Full opinion text
AMENDED OPINION CLAY, Circuit Judge. This consolidated case, involving six members of a drug trafficking conspiracy in Chattanooga, Tennessee, presents several issues for consideration. The Defendants appeal their judgments after being convicted, inter alia, of conspiracy to distribute and possess with intent to distribute cocaine hydrochloride and/or cocaine base, specifically, “crack,” in violation of 21 U.S.C. §§ 841(a), 846, and being sentenced to various terms of imprisonment and supervised release. In Case No. 99-5615, Suzette Miranda Stewart (“Stewart”) brings an Apprendi challenge to her sentence entered pursuant to a guilty plea on the drug conspiracy charge. Stewart also appeals the two-level enhancement of her base offense level under United States Sentencing Commission, Guidelines Manual, (“USSG”) § 2Dl.l(b). In Case No. 99-5850, Calvin Nelson Tram-ble (“Tramble”) appeals his conviction upon pleading guilty to aiding and abetting money laundering in violation of 18 U.S.C. § 1956(a)(l)(A)(i). Tramble also appeals his sentence after pleading guilty to the drug conspiracy charge, raising an Ap-prendi challenge as well as challenging the three-level enhancement for his role in the offense under USSG § 3Bl.l(c). In Case No. 99-5852, Charles Rossell (“Rossell”) appeals his sentence pursuant to a guilty plea on the drug conspiracy charges on several grounds, including (1) an Apprendi challenge; (2) the district court’s refusal to reduce his statutory minimum sentence under the “safety valve” of USSG § 5C1.2(2) and 18 U.S.C. § 3553(f); (3) a two-level enhancement of his base offense level under USSG § 2Dl.l(b); and (4) the district court’s refusal to grant a downward departure under USSG § 5K2.0 for “exceptional circumstances.” In Case No. 99-5853, Timothy Demarcus Lanxter (“Lanxter”) appeals his sentence pursuant to a plea of guilty to the drug conspiracy charge based upon the district court’s decision to sentence him to a term of imprisonment above the applicable range under the sentencing guidelines after departing downward from the statutory minimum sentence pursuant to 18 U.S.C. § 3553(e). In Case No. 99-6248, Nathan Benford (“Benford”) challenges his conviction based upon the district court’s denial of his motion to suppress wiretap evidence as well as the court’s use of challenged jury instructions. Benford also challenges his sentence on the drug conspiracy charge under the Apprendi line of cases. Finally, in Case No. 99-6249, Nathan Benford’s wife, Rena Benford (“Mrs.Benford”), also appeals the denial of a motion to suppress wiretap evidence. In addition to raising an Apprendi challenge to her sentence on the drug conspiracy charge, Mrs. Benford also challenges a two-level enhancement of her base offense level under USSG § 2Dl.l(b). For the reasons that follow, we AFFIRM the convictions and sentences of all Defendants. However, as explained in Section IV(E) of the lead opinion, Judge Clay would VACATE Mrs. Benford’s sentence and REMAND for re-sentencing within the statutory range provided by 21 U.S.C. § 841(b)(1)(C). BACKGROUND In the mid 1990s, FBI agents in Chattanooga, Tennessee, engaged in a long-term investigation into a possible drug trafficking conspiracy involving Nathan Benford, his wife, Rena Yvonne Benford, and several of their associates. The agents obtained authorization for electronic surveillance of land-based telephone lines at several premises as well as mobile phones, which was conducted between April 22, 1998 and July 30, 1998. These ■wiretaps, in conjunction with traditional surveillance and investigatory methods, revealed a vast drug trafficking conspiracy in the Chattanooga, Tennessee and Louisville, Kentucky areas involving Defendants. The illegal operations were conducted using several premises, including the Uptown Supper Club, which is a nightclub operated by the Benfords, the S & S Market, a convenience store managed by Stewart and owned by her father, as well as several of Defendants’ residences. Throughout the investigation, FBI agents acted on the information they received from the wiretap surveillance. At one point, an undercover agent posed as one of Benford’s associates and was able to pick up a package of crack cocaine from one of the co-defendants. On August 26, 1998, Defendants were charged, along with twenty-four co-defendants, with one count of conspiracy to “distribute and possess with intent to distribute cocaine hydrochloride and cocaine base (‘crack’),” in violation of 21 U.S.C. § 841(a) and 21 U.S.C. § 846. One month later, a superseding indictment retained the drug conspiracy charge in Count One and added charges of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)© against the Benfords and Tramble. However, the superseding indictment failed to allege the quantity of drugs attributable to each Defendant. Stewart, Tramble, Rossell and Lanxter all pleaded guilty to the drug conspiracy charge. Tramble also pleaded guilty to the money laundering charge. Their plea agreements also failed to specify the relevant drug quantities. The Ben-fords proceeded to trial, after which they were convicted on the drug conspiracy charge and one of the money laundering charges. At Defendants’ respective sentencing hearings, the district court received evidence which was used to determine the quantity of drugs attributable to each of them. The court handed down sentences specifying terms of imprisonment and supervised release, as well as special assessments for each Defendant. All Defendants filed timely notices of appeal. DISCUSSION I. MOTIONS TO SUPPRESS WIRETAP EVIDENCE At the trial of Nathan and Rena Ben-ford, the government introduced into evidence recorded telephone conversations by several members of the drug conspiracy. The Benfords both moved to suppress the wiretap information prior to trial, and also requested an evidentiary hearing on the issue; however, the district court denied the motions to suppress without the benefit of a hearing. On appeal, the Benfords contend that the affidavit used to obtain the wiretap warrant did not satisfy the requirements of 18 U.S.C. § 2518(l)(c) and, further, that they were improperly denied an evidentiary hearing on this matter in violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), because some of the statements in the affidavit were either knowingly false or made with reckless disregard as to their veracity. We reject both of these claims. A. As a general matter, this Court reviews the district court’s factual findings on suppression issues for clear error, and its legal conclusions under the de novo standard. United States v. Hill, 142 F.3d 305, 310 (6th Cir.1998). But the circuits are split as to the proper standard of review of the denial of an evidentiary hearing under Franks. See United States v. Fields, No. 98-5798, 2000 WL 1140557, at 3 (6th Cir. Aug.4, 2000); United States v. Palladino, No. 92-00072, 1994 WL 369139, at 4 n. 4 (6th Cir. July 13, 1994); United States v. Dale, 991 F.2d 819, 843, n. 44 (D.C.Cir.1993). In Dale, our sister circuit noted that four circuits employ clear error review for a denial of a Franks hearing — ■ United States v. Buchanan, 985 F.2d 1372, 1378 (8th Cir.1993); United States v. Skinner, 972 F.2d 171, 177 (7th