearing and directed the parties to file supplemental briefs. Before the panel issued a decision, we voted to rehear Promise’s appeal en banc along with the appeals in United States v. Angle, No. 96-4662, also decided today.

II.

Promise argues that his conviction, or at least his sentence, is invalid because a specific threshold drug quantity was not alleged in the indictment and the jury was not required to make a finding regarding specific threshold drug quantity beyond a reasonable doubt. Promise failed to make this argument before the district court and thus forfeited the asserted error. See Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944) (“No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.”). Our authority to correct forfeited errors is granted by Federal Rule of Criminal Procedure 52(b), which provides that “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (interpreting Rule 52(b)); see also United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (explaining that “[t]he plain-error doctrine of Federal Rule of Criminal Procedure 52(b) tempers the blow of a rigid application of the contemporaneous-objection requirement” by authorizing correction of “particularly egregious” forfeited errors (internal quotation marks omitted) (footnote omitted)). As the Court explained in Olano, in order to establish our authority to notice an error not preserved by timely objection, Promise must demonstrate that an error occurred, that the error was plain, and that the error affected his substantial rights. See Olano, 507 U.S. at 732, 113 S.Ct. 1770. Even if Promise can satisfy these requirements, correction of the error remains within our discretion, which we “should not exercise ... unless the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (second alteration in original) (quoting Young, 470 U.S. at 15, 105 S.Ct. 1038).

A.

Our first inquiry, of course, is whether an error occurred. Before turning to the substance of Promise’s argument, we examine the cases on which he relies, Jones and Apprendi.

1.

Jones concerned the federal carjacking statute, 18 U.S.C. § 2119, which at the time provided as follows:

“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 (Supp. V 1994)). Nathaniel Jones was charged with violating § 2119 in an indictment that did not mention serious bodily injury or death, and the jury that convicted Jones was not instructed to make findings regarding whether serious bodily injury or death resulted from his actions. See id. at 230-31, 119 S.Ct. 1215. At sentencing, however, the district court determined by a preponderance of the evidence that one of the victims had suffered serious bodily injury; accordingly, the court sentenced Jones to 25 years imprisonment. See id. at 231, 119 S.Ct. 1215.

The Supreme Court reversed, determining that subsections (2) and (3) of § 2119 set forth elements of aggravated offenses, not sentencing factors relevant to punishment for a single offense defined in the principal paragraph of the statute. Although the Court concluded as a matter of statutory construction that “the fairest reading of § 2119 treats the fact of serious bodily harm as an element,” it acknowledged “the possibility of the other view.” Id. at 239, 119 S.Ct. 1215. The Court determined that the constitutional doubt rule would preclude a reading of the statute that would make bodily injury a sentencing factor rather than an element. See id.; see also id. (“[W]here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.” (internal quotation marks omitted)). Based upon a survey 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, the Court identified a principle of constitutional law suggested, but never actually adopted, by those cases: “[A]ny 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 Court concluded that if serious bodily injury and death were intended by Congress to be mere sentencing factors, a judicial finding of either of those facts would increase the penalty to which the defendant was exposed from 15 years to 25 years or life imprisonment. See id. at 243-44, 119 S.Ct. 1215. The Court believed that such a scheme would be unconstitutional in light of the articulated principle. See id.

A little over a year later, the Court decided Apprendi Charles Apprendi pleaded guilty, under New Jersey law, to two counts of second degree possession of a firearm for an unlawful purpose and one count of third degree possession of an antipersonnel bomb. See Apprendi, 530 U.S. at 469-70, 120 S.Ct. 2348. New Jersey law specifies a maximum term of imprisonment of 10 years for second degree offenses. See id. at 470, 120 S.Ct. 2348. However, based on its determination by a preponderance of the evidence that Ap-prendi had acted with a racially biased purpose, the sentencing court imposed an extended term of imprisonment of 12 years on one of the firearms counts. See id. Apprendi argued to the Supreme Court that the imposition of a penalty greater than the statutory maximum based upon a finding by the court by a preponderance of the evidence, rather than by a jury beyond a reasonable doubt, violated his due process rights.

In considering this claim, the Court began by noting that “[a]ny possible distinction between an ‘element’ of a felony offense and a ‘sentencing factor’ was unknown to the practice of criminal indictment, trial by jury, and judgment by court as it existed during the years surrounding our Nation’s founding.” Id. at 478, 120 S.Ct. 2348 (footnote omitted). In the view of the Court, this “historic link between verdict and judgment,” id. at 482, 120 S.Ct. 2348, and the concomitant proscription of judicial authority to impose a sentence outside of “the range of sentencing options prescribed by the legislature,” id. at 481, 120 S.Ct. 2348, pointed to the conclusion that “[t]he judge’s role in sentencing is constrained at its outer limits by the facts alleged in the indictment and found by the jury. 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 483 n. 10, 120 S.Ct. 2348.⁴ On this basis, the Court decried “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.” Id. at 482-83, 120 S.Ct. 2348. In light of these principles, the Court adopted the constitutional rule previously suggested in Jones: “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 rule to the New Jersey statutory scheme, the Court first observed that it was immaterial that racial bias was formally labeled a “sentencing factor” by the New Jersey Legislature: “[T]he relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Id. at 494, 120 S.Ct. 2348. The Court determined that there indeed was a difference “between what Apprendi would have received without the finding of biased purpose and what he could receive with it.” Id. Therefore, ^because race bias was not found by a jury beyond a reasonable doubt, the Court concluded that Appren-di’s due process rights had been violated. See id. at 497, 120 S.Ct. 2348.

2.

Having examined the decisions most relevant to Promise’s argument, we now turn to a consideration of his claim. Promise argues that under Apprendi specific threshold drug quantities must be treated as elements of aggravated drug trafficking offenses, rather than as mere sentencing factors. We agree.

