UNITED STATES of America, Plaintiff-Appellee, v. Montel Lavelle HUMPHREY, Defendant-Appellant, 287 F.3d 422

COLE, J., delivered the opinion of the court, in which MOORE, J., joined. ROSEN, D.J. (pp. 454-475), delivered a separate opinion concurring in part and dissenting in part. OPINION COLE, Circuit Judge. I. INTRODUCTION Montel L. Humphrey appeals his conviction and sentence for conspiring to possess with intent to distribute cocaine, possession of a firearm after a prior felony conviction, and conspiring to commit money laundering.

Humphrey assigns six points of error: (1) the Government relied on incompetent evidence and argument at trial and improperly used its peremptory challenges to exclude African Americans from the jury; (2) the district court failed to examine a conflict of interest raised by trial counsel prior to sentencing and failed to conduct a proper inquiry into Humphrey’s Batson challenge raised during the course of voir' dire; (3) the jury instructions failed to properly guide the jury in its consideration of the multiple conspiracies alleged in this case, failed to ensure jury unanimity on elements of the offense, and failed to direct the jury to determine the type of drugs sold by Humphrey; (4) the district court violated Apprendi v.

New Jersey, 580 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it failed to instruct the jury to find drug quantities beyond a reasonable doubt;

(5) Humphrey’s trial counsel failed to provide effective assistance, because counsel failed to raise a timely Batson challenge, operated under a conflict of interest, failed to argue for or present a mitigation argument in support of a downward departure, and failed to object to Government misconduct at critical stages of trial; and (6) the Government’s plea agreements with alleged co-conspirators Henry Eaton and Tyrone Cromity, pursuant to which both were “paid” for their testimony, violated the express terms of 18 U.S.C. § 201(c)(2) and Disciplinary Rule 7-109(

e) of the Ohio Code of Professional Responsibility. For the reasons that follow, we AFFIRM the judgment of the district court with the exception of the sentence. Because the district court’s drug quantity finding resulted in an enhanced statutory penalty, we conclude that Humphrey’s sentence violated the Supreme Court’s rule established in Apprendi v. New Jersey. We accordingly VACATE Humphrey’s sentence and REMAND this case to the district court for resentencing. II.

BACKGROUND The Caribbean Gang Task Force (“Task Force”) of the Shaker Heights, Ohio, Police Department conducted an eighteen month investigation into the drug-distribution activities of Henry Eaton and Tyrone Cromity. Over the course of this investigation, the Government made controlled buys from both individuals and intercepted phone calls and pages made by them to Montel Humphrey. The Task Force never made any controlled buys from Humphrey, never witnessed any drug deals involving Humphrey, and never observed drugs in Humphrey’s possession.

It nevertheless secured sufficient evidence to execute search and arrest warrants on June 8, 1997, on numerous individuals and locations, including Humphrey and his property. This search revealed no drugs or drug paraphernalia in Humphrey’s possession. On July 1,1997, a federal grand jury in the Northern District of Ohio returned a superseding indictment against Humphrey and fourteen other individuals, charging violations of federal narcotics, firearms, and money laundering laws.

The Government entered into plea agreements with all defendants except Humphrey and Darryl Morrow, both of whom proceeded to trial before Judge Sam H. Bell on June 9, 1998. Testimony at trial revealed that Eaton first met Humphrey in Alabama in September 1996. Thereafter, Eaton allegedly met Humphrey in Cleveland, Ohio, where Humphrey discussed supplying Eaton with cocaine. Eaton received approximately one-eighth of a kilogram of cocaine from Humphrey as a result of that conversation and continued to receive periodic shipments of cocaine from Humphrey until March 1997.

From September 1996 through March 1997, Humphrey distributed cocaine to Eaton “approximately ten to twelve times.” Eaton also testified that he and Humphrey communicated with each other by telephone and pager using predetermined codes. Task Force member and Shaker Heights, Ohio, Detective Marvin LaMielle testified that from January 25, 1997, through June 4, 1997, the Task Force undertook court-authorized interceptions of electronic and wire communications between Humphrey and other individuals under investigation.