Cir.1992); United States v. Hadfield, 918 F.2d 987, 992 (1st Cir.1990); United States v. One Parcel of Property, 897 F.2d 97, 100 (2d Cir.1990)—and two circuits review de novo—United States v. Homick, 964 F.2d 899, 904 (9th Cir.1992); United States v. Mueller, 902 F.2d 336, 341 (5th Cir.1990), denial of post-conviction relief vacated by 168 F.3d 186 (5th Cir.1999). However, as was the case in Fields and Dale, “the more exacting [de novo ] standard of review is satisfied ... and it is unnecessary for us to further discuss the issue.” Fields, 2000 WL 1140557, at 3. B. In order to conduct electronic surveillance using a wiretap, federal law enforcement officials must secure authorization by making an application containing a “full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(l)(c). This statutory “necessity requirement” was designed to insure that “wiretapping is not resorted to in a situation in which traditional investigative techniques will suffice to expose the crime.” United States v. Alfano, 838 F.2d 158, 163 (6th Cir.1988). Generally, a district court’s finding that the requirements of § 2518(l)(c) have been met are afforded “considerable discretion.” United States v. Landmesser, 553 F.2d 17, 20 (6th Cir.1977). In Franks, the Supreme Court recognized a defendant’s right to challenge the sufficiency of a previously issued and executed warrant by attacking the statements made in an affidavit in support of the warrant. In order to obtain a hearing, the defendant must make a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included in the affidavit. Franks, 438 U.S. at 155-56, 98 S.Ct. 2674. If the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. Id. at 171, 98 S.Ct. 2674. The defendant must specifically point to the disputed portions of the challenged affidavit, and must support these charges with an offer of proof. Id. If the defendant meets this burden, the court must then reconsider the affidavit without the disputed portions and determine whether probable cause still exists. If probable cause does not exist, the court must hold a full evidentiary hearing to determine whether the affidavit was properly submitted. In the instant case, law enforcement officials alleged that wiretap surveillance was the only investigative technique reasonably likely to establish the full scope of the alleged criminal enterprise. In a 100 page affidavit, they provided a tremendous amount of information supporting this claim, including a statement as to the element of danger involved and specific investigative techniques that had been utilized, including confidential informants and cooperating witnesses, controlled purchases of drugs, consensual recordings, physical surveillance, and telephone records. Based upon this affidavit, the district court determined that the need for electronic surveillance had been established, fulfilling its duty under 18 U.S.C. § 2518(3)(c). Neither of the Benfords presented the district court with any affidavits to support their claim that the affidavit was false in any respect. Instead, they merely argued that electronic surveillance was not necessary under the circumstances because other law enforcement techniques were successful and the two major co-conspirators who were purported to be dangerous were not even charged in the case. This Court has explained: A defendant who challenges the veracity of statements made in an affidavit that formed the basis for a warrant has a heavy burden. His allegations must be more than conclusory. He must point to specific false statements that he claims were made intentionally or with reckless disregard for the truth. He must accompany his allegations with an offer of proof. Moreover, he also should provide supporting affidavits or explain their absence. If he meets these requirements, then the question becomes whether, absent the challenged statements, there remains sufficient content in the affidavit to support a finding of probable cause. United States v. Bennett, 905 F.2d 931, 934 (6th Cir.1990) (citations omitted). In addition to being conclusory, the Benfords’ arguments are simply wrong as a matter of law. In endeavoring to secure a wiretap warrant, the government need not prove the impossibility of other means of obtaining information. Instead, the necessity provisions merely require that law enforcement officials “give serious consideration to the non-wiretap techniques prior to applying for wiretap authority and that the court be informed of the reasons for the investigators’ belief that such non-wiretap techniques have been or will likely be inadequate.” United States v. Lambert, 771 F.2d 83, 91 (6th Cir.1985). This precise information was provided in the instant case. See United States v. Cooper, 868 F.2d 1505, 1508-09 (6th Cir.1989) (holding that undercover operations including controlled purchases, consensual telephone monitoring, and physical surveillance established that “normal investigative procedures” had been extensively conducted, and that the requested interception of wire and oral communications was not “employed as the initial step in criminal investigation”). Furthermore, the mere fact that some investigative techniques were successful in uncovering evidence of wrongdoing does not mandate that a court negate the need for wiretap surveillance. We have previously recognized that “wiretapping is particularly appropriate when the telephone is routinely relied on to conduct the criminal enterprise under investigation.” United States v. Landmesser, 553 F.2d 17, 20 (6th Cir.1977) (quoting United States v. Steinberg, 525 F.2d 1126, 1130 (2d Cir.1975)). The evidence reflects that various members of the drug conspiracy facilitated the criminal enterprise through multiple telephone conversations from several locations. In addition, it does not appear that the government could have uncovered the full scope of the conspiracy, especially not in a relatively safe manner, without the wiretaps. By the time the electronic surveillance began in this case, the investigation had been going on for approximately three years. Yet, the surveillance permitted authorities to discover numerous additional participants in this far-reaching conspiracy. The Benfords have provided no evidence to contest the government’s contention that traditional methods would have been dangerous. The fact that two individuals whom the government particularly feared were not eventually indicted is not relevant to this determination. Cf. United States v. Guerra-Marez, 928 F.2d 665, 671 (5th Cir.1991) (“The government could have reasonably concluded that attempting to elicit further information ... would have aroused the suspicions of other participants, thus endangering both its informant and the investigation.”). For these reasons, we hold that the district court did not err in declining to hold a Franks hearing or by determining that the evidence was sufficient to satisfy the government’s obligation to show necessity for electronic surveillance under § 2518(l)(c). II. “REASONABLE DOUBT” JURY INSTRUCTIONS Nathan Benford also claims on appeal that the jury instructions delivered at his trial regarding the “reasonable doubt” standard were flawed. This Court reviews jury instructions as a whole to determine whether they adequately