Full opinion text
OPINION OF THE COURT FUENTES, Circuit Judge: This appeal requires us to apply the Supreme Court’s recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to a drug conspiracy sentence. At sentencing, the trial court, adhering to established law and custom, itself decided the issue of drug quantity under a preponderance of the evidence standard. Based largely on this finding, the court sentenced appellant, Alex Vazquez, to a prison term of 292 months (24 years and 4 months), which exceeded, by over 4 years, the statutory maximum authorized by the jury’s factual findings. Subsequently, the Supreme Court held in Apprendi that a criminal defendant’s constitutional rights are violated when his prescribed statutory maximum penalties are increased by any fact, other than a prior conviction, that a jury does not find beyond a reasonable doubt. Id. at 490, 120 S.Ct. 2348. Vazquez now challenges his sentence contending that, because the court did not submit the issue of drug quantity to the jury for determination, he must be resentenced in accordance with the default 20-year statutory maximum sentence that applies to cocaine offenses of unspecified drug quantity. Vazquez did not contest the drug quantity evidence at any stage of the proceedings. As a result, our review is for plain error. We conclude that Vazquez’s sentence violated Apprendi, and therefore, the failure to submit drug quantity to the jury, and the imposition of a prison term in excess of 20 years, was erroneous. Nonetheless, because we remain confident that a rational jury would have found, beyond a reasonable doubt, the drug quantities that the judge found, we conclude that Vazquez is not entitled to plain error relief and we will therefore affirm his sentence. I. The relevant facts are largely undisputed. On February 27, 1998, after a lengthy investigation, law enforcement authorities seized a quantity of powder cocaine and crack cocaine from a rooming house in Columbia, Pennsylvania. Vazquez’s fingerprint was on one of the bags in which the cocaine had been stored. The next day, officers executed a search warrant at Vazquez’s residence. There, police seized a digital scale from Vazquez’s bedroom, a key to the front door of the rooming house, and a stolen firearm. Thereafter, state law enforcement authorities and agents from the Federal Bureau of Investigation (“FBI”) interviewed a number of Vazquez’s drug customers, including James Freeland, Brian Holmes, and Wayne Rice. All three gave statements implicating Vazquez and Francisco Algarin in a drug dealing operation. Alga-rin was identified as a “runner” for the organization. On June 9, 1998, a grand jury for the Middle District of Pennsylvania issued an indictment charging Vazquez with conspiracy to possess and distribute “more than 5 kilos of cocaine” in violation of 21 U.S.C. §§ 846 and 841, several related counts of obstruction of justice (including one under 18 U.S.C. § 1503), and two counts of witness tampering. The indictment specifically charged a drug conspiracy involving “cocaine.” Although it did not reference cocaine base or crack, cocaine, it listed the following overt act: “stor[ing] approximately 859 grams of ‘crack’ cocaine (cocaine base) and approximately 992 grams of cocaine powder in Room # 2, 647 Union Street, Columbia, PA.” The trial evidence, which included testimony based on a forensic lab analysis, established that police seized 991 grams of powder cocaine and 859 grams of crack cocaine from the Columbia rooming house. According to the testimony, Vazquez had given the drugs to his co-conspirator, Algarin, for storage at the rooming house, and Vazquez’s fingerprint was found on one of the bags in which the cocaine was stored. Aso, a key to the front door of the rooming house was found on Vazquez’s person. Vazquez raised no objection to the testimony respecting drug quantity, and he presented no affirmative evidence at any time challenging the Government’s evidence of drug quantity. Additionally, neither the Government nor Vazquez requested an instruction requiring the jury to find the quantity of drugs involved in his conspiracy offense, and the court gave no such instruction. The District Court’s instructions concerning the drug conspiracy only required the jury to find that Vazquez conspired “to possess and distribute cocaine.” Following deliberations, the jury convicted Vazquez of conspiracy to possess and distribute cocaine, as well as obstruction of justice. However, the jury acquitted Vazquez of a conspiracy to obstruct justice charge. In addition, the jury was unable to reach verdicts on the two witness tampering counts; the District Court declared a hung jury as to those counts. At the sentencing hearing, the District Court adopted the factual findings and sentencing recommendations in the pre-sentence report. The court determined, without objection and under a preponderance of the evidence standard, that, based on the trial evidence and the presentence report, Vazquez had been involved with 992 grams of powder cocaine and 859 grams of crack cocaine. The court therefore assigned Vazquez a base offense level of 36 in accordance with U.S.S.G. § 2Dl.l’s Drug Quantity Table. The District Court then applied two separate 2-level upward adjustments, the first for being an organizer/leader under U.S.S.G. § 3Bl.l(c), and the second for attempted obstruction of justice under U.S.S.G. § 3C1.1. An adjusted offense level of 40 and a criminal history category of I resulted in a sentencing range of 292 to 365 months. The District Court ultimately sentenced Vazquez at the bottom of that range, the .guideline minimum of 292 months, for the drug conspiracy, and to a concurrent term of 120 months for the obstruction of justice charge. The court also imposed a 5-year supervised release term on the drug conspiracy count and a concurrent 3-year supervised release term on the obstruction of justice charge. With regard to the drug conspiracy, the judgment of conviction stated that Vazquez was sentenced for a conspiracy in violation of 21 U.S.C. § 846, with the object of distributing more than 5 kilograms of cocaine in violation of 21 U.S.C. § 841(b)(1)(A). II. We begin by explaining why Apprendi was violated in Vazquez’s case. Thereafter, because Vazquez did not contest the evidence of drug quantity before the District Court, we will analyze the parties’ contentions under the plain error standard. A. Vazquez was indicted and tried for conspiracy to possess and distribute more than 5 kilograms of cocaine in violation of 21 U.S.C. §§ 846 and 841. To explain the relationship between Apprendi and § 841, we will briefly review the Apprendi decision, and we will then detail how Apprendi was violated in this case. In Apprendi, the defendant had fired several shots into the home of an African American family that had recently moved into a New Jersey neighborhood. 