The first portion of 21 U.S.C.A. § 841, subsection (a), prohibits, inter alia, possession of controlled substances with the intent to distribute them. See 21 U.S.C.A. § 841(a)(1). Subsection (b)(1) sets forth various penalties that vary according to, inter alia, the quantity of the particular controlled substance at issue. See id. § 841(b)(1). Although no legislative history speaks to the question, we have previously held, as three of my colleagues reiterate now, that Congress intended these specific threshold quantities to be sentencing factors rather than elements of aggravated drug trafficking offenses. See, e.g., United States v. Dor-louis, 107 F.3d 248, 252 (4th Cir.1997). These factors determine the maximum penalty that may be imposed on a particular defendant; for example, an individual who possesses with the intent to distribute an identifiable but unspecified quantity of a schedule I or II drug is subject to a term of imprisonment of no more than 20 years. See 21 U.S.C.A. § 841(b)(1)(C). A sentence exceeding 20 years may be imposed only upon an additional finding that the offense involved a specific threshold quantity of a schedule I or II controlled substance — for example, 1 kilogram or more of heroin. See 21 U.S.C.A. § 841(b)(l)(A)(i). Thus, if a specific threshold quantity of drugs is not found by the jury beyond a reasonable doubt, a judicial finding of that fact increases the allowable penalty beyond that authorized by the facts found by the jury alone. Accordingly, Apprendi dictates that in order to authorize the imposition of a sentence exceeding the maximum allowable without a jury finding of a specific threshold drug quantity, the specific threshold quantity must be treated as an element of an aggravated drug trafficking offense,⁵ i.e., charged in the indictment and proved to the jury beyond a reasonable doubt.⁶ In reaching this conclusion, we join every circuit that has applied Apprendi to § 841 in this context. See United States v. Fields, 242 F.3d 393, 395 (D.C.Cir.2001); United States v. Nance, 236 F.3d 820, 824-25 (7th Cir.2000); United States v. Hishaw, 235 F.3d 565, 574-75 (10th Cir.2000); United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir.2000), cert, denied, — U.S. —, 121 S.Ct. 1152, 148 L.Ed.2d 1014 (2001); United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir.2000); United States v. Nordby, 225 F.3d 1053, 1058-59 (9th Cir. 2000); United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.), cert, denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000); see also United States v. Reb-mann, 226 F.3d 521, 524-25 (6th Cir.2000) (holding that, under Apprendi, death resulting from the use of controlled substances distributed by the defendant is an element of an aggravated offense). We therefore conclude that there was error.⁷

Before, turning to the remaining prongs of the plain error analysis, we pause to consider the treatment of Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), by the Apprendi Court. In Walton, the Supreme Court upheld a provision of Arizona’s capital sentencing statute under which a judge, rather than a jury, determined whether the prosecution had established an aggravating factor necessary to subject the defendant to the death penalty. See Walton, 497 U.S. at 647-49, 110 S.Ct. 3047. The Apprendi Court distinguished Walton on the basis that the defendant there was convicted of a capital crime even before the judge found aggravating factors to be present; the judge’s findings merely aided in the selection of an appropriate sentence within a range of penalties that already included capital punishment. See Appren-di 530 U.S. at 496-97, 120 S.Ct. 2348 (citing Almendarez-Torres v. United States, 523 U.S. 224, 257 n. 2, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (Scalia, J., dissenting)); cf. Walton, 497 U.S. at 648, 110 S.Ct. 3047 (“ ‘Aggravating circumstances are not separate penalties or offenses, but are standards to guide the making of [the] choice between the alternative verdicts of death and life imprisonment.’” (quoting Poland v. Arizona, 476 U.S. 147, 156, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986)) (second alteration in original)). The dissent dismissed this proffered distinction as “baffling” in light of the fact that -“[a] defendant convicted of first-degree murder in Arizona cannot receive a death sentence unless a judge makes the factual determination that a statutory aggravating factor exists.” Apprendi 530 U.S. at 538, 120 S.Ct. 2348 (O’Connor, J„ dissenting).

In his concurrence, Justice Thomas wrote that aggravating circumstances in capital cases are different from other facts that can lead to increased punishment because they arise in the “unique context” of capital sentencing and are the product of “special constraints on a legislature’s ability to determine what facts shall lead to what punishment.” Id, at 522-23, 120 S.Ct. 2348 (Thomas, J., concurring). The dissent dismissed this reasoning as well, noting that “Justice THOMAS gives no specific reason for excepting capital defendants from the constitutional protections he would extend to defendants generally, and none is readily apparent.” Id. at 539, 120 S.Ct. 2348 (O’Connor, J., dissenting).

We perceive merit both in the manner in which the majority and Justice Thomas distinguished Walton and in the dissent’s criticism of those proffered distinctions. As noted by the Apprendi majority, the maximum penalty for first degree murder under Arizona law is death, but Arizona law interposes procedural safeguards, including additional factual determinations, between a finding of guilt and the imposition of a death sentence. Cf. People v. Lee, 318 Ill.App.3d 417, 252 Ill.Dec. 863, 743 N.E.2d 1019, 1023 (2000) (stating that Apprendi procedures apply to Illinois’ capital scheme because Illinois, unlike Arizona, sets a maximum penalty of 60 years for first degree murder and then allows a greater sentence upon proof of additional facts). And, .as Justice Thomas explained in his concurrence, the additional safeguards provided by Arizona do not necessarily reflect a legislative determination that the elements of first degree murder are, by themselves, insufficient to justify capital punishment; rather, those safeguards were enacted to comply with the strict Eighth Amendment requirements that govern capital cases, which do not include proof beyond a reasonable doubt or fact-finding by a jury. See Clemons v. Mississippi, 494 U.S. 738, 745-46, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) (stating that the Sixth Amendment right to trial by jury does not apply to capital sentencing proceedings and that the Eighth Amendment does not create an independent right to sentencing by jury); Spaziano v. Florida, 468 U.S. 447, 458-59, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) (same).

