SLOVITER, Circuit Judge, dissenting, with whom Judges MANSMANN, NYGAARD, and McKEE join, and with whom Judges ROTH and RENDELL join as to Part I.

The majority's opinion is based on the following logic: Vazquez was convicted after a jury trial of conspiracy to possess and distribute more than 5 kilograms of cocaine in violation of 21 U.S.C. §§ 846 and 841 respectively; the jury was instructed to find whether Vazquez conspired to possess and distribute cocaine but was not instructed to find the quantity of cocaine involved; following the Supreme Court's opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), a jury is required to find beyond a reasonable doubt any fact that increases the prescribed range of penalties to which the defendant is exposed by the jury's verdict; in this case the jury's verdict exposed Vazquez to sentencing under § 841(b)(1)(C) for which the maximum penalty is 20 years (240 months) imprisonment; the trial judge, applying a preponderance of the evidence standard, determined that Vazquez had been involved with 992 grams of powder cocaine and 859 grams of crack cocaine and therefore sentenced Vazquez to 292 months imprisonment; this constituted a violation of Apprendi, but the court will affirm because Vazquez didn't contest the amount of drugs at trial, and the court is confident that the jury would have made the same determination that the trial judge made, so the Apprendi violation was not plain error.

There are many bases on which one might take issue with the logic of the majority's opinion, but I begin by approaching the majority's opinion on its own terms. That requires consideration of whether the Apprendi violation can meet the plain error inquiry.

I. A. The Apprendi Decision

Apprendi, who had fired several shots into the home of an African-American family, was charged in state court with, inter alia, two counts of second-degree possession of a firearm for an unlawful purpose and one count of third-degree unlawful possession of an antipersonnel bomb. Under New Jersey law, a second-degree offense carries a penalty range of 5 to 10 years of imprisonment. After Apprendi pleaded guilty to these counts pursuant to a plea agreement, the prosecutor, as permitted by that agreement, filed a motion to enhance Apprendi's sentence under New Jersey's hate crime statute which authorized an enhanced sentence upon the finding of a trial judge, by a preponderance of the evidence, that the defendant committed the crime with a purpose to intimidate a person or group because of race. See N.J. Stat. Ann. § 2C:44-3(e) (West Supp. 1999-2000). Based on Apprendi's own statements made after his arrest, the trial court found that the shooting was racially motivated and sentenced him to 12 years of imprisonment. Apprendi appealed his sentence through the New Jersey courts, contending that the Due Process Clause requires that racial bias be proven to a jury beyond a reasonable doubt, but they upheld the enhanced sentence.

The United States Supreme Court reversed. In reaching its conclusion, the Court noted among the "constitutional protections of surpassing importance" the provision of the Fourteenth Amendment that liberty can be deprived only with due process and the Sixth Amendment guarantee of a trial by jury, which entitle the defendant to a jury determination that s/he is guilty of every element of the crime beyond a reasonable doubt. Apprendi, 530 U.S. at 476, 120 S.Ct. 2348. The Court cited to its earlier decision in In re Winship, where it stated: "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Id. at 477, 120 S.Ct. 2348 (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)) (brackets omitted).

The Apprendi Court examined the historical underpinnings of these principles and, while recognizing that discretion had been accorded to trial judges in their sentencing decisions, reasoned that such discretion cannot deprive a defendant at the time of sentencing "of protections that have, until that point, unquestionably attached." Id. at 484, 120 S.Ct. 2348.

Finding that the New Jersey statutory scheme under which a judge may enhance the punishment based on a finding by a preponderance of the evidence violated due process, the Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. 2348. In doing so, the Court rejected New Jersey's argument that racial bias was only a sentencing factor and not an element of the crime, stating: "the relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" Id. at 494.

B. Vazquez's Sentence

The count of the Superseding Indictment on which Vazquez was tried and found guilty, and which is at issue here, charges him with conspiracy to possess with intent to distribute, and to distribute, more than 5 kilos of cocaine in violation of 21 U.S.C. § 841, and, following the setting forth of 10 paragraphs constituting the Overt Acts, states, "All in violation of Title 21 United States Code, Section 846."