LaMielle also testified that he obtained Humphrey’s cellular telephone records, which, in conjunction with the intercepted communications, revealed that shortly after Eaton would arrange the sale of cocaine to third parties, Eaton would page Humphrey with the appropriate codes, ostensibly to purchase some quantity of cocaine. Cromity testified that he met Humphrey sometime in 1992 or 1993 and that their first drug transaction occurred in November 1996.

Cromity stated that on this occasion he paged Humphrey and entered his home telephone number, the appropriate code to identify himself as the caller, and the amount of money he had to purchase cocaine. The two subsequently met, whereupon Humphrey allegedly sold Cromity one-half kilogram of cocaine for $8,000. Cromity also testified that Humphrey continued to supply him with drugs through February 1997, during which time he received “probably between seven and nine” kilograms of cocaine.

Humphrey’s phone records, coupled with information intercepted from Humphrey’s pager, indicated that on more than one occasion Cromity paged Humphrey seeking to purchase cocaine from him, after which Humphrey called Cromity to make payment arrangements. On June 22, 1998, a jury acquitted Morrow of all counts.

Humphrey, however, was convicted of conspiring to distribute cocaine (Counts One and Two), unlawful possession of a firearm by a previously convicted felon (Count Twelve), and conspiring to commit money laundering (Count Seventeen); he was acquitted of two substantive money laundering counts (Counts Eighteen and Nineteen). On March 10, 1999, the district court denied Humphrey’s post-trial motions for a Franks hearing and a new trial and his motion to set aside his state conviction for sentencing purposes.

At Humphrey’s request, Judge Bell recused himself on September 8, 1998; the case was then transferred to Judge Patricia A. Gaughan. David Dudley, Humphrey’s counsel, raised a possible conflict of interest shortly before Humphrey’s scheduled sentencing. The government filed a motion requesting that the district court consult with Humphrey and Dudley regarding Dudley’s continued representation of Humphrey. The district court reviewed a transcript of an earlier hearing held before Judge Bell on this issue and concluded that no additional inquiry was warranted.

On March 10, 1999, the district court sentenced Humphrey to a mandatory 240-month term of imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A), a ten-year period of supervised release, a $25,000 fíne, and a $400 special assessment. This timely appeal followed. III. DISCUSSION A. Government Misconduct 1. Standard of Review Where a defendant fails to raise an objection before the district court, “a court of appeals [has] a limited power to correct errors that were forfeited because [they were] not timely raised in district court.” United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

Indeed, we will notice such an error only in “exceptional circumstances” or when the failure to do so would produce a “plain miscarriage of justice.” See United States v. Pickett, 941 F.2d 411, 415 (6th Cir.1991). We have developed a four-part analysis to review forfeited claims. We consider first whether there was error. United States v. Vincent, 20 F.3d 229, 234 (6th Cir.1994). If there was error, then we determine if the error was plain. Id. If the error was plain, we next decide whether the error affected the defendant’s substantial rights. Id.

Finally, we consider whether the error seriously affected the “fairness, integrity, or public reputation” of the judicial proceedings. Id. Only upon such a finding may we then exercise our discretionary authority to notice the error. See id. Preserved objections to a district court’s evidentiary decisions are reviewed for abuse of discretion. We will only reverse if the decision caused more than a harmless error. Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1330 (6th Cir.1994) 2.

Analysis Humphrey argues that the Government’s misconduct at trial deprived him of his right against self-incrimination, as well as his rights to a fair trial, an unbiased jury, and due process of law.

Specifically, Humphrey alleges: (1) that the Government improperly shifted the burden of proof to him by suggesting to the jury that Humphrey’s unexplained wealth demonstrated his participation in narcotics and money laundering activities; (2) that the Government improperly used Humphrey’s income tax returns and the testimony of an Internal Revenue Service (“IRS”) agent to suggest that Humphrey’s commission of an unindicted crime, tax evasion, was evidence of guilt; (3) that the prosecutor improperly vouched for his witness and stated his personal belief in Humphrey’s guilt; (4) that the Government improperly exercised its peremptory challenges to exclude African-Americans from the jury; (5) that the Government argued facts not in evidence; (6) that the Government confused the jury by misstating the definition of a “buyer-seller relationship”; (7) that the Government intentionally submitted irrelevant evidence to the jury and prevented a fair rebuttal by Humphrey of that evidence; (8) that the Government improperly argued that Humphrey’s counsel knew that his client was guilty; and (9) that the cumulative impact of each of the aforementioned instances of misconduct is sufficient to warrant reversal.