inform the jury of relevant considerations and provide a basis in law for the jury to reach its decision. Innes v. Howell Corp., 76 F.3d 702, 714 (6th Cir.1996). We may reverse the district court only if the instructions, viewed as a whole, were confusing, misleading, or prejudicial. Id. The district court instructed the jury, in part, as follows: Proof beyond a reasonable doubt means proof which is so convincing that you would not hesitate to rely and act on it in making the most important decisions in your own lives. If you are convinced that the government has proved the defendant guilty beyond a reasonable doubt, say so by returning a guilty verdict. If you are not convinced, say so by returning a not guilty verdict. At trial, the district court denied Ben-ford’s request to delete the first sentence of the above-quoted paragraph. Without citing any relevant legal authority, Ben-ford now claims that the jury instructions should not have included that sentence because it dilutes the reasonable doubt standard thereby violating the Due Process Clause of the Fifth Amendment. He notes that several courts have discouraged any attempt to define “reasonable doubt” due to the difficulty of such a task. However, there is no indication that the jury instructions are confusing. See Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1955) (suggesting that jury instructions of reasonable doubt should be stated “in terms of the kind of doubt that would make a person hesitate to act, rather than the kind on which he would be willing to act,” but “the instruction as given was not of the type that could mislead the jury into finding no reasonable doubt when in fact there was some”) (internal citations omitted). Moreover, the contested language is taken verbatim from this Circuit’s Pattern Jury Instructions, which have not been held to be unconstitutional. See Pattern Jury instructions, 6th Cir. 1.03, 1991 Ed. We therefore hold that the jury instructions were not flawed. III. WITHDRAWAL OF GUILTY PLEA Defendant Tramble seeks to vacate his plea of guilty to the charge of aiding and abetting money laundering in violation of 18 U.S.C. § 1956(A)(1)(i). Inasmuch as he did not raise this 'issue before the district court, and even now does not claim that his plea was not knowing and voluntary, we review the court’s acceptance of Tramble’s plea for plain error. Fed.R.Crim.P. 52(b). Cf. United States v. Timbana, 222 F.3d 688, 701 (9th Cir.2000) (holding that voluntariness of a guilty plea is reviewed de novo even if a defendant fails to move to vacate a judgment or withdraw his guilty plea before the district court). The authority created by Rule 52(b) is circumscribed. There must first be an error, and, second, that error must be considered “plain”. In addition, the “plain error” must affect a defendant’s substantial rights. If all three factors are present, we must determine whether this is an appropriate case in which to exercise our discretion to correct the forfeited error, because the error threatens the basic fairness, integrity, or public reputation of the district court proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Hayes, 171 F.3d 389, 391-92 (6th Cir.1999); United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir.1998), cert. denied, 526 U.S. 1030, 119 S.Ct. 1278, 143 L.Ed.2d 371 (1999). After reviewing Tramble’s arguments, we find no error in his conviction. Tramble does not contest his actual guilt or the validity of his guilty plea on the charge of aiding and abetting money laundering. Yet, he claims that the money laundering charge should have been dismissed from the indictment because his co-defendant, Carolyn Millard, whom Tram-ble labels the “principal” perpetrator, was acquitted on this count after a jury trial. Tramble acknowledges that he asks this Court to establish a new legal rule holding that courts should dismiss the indictment of a defendant who pleads guilty prior to or after his co-conspirator is acquitted of the same offense by a jury. However, by Tramble’s own admission, there is no legal precedent that supports his claim. It is irrelevant that Tramble characterizes Carolyn Millard as the “principal” in the offense. Under 18 U.S.C. § 2, any individual who either engages in or aids,, abets, counsels, commands, induces, or procures conduct violating a federal criminal statute is punishable as a “principal”. “As such, they are punishable for their criminal conduct; the fate of other participants is irrelevant.” Standefer v. United States, 447 U.S. 10, 20, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980). In United States v. Yost, 24 F.3d 99 (10th Cir.1994), our sister circuit has recognized that because the statute treats aiding and abetting as principal liability, “there is no requirement that a de facto principal be convicted of an offense prior to convicting someone as an aider and abettor, nor is there even a bar to prosecuting someone as an aider and abettor after an alleged de facto principal is acquitted.” Id. at 104 n. 4 (citing Standefer, 447 U.S. at 15-20, 100 S.Ct. 1999). In light of this legal precedent, we hold that the district court did not commit error by declining to vacate Tramble’s plea of guilty. .We also note that, even if his conviction did constitute error, the error could not have affected his substantial rights because Tramble does not deny the validity of the factual basis for his guilty plea. His conviction could not therefore undermine the fairness or integrity of the district court proceedings. IV. APPRENDI CHALLENGES TO DRUG CONSPIRACY SENTENCES Defendants Nathan Benford, Rena Ben-ford, Calvin Tramble, Suzette Miranda Stewart, and Charles Rossell argue on appeal that the district court committed constitutional error under Apprendi by sentencing them to terms of imprisonment and supervised release based upon the court’s finding of drug quantities by a preponderance of the evidence. We are first called upon to clarify the proper method of preserving Apprendi claims pri- or to the time that case was decided. We begin with a brief recitation of the development of Apprendi jurisprudence in this Circuit. We will then apply those decisions to Defendants. And finally, we will determine whether, to the extent Appren-di error has occurred, such error was harmless. A. In Jones v. United States, 526 U.S. 227, 248, 119 S.Ct. 1215, 148 L.Ed.2d 311 (1999), the Supreme Court suggested possible violations of the Fifth Amendment’s Due Process Clause and the Sixth Amendment’s notice (indictment) and jury trial guarantees stemming from the “diminishment of the jury’s significance by removing control over facts determining a statutory sentencing range.” Jones had been decided at the time Defendants were sentenced. After all of the judgments were entered, however, the Supreme Court decided Ap-prendi, which confirmed the suggestion in Jones that “[ojther 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.” 