Section 841(a) is entitled "Unlawful acts" and provides that "it shall be unlawful for any person knowingly or intentionally — (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." Section 841(a) does not prescribe penalties. It is § 841(b), entitled "Penalties," that prescribes the range of penalties for certain quantities of controlled substances. Under § 841(b)(1)(A)(iii), the sentence for a defendant convicted of violating § 841(a) with 50 grams or more of a mixture containing cocaine base (i.e., crack cocaine) is not less than 10 years of imprisonment and no more than life. The sentence under § 841(b)(1)(B)(iii) for a defendant with 5 grams or more of a mixture containing cocaine base is not less than 5 years and not more than 40 years of imprisonment. Section 841(b)(1)(C), often referred to as the catch all provision, contains no drug quantity requirement and provides a maximum possible sentence of 20 years of imprisonment.

The majority concedes that § 841(b)(1)(C) "defines Vazquez's prescribed statutory maximum sentence as 20 years." Maj. Op. at 99. The majority then states: "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." Maj. Op. at 99. Surprisingly, it does not remand so that Vazquez can be resentenced to a sentence that does not exceed the maximum authorized by the statute. Instead, it devises a rationale to affirm the sentence that was arrived at in an unconstitutional manner.

I do not understand why the majority's disposition is appropriate, necessary, or just. I note that in Apprendi, the Supreme Court, after finding that the procedure that led to the enhancement of Apprendi's sentence was unconstitutional, reversed and remanded. Of course, Apprendi came to the Court from the New Jersey Supreme Court, not from a federal court, but I see no justification in Apprendi itself for us to do anything different with a District Court judgment.

The majority, however, after noting that Vazquez did not challenge the evidence of drug quantity or object to the court's failure to submit the issue to the jury, sustains the sentence that was unconstitutionally enhanced by applying the plain error standard. Under Rule 52(b) of the Federal Rules of Criminal Procedure, "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." In United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Supreme Court explained that there must be (1) "error," (2) that is "plain," and (3) that "affect[s] substantial rights." Id. at 732, 113 S.Ct. 1770 (quotation marks omitted). The appellate court will then have discretion to correct such an error if it (4) "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. (quotation marks omitted).

The majority agrees that in sentencing Vazquez, the court committed error and that it was plain. It concludes that the error was harmless because Vazquez cannot show that the error affected his substantial rights. The majority bases that conclusion on its determination that the evidence established that Vazquez sold more than 5 grams, which is sufficient to carry a statutory maximum penalty under 21 U.S.C. § 841(b)(1)(B)(iii) of 40 years imprisonment, more than the 24 plus years to which he was sentenced. The majority states that based on its consideration of the evidence "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." Maj. Op. at 103-104. Therefore, the majority concludes that the Apprendi error did not affect Vazquez's substantial rights.

Completing its plain error inquiry, the majority holds that even if the Apprendi violation affected Vazquez's substantial rights, he cannot establish the fourth factor, i.e., that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. The majority so holds because, it says, Vazquez was the leader of a drug trafficking operation that distributed cocaine in Lancaster County, and a rational jury would certainly have found that he conspired to possess and distribute more than the amount necessary to support a "slightly more than 24-year sentence pursuant to § 841(b)(1)(B)'s 5-to-40-year sentencing range." Maj. Op. at 105.

C. The Substantial Rights Inquiry

I agree with the majority that there was error in sentencing Vazquez and that it was plain. I disagree that the error did not affect Vazquez's substantial rights. Under the plain error inquiry, "the error must have been prejudicial: It must have affected the outcome of the district court proceedings." Olano, 507 U.S. at 734, 113 S.Ct. 1770. It is the defendant who bears the burden of persuasion. See id. Vazquez's sentence to more than 24 years imprisonment, which exceeds the statutory maximum of 20 years imprisonment under § 841(b)(1)(C) authorized by the jury verdict, clearly affects Vazquez's substantial rights. An error that will cause a defendant to spend four plus years more in prison than statutorily authorized by the jury's verdict necessarily adversely affects the defendant's substantial rights.