Each argument will be addressed in turn. All ultimately fail. a. Unexplained Wealth Humphrey submits that the Government’s case against him was predicated on the self-serving testimony of Eaton and Cromity, both admitted drug dealers, and on testimony that insinuated a young African-American male is incapable of operating a successful business unless he is engaged in illegal narcotics activity.

To drive home this point, Humphrey contends that the Government relied improperly on evidence of Humphrey’s unexplained wealth, in contravention of his Fifth Amendment right against self-incrimination, to suggest that because Humphrey had failed to identify the source of his wealth, then he necessarily must have been guilty of drug trafficking. Humphrey maintains that in making such an argument, the Government improperly shifted its burden of proof to him, which was especially prejudicial in light of the fact that the only evidence linking him to illegal drug activity was the testimony of Eaton and Cromity.

In fact, Humphrey notes, the Government never observed drugs in his possession or his residences, never discovered large sums of cash in his possession, never witnessed him engage in drug activity, and never attempted to coordinate a controlled drug buy from him. Humphrey objected to the admission of tax evidence, J.A. at 299; therefore, we review the district court’s decision for an abuse of discretion. In United States v. Carter, we rejected as irrelevant the Government’s use of financial information in its prosecution of a defendant for violation of federal narcotics laws. 969 F.2d 197, 200 (6th Cir.1992).

We nevertheless observed that evidence of “the lack of a federal tax filing (or un-derreporting) in combination with proof of valuable tangible possessions or extravagant purchases creates the inference that the defendant does not possess a legitimate source of income to support his affluent lifestyle and, therefore, the income must originate from narcotics operations,” id. at 201, and that “there are cases that allow the government to use a defendant’s tax returns and evidence of his spending habits in order to obtain a conviction in a narcotics case.” Id. Before us is such a case.

There was unrebutted testimony at trial that Humphrey’s total expenditures for 1996 and 1997 amounted to $454,880.27, despite the fact that he had been “unemployed the past eight months” due to a disability. It was well within the prerogative of the Government to encourage the jury to consider how Humphrey maintained this affluent lifestyle, particularly in light of the declarations of the district court and the Government that the burden of proof at all times remained with the Government.

The Government’s closing and rebuttal arguments were entirely proper comments on the quality and credibility of Humphrey’s evidence. b. Tax Evidence Humphrey also contends that the Government improperly used his income tax returns and the testimony of IRS Agent Gary Rasoletti to outline Humphrey’s spending habits over the eighteen months that he was under investigation.

Because it was undisputed that Humphrey had legitimate sources of income from rental property and tee-shirt sales, Humphrey argues that the Government’s introduction of tax records and Rasoletti’s testimony prejudiced the jury against him and was in clear disregard of our decision in Carter, which generally prohibits the use of tax records and spending habits in narcotics cases. The Carter rule is subject to certain exceptions, among them evidence of extravagant spending habits by the defendant or evidence that he possesses large amounts of unreported wealth.

Nevertheless, Humphrey argues that the jury’s refusal to order the forfeiture of the vast majority of his real property and possessions is evidence that the jury believed them to be the proceeds of lawful activity. Humphrey further submits that although Rasoletti testified about receipts for his purchases allegedly made with drug proceeds, the Government sought only the forfeiture of one of those purchases, a television, which the jury ultimately concluded was a legitimate purchase.

Thus, Humphrey maintains, the Government’s use of his tax returns and Rasoletti’s testimony served no purpose but to put evidence of an uncharged crime, tax evasion or fraud, before the jury, which is the exact situation prohibited by Carter. The Government’s failure to link Humphrey’s unexplained wealth to drug activity, coupled with the introduction of unindicted tax charges, was unduly prejudicial and, Humphrey concludes, warrants reversal. Humphrey’s argument is foreclosed by our decision in United States v. Copeland, 51 F.3d 611 (6th Cir.1995).

There, a defendant charged with violation of federal drug conspiracy laws raised a relevancy challenge to the Government’s introduction of certain store receipts. Id. at 616. Those receipts demonstrated that the defendant had purchased $5,000 in stereo equipment over a twenty-six month period, during which time he reported no source of income. Id. In finding the receipts relevant and affirming the district court’s admission of the evidence, we found Carter distinguishable in several respects. First, Carter purchased fewer items than Copeland.