530 U.S. at 490, 120 S.Ct. 2348, 147 L.Ed.2d 435. The Court dismissed the then common argument that an enhancing fact may be considered merely a “sentencing factor” and instead held that “the relevant inquiry is not one 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? ” 530 U.S. at 494, 120 S.Ct. 2348, 147 L.Ed.2d 435 (emphasis added). In the instant case, Defendants were sentenced under the subsections of 21 U.S.C. § 841(b). This statute creates a three-tiered sentencing system based upon drug quantities. Defendants face a sentence of five to forty years under 21 U.S.C. § 841(b)(1)(B) if they are responsible for between 5 and 50 grams of “cocaine base” or between 500 grams and 5 kilograms of cocaine hydrochloride (powder cocaine). Under 21 U.S.C. § 841(b)(1)(A), defendants face a minimum sentence of ten years and a maximum of life imprisonment if they are connected to 50 grams or more of cocaine base or 5 kilograms or more of cocaine hydrochloride. However, where no amount of drugs is specified in the indictment or determined by the jury beyond a reasonable doubt, subsection 841(b)(1)(C) provides the default maximum penalties of twenty years, or thirty years in the ease of a repeat felony drug offender. 21 U.S.C. § 841(b)(1)(C). In United States v. Rebmann, 226 F.3d 521, 524 (6th Cir.2000), and United States v. Page, 232 F.3d 536 (6th Cir.2000), we determined that “[pjursuant to the provisions of § 841, the quantity of drugs is a factual determination that significantly impacts the sentence imposed.” Page, 232 F.3d at 543. In addition, in United States v. Ramirez, 242 F.3d 348, 351 (6th Cir.2000), we determined that the government must name in the indictment the quantity of drugs for which it seeks to hold a defendant responsible under 21 U.S.C. § 841(a) if it seeks an enhanced sentence based on drug quantity. We further explained in United States v. Strayhorn, 250 F.3d 462 (6th Cir.2001), that “each penalty provision of § 841(b) constitutes a different crime with different elements, including drug weight which must be proved beyond a reasonable doubt when sentencing a defendant in excess of the default statutory maximum set out in § 841(b)(1)(C) for all drugs except marijuana.... ” Id. at 468. In the instant case, the indictment did not specify the drug quantity attributable to each Defendant. With respect to the Benfords, the district court never instructed the jury to determine the drug amounts; rather, the jury merely found that Defendants had conspired to distribute and possess some undetermined amount of crack cocaine. Similarly, the plea agreements entered by Tramble and Rossell also failed to specify drug quantities. However, the district court found, by a preponderance of the evidence, the quantity of drugs for which each Defendant was accountable. The court then used these drug quantities to sentence the Defendants to various terms of imprisonment and supervised release under the subsections of 21 U.S.C. § 841(b). Below, we will discuss whether any claimed Apprendi error warrants vacating any of the Defendants’ sentences. B. The parties dispute the appropriate method of preserving an Apprendi challenge and, therefore, the applicable standard of review. The government characterizes Defendants’ Apprendi claims as alleging an omission from a jury instruction and contends that their claims should be reviewed only for plain error because they did not object to the drug amounts until after the jury returned its verdict. In support of this argument, the government cites Fed.R.Crim.P. 30, which provides that a party may not “assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict....” However, this rule is inapplicable in the instant case because an Apprendi violation can occur outside of the context of an omission of an element of a crime from the jury charge. For instance, we have held that an Apprendi issue might arise when a defendant pleads guilty to a drug offense just as it might when he chooses to take his case to trial. Strayhorn, 250 F.3d at 468 (citing United States v. Harper, 246 F.3d 520, 530-31 (6th Cir.2001)). We explained our basis for applying Apprendi to guilty pleas as follows: Our rationale is simple: the defendant who pleads guilty to an unspecified amount of drugs and is then sentenced under the preponderance-of-the-evidence standard may just as easily be subjected to an enhanced sentence in excess of the default statutory maximum as the defendant who takes his case to trial and is then sentenced by the district court under the same preponderance-of-the-evidence standard. This holding follows inexorably from [United States v. Flowal, 234 F.3d 932 (6th Cir.2000)], Ramirez, and Harper, and its outcome is dictated by Apprendi. Strayhorn, 250 F.3d at 468. Therefore, the jury instruction analogy must fail. We also emphasize that the constitutional error likewise does not lie in the indictment itself. The government’s failure to allege a drug quantity does not render a drug distribution indictment constitutionally infirm. See Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (“[An indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.”]). Instead, when specific quantities are not alleged, a defendant should be sentenced under 21 U.S.C. § 841(b)(1)(C), which establishes the default statutory maximum sentences and does not require as an element of the offense a specific quantity of drugs. See Page, 232 F.3d at 543 (holding that because indictment failed to mention drug quantity and no such quantity was found by the jury, defendants could only be subjected to the penalties prescribed under § 841(b)(1)(C)). Thus, it would be imprudent for defense counsel to object to an indictment which, by all rights, is facially sound. To do so would be in direct opposition to his client’s penal interests; the only logical outcome of such a challenge would be for the government to replace the charge under 21 U.S.C. § 841 with a more specific charge, specifically alleging a drug quantity, which might expose the defendant to a higher statutory penalty range. Instead of objecting to a valid indictment or jury instruction, the proper time for a defendant to raise a challenge to his sentence is at the time the actual violation occurs — at the time of sentencing. See United States v. Jackson, 240 F.3d 1245, 1248 (10th Cir.2001) (“The error ... is best characterized as sentencing in excess of the statutory maximum penalty applicable to the offense of conviction.”). The government also claims that all of the Defendants have failed to preserve their Apprendi challenges by not raising them before the district court at the time of sentencing. While we disagree with the government as to the Benfords’ Apprendi challenge, we agree that the remaining Defendants failed to preserve their claimed error for appeal, and we will review any error they raise only for plain error. Most circuits have held that to preserve an Apprendi challenge for purposes of appeal, a defendant must raise some sort of constitutional objection before the district court. See, e.g., United States v. Candelario, 240 F.3d 1300 (11th Cir.2001) (distinguishing between the “evi-dentiary objection” of challenging drug quantities in a presentence investigation report and a formal constitutional objection that the drug quantity must be determined beyond a reasonable doubt under Apprendi or Jones). However, this Court has held that a defendant’s “repeated” objection to the method of drug calculation below suffices to preserve Apprendi error on appeal. See United States v. Strayhorn, 250 F.3d 462, 467 (6th