I find it curious that the majority never acknowledges that additional time in prison could affect substantial rights. In other contexts, courts of appeals have not hesitated to conclude that an error resulting in an increase in the defendant's sentence affected the defendant's substantial rights. See, e.g., United States v. Anderson, 201 F.3d 1145, 1152 (9th Cir. 2000) ("An error that results in a longer sentence undoubtedly affects substantial rights."); United States v. Martinez-Rios, 143 F.3d 662, 676 (2d Cir. 1998) (finding clerical error which increased defendant's sentence by several months to affect substantial rights). Indeed, the Supreme Court recently held in Glover v. United States, 531 U.S. 198, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001), that an increase in a defendant's sentence of at least six months was prejudicial in relation to an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Of relevance here, the Court noted that "any amount of actual jail time has Sixth Amendment significance." Glover, 531 U.S. at 203, 121 S.Ct. 696; see also United States v. Knight, 2001 WL 1042458, (3d Cir. Sept.6, 2001) (holding application of an incorrect sentencing guideline range affected substantial rights and was plain error even though sentence was also within correct range).

In Apprendi violation cases, numerous courts have recognized that extra prison time affects substantial rights. In United States v. Nordby, the Ninth Circuit stated that "[f]ive additional years of imprisonment were imposed beyond that authorized by this verdict, which easily affected [defendant's] substantial rights." 225 F.3d 1053, 1060 (9th Cir. 2000). It reiterated that holding the following year in United States v. Buckland, 259 F.3d 1157, 2001 WL 893440, *9, reh'g en banc granted, 2001 WL 1091167 (9th Cir. 2001) ("Imposing a sentence that is seven years more than the maximum sentence constitutionally permitted under the facts as found by the jury undoubtedly 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'"). Morever, the Tenth Circuit in United States v. Jones, 235 F.3d 1231 (10th Cir. 2000), recognized that it "regularly has found reversible error when the sentence imposed by the district court exceeded the statutory maximum penalty applicable to the offense of conviction." Id. at 1238. Even courts that did not ultimately reverse on the basis of an Apprendi error have recognized that prison sentences in excess of the applicable maximum affect substantial rights. See United States v. Promise, 255 F.3d 150, 150, 160-61 (4th Cir. 2001); see also United States v. Mietus, 237 F.3d 866, 875 (7th Cir. 2001) (assuming that Apprendi error that increased defendant's sentence by over 7 years affected his substantial rights); Nance, 236 F.3d at 825-26 (same).

Because the majority opinion would leave intact a sentence beyond the statutory maximum that was not based on a jury finding under the beyond-a-reasonable-doubt standard, thereby ignoring established constitutional principles, I cannot see how the effect could be other than to impugn the "fairness, integrity and public reputation" of the judicial process. The fact that the majority condones a process by which a judge usurped a determination within the jury's province strikes at the reputation of the judicial proceedings here. Cf. Apprendi, 530 U.S. at 498, 120 S.Ct. 2348 (Scalia, J. concurring) ("Judges, it is sometimes necessary to remind ourselves, are part of the State. . . . The founders of the American Republic were not prepared to leave [criminal justice] to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free.") (parenthesis omitted).

In determining that Vazquez's substantial rights were not affected, the majority relies on the Supreme Court's decisions in Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), and Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), where the Court held that erroneous jury instructions did not require reversal. However, the substantial rights inquiry in those cases was not the same as it is here.

In Johnson, the trial judge had instructed the jury that the materiality of the statements was an issue for the judge and not the jury to decide, and the defendant did not object to this instruction. Johnson, 520 U.S. at 463, 117 S.Ct. 1544. After Johnson's conviction, the Supreme Court decided United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), which held that the materiality of a false statement must be decided by a jury. Johnson, 520 U.S. at 463, 117 S.Ct. 1544. The Supreme Court held that Johnson had not established the fourth prong of the plain error standard — that the error seriously affected the fairness, integrity or public reputation of judicial proceedings. In so holding, the Court noted that the evidence supporting materiality was overwhelming and that the defendant presented no plausible argument that her false statements under oath were not material. See id. at 470, 117 S.Ct. 1544.

In Neder, the error was similar, i.e., the trial court's failure to charge the jury on the materiality of the false statements or omissions for which the defendant was convicted. The defendant in Neder had objected to the instruction, so the Court's discussion on prejudice was in the context of a harmless error analysis. See 527 U.S. at 6-7, 15, 119 S.Ct. 1827. The Court held there was overwhelming evidence of the materiality of the statements, and hence the omission of the charge was harmless error. See id. at 16-20, 119 S.Ct. 1827.