530 U.S. at 469, 120 S.Ct. 2348. After his arrest, he reportedly stated that he did not know the occupants personally but did not want African Americans in his neighborhood. Id. at 469, 120 S.Ct. 2348. He later, however, denied making such a statement. Id. at 469, 471, 120 S.Ct. 2348. He pled guilty in state court to two counts of second-degree possession of a firearm for an unlawful purpose, each of which carried a sentencing range of 5 to 10 years. Id. at 469-70, 120 S.Ct. 2348. Subsequently, the prosecutor filed a motion to enhance the defendant’s sentence pursuant to New Jersey’s hate crime statute, which authorized an increased punishment for first-degree offenses based upon a trial judge’s finding, by a preponderance of the evidence, that the defendant had committed the crime with a purpose to intimidate a person or group because of race. Id. at 470, 491-92, 120 S.Ct. 2348 (discussing N.J. Stat. Ann. § 2C:44-3(e) (West Supp. 2000)). After a contested evidentiary hearing, the trial court found, by a preponderance of the evidence, that the shooting was racially motivated and imposed a 12-year sentence on one of the second-degree counts. Id. at 471, 120 S.Ct. 2348. The Supreme Court granted certiorari and reversed, holding that the New Jersey sentencing procedures violated the Due Process Clause of the Fourteenth Amendment. In doing so, the Court articulated a new rule of constitutional law: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescnbed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348 (emphasis added). Further, with the exception for prior convictions, the Court endorsed the following concept: “ ‘[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.’ ” Id. (quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (Stevens, J., concurring)). In Vazquez’s case, drug quantity was neither submitted to the jury nor reflected in its verdict. Therefore, § 841(b)(1)(C) defines Vazquez’s prescribed statutory maximum sentence as 20 years. We indicated in United States v. Williams, 235 F.3d 858 (3d Cir.2000), petition for cert. filed, 69 U.S.L.W. 3763 (U.S.2001), and we hold here, that an Apprendi violation only occurs if the drug quantity is not found by a jury beyond a reasonable doubt and the defendant’s sentence under § 841 exceeds 20 years. In this case, the District Court sentenced Vazquez to more than 24 years’ imprisonment, specifically 292 months. The court increased Vazquez’s penalty based on its finding, by a preponderance of the evidence, that he had been involved with 992 grams of powder cocaine and 859 grams of crack cocaine. This nearly 2-kilogram quantity led to Vazquez’s sentencing guideline range of 292 to 365 months, which ultimately resulted in his 292-month sentence. The Apprendi violation occurred when the judge, rather than the jury, determined drug quantity and then sentenced Vazquez to a more than 24-year sentence, a term in excess of his prescribed 20-year statutory maximum under § 841(b)(1)(C). Our sister courts of appeals have similarly applied Apprendi to § 841. E.g., United States v. Hishaw, 235 F.3d 565, 574-75 (10th Cir.2000), cert. denied, — U.S. -, 121 S.Ct. 2254, 150 L.Ed.2d 241 (2001); United States v. Daggett, 230 F.3d 160, 164 (5th Cir.2000), cert. denied, 531 U.S. 1177, 121 S.Ct. 1152, 148 L.Ed.2d 1014 (2001); United States v. Rogers, 228 F.3d 1318, 1327 (11th Cir.2000); see also United States v. Rebmann, 226 F.3d 521, 524-25 (6th Cir.2000); United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir.2000). B. We now turn to the consequences of the Apprendi violation. Vazquez’s strongest argument is that his jury did not make a finding beyond a reasonable doubt as to drug quantity, and thus, he must be resentenced in accordance with § 841(b)(l)(C)’s 20-year maximum term. According to Vazquez, the District Court committed reversible error when it imposed a more than 24-year prison term based on its own drug quantity finding, which was conducted under the less demanding preponderance of the evidence standard. As we stated previously, Vazquez neither challenged the evidence of drug quantity nor objected to the court’s failure to submit the issue to the jury. Moreover, he never argued that the sentencing court was constrained by the 20-year maximum found in § 841(b). Consequently, the plain error standard governs Vazquez’s request for relief. See Fed.R.Crim.P. 52(b); Johnson v. United States, 520 U.S. 461, 465-66, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). Under that standard, “before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affect[s] substantial rights. 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.” Johnson, 520 U.S. at 466-67, 117 S.Ct. 1544 (internal quotations and citations omitted); accord United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). 1. The trial court committed error in Vazquez’s case. As we explained above, the District Court violated Apprendi when it increased Vazquez’s sentence beyond the prescribed statutory maximum, based on its own factual finding concerning drug quantity, instead of submitting the issue to the jury for its determination. Further, Apprendi applies retroactively because Vazquez’s direct appeal was pending at the time Apprendi was decided. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (“new rule[s] for the conduct of criminal prosecutions [are] to be applied retroactively to all cases ... pending on direct review ..., with no exception for cases in which the new rule constitutes a ‘clear break’ with the past”); see also Johnson, 520 U.S. at 467, 117 S.Ct. 1544. 2. As even the Government concedes, the Apprendi violation that occurred in Vazquez’s case was plain. This second factor of the plain error standard is met if the error is “obvious” or “clear under current law.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. Clearly, had the Government tried Vazquez’s case post-Appren-di, it would have been constitutional error for the District Court to impose a sentence exceeding the 20-year maximum in § 841(b)(1)(C) based on the court’s finding, by a preponderance of the evidence, as to drug quantity. Thus, the Apprendi violation is plain even though the District Court conducted Vazquez’s proceedings correctly under the then applicable law. See Johnson, 520 U.S. at 468, 117 S.Ct. 1544 (“in a case such as this — where the law at the time of trial was settled and clearly contrary to the law at the time of appeal,” this second factor is satisfied if the error is obvious “by the time of appellate consideration”). 