In contrast, the penalty gradations in § 841(b)(1) are not the product of constitutionally mandated procedures as a condition precedent to the imposition of the maximum penalty, but rather are the result of congressional prerogative to apply graduated penalties to acts of increasing severity. Thus, for example, Congress authorized a sentence of no more than 20 years imprisonment for a first offender who possesses with the intent to distribute three grams of cocaine base, see 21 U.S.C.A. § 841(b)(1)(C), and it is plain that any sentence greater than 20 years would not be authorized; it is likewise plain that the same offender would face a greater penalty (no less than 5 years and no more than 40 years) if the sale involved six grams of cocaine base rather than three, see id. § 841(b)(1)(B)(iii). No constitutional constraints compelled Congress to classify drug-trafficking offenses in this manner; on the contrary, Congress was free to establish a uniform maximum penalty that did not depend on proof of quantity or other additional facts. But Congress did make the available penalty depend on additional facts, and the Constitution governs the process for determining those facts. Under Apprendi, that process must include charge by indictment and proof to a jury beyond a reasonable doubt.

We acknowledge Justice O’Connor’s sentiment regarding the interplay between Walton and Apprendi: It is at least perplexing, if not “baffling,” that due process protections apply to a finding of specific threshold drug quantities under § 841(b)(1) when such protections do not apply to factual findings of aggravating circumstances subjecting a defendant to the death penalty. Apprendi, 530 U.S. at 538, 120 S.Ct. 2348 (O’Connor, J., dissenting). It is for the Supreme Court, however, to resolve this conundrum. Until that happens, we must adhere to both Walton and Apprendi.

B.

Having determined that the district court erred, we must next decide whether the error was plain. To be plain, an error must be “clear” or “obvious,” Olano, 507 U.S. at 734, 113 S.Ct. 1770 (internal quotation marks omitted), at least by the time of appeal, see Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). An error is clear or obvious “when the settled law of the Supreme Court or this circuit establishes that an error has occurred. In the absence of such authority, decisions by other circuit courts of appeals are pertinent to the question of whether an error is plain.” United States v. Neal, 101 F.3d 993, 998 (4th Cir.1996) (internal quotation marks omitted) (citation omitted). In light of Apprendi and the unanimous conclusion of our sister circuits that specific threshold drug quantities must be treated as elements of aggravated drug trafficking offenses, we conclude that the error was plain.

C.

Promise must next demonstrate that the error affected his substantial rights, i.e., that it was prejudicial. See Olano, 507 U.S. at 734, 113 S.Ct. 1770; United States v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998) (explaining that an error is prejudicial when it “actually affected the outcome of the proceedings”). In order to determine whether Promise can make such a showing, we must first understand the nature of the error, i.e., whether the flaw is in Promise’s conviction or in his sentence. Perhaps not surprisingly, Promise asserts that the error is in his conviction: He claims that the indictment failed to allege, and the jury failed to find, an essential element of the offense. The Government, in contrast, asserts that the error affects only Promise’s sentence.

We conclude that the error was not in Promise’s conviction. The indictment charged Promise with conspiring to possess with the intent to distribute “a quantity of cocaine and cocaine base.” J.A. 33. Thus, Promise was properly charged with conspiring to violate 21 U.S.C.A. § 841. And, there can be no dispute that the jury was properly instructed regarding the elements of the charged offense. Accordingly, we conclude that Promise was properly charged with, and convicted of, conspiring to possess with the intent to distribute cocaine and cocaine base.

The problem, therefore, lies with Promise’s sentence. The facts alleged in the indictment and found by the jury supported a maximum penalty of 20 years imprisonment. Based on a determination of drug quantity by the district court, however, Promise was sentenced to 360 months imprisonment — ten years more than the applicable maximum. We therefore conclude that Promise has demonstrated that this error affected his substantial rights.⁸

We reject the Government’s assertion that the error in Promise’s sentence did not affect his substantial rights because prior to trial the Government filed an information alleging that the conspiracy involved “in excess of 50 kilograms of cocaine;[and] in excess of 50 kilograms of cocaine base.” J.A. 39. “[A]n indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form.” Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). The Government did not seek to include a specific threshold drug quantity in the indictment, and Russell teaches us that we cannot assume that the grand jury would have returned an indictment charging specific threshold drug quantity had the Government done so. See id. (“To allow ... the court[ ] to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure.”).

D.

Having demonstrated that there was error, that the error was plain, and that the error affected his substantial rights, Promise has satisfied the threshold requirements of the plain error test. However, as the Court explained in Olano, “Rule 52(b) is permissive, not mandatory.” Olano, 507 U.S. at 735, 113 S.Ct. 1770. Thus, it remains within our discretion to notice a plain error. See id. at 735-36, 113 S.Ct. 1770. Our discretion is appropriately exercised only when failure to do so would result in a miscarriage of justice, such as when the defendant is actually innocent or the error “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. at 736, 113 S.Ct. 1770 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936) (alteration in original)).