In neither case was the sentence at issue; rather the issue was whether to uphold or reverse the jury's verdict of guilt. Here, we must decide whether an increase in prison time as a result of the error affects the defendant's substantial rights. As a result, those cases are inapposite here.

Instead of affirming the sentence on the ground that Vazquez's substantial rights were not affected, as the majority does, I would follow the disposition recently reached by some of our sister circuits who, after finding an Apprendi error in sentencing the defendant, vacated the sentence and remanded for resentencing within the statutory maximum sentence authorized by the jury verdict. See, e.g., United States v. Martinez, 253 F.3d 251, 255-56 (6th Cir. 2001) (vacating the defendants' sentences and remanding for resentencing because the sentences exceeded the maximum sentence authorized by the jury verdict by 12 and 15 years respectively); United States v. Ray, 250 F.3d 596, 603 (8th Cir. 2001) (remanding for resentencing because the defendant's 97-month sentence of imprisonment exceeded the statutory maximum of 60 months); United States v. Velazquez, 246 F.3d 204, 218-19 (2d Cir. 2001) (vacating the defendant's sentence and remanding for sentencing because the sentence exceeded by four months the maximum that could be imposed without a jury determination of an element of the crime); United States v. McWaine, 243 F.3d 871, 875-76 (5th Cir. 2001) (vacating the sentence and remanding for resentencing because the defendant's life sentence exceeded the 20-year statutory maximum sentence authorized by the jury); United States v. Jones, 235 F.3d 1231, 1238 (10th Cir. 2000) (remanding for resentencing because the actual sentence of 30 years exceeded the 20-year statutory maximum sentence authorized by the jury verdict); United States v. Nordby, 225 F.3d 1053, 1060 (9th Cir. 2000) (remanding for resentencing because "[f]ive additional years of imprisonment were imposed beyond that authorized by this verdict, which easily affected [defendant's] substantial rights."). Although not every court that has found an Apprendi violation followed the course of these cases, I believe that course is the one demanded by justice.

II.

In reaching its conclusion to affirm Vazquez's sentence, the majority rejects Vazquez's argument that the Apprendi error was a structural defect. Structural defects are per se prejudicial and pretermit the substantial rights inquiry. Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). The majority reasons that " Apprendi violations result in both trial and sentencing errors, albeit ones that rise to a constitutional dimension," Maj. Op. at 104; that the Supreme Court has instructed that most constitutional errors can be harmless; that both trial errors and sentencing errors have been subjected to harmless or plain error analysis; and that therefore "an Apprendi violation is not a structural defect." Maj. Op. at 104.

I believe the majority's syllogism is flawed and that the issue of an Apprendi violation as a structural defect merits more analysis than has been given to it in the cases, including even those cases that have reversed sentences imposed in violation of Apprendi and remanded for resentencing.

In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), even though the Court held that constitutional errors could be harmless, it also recognized that there are some constitutional errors that are not subject to harmless error analysis. Chief Justice Rehnquist referred to them in Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), as involving rights "so basic to a fair trial that their infraction can never be treated as harmless error." Id. at 308, 111 S.Ct. 1246 (quoting Chapman, 386 U.S. at 23, 87 S.Ct. 824). Structural defects occur in a limited class of cases, such as where there has been a complete denial of counsel, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), a biased trial judge, see Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), unlawful exclusion of grand jurors of defendant's race, see Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986), denial of self-representation, see McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), denial of public trial, see Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), or a defective reasonable-doubt instruction to the jury, see Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). Such errors have been termed "structural" because each involves a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Johnson, 520 U.S. at 468, 117 S.Ct. 1544 (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)).

Perhaps the Sullivan case best illustrates a structural error. As explained in Justice Scalia's opinion for a unanimous Court, a constitutionally defective reasonable-doubt instruction violated the Sixth Amendment right to trial by jury, a right that is "'fundamental to the American scheme of justice.'" 508 U.S. at 277, 113 S.Ct. 2078 (quoting Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)).

Sullivan was convicted by a jury following a charge that defined a reasonable doubt in terms of "a grave uncertainty," a definition that did not meet constitutional standards. Justice Scalia began his discussion why such an error was not amenable to harmless-error analysis with the principle that the most important element in the Sixth Amendment right to trial by jury is "the right to have the jury, rather than the judge, reach the requisite finding of 'guilty.'" Id. He continued, "although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence." Id. (emphasis added).