3. Vazquez must next satisfy the third plain error factor, which asks whether his substantial rights were affected. Before resolving this issue, we will address several preliminary matters raised in the parties’ arguments because our resolution of those matters will significantly affect how we conduct the substantial rights inquiry. First, we will consider whether an Appren-di violation should be deemed a sentencing error (as opposed to a trial error), or a combination of a trial and sentencing error. We conclude that the latter approach is more consonant with the realities of Apprendi violations, as well as Supreme Court precedent. Second, we will consider whether an Apprendi violation is per se prejudicial because it constitutes a structural defect in the proceedings. If so, our plain error analysis would come to an end, and we would be compelled to grant Vazquez relief. We conclude that Appren-di violations do not constitute structural defects. Third, we will proceed to consider whether the Apprendi violation that occurred in Vazquez’s case affected his substantial rights. We conclude that Vazquez’s substantial rights were not affected. Fourth, we also hold that, even if Vazquez’s substantial rights were affected, we decline to exercise our discretion to notice the Apprendi violation under the final plain error factor because the drug quantity evidence was overwhelming. Therefore, Vazquez is not entitled to plain error relief even though an Apprendi violation occurred during his criminal proceedings. Parenthetically, in addressing the substantial rights inquiry, we will rely on precedent applying Fed.R.Crim.P. 52(a)’s harmless error standard, as well as Fed.R.Crim.P. 52(b)’s plain error standard, each of which provides relief only if substantial rights are affected. The substantial rights inquiry under each provision is essentially identical, with the exception of the burden of proof. See Olano, 507 U.S. at 734-35, 113 S.Ct. 1770 (clarifying that Government has burden of proof under harmless error standard, while defendant has burden under plain error standard); Nordby, 225 F.3d at 1060. Thus, we may properly rely upon both harmless and plain error precedent in deciding whether Vazquez has shown that the Apprendi violation affected his substantial rights. In this case, Vazquez has not carried his burden of proof. (a) The parties dispute the nature of Ap-prendi violations. Vazquez claims that the Apprendi violation that adversely affects the defendant’s rights in most drug cases, including this one, is the sentencing decision, not any trial error. According to Vazquez, a properly conceived substantial rights inquiry, in the context of an Ap-prendi violation, requires an appellate court to ask whether it can say, beyond a reasonable doubt, that the sentence would have been the same absent the sentencing error, which occurred when a sentence was imposed in excess of the prescribed statutory maximum. See Nordby, 225 F.3d at 1060. Under Vazquez’s approach, every Apprendi violation with respect to drug quantity in a cocaine case will automatically result in a resentencing in accordance with the 20-year maximum sentence under § 841(b)(1)(C), regardless of how conclusive the evidence is with regard to drug quantity. The Government advocates a different approach, urging us to recognize that an Apprendi violation involves not just a sentencing error but also a trial error. This approach emphasizes that, due to the Ap-prendi violation, drug.quantity becomes an element of the offense which a jury has not determined beyond a reasonable doubt. See Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348; Nordby, 225 F.3d at 1060. When we conduct plain error review under this paradigm, the substantial rights inquiry turns on whether we can say beyond a reasonable doubt that the sentence would have been the same absent the trial error, which occurred when drug quantity was not submitted for a jury determination. See Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (in case of trial error resulting from failure to submit element to jury, substantial rights inquiry asks whether it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error”); Sochor v. Florida, 504 U.S. 527, 540, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992) (harmless error asks whether error “ ‘did not contribute to the[sentence] obtained’ ”) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Thus, under the Government’s approach, the remedy for an Apprendi violation will depend upon the entire record, and no remedy may be available if the court determines that the evidence was sufficiently conclusive to support the sentence actually imposed. However, substantial rights will be affected if, for example, “the defendant contested the omitted element and raised evidence sufficient to support a contrary finding.” Neder, 527 U.S. at 19, 119 S.Ct. 1827. We are persuaded that the Government’s approach must prevail for two reasons. First, the Government’s position better reflects the realities concerning the nature of Apprendi violations. In Apprendi, the Supreme Court recognized a new constitutional right grounded in the Due Process Clause and the Sixth Amendment’s notice and jury trial guarantees. See 530 U.S. at 476, 120 S.Ct. 2348. Consistent with the Supreme Court’s pronouncement of this new constitutional right, in an Apprendi violation, the sentencing error (imposing a sentence beyond the prescribed statutory maximum) is inextricably intertwined with a trial error (failing to submit an element of the offense to the jury). On the one hand, the-trial error exists only because of the sentencing error. On the other hand, the sentencing error cannot occur without the trial error. Thus, an appropriate remedy must recognize that each Apprendi violation is both a trial and a sentencing error. But see United States v. Promise, 255 F.3d 150, 2001 WL 732389, at *5 (4th Cir. June 29, 2001) (en banc) (concluding that Apprendi violation results from error at sentencing and not in defendant’s conviction). As a result, we properly consider the trial record on plain error review. Indeed, as the Supreme Court has stated: “Especially when addressing plain error, a reviewing court cannot properly evaluate a case except by viewing such a claim against the entire record.” United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). Our holding is consistent with decisions from the First, Fifth, Seventh, Eighth, Tenth, Eleventh, and District of Columbia Circuits, which, in reviewing Apprendi violations, have considered the trial evidence in determining whether substantial rights were affected. Second, we find the Government’s approach is more consonant with Supreme Court precedent. In both Neder and Johnson, the Supreme Court confronted a failure to submit an element of the offense to the jury. The omitted element in each case was the materiality of a falsehood; a tax fraud in Neder and a perjury in Johnson. See 527 U.S. at 6-7, 119 S.Ct. 1827, 520 U.S. at 463-65, 117 S.Ct. 1544. The Court in Neder and Johnson agreed that the error was of a constitutional dimension. See 527 U.S. at 12, 119 S.Ct. 1827, 520 U.S. at 465, 117 S.Ct. 1544 (citing United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)). Further, each decision addressed whether substantial rights were affected; the Neder Court applied harmless error review, while the Johnson Court applied plain error review. See 527 U.S. at 7-10, 119 S.Ct. 1827, 520 U.S. at 466-67, 117 S.Ct. 1544. The trial error presented here is comparable to the errors in both Neder and Johnson because in those cases the trial error resulted in a constitutional defect, necessitating an inquiry as to whether the defendant’s substantial rights were affected. Thus, Neder and Johnson apply because we are presented with the same substantive issue, namely, the consequence of failing to submit to the jury an element of an offense. (b) Next, Vazquez argues that the Apprendi violation constitutes a structural defect in the proceedings. This issue is properly considered at this juncture during the course of our substantial rights inquiry. See Johnson, 520 U.S. at 466,117 S.Ct. 1544 (no structural defect exception to Fed.R.Crim.P. 52(b)); id. at 468, 117 S.Ct. 1544 (structural defect inquiry is relevant to substantial rights inquiry). Structural defects are “defects in the constitution of the trial mechanism” that affect “the framework within which the trial proceeds,” with such a resulting impairment in the trial’s function of determining guilt or innocence that “ ‘no criminal punishment may be regarded as fundamentally fair.’ ” Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (opinion of Rehnquist, C.J.) (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)). Structural defects lead to automatic reversals because they are per se prejudicial. See id. at 307-10, 111 S.Ct. 1246 (opinion of Rehnquist, C.J.). We reject Vazquez’s contention that Apprendi violations constitute structural defects. As we have already explained, Apprendi violations result in both trial and sentencing errors, albeit ones that rise to a constitutional dimension. However, the Supreme Court has instructed that “most constitutional errors can be harmless,” and that guidance applies here. Fulminante, 499 U.S. at 306, 111 S.Ct. 1246 (opinion of Rehnquist, C.J.); see also West v. Vaughn, 204 F.3d 53, 60 n. 7 (3d Cir.2000), abrogated sub nom. on other grounds by Tyler v. Cain, 533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). Trial errors resulting from a failure to submit an element of an offense to the jury are not structural defects, but instead, are subject to harmless or plain error analysis. That is, “an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Neder, 527 U.S. at 9, 119 S.Ct. 1827. Similarly, sentencing errors can also be harmless. See, e.g., Jones v. United States, 527 U.S. 373, 402-05, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (applying harmless error review to federal death sentence); United States v. Stevens, 223 F.3d 239, 242-46 (3d Cir.2000) (applying plain error review to sentencing judge’s failure to assure that defendant had read and discussed presentence investigation report with his attorney), cert. denied, 531 U.S. 1179, 121 S.Ct. 1157, 148 L.Ed.2d 1018 (2001). Thus, we hold that an Apprendi violation is not a structural defect. As far as we are aware, our holding is in accord with every court of appeals decision that has addressed this issue. See, e.g., United States v. Smith, 240 F.3d 927, 930 & n. 5 (11th Cir.2001) (per cu-riam); United States v. Westmoreland, 240 F.3d 618, 634 (7th Cir.2001); Anderson, 236 F.3d at 429. (0 Having concluded that the Neder and Johnson frameworks apply to this case, and that Apprendi violations do not constitute structural defects, we address whether Vazquez’s substantial rights were affected. During the course of this appeal, Vazquez has raised substantial rights arguments with regard to both his sentence and conviction. We will address each in turn. We assess Vazquez’s challenge to his sentence by determining whether it would have been the same absent the failure to submit drug quantity for a jury determination. We are confident that Vazquez’s sentence would have been the same had the jury made the drug quantity finding. In his case, the evidence established beyond a reasonable doubt that Vazquez had been involved with 992 grams of powder cocaine and 859 grams of crack cocaine. Indeed, the sentencing judge, explaining that Vazquez’s sentence ■was driven by the quantity of drugs involved, stated that “[t]he lab report which was admitted into evidence in this case substantiates the amount, and there has never been any question about the amount.” In these circumstances, we can say without a doubt that Vazquez conspired to possess and/or distribute the 992 grams of powder cocaine and 859 grams of crack cocaine the authorities found at the Columbia rooming house. Solely on the basis of the uncontested 992 grams of powder cocaine, Vazquez would have faced a statutory sentencing range of between 5 to 40 years. See 21 U.S.C. § 841(b)(l)(B)(ii)(II). Thus, the slightly more than 24-year sentence imposed here fell within the statutory limits applicable to a cocaine-only conspiracy given the drug amount established at trial. Cf. Edwards v. United States, 523 U.S. 511, 515, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998) (rejecting statutory and constitutional challenges to sentences because imposed incarceration terms “were within the statutory limits applicable to a coeaine-only conspiracy, given the quantities of that drug attributed to each petitioner”). Further, Vazquez’s sentence would not have changed because the court would have considered the 859 grams of crack cocaine for sentencing guideline purposes under the Guidelines’ relevant conduct provisions. See U.S.S.G. § 1B1.3 (1998); Edwards, 523 U.S. at 514, 118 S.Ct. 1475; Williams, 235 F.3d at 864. This fact would have led to the same guideline sentencing range of 292 to 365 months that the court actually applied to Vazquez. No Apprendi problem would then exist because the resulting 292-month sentence would be less than the 40-year statutory maximum sentence under § 841(b)(l)(B)(ii)(II) to which Vazquez was exposed solely for his conspiracy offense involving 992 grams of powder cocaine. Vazquez’s failure to dispute the amount of cocaine at trial or sentencing supports our conclusion that he cannot show an effect on his substantial rights. Indeed, he presented no challenge to, or affirmative evidence against, the Government’s evidence of drug quantity. As a result, the sentencing judge stated that “there has never been any question about the [drug] amount.” In a comparable situation, the Supreme Court observed: [WJhere a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless. We think it beyond cavil here that the error “did not contribute to the verdict obtained.” Neder, 527 U.S. at 17, 119 S.Ct. 1827 (quoting Chapman, 386 U.S. at 24, 87 S.Ct. 824). In addition to attacking his sentence, Vazquez relies upon Apprendi to challenge his conviction. Vazquez contends that his substantial rights were affected because, had the trial judge properly submitted drug quantity to the jury, he necessarily would have been acquitted because the evidence the Government presented at trial'—992 grams of powder cocaine and 859 grams of crack cocaine—did not support a more than 5-kilogram cocaine conspiracy, as alleged in the indictment. Vazquez also contends that his sentence cannot be upheld based upon the 992 grams of powder cocaine because doing so would create a material variance from the more than 5-kilogram drug quantity alleged in the indictment. See United States v. Balter, 91 F.3d 427, 441 (3d Cir.1996) (explaining that “[a] variance occurs when ‘the charging terms are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment’ ”) (quoting United States v. Castro, 776 F.2d 1118, 1121 (3d Cir.1985)); United States v. Crocker, 568 F.2d 1049, 1059 (3d Cir.1977) (discussing variance concept). Vazquez’s arguments are unavailing. The discrepancy between the amount of cocaine stated in the indictment—more than 5 kilograms—and the amount of powder cocaine upon which we uphold Vazquez’s sentence—-992 grams—-is, for purposes of the substantial rights inquiry, immaterial. It is immaterial because the indictment charged the 5-kilogram amount, and it is well settled that courts “may direct the entry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds that affect only the greater offense.” Rutledge v. United States, 517 U.S. 292, 306, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996); accord Fed.R.Crim.P. 31(c); see also Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989) (adopting “elements approach” to resolving greater/lesser offense issues); cf. United States v. Frorup, 963 F.2d 41, 42 (3d Cir.1992) (“This court will uphold a jury verdict convicting a defendant of a lesser offense than the one charged if ‘the evidence would permit a jury rationally to find [the defendant] guilty of the lesser offense and acquit of the greater.’ ”) (quoting Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973)). Additionally, had the court submitted drug quantity to the jury to avoid an Apprendi issue, and had Vazquez argued to the jury that the evidence did not support a finding that the conspiracy’s object concerned more than 5 kilograms of powder cocaine, the Government would have been entitled to a lesser included offense instruction. See Frorup, 963 F.2d at 42 (“A jury instruction on [a] lesser included offense is allowable as long as there is some evidence to support the conviction.”). 4. Even if we were to assume that the Apprendi violation affected Vazquez’s substantial rights, he cannot establish the final plain error factor, namely, that the violation seriously affected the fairness, integrity, or public reputation of judicial proceedings. In Johnson, the Supreme Court held that, when the evidence of an element wrongly taken from a jury “overwhelming[ly]” supports the trial court’s finding with regard to that element, “there is no basis for concluding that the error ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings,’ ” and therefore, plain error relief is unavailable. See 520 U.S. at 470, 117 S.Ct. 1544. The evidence at trial showed that Vazquez was the leader of a drug trafficking operation that distributed powder and crack cocaine in Lancaster County, Pennsylvania. Here, the Government presented overwhelming evidence that Vazquez conspired with others to possess and distribute a quantity of drugs sufficient to justify his sentence. As we previously noted, law enforcement officers seized about 992 grams of powder cocaine and 859 grams of crack cocaine from a rooming house. Vazquez had given the drugs to a co-conspirator, Francisco Algarin, for storage. The key to the rooming house’s front door was found on Vazquez’s person. In addition, investigators found Vazquez’s fingerprint on one of the bags in which the cocaine was stored. After the seizure, police interviewed three of Vazquez’s drug customers. All three described Vazquez as the leader of a drug dealing operation. The trial testimony directly tied Vazquez to a drug conspiracy with the co-conspirator, Algarin. On the basis of this evidence, including the undisputed evidence of drug quantity, a rational jury would certainly have found that Vazquez had conspired to possess or distribute no less than 992 grams of powder cocaine, almost twice the amount necessary to support his slightly more than 24-year sentence pursuant to § 841(b)(l)(B)’s 5-to^tO-year sentencing range. Under these circumstances, the evidence concerning drug quantity was “overwhelming,” and, as we explained in the preceding section, because Vazquez’s sentence would not have changed absent the trial error, there is no reasonable basis upon which to conclude that the fairness, integrity, or public reputation of the judicial proceedings were seriously affected. Our holding is in accord with decisions from the First, Fifth, Seventh, Tenth, and Eleventh Circuits, in which panels considered the evidence adduced at trial and, under the fourth plain error factor, denied relief for Apprendi violations where the evidence was conclusive. Our holding is also in accord with a recent en banc decision of the Fourth Circuit. We therefore conclude that, in light of the undisputed evidence of drug quantity attributable to Vazquez and our determination that his sentence did not exceed the statutory maximum for the cocaine amount introduced at trial, the fairness, integrity, or public reputation of judicial proceedings were not seriously affected even though an Apprendi violation occurred in his case. III. Vazquez also challenges the supervised release term that the District Court imposed. He contends that the court incorrectly applied the 5-year minimum term of supervised release under § 841(b)(1)(A), when the minimum term was actually 3 years under § 841(b)(1)(C). We note, however, that Vazquez did not raise this argument before the District Court and he did not brief and argue this issue before the panel that initially considered his appeal. Under these circumstances, we conclude that Vazquez has waived his right to pursue this issue here. See Atwater v. City of Lago Vista, 195 F.3d 242, 245 n. 3 (5th Cir.1999) (en banc), aff'd 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001); Travitz v. Northeast Dep’t ILGWU Health & Welfare Fund, 13 F.3d 704, 711 (3d Cir.1994) (“When an issue is not pursued in the argument section of the brief, the appellant has abandoned and waived that issue on appeal”). But even if Vazquez had not waived the issue, there was no plain error because the 5-year supervised release term was clearly within the range that the court was authorized to impose under any of § 841(b)’s penalty provisions. IV. We have reviewed the additional points on appeal, which we identify in the margin and none of which require extended discussion. We find them all to be without merit. V. Accordingly, for the reasons that we have set forth above, we will affirm Vazquez’s conviction and sentence. . The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The parties originally argued this case before a merits panel of our court on December 15, 2000. However,-given the importance of the Apprendi issue, we elected to consider the case en banc prior to the publication of the original three-judge panel opinion. See 3d Cir. I.O.P. 9.4 (2000). . A discrepancy of 1 gram exists in the record as to the amount of powder cocaine. The trial testimony referred to 991 grams, while the District Court found the amount to be 992 grams. Because the 1 gram difference is of no substantive import in these proceedings, we will refer to the amount as 992 grams. . Specifically, with regard to the drug conspiracy, the judgment of conviction identifies the “Title & Section” as “21 U.S.C. § 846,” and describes the "Nature of Offense” as "Conspiracy to Possess and Distribute More Than Five Kilograms of Cocaine.” . Rule 52 provides in full: (a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. (b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. . See United States v. Patrick, 248 F.3d 11, 28 (1st Cir.2001); United States v. Terry, 240 F.3d 65, 74-75 (1st Cir.), cert. denied,-U.S. -, 121 S.Ct. 1965, 149 L.Ed.2d 759 (2001). . See United States v. Green, 246 F.3d 433, 436-37 (5th Cir.2001); United States v. Slaughter, 238 F.3d 580, 583-84 (5th Cir.) (per curiam), cert. denied,-U.S.