The mere fact that a forfeited error affects substantial rights- does not alone warrant the exercise of our discretion, “for otherwise the discretion afforded by Rule 52(b) would be illusory.” Id. at 737, 56 S.Ct. 391. Indeed, this court is not obligated to notice even structural errors on plain error review, notwithstanding that structural errors are per se reversible when reviewed under a harmless error standard. See Johnson, 520 U.S. at 468-70, 117 S.Ct. 1544; see also United States v. Wilkinson, 137 F.3d 214, 224, 227 (4th Cir.1998) (citing Johnson for the proposition that a reviewing court possesses discretion to refuse to notice structural errors). Rather, we must consider the error in the context of the record as a whole, bearing in mind that “Rule 52(b) carefully balances the goal of encouraging defendants to seek an accurate and fair trial in the first instance ... against a recognition that a true miscarriage of justice or a defect calling into question the fairness, integrity, or public reputation of the judiciary must not be allowed.” United States v. Cedelle, 89 F.3d 181, 185 (4th Cir.1996); see also Young, 470 U.S. at 16, 105 S.Ct. 1038 (observing that “[especially when addressing plain error, a reviewing court cannot properly evaluate a case except by viewing such a claim against the entire record”); Cedelle, 89 F.3d at 186 (stating that “[cjentral” to the question of whether to notice a plain error affecting substantial rights “is a determination of whether, based on the record in its entirety, the proceedings against the accused resulted in a fair and reliable determination of guilt”). It is appropriate to refuse to notice a plain error when evidence of guilt is overwhelming. See Johnson, 520 U.S. at ' 470, 117 S.Ct. 1544 (refusing to notice plain error in failure to instruct jury on element of offense when evidence was overwhelming and essentially uncontested); United States v. Johnson, 219 F.3d 349, 354 (4th Cir.) (same), cert, denied, 531 U.S. 1024; 121 S.Ct. 593, 148 L.Ed.2d 507 (2000); Hastings, 134 F.3d at 244 (same); United States v. Jackson, 124 F.3d 607, 615 (4th Cir.1997) (same); see also United States v. Mietus, 237 F.3d 866, 875 (7th Cir.2001) (holding that, even assuming that first three prongs of plain error analysis were satisfied, court would refuse to notice Ap-prendi error when guilty verdict necessarily established that defendant was responsible for more than threshold quantity of drugs); United States v. Swatzie, 228 F.3d 1278, 1284 (11th Cir.2000) (same), cert, denied, — U.S. —, 121 S.Ct. 2600, 150 L.Ed.2d 757 (2001).

In Johnson, the Supreme Court considered on plain error review a perjury conviction in which an element of the offense, materiality of the false statement, was found by a judge rather than by a jury. See Johnson, 520 U.S. at 464, 117 S.Ct. 1544. Finding that the error was plain, the Court assumed that the error was structural and that the error therefore affected substantial rights. See id. at 468-69, 117 S.Ct. 1544. Nevertheless, the Court declined to notice the error because the evidence concerning the omitted element was “overwhelming” and “essentially uncontroverted.” Id. at 470, 117 S.Ct. 1544 (internal quotation marks omitted). The Court noted that “it would be the reversal of a conviction such as this” that would “seriously affectf ] the fairness, integrity or public reputation of judicial proceedings.” Id. (emphasis added) (internal quotation marks omitted). Accordingly, without even discussing the seriousness of the error, the Supreme Court unanimously declined to notice it. See id.

This court relied on similar principles in United States v. Bowens, 224 F.3d 302 (4th Cir.2000), cert, denied, — U.S. —, 121 S.Ct. 1408, 149 L.Ed.2d 349 (2001). Bowens was charged with conspiring to distribute cocaine, cocaine base, and heroin. See Bowens, 224 F.3d at 314. The district court instructed the jury that it could convict upon finding that Bowens had conspired to distribute any one of the three substances. See id. The jury returned a general verdict of guilt that did not specify which drug or drugs the jury believed Bowens had conspired to distribute. See id. The district court imposed a life sentence based upon its assumption that Bow-ens had conspired to distribute cocaine base, the most heavily punishable object of the conspiracy. See id. We agreed with Bowens’ argument — raised for the first time on appeal — that the general verdict returned by the jury authorized a sentence “only up to the maximum for the least-punished drug offense,” conspiracy to distribute heroin. Id. (internal quotation marks omitted). We accordingly concluded that the district court had committed plain error in sentencing Bowens for conspiracy to distribute cocaine base instead of for conspiracy to distribute heroin; we further held that the error affected Bow-ens’ substantial rights because he received a life sentence when his sentence for a heroin-based conspiracy could not have been greater than 20 years. See id. at 314-15. However, we declined to notice the error because “the overwhelming and essentially uneontroverted evidence” established that Bowens “was a major participant” in a conspiracy to distribute cocaine base. Id. at 315.

For reasons similar to those that guided the Supreme Court in Johnson and this court in Boiuens, we decline to notice the error before us. As in Johnson and Boiu-ens, the evidence regarding the element subjected to erroneous treatment was both overwhelming and essentially uncontro-verted. Here, witness after witness testified that Promise supplied substantial quantities of cocaine base to Moore’s organization:

• Moore testified that during the course of the conspiracy, Promise supplied him with quantities of cocaine base ranging from six ounces (168 grams) to two kilograms every other week. Moore estimated that, altogether, Promise supplied him with more than 20 kilograms of cocaine base.

• Timothy Wallace testified that Promise supplied him with three 'ounces (84 grams) of cocaine base.

• Aaron Gettys testified that he witnessed a transaction in which Promise supplied Moore with at least 1.5 kilograms of cocaine base. Gettys also corroborated Moore’s testimony that Promise supplied Moore with as much as two kilograms of cocaine base at a time.

• Torianno Hall testified that he witnessed a transaction in which Promise supplied Moore with two kilograms of cocaine base.

• John Gwinn testified that he assisted Moore with a transaction in which Moore obtained over a kilogram of cocaine base from Promise.

• Donald Thompson testified that Promise offered, through Moore, to supply Thompson with nine ounces (252 grams) of cocaine base; Thompson refused the offer because he was not familiar with Promise.

Most importantly, at sentencing Promise did not contest the quantity of drugs the presentence report recommended be attributed to him, nor did he dispute the finding by the district court that he should be held accountable for more than 1.5 kilograms of cocaine base — thirty times more than the threshold quantity of 50 grams necessary to subject him to a statutory sentence of not less than 10 years or more than life imprisonment.