Having established the constitutional principle, he then considered whether the Court could uphold the jury verdict on the basis of harmless error, stating that "[h]armless-error review looks . . . to the basis on which 'the jury actually rested its verdict.'" Id. at 279, 113 S.Ct. 2078 (alteration in original) (quoting Yates v. Evatt, 500 U.S. 391, 404, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991)). The inquiry "is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." Id. "That must be so, because to hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the findings to support that verdict might be — would violate the jury-trial guarantee." Id.

It appears that the majority in this case rejects the possibility that the Apprendi violation was a structural defect by reliance on the Supreme Court's decisions in Johnson and Neder. Johnson had argued that the error, the failure to instruct the jury that it must decide the materiality of the false statements, was a structural defect and therefore outside the scope of Rule 52(b). The Johnson Court stated that "[i]t is by no means clear" whether the failure to submit an element of the offense to the jury was a structural error. 520 U.S. at 469, 117 S.Ct. 1544. It continued, " Sullivan v. Louisiana, the case most closely on point, held that the erroneous definition of 'reasonable doubt' vitiated all of the jury's findings because one could only speculate what a properly charged jury might have done." Id. The Court then noted that the failure to submit materiality to the jury "can just as easily be analogized to improperly instructing the jury on an element of the offense, an error which is subject to harmless-error analysis, as it can be to failing to give a proper reasonable-doubt instruction altogether." Id. (citations omitted). The Court did not resolve this question because it affirmed the conviction notwithstanding the error on the ground that Johnson had not established the fourth prong of the plain error standard. Id. at 469-70, 117 S.Ct. 1544.

In Neder, the Court undertook the analysis of structural defects it avoided in Johnson. The Court considered and rejected the defendant's argument that the error — the trial court's omission of an element of the offense from the jury instruction — was a structural defect. 527 U.S. at 8-15, 119 S.Ct. 1827. The Court reviewed the numerous cases in which it held that various trial errors were not structural defects. Among those were cases dealing with improperly instructing the jury on an element of the offense, see California v. Roy, 519 U.S. 2, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996), erroneous mandatory conclusive presumptions, see Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989), and erroneous mandatory rebuttable presumptions, see Yates v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991). Similarly, it noted that the Court had previously held that harmless-error analysis applies to the erroneous admission of evidence in violation of the Fifth Amendment's guarantee against self-incrimination, see Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), and the erroneous exclusion of evidence in violation of the Sixth Amendment right to confront witnesses, see Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

The error in Neder's case was not a structural defect because it "[did] 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 (emphasis omitted). That is, "where 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." Id. at 17, 119 S.Ct. 1827.

Therefore, if the majority is correct that the error here was the failure to submit an element of the offense to the jury, then there would be no basis to argue that the error in this case was a structural defect. However, I believe that an Apprendi error is an error of a different dimension. There were at least two constitutional violations identified in Apprendi. One dealt with the issue of the respective roles of the jury and judge. See Apprendi, 530 U.S. at 477, 120 S.Ct. 2348. The other dealt with the standard of proof, the requirement that the government prove a criminal defendant guilty beyond a reasonable doubt. See id. at 478, 120 S.Ct. 2348. It is arguable that after Neder, a trial error that enables a judge, rather than a jury, to determine one of the elements of the offense is not a structural defect, although Justice Scalia's dissent in Neder persuades me (albeit not a majority of the Court) that it should be so regarded.

In his Neder opinion, Justice Scalia characterized Johnson as standing "for the proposition that, just as the absolute right to trial by jury can be waived, so also the failure to object to its deprivation at the point where the deprivation can be remedied will preclude automatic reversal." Neder, 527 U.S. at 35, 119 S.Ct. 1827. Following Justice Scalia's reading of Johnson in Neder, one might argue that even if Vazquez waived his jury trial right by failing to contest the trial court's arrogation of the jury's obligation to decide drug quantity, an element of the crime, this case is unlike both Johnson and Neder because an Apprendi violation also implicates the right to be convicted under a beyond-a-reasonable-doubt standard.