-, 121 S.Ct. 2015, 149 L.Ed.2d 1015 (2001). . See United States v. Brough, 243 F.3d 1078, 1080 (7th Cir.2001); United States v. Jackson, 236 F.3d 886, 888 (7th Cir.2001) (per curiam)-, cf. United States v. Westmoreland, 240 F.3d 618, 634-35 (7th Cir.2001) (considering trial evidence in holding that substantial rights affected). . See United States v. Poulack, 236 F.3d 932, 938 (8th Cir.2001), petition for cert. filed,U.S. -, 122 S.Ct. 148, - L.Ed.2d - (2001); United States v. Anderson, 236 F.3d 427, 429-30 (8th Cir.2001) (per curiam)-, cf. United States v. Butler, 238 F.3d 1001, 1005-06 (8th Cir.2001) (considering trial evidence in holding that substantial rights affected). . See Hishaw, 235 F.3d at 575-77. . See United States v. Gallego, 247 F.3d 1191, 1196-97 (11th Cir.2001); United States v. Wims, 245 F.3d 1269, 1272-74 & nn. 9-11 (11th Cir.2001) (per curiam); United States v. Candelario, 240 F.3d 1300, 1311-12 (11th Cir.), cert. denied, — U.S. -, 121 S.Ct. 2535, 150 L.Ed.2d 705 (2001); United States v. Pease, 240 F.3d 938, 944 (11th Cir.2001) (per curiam); United States v. Nealy, 232 F.3d 825, 829-30 (11th Cir.2000); United States v. Swatzie, 228 F.3d 1278, 1282-83 (11th Cir.2000), cert. denied, No. 00-9051, 2001 WL 291894 (U.S. June 29, 2001). . See United States v. Fields, 251 F.3d 1041, 1045 (D.C.Cir.2001) (considering trial evidence in holding that substantial rights affected). . Examples of structural defects include: (1) the complete denial of counsel, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); (2) a biased trial judge, see Turney v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); (3) racial discrimination in the selection of a grand jury, see Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986); (4) the denial of self-representation at trial, see McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); (5) the denial of a public trial, see Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); and (6) defective reasonable doubt instructions, see Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). . See Terry, 240 F.3d at 74-75. . See United States v. Miranda, 248 F.3d 434, 445-46 (5th Cir.2001). . See United States v. Robinson, 250 F.3d 527, 530-31 (7th Cir.2001); United States v. Patterson, 241 F.3d 912, 913-15 (7th Cir.) (per curiam), petition for cert. filed, — U.S.-, 122 S.Ct. 124,-L.Ed.2d-(2001); United States v. Mietus, 237 F.3d 866, 875 (7th Cir.2001); United States v. Nance, 236 F.3d 820, 825-26 (7th Cir.2000), petition for cert. filed,-U.S.-, 122 S.Ct. 79,-L.Ed.2d -(2001). . See United States v. Wilson, 244 F.3d 1208, 1220 n. 7 (10th Cir.2001), petition for cert. filed, - U.S. -, 122 S.Ct. 186, — L.Ed.2d-(2001), and cert. denied, No. 00-10289, 2001 WL 606873 (U.S. June 29, 2001); United States v. Keeling, 235 F.3d 533, 539-40 (10th Cir.2000), cert. denied, No. 00-10161, 2001 WL 578795 (U.S. June 25, 2001). . See Swatzie, 228 F.3d at 1284. . See Promise, 255 F.3d 150, 2001 WL 732389, at *8-10 & n. 9. . The Government presents the alternative argument that Vazquez should not prevail under the plain error standard because the District Court could have justified its 292-month sentence by imposing consecutive terms. According to the Government, even if Vazquez had been sentenced to § 841(b)(l)(C)'s'20-year maximum term of imprisonment on the drug conspiracy conviction, the District Court would have been required to impose a consecutive rather than concurrent sentence on the obstruction of justice conviction. See 18 U.S.C. § 3584(a); U.S.S.G. § 5G1.2(d) (1998). Thus, the Government submits, because Vazquez would have been subject to the same 292-month term of imprisonment through the imposition of consecutive sentences on the conspiracy and obstruction of justice convictions, the Apprendi violation did not “affect[ ] the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. 1770; see, e.g., Angle, 254 F.3d 514, 2001 WL 732124, at *3-4 (holding that substantial rights not violated because § 5G1.2(d) would have obligated court to achieve same sentence by imposing consecutive terms); Page, 232 F.3d at 544-45 (denying plain error relief to defendants convicted on multiple counts because § 5G1.2(d) required imposition of consecutive sentences to extent necessary to produce combined sentence within guideline sentencing range). We decline to address this contention because we have determined on other grounds that Vazquez has failed to establish that he is entitled to plain error relief. . Vazquez asserts that (1) the District Court’s pretrial disqualification of the attorneys he initially obtained, due to their alleged involvement in the charged obstruction of justice, violated his Sixth Amendment right to counsel of his choice; (2) his assigned pretrial counsel provided ineffective representation in failing to file a motion to suppress the key to the rooming house, and the District Court abused its discretion in denying as untimely a motion raising that issue that was filed shortly before trial by counsel that Vazquez had recently retained; (3) the District Court committed reversible error in denying his motion for a mistrial, and his subsequent motion for a new trial, which were based on alleged prejudice he suffered from the jury possibly having learned about his prior arrest for possession of a stolen firearm; and (4) the evidence is insufficient to support his conviction for obstruction of justice under 18 U.S.C. § 1503.
BECKER, Chief Judge, concurring, with whom Judge AMBRO joins. Justice Frankfurter may not have been the first to observe that “[wjisdom too often never comes, and so one ought not to reject it merely because it comes too late,” Henslee v. Union Planters Nat’l Bank & Trust Co., 335 U.S. 595, 600, 69 S.Ct. 290, 93 L.Ed. 259 (1949) (Frankfurter, J., dissenting), but he was surely right in so declaring. Had he the occasion, he might also have observed that sometimes belated wisdom does not arrive until a doctrinal shift removes the obstacles to its revelation, thereby exposing the unstable foundation of that which had been uncritically accepted before. I believe this to be such a case. The doctrinal shift at'work here emanates from Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that “any fact [other than a prior conviction] 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. This holding in turn exposed the instability of our prior holding that under 21 U.S.C. § 841 drug type and quantity are sentencing factors, requiring only proof by a preponderance of the evidence to a judge, instead of elements of the offense, which would require proof beyond a reasonable doubt to a jury. See, e.g., United States v. Gibbs, 813 F.2d 596, 600 (3d Cir.1987). Today the Court partially retreats from our prior position in holding that, at least when drug quantity increases the statutory maximum penalty, it must, per Apprendi, be submitted to the jury and proved beyond a reasonable doubt. By not re-examining Gibbs and its progeny, however, the Court lets stand our interpretation of drug type and quantity as sentencing factors in all other instances. Indeed, by deciding this case on constitutional rather than statutory grounds, see opinion of the Court, ante, at 96, the Court implicitly signals that it is satisfied with our prior statutory construction of § 841, and will continue to apply it in cases where no constitutional— i.e., Apprendi — difficulty arises. Cf. Ashwander v. TVA, 297 U.S. 288, 346-47, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J., concurring) (articulating principle that cases should be decided on statutory grounds before reaching constitutional questions). It has become clear to me, however, upon reconsidering § 841 in light of Ap-prendi, that our prior statutory construction ought to be abandoned altogether. I submit that drug type and quantity are always elements of an offense under § 841, and therefore must always be submitted to the jury for proof beyond a reasonable doubt. See United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (“[Cjriminal convictions [must] rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.”). Concomitantly, I believe that drug type and quantity should not be treated as element-like factors only when they increase the prescribed statutory maximum penalty. In reaching this conclusion, I am guided primarily by the intent of Congress in drafting § 841. In my view, Congress’s intent to make drug type and quantity elements of a § 841 offense is evident from the statute’s legislative history. It is also evident from the structure of § 841, which, when interpreted according to the canons of construction used by the Supreme Court to distinguish between offense elements and sentencing factors, indicates that Congress intended for drug type and quantity to be elements of an offense. The doctrine of constitutional doubt, which requires that “constitutionally doubtful constructions be avoided where ‘fairly possible,’ ” Miller v. French, 530 U.S. 327, 336, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000) (quoting Communications Workers v. Beck, 487 U.S. 735, 762, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988)), buttresses the statutory interpretation I offer. Finally, on a practical level, I note that requiring drug type and quantity to be proved to the jury beyond a reasonable doubt would not cause problems in the prosecution and trial processes; indeed, in the wake of Apprendi, federal courts throughout the nation are easily accommodating this requirement. Nor, as I will explain below, would it require overturning large numbers of convictions. I. Congress’s Intent A. Legislative History In support of our prior conclusion that drug type was not an element of a § 841 offense, this court has noted that “[w]hile Congress could have enacted separate statutes criminalizing the distribution of particular controlled substances, it did not do so.” United States v. Lewis, 113 F.3d 487, 491 (3d Cir.1997). Similarly, at least one federal appellate judge has concluded that drug type and quantity are not elements because “[i]t is simply not credible to hold that Congress knowingly and intentionally fashioned some 350 offenses in section 841.” United States v. Promise, 255 F.3d 150, 175 (4th Cir.2001) (Luttig, J., concurring in the judgment). The legislative history of § 841, however, points to the opposite conclusion. Congress enacted the original version of § 841 as part of the Controlled Substances Act (“CSA”) of 1970, Pub.L. No. 91-513, § 401, 84 Stat. 1242, 1260-62. In doing so, Congress’s intent was to unify in a single statute what was at that time a “plethora of legislation” creating drug offenses in diverse public health and revenue acts. H.R.Rep. No. 91-1444, in 1970 U.S.C.C.A.N. 4566, 4571; see also 116 Cong. Rec. 33,299-300 (1970) (statement of Rep. Springer) (describing the CSA as “a comprehensive approach” to the “big[ ] problem” of “many drug laws which have come about under different circumstances and with entirely separate and diverse histories”); id. at 33,304 (statement of Rep. Rogers) (explaining how the CSA “would consolidate all of the Federal drug laws into one act ... to enable more efficient administration of the laws”). Recognizing that enacting separate statutes for each type of drug would have been a needless legislative burden, Congress opted for the more efficient double-axis prosecution scheme, under which each act in violation of what is now § 841(a) (manufacture, distribute, etc.) could be prosecuted with respect to the different drug types. See, e.g., United States v. Grandison, 783 F.2d 1152, 1156 (4th Cir.1986) (holding that, at least for the purposes of double jeopardy, “Congress intended the possession of each scheduled substance to be a separate offense”). Congress first included drug quantity as an operative fact in determining penalties for marijuana manufacture and distribution in its 1980 amendments to the CSA. See Infant Formula Act of 1980, Pub.L. No. 96-359, § 8(c)(2), 94 Stat. 1190, 1194. Both the House and Senate Reports reflect that Congress intended quantity to function as an element with respect to marijuana offenses; they state, “Individuals convicted of trafficking in over 1,000 pounds would be subject to a maximum 15-year prison sentence and/or a maximum $125,000 fine.” H.R.Rep. No. 96-936, at 13 (1980); S.Rep. No. 96-916, at 14 (1980) (emphasis added). As evidenced by the language used in 21 U.S.C. § 851, which was passed as part of the original CSA in 1970, Pub.L. No. 91-513, § 411, 84 Stat. 1269, Congress can be presumed to have been aware of the traditional legal distinction between conviction and sentencing at the time it adopted these quantity thresholds. See 21 U.S.C. § 851(b) (noting that the proceedings to establish prior convictions shall be undertaken by the court “after conviction but before pronouncement of sentence”). In 1984 Congress again amended the CSA to account for drug quantity for illegal substances other than marijuana. See S.Rep. No. 98-225, at 255 (1983) (noting that, with the exception of marijuana, the prior CSA did not specifically account for drug quantity). Thus, according to the Senate Report, Congress created “a new subparagraph (A) under section 841(b)(1) that would provide, for offenses involving large amounts of particularly dangerous drugs, higher penalties than those now provided under section 841.” Id. at 258 (emphasis added). The use of the plural “offenses” indicates Congress’s intention to create within the single statute a multitude of separate crimes depending on drug type and quantity. The last relevant major changes to the CSA occurred in 1986 when Congress, using the internal structure of subparagraph (b)(1)(A) of the 1984 amendments, created new subparagraphs (b)(1)(A) and (b)(1)(B) and included mandatory minimum sentences for offenses under those subpara-graphs. See Narcotics Penalties and Enforcement Act of 1986, Pub.L. No. 99-570, § 1002, 100 Stat. 3207-2. The legislative record indicates that during its discussion of the proposed amendments, Congress understood that prosecutors would be required to introduce evidence of drug quantity during trial in order to obtain a conviction. See H.R.Rep. No. 99-845, at 12 (1986) (explaining that Congress had been informed by U.S. Attorneys that they would be able to meet the evidentiary burden for proving quantity to the jury). Furthermore, the record reflects that Congress did not consider subparagraph (a) to lay out all of the elements of a § 841 offense; rather, Congress deemed drug type and quantity essential elements of a crime as specified in