Finally, and critically, the record clearly demonstrates that Promise’s decision not to dispute the finding of the specific threshold drug quantity by the district court was not the result of lack of notice that the existence of the specific threshold drug quantity was an important issue in his case. Prior to trial, the Government filed an information contending that Promise was accountable for “in excess of 50 kilograms of cocaine! and] in excess of 50 kilograms of cocaine base.” J.A. 39. Under § 841(b)(1)(A) and the law prevailing in this circuit at the time of Promise’s trial, it was clear that a finding of either of these amounts could result in the imposition of a life sentence, if proven by the Government at sentencing. Yet, even armed with this knowledge in advance of trial and his subsequent sentencing, Promise elected not to dispute the critical fact that he was to be held accountable for a large quantity of narcotics that would justify a life sentence.

There simply can be no doubt that had the indictment included the specific threshold quantity of 50 grams of cocaine base, the jury would have found Promise guilty beyond a reasonable doubt. See Sivatzie, 228 F.3d at 1284 (declining to notice plain Apprendi error even though specific threshold drug quantity was not alleged in indictment because defendant did not assert that-lack of notice precluded him from disputing drug quantity). It would be a miscarriage of justice to allow him to avoid a sentence for the aggravated drug trafficking crime that the evidence overwhelmingly demonstrates he committed. We therefore declined to notice the error.⁹

III.

The judgment of conviction and sentence are affirmed.

AFFIRMED

WILKINSON, Chief Judge, concurring in part, and concurring in the judgment:

I vote to affirm the judgment of conviction and sentence.

I share Judge Luttig’s view that 21 U.S.C. § 841(b) is a graduated sentencing scheme in which life imprisonment constitutes the maximum penalty. I see no reason to parse that scheme into finer parts for Apprendi purposes. The sentences set forth in Section 841(b) form an integrated sanction for a single Section 841(a) offense. As the drug quantity rises, so too does the sanction until it reaches the maximum penalty of life imprisonment. I would not pull out one strand in the middle of this carefully sequenced scheme and designate it as a maximum sentence under the theory that it is somehow a “catch-all.” See, e.g., United States v. Rogers, 228 F.3d 1318, 1327-28 (11th Cir.2000) (holding that 21 U.S.C. § 841(b)(1)(C) is a catch-all provision under which defendants may be sentenced if drug quantity is not determined by a jury beyond a reasonable doubt). To do so seems to me to intrude the courts and the Constitution into a domain that has long been preeminently legislative. The creation of new offense elements out of the statute’s traditional sentencing factors works a serious infringement on the powers of a coequal branch of government. In transmuting a single crime with multiple sentencing factors into a series of separate offenses, my colleagues have replaced the legislature’s structure of crime and punishment with their own to the general detriment of popular governance.

I do not believe there was an error in the proceedings below. Assuming, ar-guendo, that some plain error has indeed occurred, I do not believe that it merits reversal under United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), and United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). Under Olano, before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. See Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). 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 affects the fairness, integrity, or public reputation of judicial proceedings. Id.

I join Section II.D of Judge Wilkins’ opinion, which persuasively illustrates that defendant suffered no prejudice whatsoever. I cannot concur in Section II.C of my good colleague’s analysis, however, because I do not believe that substantial rights are affected when no prejudice of any kind exists.

In Olano, the Supreme Court held that, except in rare circumstances, in order to affect substantial rights “the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” 507 U.S. at 734,113 S.Ct. 1770. The Court stated that generally “the defendant must make a specific showing of prejudice to satisfy the ‘affecting substantial rights’ prong of Rule 52(b).” Id. at 735, 113 S.Ct. 1770. Defendant suffered no prejudice here. Neither the inclusion of the drug weight in the indictment nor an instruction to the jury that it must find beyond a reasonable doubt the amount of drugs in question would have affected the outcome of the district court proceedings. Because Promise has not met his burden of showing prejudice under Rule 52(b), the error in this case did not affect his substantial rights. See, e.g., United States v. Terry, 240 F.3d 65, 74 (1st Cir.2001) (finding that defendant failed to satisfy the “affecting substantial rights” prong of the plain error test where, given the trial evidence about the quantity of drugs, there was no prejudice to defendant); United States v. Candelario, 240 F.3d 1300, 1311-12 (11th Cir.2001) (same).

Olano demonstrates that substantial rights are not affected when a picture-perfect proceeding would yield exactly the same result as that which actually transpired. That is the case here. The statute permits the thirty year sentence that was imposed. See 21 U.S.C. § 841(b)(1)(B). The evidence as to the requisite drug quantity is so overwhelming that it cannot be contended that Promise did not deserve the sentence he received.

NIEMEYER, Circuit Judge, concurring in the judgment:

A grand jury indicted Marion Promise in one count for conspiring to possess with intent to distribute “a quantity of cocaine and cocaine base” in violation of 21 U.S.C. §§ 841(a)(1) and 846. Following the jury’s conviction on this count, the district court sentenced Promise to 360 months imprisonment, based on its finding that Promise was accountable for more than 1.5 kilograms of cocaine base. Promise challenges this sentence, relying on the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He contends that drug quantities are elements of the offense and that his sentence must be vacated because the grand jury did not charge him with aggravating quantities of cocaine and cocaine base and the jury consequently did not find those quantities. Accordingly, he maintains that his sentence must be vacated to allow resentencing at the level appropriate when no jury finding is made as to the amount of cocaine and cocaine base, which under § 841(b) would be a maximum sentence of 240 months.

The constitutional proposition that Promise advances to vacate his sentence was first identified by a majority of the Supreme Court in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Drawing on the guarantees contained in the Fifth and Sixth Amendments of the Constitution, the Jones Court expressed serious doubt concerning the constitutionality of allowing the trial judge to make penalty-enhancing findings under the federal carjacking statute, 18 U.S.C. § 2119, by a preponderance of the evidence. See id. at 240-52, 119 S.Ct. 1215. The Court raised the possibility that “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. But going no further than identifying the potential existence of such a constitutional principle and expressing doubt about the statute before it, the Court concluded it could avoid the constitutional issue by construing the ambiguous statute as providing three separate offenses with distinct elements rather than one offense with sentence-enhancing factors. See id. at 251-52, 119 S.Ct. 1215.