Nothing in either Johnson or Neder, or any other case of which I am aware, justifies treating the failure to apply the beyond-a-reasonable-doubt standard to drug quantity as anything other than a structural defect. That failure, I believe, is comparable to the structural defect in the constitutionally deficient beyond-a-reasonable-doubt instruction found in Sullivan. The Due Process Clause, Sullivan explains, requires that the prosecution persuade the factfinder "beyond a reasonable doubt" of the facts necessary to establish all elements of the offense. 508 U.S. at 277-78, 113 S.Ct. 2078. If there is no jury verdict finding petitioner guilty beyond a reasonable doubt, "[t]he most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt." Id. at 280, 113 S.Ct. 2078. "That," said the Court in Sullivan, "is not enough." Id. And further, "[t]he Sixth Amendment requires more than appellate speculation about a hypothetical jury's action, or else directed verdicts for the State would be sustainable on appeal." Id.

In Apprendi, the Court discussed separately the two rights — the one that requires trial by jury and "the companion right to have the jury verdict based on proof beyond a reasonable doubt." 530 U.S. at 478, 120 S.Ct. 2348. The Court commented, "The 'demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula "beyond a reasonable doubt" seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.'" C. McCormick, Evidence § 321, pp. 681-682 (1954); see also 9 J. Wigmore, Evidence § 2497 (3d ed. 1940). Id. (quoting In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). Apprendi reaffirmed the pronouncement in Winship that "the 'reasonable doubt' standard among common-law jurisdictions 'reflect[s] a profound judgment about the way in which law should be enforced and justice administered.'" Id. (quoting Winship, 397 U.S. at 361-62, 90 S.Ct. 1068) (quotation omitted).

In the Supreme Court cases discussing structural defects, the Court consistently lists among the errors that it has found to be structural the defective reasonable-doubt instruction in Sullivan. It did so in Johnson and it did so in Neder. See Neder, 527 U.S. at 8, 119 S.Ct. 1827; Johnson, 520 U.S. at 469, 117 S.Ct. 1544. In contrast, in Vazquez's case, the trial judge made the finding of drug quantity by a preponderance of the evidence. It is the majority that first applies the beyond-a-reasonable-doubt standard to drug quantity.

While it is true that the jury made findings sufficient to sustain a § 841(b)(1)(C) verdict under a beyond-a-reasonable-doubt standard, it did not so find as to the amount of drugs under any other provision of § 841(b). It is this defect, which, while it did not "infect the entire trial process," Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), as most structural defects have done, infected the portion of the criminal proceedings at issue here, i.e., the sentence, and I see no reason why the same structural defect analysis that applies in the other cases which the Court agrees defy harmless-error review would not apply to the sentence. I believe that the majority opinion undermines, indeed nullifies, the long tradition in American constitutional criminal jurisprudence that it is the jury, rather than the judge, that must determine the offense for which the defendant has been sentenced and that it must so find beyond a reasonable doubt. I would therefore hold that we must remand for a new sentencing hearing.

RENDELL, Circuit Judge, dissenting.

I agree with Part I of Judge Sloviter's dissent. I write separately to express my view that the majority has written a new chapter in the book of plain error review of sentencing, and, I further suggest, has rewritten Apprendi and Williams.

In Apprendi, the Supreme Court held that the New Jersey statutory scheme "cannot stand," because, after the jury convicted the defendant of a second degree offense, the statute allowed a judge to impose punishment identical to what New Jersey provides for crimes of the first degree, provided that the judge found, by a preponderance of the evidence, that the defendant's purpose for unlawfully possessing the weapon was to intimidate his victim on the basis of a particular characteristic the victim possessed. 530 U.S. at 491-92, 120 S.Ct. 2348. In Williams, we determined that an Apprendi error will only be found to have occurred if the judge actually imposes a sentence that is above a certain threshold, namely, the maximum sentence allowable for the crime of which the defendant was convicted. 235 F.3d at 863.

I submit that we ignore the teachings of both of these cases in issuing the majority opinion today. I say this because we are advocating the judicial determination of the proof that supports a certain sentence, contrary to the specific dictates of Apprendi, and we are forgetting that, in Williams, our analysis was based upon our view that an Apprendi error is a sentencing error, not an error that occurs at trial. I submit that the majority opinion writes a new chapter regarding plain error analysis in the sentencing context, because the law as it presently exists requires resentencing in the event that a sentence has been imposed in violation of the law, 18 U.S.C. § 3742, and even under the microscope of plain error review, we have had little difficulty noticing an error and remanding cases for resentencing where substantial rights were affected and the integrity of our system had been undermined by illegal sentences.