Second, Carter used his given name when purchasing the items in question; Copeland did not, relying instead on various aliases. Finally, certain receipts finked Copeland to alleged instrumentalities of the conspiracy that were referred to in trial testimony. The facts of the instant case are analogous to those of Copeland. Humphrey purchased in excess of $450,000 worth of goods over a two-year period when he was unemployed, far more than the $5,000 at issue in Copeland. Furthermore, the receipts relied upon by the Government in this case referenced fruits of the alleged conspiracy.

Even were we inclined to find Humphrey’s case factually similar to Carter, the disputed receipts are evidence of tangible possessions demonstrating “extravagant spending” for which financial information generally may be introduced. Carter, 969 F.2d at 201. We are further persuaded that the district court’s instruction of the jury, to which Humphrey raised no objection, cured any error. See J.A. at 429 (“The defendant is not on trial for not reporting income or any other crimes not charged in the indictment.”). c.

Vouching Humphrey argues that the Government improperly stated its personal belief in Eaton’s credibility. Specifically, Humphrey points to the Government’s closing argument when it observed: Now, just real quickly. You know, and I don’t have time, you can consider the government believes that after all that corroboration, the testimony of Henry Eaton, that is credible relative to his relationship with Darryl Morrow, at least that which is on tape. J.A. at 324.

Although Humphrey concedes that the Government’s statement was directed more at the credibility of Eaton’s testimony with respect to Darryl Morrow, he nevertheless contends that because Eaton’s credibility as to both Morrow and himself was at issue, any vouching by the Government as to one part of Eaton’s testimony necessarily applied to all of his testimony. Humphrey also argues that the Government improperly stated its personal belief in his guilt: I think during the course of Mr. Dudley’s final argument it became pretty apparent I started getting agitated.

Well, let me tell you my perspective on this case, based on the evidence. Now folks, I think the evidence is overwhelming that Montel Humphrey is guilty of the crimes that he is charged with. He has not provided you with any explanation. J.A. at 407, 418-19. It is well established that a prosecutor may not argue his personal belief in a witness’s credibility or in a defendant’s guilt, see United States v.

Krebs, 788 F.2d 1166, 1177 (6th Cir.1986), as juries “will normally place great confidence in the faithful execution of the obligations of a prosecuting attorney, improper insinuations or suggestions are apt to carry more weight against a defendant than such statements by witnesses,” United States v. Solivan, 937 F.2d 1146, 1150 (6th Cir.1991). To constitute error, however, the prosecutor’s alleged misconduct must be flagrant. See United States v. Carroll, 26 F.3d 1380, 1385 n. 6 (6th Cir.1994).

A prosecutorial comment is deemed flagrant if it tends to mislead the jury or prejudice the defendant; if it is one of a series of inappropriate comments; if it was deliberately placed before the jury; and if the other evidence of guilt is weak. See United States v. Francis, 170 F.3d 546, 549-50 (6th Cir.1999). Humphrey failed to object below to these allegedly improper comments, and therefore, we review this claim for plain error.

With respect to the first comment, concerning the prosecutor’s statement that Eaton’s testimony was credible, Humphrey cannot demonstrate that the comment was one of a series of inappropriate comments. To the contrary, the comment appears to have been the only such comment made by the Government. Neither does the comment appear to have been a deliberate effort to mislead or prejudice the jury. Finally, the comment was made in the context of a discussion of other corroborating evidence of guilt; were we to set aside Eaton’s testimony, other inculpatory evidence would remain.

Thus, Humphrey can demonstrate no error. Likewise, on the question of whether the Government improperly commented on its view of Humphrey’s guilt, one we review for plain error, Humphrey has again failed to establish that the comment was flagrant.

While the Government arguably skirted the limits of permissible argument by effectively suggesting that it believed Humphrey was guilty&emdash;we are unpersuaded by the Government’s argument that it was merely commenting on the quality and the quantity of the evidence&emdash;the district court’s instruction to the jury that counsels’ arguments were not evidence served to counterbalance any potential jury confusion. That the comment was made in isolation, moreover, confirms this point. Accordingly, Humphrey’s argument must fail. d.