Cir.2001). Specifically, in Strayhom, we considered the appropriate standard of review for the case of a defendant who brought a seemingly belated constitutional challenge to his sentence on direct appeal. Apprendi was decided after the Defendant’s sentencing hearing and subsequent to briefing on appeal. Thus, he raised the constitutional challenge to his sentence for the first time at oral argument. We dismissed the notion that the constitutional issue had been waived and instead held that, because the defendant was asserting a new constitutional rule that was decided while his case was pending, Apprendi should apply retroactively to his case. Strayhorn, 250 F.3d at 467 (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)) (holding that appellate courts should apply the new constitutional rules retroactively to cases still on direct review). We further found that, because the defendant had steadfastly challenged the district court’s drug quantity determination and the amounts attributed to him in the presentence investigation report (“PSIR”), his failure to articulate a constitutional challenge at trial did not require application of the plain error standard of review: [T]he record makes plain that Strayhom preserved his [constitutional] challenge by repeatedly objecting to the drug quantity determination at his plea hearing and at his sentencing hearing, as well as in a written objection to the calculation of his base offense level in his presentence report. Although he did not utter the words ‘due process’ at either of these hearings, he made it well known that he disputed the district court’s factual finding with respect to drug quantity. Strayhorn, 250 F.3d at 467 (emphasis added). Based upon this reasoning, we reviewed the defendant’s constitutional challenge de novo. Id. (citing United States v. Lloyd, 10 F.3d 1197, 1220 (6th Cir.1993) (holding that constitutional challenge to sentences presents a question of law requiring de novo review)). This Court’s most recent explication of preserving Apprendi challenges is found in United States v. Humphrey, 287 F.3d 422 (2002). In that case, much like Strayhom, the defendant did not rely on Apprendi in challenging his sentence before the district court, and indeed could not have because Apprendi was decided after he was sentenced. Id. at 443. However, this Court held that he had preserved his Apprendi challenge, such that de novo review was appropriate, inasmuch as he “objected at the sentencing hearing to both the amount of drugs attributed to him and the standard of proof required to support that amount.” Id. We noted in Humphrey that while the defendant’s counsel conceded at sentencing that the then current standard of review with respect to drug quantity determinations was preponderance of the evidence, counsel nevertheless “challenged the propriety of that standard.” Id. at 444. We further acknowledged in Humphrey that where a defendant has merely objected to the quantity of drugs attributed to him, Strayhom appears to support the proposition that that alone might suffice to find that an Apprendi challenge is preserved for appeal. Id. at 446. However, rather than relying on Strayhom, we held in Humphrey that the defendant in that case had raised much more than an objection to drug quantity but also to the standard of proof used in making' that determination and thus his Apprendi challenge was preserved. Id. at 446. In determining the appropriate standard of review for purposes of this appeal, this panel is of course bound by our holdings in cases such as Humphrey and Strayhom. See United States v. Jenkins, 4 F.3d 1338, 1345 n. 8 (6th Cir.1993) (explaining that one panel of the Court is bound by another panel’s holdings but not its dicta). Both Nathan and Rena Benford raised constitutional objections to their respective sentences based upon the Supreme Court’s holding in Jones, which was decided subsequent to trial, but prior to their sentencing, and clearly preserved their Apprendi challenge for our review. Humphrey, 287 F.3d at 446. While before the district court, the Benfords contended that the Jones decision required that the drug amounts be charged in their indictments or be otherwise presented to a jury to be decided beyond a reasonable doubt. The district court overruled these objections, and instead determined the relevant drug quantities by a preponderance of the evidence. The Benfords now seek reversal under Apprendi and Jones. Rossell pleaded guilty to the drug conspiracy charge. Although he submitted written challenges to the PSIR’s calculation of certain amounts of drug quantities attributed to him, he at no time “challenged the propriety” of the district court’s using the preponderance of the evidence standard of review to determine drug quantity. Humphrey, 287 F.3d at 444. Likewise, Tramble and Stewart submitted written objections to their PSIRs, challenging certain specific quantities of drugs attributed to them, while failing to challenge other such quantities. While Stray-hom might appear to support the argument that any challenge to the quantity of drugs attributed to a defendant is sufficient to preserve Apprendi error, Stray-hom is distinguishable from the instant case. As we explained in that case, the defendant’s argument was preserved although “he did not utter the words due process.’ ” 250 F.3d at 467. Indeed, it would have been pointless for his counsel to have done so inasmuch as neither Ap-prendi nor Jones had been decided by the time Defendant was sentenced. See, e.g., United, States v. Jordan, 291 F.3d 1091, n. 4 (9th Cir.2002) (reviewing Apprendi challenge de novo where defendant argued in district court that Jones required that drug quantity be alleged in the indictment and proved beyond a reasonable doubt); United States v. Nance, 236 F.3d 820, 823-24 (7th Cir.2000) (reviewing Apprendi challenge for plain error where defendant could have, but failed to rely on Jones to preserve argument for appeal). This case, however, is similar to our decision in United States v. King, 272 F.3d 366 (6th Cir.2001). In that case, after a jury trial, the defendants were convicted of and sentenced for conspiracy to distribute and possess with intent to distribute methamphetamine. Id. at 370. Drug quantity was neither alleged in the indictment nor submitted to the jury for a reasonable doubt determination. Id. at 374. Despite the fact that one of the defendants objected in the district court to the exact quantity of drugs attributed to him, arguing that the appropriately attributable amount was closer to 300 grams than one kilogram, we reviewed his Apprendi-based challenge to his sentence for plain error inasmuch as he failed to raise arguments based on Jones or Apprendi in the district court. Id. at 374-75. We believe the same reasoning applies to Rossell, Tramble and Stewart. Although all three challenged certain quantities of drugs attributed to them, none raised constitutional arguments or otherwise challenged the propriety of the evidentiary standard used by the district court in determining drug quantity. Humphrey, 287 F.3d at 444. All three were sentenced after Jones was decided and could have relied on that case, as did the Benfords, to challenge their sentences with regard to the determination