Today, we are not requiring a new sentencing proceeding, nor are we even saying that a new trial should occur, which could arguably follow from the logic and language of Apprendi. Rather, we search for a way to uphold an offensive, unconstitutional sentence, although there is no intimation in Apprendi that such a sentence can ever be countenanced, in the first instance, let alone preserved by the jurists' view of what may have occurred.

The majority's discussion of the "substantial rights" or "prejudice" inquiry that we must make under plain error review does not focus on the tenor and logic of the Supreme Court's opinion in Apprendi, but, rather, it reaches out and follows the reasoning of Johnson and Neder. However, in doing so, the majority overlooks the fact that the Supreme Court in Apprendi never alludes to Johnson or Neder, and we, in Williams, never intimated that this is an appropriate exercise. I submit that we were right in not doing so, since Johnson and Neder involved trial errors rather than sentencing errors such as that implicated in Apprendi and the instant case. Thus, the Court's method of analysis in those cases cannot be so easily imported into this distinctly different situation.

In Johnson, the error at issue was the district court's failure, in a perjury prosecution, to submit the issue of materiality of the false statements to the jury. 520 U.S. at 467, 117 S.Ct. 1544. Rather than having the jury decide that issue, the district court instructed the jury that it had determined that the defendant's statements were material, and the defendant did not object to the instruction as such. On appeal, the defendant claimed that the district court committed plain error in failing to submit the issue of materiality to the jury, and that the error "rendered her conviction invalid" under Supreme Court precedent. Id. at 464, 117 S.Ct. 1544. The Supreme Court rejected that argument, and found that the error, while "plain," did not warrant correction under the last prong of Olano because there was "overwhelming" and "uncontroverted" evidence that the statement was material, and thus, the "fairness, integrity or public reputation of the judicial proceedings" would not be seriously affected by its failure to correct the error. Id. at 470, 117 S.Ct. 1544. The Court expressly noted the fact that correcting the error in such a case would yield the opposite result because it would require "the reversal of a conviction." Id. Neder involved the same error — the failure to submit the element of materiality to the jury — and the Court there determined that the error was subject to harmless error review. 527 U.S. at 8-9, 119 S.Ct. 1827. In conducting its harmless error/prejudice inquiry, the Court applied the following test in view of the nature of the error at issue: "whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id. at 15, 119 S.Ct. 1827 (emphasis added). The Court answered that question by reference to the trial record, and concluded that "no jury could reasonably find" that the defendant's actions were not material. Id. at 16, 119 S.Ct. 1827.

Based on the Court's analysis in Neder, the majority pretends to ask the same question in assessing prejudice to the defendant, but it actually asks a different one: "whether [the sentence] would have been the same absent the failure to submit drug quantity for a jury determination." Maj. Op. at 104. However, given that I view the Apprendi error as having occurred at sentencing, and given the question asked in Neder (if we really are to draw on Neder as a guide), the appropriate question to ask in assessing the third element of the plain error analysis under Olano is whether, in the context of the sentencing proceedings, it appears beyond a reasonable doubt that the Apprendi error complained of — sentencing a defendant to a greater term of imprisonment than that permitted under the law — contributed to the sentence obtained. E.g., Sochor v. Florida, 504 U.S. 527, 540, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992) (applying harmless error analysis and asking whether, in the context of the sentencing proceedings, a sentencing error "'was harmless beyond a reasonable doubt' in that 'it 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)); Richmond v. Lewis, 506 U.S. 40, 49, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992) (explaining when a sentencing error occurs, such as consideration of invalid aggravating circumstance, harmless error review requires courts to "actually perform a new sentencing calculus, if the sentence is to stand"); Parker v. Dugger, 498 U.S. 308, 319, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991) (describing harmless error analysis in the context of sentencing proceedings as requiring a determination of whether the sentencing error "would have made no difference to the sentence"); Clemons v. Mississippi, 494 U.S. 738, 753, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) (stating that harmless error analysis in the context of sentencing proceedings must ask whether "it was beyond a reasonable doubt that the sentence would have been the same" had there been no sentencing error). Plainly, the answer is "yes," because if the District Court had not sentenced Vazquez to more than the prescribed statutory maximum for the offense for which he was convicted, he would have received less prison time than he actually received. Thus, his substantial rights were affected.