Arguing Facts Not in Evidence Humphrey asserts that the Government committed further misconduct by arguing to the jury facts not in evidence: Now, if you take that same eighth of a kilogram and you want to look at it in terms of shelf life for personal use, again, you use point 2 or point 3 grams of cocaine a day, so that means a gram will last you approximately three days, and you multiply three days times 125 and you have 375 days. J.A. at 324.

Specifically, he argues that there was no testimony presented at trial either that an eighth of a kilogram of cocaine constitutes a personal supply lasting for 375 days or that consumption of .2 or .3 grams of cocaine constitutes personal use. Humphrey’s argument, which we review for plain error, is without merit. First, the facts relied upon by the Government were adduced by Morrow’s counsel in his cross-examination of Eaton. See J.A. at 184 (Eaton’s testimony was that the smallest amounts he ever sold were “two or three tenths of a gram” and that people buy tenths of a gram of drugs for their own personal use).

Second, the Government’s argument was a direct response to Morrow’s suggestion that the drug quantities distributed by Eaton to him were for personal use. Finally, as Humphrey himself concedes, the Government’s argument was directed at Morrow only. e. “Buyer-Seller” Relationship During its closing argument, the Government suggested that an extension of credit by a drug seller to a drug buyer for the purchase of drugs was, without more, sufficient to eliminate a buyer-seller relationship.

The jury, in the absence of such a suggestion, would have been permitted to consider that the cocaine attributable to Humphrey was for his personal consumption, and not for the purpose of sale or distribution in a drug conspiracy. In making this point, the prosecutor relied upon an analogy, arguing that if he had a department store credit card, then at such time as he used that credit card, he and the department store would have proceeded beyond a buyer-seller relationship and entered into a conspiracy.

Humphrey submits that the Government’s analogy misstated the law, see Uniform Commercial Code § 1-201(9) (“ ‘Buying’ may be cash ... or on secured or unsecured credit.”), and reduced the jury’s responsibility to one strictly of determining whether Humphrey engaged in a drug transaction for which a purchase was made on credit. In support of this argument, he relies on United States v. Ward, in which we declared that “fronting cocaine, without additional elements of control, is nothing more than a variation on the traditional buyer-seller relationship.” 37 F.3d 243, 248 (6th Cir.1994).

He notes that because the Government failed to demonstrate that Humphrey exercised any level of control over the alleged conspiracy, had any interest in the drug operation, or displayed any concern for what happened to the drugs after their sale and distribution, its proof merely set forth a buyer-seller relationship and not a drug conspiracy. In rejecting Humphrey’s arguments, we note first that his reliance on the Uniform Commercial Code is misplaced, as it has no application in this criminal narcotics case.

Humphrey’s argument that purchasing on credit constitutes buying within the meaning of a buyer-seller relationship is likewise without merit. Cf. United States v. Nesbitt, 90 F.3d 164, 167 (6th Cir.1996) (“We find that the trust involved in this kind of delayed payment [or credit] arrangement suggests more than a buyer-seller relationship between [the parties].”). Finally, we note that Ward, on which Humphrey relies, is factually dissimilar from the instant case, as no continuing criminal enterprise is at issue here. f.

Irrelevant Evidence The Government argued at trial that when law enforcement officials searched Humphrey’s home, they discovered a wiretap affidavit unrelated to the conduct charged in this case. Thereafter, it suggested that Humphrey’s possession of this affidavit was evidence that he was a drug dealer. When Humphrey’s counsel began to discuss the affidavit during his closing argument, the Government objected and requested a sidebar, after which the district court instructed the jury: “You are instructed any affidavit that was mentioned by counsel has nothing to do with this case.

The affidavit which has been mentioned has absolutely nothing to do with the investigation here or this case. Please disregard it.” J.A. at 368. This instruction notwithstanding, the Government’s rebuttal closing argument again made reference to the affidavit and suggested that it was evidence that Humphrey was engaged in illegal narcotics activity. In making such an argument, Humphrey maintains that the Government successfully placed before the jury only its

interpretation of evidence that the district court had already determined was irrelevant. Because Humphrey failed to raise an objection at trial, we review this claim for plain error. The Government responds, and we agree, that the wiretap affidavit — like the gun, money, telephone scrambler, and wiretap detector seized from Humphrey’s residence — was circumstantial evidence of the defendant’s knowledge regarding the manner and means in which law enforcement engages in drug trafficking investigations and his knowing participation in a conspiracy to distribute cocaine.