of drug quantity on constitutional grounds. King, 272 F.3d at 374-75; Jordan, 291 F.3d at 1095 n. 4; Nance, 236 F.3d at 823-24. Therefore, we will review Rossell, Tramble and Stewart’s Apprendi claims for plain error. C. Nathan Benford and Rena Benford With an unspecified drug quantity, Nathan Benford faced a statutory maximum sentence of thirty years as a prior felony drug offender under § 841(b)(1)(C). However, based on the district court’s drug quantity determinations, Benford was sentenced to a term of imprisonment exceeding the otherwise applicable default statutory maximum. The district court held Benford responsible for 6 kilograms of powder cocaine and 3 kilograms of crack cocaine, thereby exposing him to the penalty provisions of § 841(b)(1)(A), which calls for a mandatory minimum term of twenty years (240 months) imprisonment for individuals who are prior felony drug offenders. Using its drug quantity calculations, the district court eventually sentenced Benford to a mandatory life sentence under the sentencing guidelines. The court also sentenced Benford to a five-year term of supervised release on the drug conspiracy conviction, which is the mandatory minimum under § 841(b)(1)(A). Rena Benford faced a default maximum sentence of twenty years under § 841(b)(1)(C). But the district court held her responsible for 1039 grams (1.39 kilograms) of crack and over 500 grams of powder cocaine, thereby exposing her to punishment under § 841(b)(1)(A), which establishes a minimum sentence of ten years (120 months) imprisonment and a maximum sentence of life imprisonment for defendants without a prior felony drug conviction. Using the sentencing guidelines, the district court ordered Mrs. Ben-ford to serve a term of 365 months imprisonment on the drug conspiracy conviction and five years of supervised release, which is the minimum under § 841(b)(1)(A). Under Apprendi, a defendant may not be exposed to a greater punishment than that authorized by the jury’s guilty verdict. Neuhausser, 241 F.3d at 466 (quoting Page, 232 F.3d at 543). Because the jury did not determine a quantity of drugs beyond a reasonable doubt, the Benfords should have been sentenced under the penalties prescribed under § 841(b)(1)(C). The government contends that the district court, in fact, determined the drug quantities attributable to the Benfords beyond a reasonable doubt. This assertion likely stems from statements the district court judge made at Nathan Benford’s sentencing hearing: I heard about 100 [wiretap] phone calls, I mean. I heard so much evidence of drugs in the conspiracy that, I mean, and it’s not only testimony I heard the phone calls. We all heard a lot of other evidence as well. I mean, we’ve seen real evidence and other evidence in this case. If you want me to say I’m convinced, if you want me to say it, I’m convinced beyond a reasonable doubt that there was drug quantities. I’ve already gone over this and I don’t have to go over those quantities again, I hope, but, I mean, I don’t know what to do, I mean, I heard it all. (Nathan Benford Sentencing Hearing, J.A. at 1492 (emphasis added).) The government argues that the Benfords’ rights were not violated even though the court, rather than the jury, established the drug quantities that permitted sentencing beyond the statutory maximum. Contrary to the government’s arguments, however, such a finding by the district court would not cure the failure to allege the drug quantities in the indictment and having the issue submitted to a jury where there is a jury trial. Ramirez, 242 F.3d at 351; cf. Strayhorn, 250 F.3d at 471 (remanding case to the district court so that court could determine beyond a reasonable doubt the issue of drug quantity where defendant pleaded guilty). In addition, despite the court’s statements during the sentencing hearing, the record reflects that the district court determined the drug quantities attributable to Nathan Benford by a mere preponderance standard, and not beyond a reasonable doubt, due to its belief that the question did not have to be submitted to a jury. Thus, the Benfords’ sentences violated Apprendi. Charles Rossell; Calvin Nelson Tramble; and Suzette Miranda Stewart Rossell, Tramble, and Stewart also each claim that their sentences violated Apprendi While we have some doubt as to whether Apprendi was implicated at all with respect to some of these Defendants’ sentences, we need not reach that issue because Defendants fail to show any claimed Apprendi error warrants correction under plain error review. Rossell pleaded guilty to the drug conspiracy charge. Inasmuch as the drug quantity was neither specified in his indictment, nor in his guilty plea, he faced a maximum sentence of thirty years imprisonment as a repeat felony drug offender under 21 U.S.C. § 841(b)(1)(C). However, when the district court determined by a preponderance of the evidence that his drug quantity was 3.2886 kilograms of cocaine hydrochloride, Rossell was subjected to a sentencing range of 120 months to life imprisonment as a repeat offender under § 841(b)(1)(B), and was sentenced to ten years imprisonment. Tramble also pleaded guilty to the drug conspiracy charge. However, similar to the indictment, his plea agreement did not specify a drug quantity for the drug conspiracy charge. Thus, with his prior felony drug conviction, Tramble was subject to a maximum sentence of 360 months under § 841(b)(1)(C). At sentencing, however, the district court determined that Tramble was responsible for 14.5 kilograms of crack, thereby exposing him to a mandatory minimum sentence of twenty years and a maximum of life imprisonment under 21 U.S.C. § 841(b)(1)(A). Under the sentencing guidelines, Tramble’s sentencing range was 292-365 months. After the government filed a downward departure motion for substantial assistance under USSG § 5K1.1, Tramble was sentenced to a term of 200 months imprisonment and ten years of supervised release, to be served concurrently with a 200-month sentence and three years of supervised release as a result of his guilty plea to aiding and abetting money laundering. With an undetermined drug quantity, Stewart faced a maximum sentence of twenty years under 21 U.S.C. § 841(b)(1)(C). But the district court determined that she was responsible for 807.6 grams of crack cocaine, thereby exposing her to the penalty provisions of § 841(b)(1)(A), which carries a minimum sentence of ten years and a maximum of life imprisonment. Stewart was eventually sentenced to a term of 190 months’ imprisonment and five years of supervised release. On appeal, Stewart claims that her constitutional rights were violated because the indictment did not allege the drug quantity. As explained previously, we need not decide with respect to the issue of drug quantity whether Rossell, Tramble, or Stewart’s sentences violated Apprendi Even assuming that there was error, that was plain and that affected substantial rights, Olano, 507 U.S. at 732, 113 S.Ct. 1770, we still believe these Defendants would not be entitled to relief. This is so because even “[i]f all three [of these] conditions are met, an appellate court may ... exercise its discretion to notice a forfeited error, ... only if ... the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625, -, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002) (emphasis added). In Cotton, the Supreme Court dealt with an issue in a case analogous to the one now before this Court, where drug quantity in a vast drug conspiracy case was neither charged in the indictment nor proven beyond a reasonable doubt. The Court held that because the overwhelming evidence in the record showed that the defendants’ drug conspiracy involved drug quantities well above that necessary to impose sentences under the higher ranges of 21 U.S.C. § 841(b), then despite the fact that Apprendi had been violated, and even assuming the defendants’ substantial rights had been affected, the Court would not address the error because the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Id. at 1786-87. According to the Court, inasmuch as these defendants, who were involved in a wide-spread drug conspiracy, failed to raise their Apprendi argument before the district court, the “real” threat to the judicial proceedings would be to allow them “to receive a sentence prescribed for those committing less substantial drug offenses.” Id. at 1787. Likewise, the overwhelming and largely uncontroverted evidence regarding drug quantity in this vast drug conspiracy to which each of these Defendants pleaded guilty convinces us that affirming their sentences would not seriously affect the fairness, integrity or public confidence of the judicial proceedings. Id. Because the Supreme Court has instructed that under plain error review, we may only correct error that seriously affects the fairness, integrity, or public reputation of judicial proceedings, and we find no such error in this case with respect to these three Defendants, we decline to correct any Ap-prendi error that may have occurred in the imposition of their sentences. D. Having disposed of Tramble, Ros-sell and Stewart’s Apprendi claims, we are left with deciding how to resolve the Benfords’ Apprendi challenges. We have already determined that their sentences violated Apprendi. The government contends, however, that even if the Defendants have valid claims under Apprendi, their judgments should be affirmed because the constitutional errors were harmless. In particular, the government argues, inter alia, that Defendants cannot point to any evidence they would have presented to a jury that could lead to a lower drug amount determination because there was “overwhelming evidence” of the drug quantities, cf. United States v. Duarte, 246 F.3d 56, 62 (1st Cir.2001) (Holding under a plain error analysis that the proof of a defendant’s “complicity in distributing more than 1,000 kilograms of marijuana is so overwhelming that his substantial rights could not have been affected by sentencing him based on that quantity”). Rule 52(a) of the Federal Rules of Criminal Procedure provides that “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), which was decided shortly after Jones, the Supreme Court distinguished between “trial errors” which may be reviewed for harmless error and “structural errors” which are excluded from harmless error review. Structural errors reflect a “defect affecting the framework within which the trial proceeds; rather than simply error in the trial process itself.” Id. at 8, 119 S.Ct. 1827 (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). The Court in Neder recognized that “most constitutional errors can be harmless.” Id. at 8, 119 S.Ct. 1827 (quoting Fulminante, 499 U.S. at 306, 111 S.Ct. 1246). Indeed, “if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.” Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). With these principles in mind, the Supreme Court determined that a district court’s error in failing to charge the jury on an element of an offense is simply an absence of a “complete verdict” on every element of an offense which violates a defendant’s Sixth Amendment right to a jury trial. However, the Court held that failure to deliver a jury instruction was subject to harmless review because the error did not render the trial fundamentally unfair. The Court noted that omission of a jury instruction “differs markedly from the constitutional violations [it has] found to defy harmless-error review.” Neder, 527 U.S. at 8,119 S.Ct. 1827. At least two courts of appeal have held that a failure to allege drug quantity in the indictment is subject to harmless error review. See, e.g., United States v. Adkins, 274 F.3d 444, 454 (7th Cir.2001) (“[I]t is now well established in this circuit that Apprendi errors in both the indictment and the charge to the jury are subject to harmless error analysis”); Sanchez, 269 F.3d at 1272-73 (explaining that failing to submit drug quantity to the jury or include it in the indictment is just an element of the trial process and-does not rise to the level of structural error-harmless error review is appropriate); cf. United States v. Mojica-Baez, 229 F.3d 292, 309-10 (1st Cir.2000) (holding that a failure to include in the indictment the type of weapon involved in the offense under federal firearm statute was not structural error; error did not so “interfere with such basic and fundamental constitutional protections that they go to the structure of our criminal law system”). These courts have essentially determined that where Apprendi error occurs in the indictment, such error is akin to the error in Neder. See, e.g., Sanchez, 269 F.3d at 1272-73. Further, the Second Circuit has held that a failure to allege drug quantity in an indictment or submit the question of drug type or quantity to a jury is subject to plain error review, pursuant to Fed. R.Crim.P. 52(b), when the defendant failed to object to these errors before the district court. See United States v. Thomas, 274 F.3d 655, 659 (2d Cir.2001) (en bane). In Thomas, the Second Circuit overruled a prior circuit panel's holding in another case, which had held that where an element of the offense is not charged in the indictment, the defect is not subject to plain error review inasmuch as the error is jurisdictional. Id. at 659 (overruling United States v. Tran, 234 F.3d 798 (2d Cir.2000)). Similarly, the Tenth Circuit initially held that where the indictment failed to allege drug quantity, such a defect was not subject to plain or harmless error review. See Jackson, 240 F.3d at 1248-49 (rejecting government’s argument that defendant’s 30 year sentence was subject to harmless or plain error review where the indictment failed to include essential element of drug quantity). However, that court has revisited its position regarding indictments that fail to allege essential elements of a crime. See United States v. Prentiss, 256 F.3d 971, 981 (10th Cir.2001) (en banc) (holding that a “failure of an indictment to allege an essential element of a crime does not deprive a district court of subject matter jurisdiction; rather, such failure is subject to harmless error review”). The Tenth Circuit further held that “[t]o the extent that this Court’s prior decisions ... hold otherwise, we overrule them.” Id. The Tenth Circuit also expressly rejected the argument that a failure to allege an essential element of a crime in an indictment necessarily falls into the category of structural error, requiring automatic reversal. Id. at 