A year later, however, in Apprendi, the Court, in confirming the Jones constitutional “proposition” for the first time as a constitutional principle, articulated its contours more narrowly. It limited application of the principle to circumstances in which the facts increase the penalty only “beyond the prescribed statutory maximum.” Id. at 2362-63 (emphasis added). Thus, the principle considered in Jones was limited in application in Apprendi to sentences that exceed the scope of Congress’ enactment — i.e., to circumstances in which the facts increase a penalty beyond the statutory maximum. It would appear, therefore, that the constitutional principle proposed in Jones and defined in Appren-di, rather than limiting Congress’ ability to distinguish elements of an offense from sentencing factors, actually preserves Congress’ right to define the statutory maximum, at least in the absence of legislative manipulation — i.e., where it could be found that Congress defined elements of an offense as sentencing factors to avoid the constitutional protections afforded by the Fifth and Sixth Amendments. See id. at 2363 n. 16; cf. Cooper Indus., Inc. v. Leatherman Tool Group, Inc., — U.S. —, 121 S.Ct. 1678, 1683, 149 L.Ed.2d 674 (2001) (“Legislatures have extremely broad discretion in defining criminal offenses and in setting the range of permissible punishments for each offense” (internal citations omitted)). Since Apprendi, however, no court has applied its rationale to hold a statute unconstitutional because it manipulated the elements of an offense by defining them improperly as sentencing factors.

Thus, absent evidence of improper congressional manipulation, if a statute clearly distinguishes between an element of the offense and a sentencing factor, these Supreme Court precedents recognize Congress’ right to do so. And based on the rationale thoroughly developed by Judge Luttig in Parts I and II of his concurring opinion, I would conclude that the only rational reading of 21 U.S.C. § 841 is that elements of the offense are stated in § 841(a) and the sentencing factors are provided in § 841(b). Before Apprendi, no court reached a different conclusion in interpreting this statute, and in the absence of clear evidence that the elements of the offense have been manipulated, there is no reason to conclude otherwise now. Until that case is credibly made, the constitutional issue does not arise, and we are left with the statutory interpretation made by Judge Luttig in his concurring opinion.

In his opinion, Judge Wilkins concludes that drug quantity “must be treated as an element of an aggravated drug trafficking offense, i.e., charged in the indictment and proved to the jury beyond a reasonable doubt.” Supra at 156 (footnote omitted). With this conclusion, it would necessarily follow that Promise was not charged with an aggravated drug trafficking offense because no more than a detectable amount of drugs was imputed to him in the indictment. Moreover, because Promise was properly charged with a non-aggravated drug trafficking offense, the “outer limits” of any sentence are defined by that charge as no more than 20 years. Apprendi, 120 S.Ct. at 2359 n. 10. Yet, the district court in this case sentenced Promise to 30 years, believing that it had sentencing authority to do so under 21 U.S.C. § 841(b). If Judge Wilkins’ premise that drug quantities are elements of the offense were accepted, then Judge Wilkins could appropriately conclude that the district court erred because the jury, not the judge, would have been required to find drug quantity. But rather than follow the necessary consequence of this premise, Judge Wilkins somehow holds that the district court’s sentence was not reversible error under the plain-error doctrine, even though a 30-year sentence would not have been authorized by the indictment returned by the grand jury. Of necessity, therefore, this plain-error analysis requires a constructive amendment of the indictment, a fact Judge Wilkins acknowledges: “There simply can be no doubt that had the indictment included the specific threshold quantity of 50 grams of cocaine base, the jury would have found Promise guilty beyond a reasonable doubt.” Supra at 163 (emphasis added). The first error therefore was in the government’s failure to obtain an indictment for 50 grams or more. But we do not have the authority to change the offenses that a grand jury charges in an indictment. As we held in United States v. Floresca, “it is ‘utterly meaningless’ to posit that any rational grand jury could or would have indieted[the defendant] ... because it is plain that this grand jury did not, and, absent waiver, a constitutional verdict cannot be had on an unindicted offense.” 38 F.3d 706, 712 (4th Cir.1994) (en banc); see also Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (“[A]fter an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself’); id. at 217, 80 S.Ct. 270 (“[A] court cannot permit a defendant to be tried on charges that are not made in the indictment against him”); Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887) (noting that the scope of an indictment is jurisdictional).

The indictment in this case properly charged an offense, the jury properly convicted Promise of that offense, and now the sentence is limited by the indictment and the jury’s finding. See Apprendi, 120 S.Ct. at 2359 n. 10. If quantity were an element of an aggravated offense, such an offense was not charged, and any sentence could not have been based on that offense.

But because I disagree with Judge Wilkins’ conclusion that drug quantity under 21 U.S.C. § 841 is an element of the offense, the difficulties his conclusion raises are not presented. Accordingly, I concur in the judgment of the court, and I join in Parts I, II, and III of Judge Luttig’s concurring opinion.

Judge Gregory has authorized me to indicate that he joins this opinion.

1 . "Specific threshold drug quantities" are those quantities of drugs set forth in 21 U.S.C.A. § 841(b)(1)(A), (b)(1)(B), a finding of which subjects a defendant to a sentence of ten years to life imprisonment (§ 841(b)(1)(A)) or five to 40 years imprisonment (§ 841(b)(1)(B)). We are not here concerned with whether "death or serious bodily injury resulting] from the use of” a controlled substance distributed by the defendant, e.g., 21 U.S.C.A. § 841(b)(1)(C), which may produce a similar result, must be treated as an element under Apprendi.

An "aggravated drug trafficking offense” is one that involves a specific threshold drug quantity.

2 . Prior to trial the Government did file an information alleging that the conspiracy involved "in excess of 50 kilograms of cocaine; [and] in excess of 50 kilograms of cocaine base.” J.A. 39.