While the wiretap affidavit standing alone would likely not be relevant evidence, particularly since it refers in no way to Humphrey, we believe that it, coupled with the other “tools of the trade,” is probative of Humphrey’s knowledge of drug trafficking investigations. With respect to Humphrey’s argument that the Government violated a court order not to discuss the affidavit, his argument is not well taken. First, the district court merely instructed the jury that the affidavit had nothing to do with Humphrey or the charged conduct in the case.

Our review of the record suggests that it did not prohibit counsel from referring to it. The Government made reference in its closing argument to the affidavit, but only to demonstrate Humphrey’s knowledge of criminal investigations. By contrast, when Humphrey’s counsel mentioned the affidavit, he suggested that the affidavit was evidence that; Humphrey was being investigated: “Well, [Humphrey’s] got an affidavit in his house, and what do you think the affidavit probably says there? That, rightly or wrongly, he’s being investigated.” J.A. at 368.

The Government promptly objected to this misstatement of the evidence, and the district court sustained the objection. There was no error. g. Improper Closing Argument In its rebuttal closing argument, the Government argued that even Humphrey’s counsel, David Dudley, knew that Humphrey’s conversations with his accountant amounted to a confession: “David Dudley knows that conversation [between Humphrey and his accountant] is as close to a confession as anything in this whole courtroom, and he has to deal with it because he knows you are going to see that.” J.A. at 408-09.

Humphrey suggests that this argument improperly relied upon Humphrey’s counsel to vouch for the Government’s view of Humphrey’s guilt. The Government responds that “that conversation” referred to an intercepted telephone conversation between Humphrey and his accountant in which Humphrey allegedly expressed some concern over paperwork related to his purchase of a business, because the business owner had had prior dealings with the Drug Enforcement Administration (“DEA”).

Further, the Government maintains that its reference to the conversation as a “confession” was merely an attempt to discredit Dudley’s “spin on the conversation” by suggesting that a legitimate business owner with legitimate sources of income would have no concern about any DEA involvement in one of his business ventures. On this record, we do not find that the prosecutor’s comments can be reasonably construed as implying that defense counsel believed his client was guilty. We find no error in the closing argument. h.

Cumulative Impact When the aforementioned errors alleged by Humphrey are viewed in the context of the entire trial, Humphrey argues that their cumulative impact mandates reversal, even if any one error in isolation does not. These errors, Humphrey maintains, were particularly prejudicial given that his trial was built on weak, circumstantial evidence of guilt in which he was convicted only of conspiracy (and not of any of the underlying substantive counts) based on the testimony of alleged co-conspirators. We disagree.

Examining the record as a whole, we fail to find any error in the foregoing that, singularly or cumulatively, mandates reversal. B. District Court Misconduct 1. Standard of Review We review de novo whether a district court’s alleged failure to conduct a hearing to inquire into a conflict of interest between a defendant and his trial counsel violated a defendant’s Sixth Amendment right to effective counsel. United States v. Hall, 200 F.3d 962, 965 (6th Cir.2000).

We review for clear error a district court’s factual findings concerning whether a party has improperly used its peremptory challenges on the basis of race. United States v. Tucker, 90 F.3d 1135, 1142 (6th Cir.1996). 2. Analysis Humphrey argues that the district court erred in two respects. First, it failed to conduct an inquiry into the actual conflict of interest between Humphrey and his counsel. Second, the district court improperly reviewed his Batson challenge. Neither argument has merit. a.

Conflict of Interest On February 22, 1999, eight months after Humphrey’s trial, David Dudley discovered a conflict of interest between himself and Humphrey, prompting Dudley to file with the district court a motion to withdraw as counsel.

See J.A. at 757-58 (discussing the “apparent” conflict created by Humphrey’s pro se motions alleging, inter alia, that Dudley was incompetent and not “registered” to practice law in the Northern District of Ohio, and that Dudley was actively conspiring to “defraud and entrap” Humphrey); J.A. at 758 (discussing the “actual” conflict created by Humphrey’s filing of complaints with the State Bar of Georgia alleging that Dudley was not licensed to practice law in a number of federal criminal matters involving previously represented defendants).