subparagraphs (b)(1)(A) & (B). The House Report, for instance, specifically notes that “[a] person convicted under those subparagraphs [ (b)(1)(A) & (B) ] shall not be eligible for parole until the individual has served the minimum sentences required by such sub-paragraphs.” Id. at 19 (emphasis added). Again, as noted above, Congress can be presumed to have been aware of the traditional legal distinction between conviction and sentencing. If Congress had intended for the drug types and quantities listed in § 841(b)(1)(A) & (B) to be sentencing factors, the accompanying legislative record would have referred to a person sentenced — rather than convicted' — under those subparagraphs. Immediately following the 1986 amendments, the Justice Department itself, which had been consulted by Congress throughout the amendment process, see H.R.Rep. No. 99-845, at 12 (1986), seemed to conclude that drug type and quantity were elements of separate offenses defined in § 841(b). See Handbook on the Anti Drug Abuse Act of 1986, at 20-21 (Dep’t of Justice Mar. 1987) (“1986 Handbook”). Notably, the 1986 Handbook repeatedly referred to “convictions” under the subpar-agraphs of § 841(b)(1), which lay out the penalties for the different drug types and quantities. Id. at 3-4, 6-7. Most importantly, the Department “recommend[ed] that where the enhanced and mandatory minimum penalty provisions of 21 U.S.C. §§ 841(b)(1) and 960(b), as amended, are based on the kind and quantity of drug involved in particular offenses ... both the kind and the quantity of the drug be specified in the indictment and proven at trial.’’ Id. at 20 (third emphasis added). I acknowledge that the Department only “recommend[edj” such an approach, and that it later retreated from this position. See, e.g., United States v. Jenkins, 866 F.2d 331 (10th Cir.1989). But the fact that it expressed this view in its initial “bible” on the critical 1986 drug law, obviously written after high-level deliberations and at a time when vision was not clouded by subsequent events and perceptions, seems to me very persuasive. In addition to what Congress did, what Congress did not do in adding drug type and quantity in the 1980, 1984, and 1986 amendments is also informative. Specifically, Congress never expressly denoted drug type and quantity as sentencing factors to be determined by the judge and not the jury. See United States v. Brough, 243 F.3d 1078, 1079 (7th Cir.2001) (“[T]he statute [§ 841] does not say who makes the findings or which party bears what burden of persuasion.”). In contrast, in the aforementioned § 851, which covers proceedings to establish prior convictions for sentence-enhancement purposes, the statute expressly provides that “the court shall after conviction but- before pronouncement of sentence” make its determination regarding prior conviction. 21 U.S.C. § 851(b) (emphasis added). My point is further advanced by reference to the now-repealed Dangerous Special Drug Offender Sentencing provision of the original CSA, which created sentencing factors. See Pub.L. No. 91-513, § 409, 84 Stat. 1242, 1266-69 (1970) (repealed 1984). Under that provision, prior felon status was to be assessed by a judge after conviction using a preponderance-of-the-evidence standard. See id. at 1267. In sum, Congress’s failure to include drug type and quantity within its express sentence-enhancement provisions indicates its intent to treat these factors as elements of a crime. See United States v. McQuilkin, 78 F.3d 105, 108 (3d Cir.1996) (“It is a canon of statutory construction that the inclusion of certain provisions implies the exclusion of others.”) (“inclusio unius est exclusio alterius”). B. Nomenclature and Structure of the Statute In construing drug type and quantity as sentencing factors rather than elements, this court, as well as the other courts of appeals, have relied on the presence of the labels “Unlawful Acts” and “Penalties” preceding subsections (a) and (b) of the statute. See, e.g., United States v. Lewis, 113 F.3d 487, 490-91 (3d Cir.1997). This approach is deeply flawed. Although one of our sister courts has noted that this approach “took Congress at its caption,” Brough, 243 F.3d at 1079, a close examination reveals that the caption was never really Congress’s at all. The original version of the CSA passed by Congress and signed by the President did not affix the label “Unlawful Acts” to § 841(a) or “Penalties” to § 841(b). See CSA, Pub.L. No. 91-513, 1970 U.S.C.C.A.N. (84 Stat. 1260-62) 1466-68. Nor were these captions added in any of the subsequent amendments to the CSA. Rather, these section headings can be traced to the Office of the Federal Register, National Archives and Records Services, which added a reference to “penalties” as a margin note to the predecessor of § 841(b) in the Statutes at Large simply for user convenience. 84 Stat. 1261 (1970). Unfortunately, when the CSA was reproduced in the United States Code, the margin notes were converted into subsection headings by the codification committee, but have never been officially adopted by the Congress, and, therefore, do not have the force of law. See U.S.C. at vii (1994 & Supp. V 1999) (noting that Title 21 has never been officially codified). Even if the subsection titles had been officially adopted by Congress, we would be wrong to ascribe to subsection (b)’s “Penalties” label the talismanic power to indicate that drug type and quantity are sentencing factors rather than elements of separate crimes. See Castillo v. United States, 530 U.S. 120, 125, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000) (noting that the mere fact that a statutory section is entitled “Penalties” does not indicate whether that section creates sentencing factors or entirely new crimes for “[t]he title alone does not tell us which are which”). Although § 841(a) is entitled “Unlawful Acts,” this subsection alone does not define a complete offense because it includes no punishment. A jury verdict finding only that the defendant had committed the acts described in subsection (a), without more, would not render the defendant guilty of a crime requiring any ascertainable punishment. Compare Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (construing 8 U.S.C. § 1326(b)(2) as a sentencing factor where an earlier portion of the statute— § 1326(a) — already provided for specific penalties), with Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (construing the provisions of 18 U.S.C. § 2119(2)-(3) as elements where the prefatory statutory text did not provide for penalties but only described prohibited conduct). Furthermore, the wide variation in penalties for the manufacture and distribution of different combinations of drug type and quantity counsels in favor of construing these factors as elements. In two recent cases, Jones and Castillo, the Supreme Court observed that the degree to which the commission of a proscribed act increases the maximum penalty reflects Congress’s intent to make the particular act an element or a sentencing factor. In Castillo, the Government argued that under 18 U.S.C. § 924(c), which prohibits the use or carrying of a firearm in relation to a crime of violence, the particular type of firearm used by the d