3 . Promise was charged not with a substantive drug offense, but with conspiracy. However, 21 U.S.C.A. § 846 specifies that "[a]ny person who ... conspires to commit any offense” under, inter alia, 21 U.S.C.A. § 841 "shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the ... conspiracy.”

4 . In this regard, the Court explained that "when the term ‘sentencing 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. at 494 n. 19, 120 S.Ct. 2348.

5 . We emphasize that we do not hold that "all facts that could serve to increase a defendant’s sentence must be found by the jury beyond a reasonable doubt.” Post at 168. Instead, we merely hold that the maximum penalty that may be imposed upon a defendant is the maximum penalty allowed by statute upon proof of only those facts alleged in the indictment and found by the jury beyond a reasonable doubt. Once this maximum penalty is established, a fact (sentencing factor) that may increase the actual sentence imposed within that maximum is not subject to the same requirements.

6 . The Government concedes that under Ap-prendi, a defendant may be subjected to an enhanced sentence based upon a specific threshold drug quantity only if the jury finds, beyond a reasonable doubt, that that quantity should be attributed to the defendant. However, the Government maintains that specific threshold drug quantities need not be alleged in the indictment. Cf. United States v. Nealy, 232 F.3d 825, 829 (11th Cir.2000) (referring to a specific threshold drug quantity as "an element of sentencing”). The Government rests this argument on a passage in Apprendi in which the Court referred to a sentencing factor that increases the statutory maximum penalty for the offense of conviction as "the functional equivalent of an element.” Ap-prendi, 530 U.S. at 494 n. 19; cf. United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.) (referring to drug quantity as the functional equivalent of an element), cert, denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L.Ed.2d 513 (2000). Essentially, the Government contends that a fact that increases the maximum penalty must be treated as an element for purposes of some rights guaranteed by the Fifth Amendment (e.g., the right to a determination of guilt beyond a reasonable doubt) but not others (e.g., the right to indictment by a grand jury). The Government provides no support for this proposition. Furthermore, the Jones Court explained that the constitutional rule at issue concerns "the required procedures for finding the facts that determine the maximum permissible punishment[, including] the safeguards going to the formality of notice.” Jones, 526 U.S. at 243 n. 6, 119 S.Ct. 1215.

It will not be unduly difficult for juries to determine whether an offense involved a specific threshold drug quantity. Under the rule we announce today, the jury need only determine whether drug quantity exceeds specified thresholds. Juries in state drug-trafficking prosecutions routinely perform this function. See, e.g., State v. Virgo, 190 Ariz. 349, 947 P.2d 923, 926 (App.1997); State v. Moore, 304 N.J.Super. 135, 698 A.2d 1259, 1264 (App. Div.1997). The task of identifying the amount of drugs for which the defendant should be held accountable at sentencing is left to the district court pursuant to the principles set forth in the sentencing guidelines.

7 . . Four of my colleagues conclude that the drug quantity finding made by the district court did not increase Promise’s sentence "beyond the prescribed statutoiy maximum” for his crime because Congress intended the statutory maximum for his crime to be life imprisonment. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. In my view, my colleagues fail to reconcile this conclusion with the statement by the Apprendi Court that "constitutional limits exist [regarding a legislature's] authority to define away facts necessary to constitute a criminal offense.” Apprendi, 530 U.S. at 486, 120 S.Ct. 2348. In this regard, the Supreme Court made clear in Apprendi that a fact finding increases a defendant's sentence beyond the statutory maximum whenever it exposes him to “a penalty exceeding the maximum [the defendant] would receive if punished according to the facts reflected in the jury verdict alone.” Id. at 483, 120 S.Ct. 2348 (second emphasis added). My colleagues do not dispute that 20 years is the maximum penalty that could be imposed based solely on the facts found by the jury; § 841 requires that an additional fact such as a specific threshold drug quantity be established in order to impose a sentence exceeding 20 years. In nevertheless concluding that the maximum penalty for Promise's offense was life, my colleagues fail to acknowledge the focus of the entire discussion in Apprendi, which was that "[t]he judge's role in sentencing is constrained at its outer limits by the facts alleged in the indictment and found by the jury.” Id. at 483 n. 10, 120 S.Ct. 2348 (emphasis added). It is only by failing to come to grips with the lengthy explanation provided by the Court for the rule it adopted in Apprendi that my colleagues can conclude that the constitutional rule announced in Ap-prendi was complied with here.

Were there any question regarding the meaning of the rule announced in Apprendi, it would most certainly be answered by the analysis of the Court in Jones. According to my colleagues, it would be consistent with Apprendi to hold that § 841 imposes a single maximum penalty (life imprisonment) and that the gradations within § 841(b)(1) may be determined by a judge applying the preponderance standard. In Jones, however, the Court concluded that an essentially identical interpretation of § 2119 would violate the rule later adopted in Apprendi. See Jones, 526 U.S. at 243-44, 119 S.Ct. 1215. In other words, the Court doubted the constitutionality of imposing a sentence exceeding 15 years (the maximum for the basic offense of carjacking) based on facts (death or serious bodily injury) that had not been proven to a jury beyond a reasonable doubt. Because the doubts expressed in Jones were premised on the rule later adopted in Apprendi, Jones forecloses the interpretation of Apprendi advanced by my colleagues and requires the conclusion reached by this court and every other court to decide this question.

One of my colleagues posits that the rule proposed in Jones is not the rule that the Court adopted in Apprendi. See post at 166. In concluding that the rules are different, my colleague places great significance on a slight modification: Whereas Jones used the phrase "maximum penalty for a crime,” Jones, 526 U.S. at 243 n. 6, 119 S.Ct. 1215, the Apprendi Court employed the term "statutory maximum,” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. But these phrases are synonymous; there is no "maximum penalty for a crime” other than the maximum prescribed by statute for the facts charged and proven. Moreover, to the extent that this minor semantic difference suggests the possibility of a distinction between the Jones rule and the Apprendi rule, that suggestion is quashed by the Ap-prendi opinion, which explicitly "confirm[ed] the opinion ... expressed in Jones." Id.