In Dudley’s estimation, the discovery of this conflict made it impossible for him to argue on Defendant’s behalf in furtherance of new trial and sentencing issues. Judge Gaughan reviewed the transcript of a prior hearing on this issue conducted by Judge Bell on September 3, 1998.

Finding that the issue was fully discussed and resolved by Judge Bell, the district court denied Dudley’s motion, concluding that it would be patently unfair to leave the defendant unrepresented at the sentencing, particularly in light of the fact that post-trial motions had been fully briefed and presentence investigation report (“PSR”) objections already filed. It did note, however, that Humphrey remained free to fire Dudley and secure another attorney or proceed to sentencing pro se. Humphrey did neither.

He now assigns error to the district court’s denial of additional time for him to retain new counsel and its failure to inquire into the facts of the alleged conflict, notwithstanding the Government’s motion seeking to conduct just such an inquiry. A defendant is denied his Sixth Amendment right to effective counsel when his attorney operates under a conflict of interest. Glasser v. United States, 315 U.S. 60, 69-70, 62 S.Ct. 457, 86 L.Ed. 680 (1942). A trial court, moreover, has a duty to inquire into the nature of a conflict at such time as it becomes aware of a potential or actual conflict of interest. Wood v.

Georgia, 450 U.S. 261, 272-74, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). Failure of a trial court to conduct such an inquiry mandates a reversal if the defendant can show the conflict adversely affected his counsel’s performance. Mickens v. Taylor, — U.S. -, -, 122 S.Ct. 1237, 1245, — L.Ed.2d-,-(2002). We reject Humphrey’s argument. First, Humphrey’s case is distinguishable from the Glasser line of cases, as those cases involved an attorney’s joint representation of multiple defendants, a situation not present in the instant cáse.

Second, it was only after trial that a conflict presented itself, and that, only as a result of Humphrey’s filing of numerous pro se pleadings alleging misconduct by Dudley. Third, at a September 3, 1998, hearing on the matter (at which Humphrey was scheduled to be sentenced), Judge Bell asked Humphrey whether he wished Dudley to continue as his counsel, and Humphrey responded, ‘Tes.” Finally, Judge Gaughan properly reviewed the transcript of Judge Bell’s hearing and concluded that no additional hearing was necessary and no additional time was required to permit Dudley to retain new counsel.

The record reveals that Dudley vigorously defended Humphrey’s interests, filed numerous pretrial and post-trial motions on his behalf, and argued successfully for the lowest sentence provided by law. b. Batson Challenge Humphrey argues that the Government improperly used its peremptory challenges during voir dire against two African-American venirepersons, juror number four (Howell) and alternate juror number thirty (Luckie), in a systematic effort to exclude African Americans from the jury. In evaluating such a claim, we are guided by a three-step inquiry, first articulated in Batson v.

Kentucky, 476 U.S. 79, 93-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The opponent of the strike (Humphrey) must first establish a prima facie ease by demonstrating that the strike was made on the basis of race. A successful showing by the opponent results in a shift of the burden of production to the strike proponent (the Government) to set forth a race-neutral explanation for its challenge; in this regard, the Government’s proffered reason need not be persuasive or even plausible, so long as it is neutral. See United States v. Harris, 192 F.3d 580, 586 (6th Cir.1999) (citing Purkett v.

Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). Finally, the district court must determine whether the opponent has proved purposeful racial discrimination, mindful that “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett, 514 U.S. at 768, 115 S.Ct. 1769.

Humphrey assigns error to the district court’s analysis under Batson’s third prong, contending that the district court failed to evaluate the Government’s explanation and the circumstances of the case to determine whether purposeful racial discrimination in fact had occurred. He concedes that a district court’s resolution of a Batson challenge is entitled to great deference, see Batson, 476 U.S. at 98, 106 S.Ct. 1712, but submits that the district court’s failure to conduct any inquiry requires no deference.

In an unpublished decision, we suggested that a defendant who fails to insist upon and receive a definitive ruling from a trial court on a Batson challenge may be said to have waived any objection for purposes of appeal. See United States v. Compton, 28 F.3d 1214, 1994 WL 328303, at *2 (6th Cir. July 1, 1994) (unpublished) (“The government first argues, and we believe correctly, that Compton has waived his Batson challenge because he failed to get a definitive ruling by the district court for this court to review.”).