983-85. Finally, a panel of the Fifth Circuit previously held that where Apprendi error occurs because of a failure to charge drug quantity in the indictment, the error must be corrected inasmuch as the.error is jurisdictional, and a district court only has jurisdiction to sentence a defendant to a sentence equal to or less than the statutory maximum. United States v. Gonzalez, 259 F.3d 355, 360-61 & n. 3 (5th Cir.2001). However, relying on Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860, the Fifth Circuit, sitting en banc, recently overruled Gonzalez, to the extent that case held that an indictment that fails to allege the essential element of drug quantity deprives a court of jurisdiction. United States v. Longoria, 298 F.3d 367 (5th Cir.2002). Although much authority suggests that a failure to allege an essential element of a crime in the Apprendi context is subject to harmless error review, at least one court has reached a different conclusion. The Eighth Circuit has held that where drug quantity is missing from the indictment, harmless or plain error review is inappropriate as to sentences imposed beyond that allowed by 21 U.S.C. § 841(b)(1)(C). See United States v. Maynie, 257 F.3d 908, 920-21 (8th Cir.2001) (holding that Ap-prendi error in indictment is “fundamental,” and that where drug quantity is not alleged in the indictment, error must be corrected). However, it is now settled that the omission of the element of drug quantity from the indictment did not deprive the district court of subject matter jurisdiction over the cases now before us. See Cotton, 535 U.S. at -, 122 S.Ct. at 1784 (rejecting Fourth Circuit’s holding that failure to allege drug quantity in an indictment is jurisdictional, such that it deprives a court of jurisdiction to impose a sentence for an offense not charged in the indictment). “Jurisdiction is the power to decide a justi-ciable controversy, and includes questions of law as well as fact .. . [and] even the unconstitutionally of the statute under which the proceeding is brought does not oust a court of jurisdiction.” United States v. Williams, 341 U.S. 58, 66, 71 S.Ct. 595, 95 L.Ed. 747 (1951) (citations omitted); Cotton, 535 U.S. at -, 122 S.Ct. at 1785 (explaining that jurisdiction means “the courts’ statutory or constitutional power to adjudicate the case”). Pursuant to 18 U.S.C. § 3231, district courts “have original jurisdiction ... over all offenses against the laws of the United States.” Id. “[Ejrrors in a non-frivolous indictment do not strip the district court of jurisdiction under § 3231.” United States v. Bjorkman, 270 F.3d 482, 490 (7th Cir.2001). Therefore, “[an indictment’s failure to allege an element of a crime is not jurisdictional in the sense that it affects a court’s subject matter jurisdiction, i.e., a court’s constitutional or statutory power to adjudicate [the] case....]” Prentiss, 256 F.3d at 982 (quoting United States v. Martin, 147 F.3d 529, 532 (7th Cir.1998)). We also decline to categorize the omission from the indictment that occurred in these cases as structural error. The Supreme Court has identified “a limited class of fundamental constitutional errors that defy analysis by harmless error standards.” Neder, 527 U.S. at 7, 119 S.Ct. 1827 (internal quotation marks omitted). Structural errors require automatic reversal, despite the effect of the error on the trial’s outcome. Id. As for all other errors, “courts must apply Fed.R.Crim.P. 52(a)’s harmless error standards, and disregard errors that are harmless beyond a reasonable doubt.” Neder, 527 U.S. at 7, 119 S.Ct. 1827 (emphasis in the original). The error complained of in the instant case is not among those listed in Neder that classify as structural. As previously mentioned, structural “errors infect the entire trial process ... and ‘necessarily render a trial fundamentally unfair....’” Neder, 527 U.S. at 8, 119 S.Ct. 1827 (citations omitted). In other words, structural errors “deprive defendants of ‘basic protections’ without which ‘a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence ... and no criminal punishment may be regarded as fundamentally fair.’ ” Id. at 8-9, 119 S.Ct. 1827; Sanchez, 269 F.3d at 1272-73. In Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860, the Supreme Court declined to address the defendants’ argument that the failure to allege drug quantity in the indictment was structural error. Id. at 1786. As we previously explained, on plain error review, the Court instead assumed the error affected the defendants’ substantial rights but found that the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Id. However, the fact that the Court declined to notice the error under plain error review supports the view that such error was not necessarily “structural” requiring automatic reversal, inasmuch as it is difficult to imagine that an error that “necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence,” such that “no criminal punishment may be regarded as fundamentally fair,” Neder, 527 U.S. at 8-9, 119 S.Ct. 1827, does not also “seriously affect the fairness, integrity, or public reputation of judicial proceedings,” Cotton, 535 U.S. at -, 122 S.Ct. at 1786. This reasoning is buttressed by the Supreme Court’s decision in Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), in which the issue of materiality in a perjury prosecution was decided by the district court rather than the jury. Id. at 464, 117 S.Ct. 1544. Under the law that existed at the time of trial, the district court instructed the jury that it did not have to decide the issue of materiality. Id. Reviewing the issue for plain error, the Supreme Court reserved the decision as to whether the error affected substantial rights, but ultimately decided not to notice the error inasmuch as it did not seriously affect the fairness, integrity or public reputation of judicial proceedings because the evidence pertaining to materiality was overwhelming and essentially uncontroverted. Id. at 469-70, 117 S.Ct. 1544. The Court later noted in Neder, when analyzing whether omission of an element of the offense from jury instructions was structural error, that the conclusion reached in Johnson “cuts against the argument that the omission of an element will always [or necessarily] render a trial unfair.” Neder, 527 U.S. at 9,119 S.Ct. 1827 (emphasis in the original). Likewise, the Supreme Court’s holding that the erroneous omission of drug quantity from the indictment does not seriously affect the fairness, integrity or public reputation of judicial proceedings, lends strong support for the proposition that such error is not structural and will not always or necessarily render a criminal trial unfair. After all, structural error is not to be determined on a case-by-case basis. Id. at 14, 119 S.Ct. 1827. “[A] constitutional error is either structural or it is not.” Id. The Supreme Court’s approach to such errors has been categorical. Id. Inasmuch as only a limited class of “fundamental constitutional errors” defies harmless error review, and all other constitutional errors are subject to such review, id. at 7, 119 S.Ct. 1827, we believe harmless error analysis is appropriate under the facts of this case. Finally, King, 272 F.3d 366, supports the view that harmless e