Similarly, in assessing whether we should correct the error under the last prong of Olano, the issue is not, as it was in Johnson, whether the trial proofs indicate that the fairness and integrity of the trial proceedings would not be impugned by the fact that judge rather than the jury made the determination at issue, given the strength of the evidence. Rather, given the language and logic of Apprendi, we should ask whether the error affected the sentencing in a way that affects the fairness and integrity of the judicial proceedings. And, unlike the situation presented in Johnson, our correction of the error would not result in the reversal of a conviction; rather, the remedy for the unconstitutionally imposed sentence is a remand for resentencing in accordance with the jury's verdict.

Clearly, one cannot read Apprendi without realizing that, not only are substantial rights affected by the Apprendi sentencing error, but also the public reputation of judicial proceedings is affected by the sentencing of a defendant to more prison time than the maximum permissible based on the crime charged and the jury's verdict. In Apprendi, the focus was on New Jersey's statutory scheme, and the Court was not faced with having to apply Fed.R.Crim.P. 52(b) because the issue came before the Court on an appeal from a guilty plea entered in New Jersey state court. Thus, we must speculate from its language precisely what the Court really would do in a situation such as this. But the language in Apprendi does not make this a difficult exercise. There the Court referenced the differential in sentencing between what Apprendi would have received without the finding of a biased purpose, and what he could receive with it, stating that it was "more than a nominal effect." Apprendi, 530 U.S. at 495, 120 S.Ct. 2348. The Court then stated: "Both in terms of absolute years behind bars, and because of the more severe stigma attached, the differential here is unquestionably of constitutional significance." Id. It concluded its opinion by stating that "[t]he New Jersey procedure challenged in this case is an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system." Id. at 497, 120 S.Ct. 2348.

To my mind, in order to read Apprendi in a way that would be what the majority holds today, we would have to read into, or add to, the Court's closing statement the following:

Of course, on the other hand, if reasonable jurists can determine from the record that the jury would have found the necessary element or sentencing factor beyond a reasonable doubt, then the jury's actual finding on that element, and its verdict, is not such an indispensable part of our criminal justice system. In such circumstances, the otherwise unconstitutional sentence may nevertheless stand.

I believe the tone and language of Apprendi preclude any such reading. In fact, the very language of Apprendi quoted by the majority seems to negate this idea. Maj. Op. at 98-99 (stating that the Court in Apprendi "endorsed the following concept: 'It is unconstitutional for the 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.'") (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348) (internal quotation marks omitted).

If we follow the logic of the majority, the government can charge and convict a defendant of manslaughter, but sentence him for murder, and, as long as the government produced evidence at trial that would support that sentence, we would not notice or correct the error under Rule 52(b) and require resentencing in accordance with the jury's verdict. That result is not what Johnson and Neder stand for, nor is it what the Supreme Court envisioned. E.g., United States v. Promise, 255 F.3d 150, 190 (4th Cir. 2001) (Motz, J., concurring in part, dissenting in part). If anything, it is just the opposite. In fact, in Apprendi, the Supreme Court noted disapprovingly, "Indeed, the effect of New Jersey's sentencing 'enhancement' here is unquestionably to turn a second-degree offense into a first-degree offense under the state's own criminal code." 530 U.S. at 494, 120 S.Ct. 2348.

For these reasons, I join in Judge Sloviter's dissent in Part I.

However I disagree with Judge Sloviter's conclusion that the error is structural, because it is, again, a sentencing error. It did not occur until the sentence exceeding the maximum allowed was pronounced. The error did not "infect the entire trial process" and "unnecessarily render [the] trial fundamentally unfair." Neder, 527 U.S. at 8, 119 S.Ct. 1827. I can find no Supreme Court opinion that suggests that a sentencing error can be "structural." In fact, Judge Sloviter appears to fall somewhat into the trial error trap of Neder and Johnson in her discussion in Part II, when she speaks of the need for the jury, not the judge, to determine the offense. While that is the nature of the discussion in Apprendi, because it focuses on the statutory scheme, in light of Williams, that is not the nature of the error before us. What kind of error is it if a defendant is sentenced to a term greater than the maximum allowable for that offense? I submit that it is a sentencing error, that it is constitutional, not structural, and that the error is plain in any event.