8 . One of my colleagues maintains that the error did not affect Promise's substantial rights because ”[n]either the inclusion of the drug weight in the indictment nor an instruction to the jury that it must find [drug quantity] beyond a reasonable doubt ... would have affected the outcome of the district court proceedings.” Post at 166. This is not the relevant inquiry because the failure to charge a specific threshold drug quantity in the indictment or to instruct the jury regarding threshold drug quantity was not the error committed by the district court; on the contrary, the indictment, jury instructions, and conviction here are all valid. What was not valid was the sentence imposed, which exceeded the applicable maximum for the facts charged and proven. Cf. United States v. Bowens, 224 F.3d 302, 315 (4th Cir.2000) (stating that third prong of plain error analysis was "easily ... satisfied” by sentence exceeding applicable maximum for conspiracy to distribute heroin even though there was "overwhelming and essentially uncontroverted evidence” that defendant qualified for greater penalty based upon distribution of cocaine base), cert, denied, — U.S. —, 121 S.Ct. 1408, 149 L.Ed.2d 349 (2001). Unquestionably, had the district court been aware of Apprendi at the time of trial, it would have imposed a sentence of 20 years imprisonment, instead of the term of 30 years it actually imposed.

9 . My determination not to notice the error is based on a balancing of numerous considerations, including the strength of the Government's evidence, the manifest adequacy of notice, and Promise's failure to contest drug quantity despite this notice. I have also given due weight to the importance of grand jury charging practices, which the partial dissent so eloquently extols. (Contrary to the partial dissent's contention, I do not rely on any supposition regarding what the grand jury might have done had the Government sought an indictment charging a specific threshold drug quantity.) The partial dissent, however, makes this last consideration not only disposi-tive but exclusive, eschewing a flexible approach in favor of a per se rule requiring appellate courts to notice plain error whenever a defendant suffers a conviction or sentence not authorized by the indictment. See post at 187 ("The United States Constitution expressly prohibits such a result.”). I do not believe that Supreme Court precedent supports this view.

The partial dissent contends that this per se rule derives from Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), and Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962) (per curiam). Russell was not a plain error case, however. Moreover, Russell does not preclude us from considering whether the defendant has received actual notice of a fact omitted from an indictment; rather, Russell only requires us to conclude that such omissions from the indictment necessarily affect a defendant's substantial rights, regardless of whether the defendant had actual notice. See Russell, 369 U.S. at 770, 82 S.Ct. 1038. But the fact that the error affects substantial rights (the third prong of the plain error inquiry) does not compel us to notice the error (the final prong). See Olano, 507 U.S. at 737, 113 S.Ct. 1770 (stating that reversal is not required whenever a plain error affects substantial rights, because otherwise "the discretion afforded by Rule 52(b) would be illusory”). Here, consideration of the entire record leads me to the conclusion that no miscarriage of justice would result from declining to notice the omission of the specific threshold drug quantity from the indictment and the failure to instruct the jury to make a finding regarding threshold drug quantity. Critically, as noted above, the Government filed an information specifically contending that Promise's conspiracy involved "in excess of 50 kilograms of cocaine[ and] in excess of 50 kilograms of cocaine base.” J.A. 39. The filing of the information does not alter the fact that Promise was deprived of the possibility that the grand jury would not have returned an indictment including a specific threshold drug quantity had the Government sought such an indictment. However, the information filed here at least apprized Promise that drug quantity would be a major issue affecting his sentence. Despite this notice, Promise never contested the amount of cocaine base for which he could be held accountable. In light of these facts, there can be no reasonable doubt that Promise was actually responsible for the specific threshold amount.

.Neither is Silber controlling here. In Sil-ber, the defendant was convicted of refusing to answer questions posed by a congressional committee, in violation of 2 U.S.C.A. § 192 (West 1997). See Silber, 370 U.S. at 717, 82 S.Ct. 1287. The indictment for this offense was invalid under Russell, in that it failed to identify the subject of the congressional inquiry as to which the refusal to answer questions occurred. See id. The Supreme Court concluded that this defect in the indictment amounted to reversible plain error. See id. at 718, 82 S.Ct. 1063. In its brief, per curiam opinion, the Court did not discuss the strength of the Government's proof, whether the defendant had actual notice, or whether the evidence concerning the omitted element was disputed; thus, the opinion does not reveal either the facts relating to these issues or how those facts influenced the Court's decision. A court of appeals had previously opined that Silber’s culpability was beyond question, see Silber v. United States, 296 F.2d 588, 590 (D.C.Cir.1962), but that court was addressing a different issue, and the Supreme Court never alluded to this finding.

While Russell and Silber do not foreclose consideration of a broad range of circumstances, other Supreme Court decisions affirmatively command us to examine the entire record when deciding whether to notice plain error. See, e.g., Young, 470 U.S. at 16, 105 S.Ct. 1038. Moreover, one of the most recent Supreme Court statements on this issue, Johnson, attaches great weight to the presence of powerful, uncontroverted evidence against the defendant. In relying on Johnson, I do not, as the partial dissent suggests, make the decision to notice plain error “depend on a defendant's innocence.” Post at 189. Such an approach would contravene Supreme Court precedent. See Olano, 507 U.S. at 736-37, 113 S.Ct. 1770 (explaining that, while "the court of appeals should no doubt correct a plain forfeited error that results in the conviction or sentence of an actually innocent defendant, ... [a]n error may seriously affect the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence” (internal quotation marks omitted)). It does not follow, however, that a clear and undisputed demonstration of the defendant's guilt is irrelevant to our decision regarding whether to notice an error. Under Johnson, we may not ignore such a demonstration, as overturning a conviction or sentence resting on overwhelming evidence of guilt and undisputed evidence of drug quantity would itself be a miscarriage of justice. See Johnson, 520 U.S. at 470, 117 S.Ct. 1544.