While Compton, as an unpublished opinion, is not dispositive, it highlights the difficulty of assessing a ruling where, as here, there is an incomplete record underlying it to review. On the record before us, we conclude that Humphrey’s claim as to Luckie is without merit. Humphrey failed to rebut the Government’s race-neutral explanation for its dismissal of Luckie — that the juror’s hypertension would have been exacerbated had he been empaneled on the jury — and the district court’s conclusion overruling Humphrey’s objection cannot therefore be said to have been clearly erroneous.

With respect to Howell, we have little to review precisely because Humphrey limited his objection to Luckie. Because Humphrey’s counsel raised a Batson challenge long after the juror had already been excused without objection, the district court concluded that even if it sustained his Batson challenge, Humphrey would be unable to seat her on the jury because she had already exited the courtroom.

The Government now provides an after-the-fact explanation for its dismissal of Howell — her history as an unsuccessful plaintiff in a federal racial discrimination suit suggested a possible bias against the judicial system — which, if presented at trial, likely would have proved an adequate race-neutral explanation. Because, however, it is an after-the-fact explanation, we are reluctant to credit it, and we therefore decline to reach this issue as it relates to Howell. C. Jury Instructions 1.

Standard of Review When reviewing a jury instruction to which a defendant failed to object at trial, we review for plain error, which requires us to determine “whether the instructions, when taken as a whole, were so clearly wrong as to produce a grave miscarriage of justice.” United States v. Sanderson, 966 F.2d 184, 187 (6th Cir.1992). 2. Analysis Humphrey argues that the district court’s instruction of the jury was flawed in three respects. First, the district court failed to inform the jury that it was required to reach unanimity on every element of the charged offenses.

Second, the district court faded to instruct the jury to determine whether there was one conspiracy or multiple conspiracies. Third, the district court failed to instruct the jury to determine the type of drugs that Humphrey conspired to possess or distribute. We reject Humphrey’s arguments. a.

Unanimity At the close of the evidence, the district court provided the following instruction to the jury concerning the requisite legal elements of a criminal conspiracy: With regard to the first element, the criminal agreement, the government must prove that two or more persons conspired, or agreed, to cooperate with each other to commit the crime of distribution of narcotics or possession with intent to distribute narcotics or to commit the crime of money laundering.

What the government must prove is that there.was a mutual understanding, either spoken or unspoken, between two or more people, to cooperate with each other to commit the crime of distribution of narcotics or possession with intent to distribute narcotics as to Counts 1 and 2, or to engage in money laundering as to Count 17. J.A. at 436-37. Because the district court failed to instruct the jury that it was required to decide unanimously that the Government proved each element beyond a reasonable doubt, Humphrey argues that his conviction cannot stand.

Specifically, he submits that the district court should have instructed the jury that it was to identify the “two or more people” as a precondition to conviction, particularly given that Count One of the indictment identified seven people by name and “others known and unknown to the Grand Jury,” Count Two identified six people by name and “others known and unknown to the Grand Jury,” and Count Seventeen identified four people by name and “others known and unknown to the Grand Jury.” He reasons that since a conspiracy necessarily involves at least two people, then the specific identity of a defendant’s co-conspirator must be an element of the offense.

Humphrey’s argument is not well taken. First, the district court provided a thorough instruction on what constitutes a conspiracy, listing and defining each of the elements that the Government was required to prove beyond a reasonable doubt. Second, the specific unanimity instruction sought by Humphrey is generally required only in one of three circumstances: when the nature of the evidence is particularly complex; when there is a variance between the indictment and the proof adduced at trial; or when there is some tangible evidence of jury confusion, as when the jury has asked questions of the court.

United States v. Washington, 127 F.3d 510, 513 (6th Cir.1997). None of these scenarios exists in this case. Finally, Humphrey’s reliance on Richardson is misplaced, as at issue in that case was a jury instruction relating to a prosecution under 21 U.S.C. § 848 (continuing criminal enterprise) and not under 21 U.S.C. § 846, as in the instant case. b. Number of Conspiracies Humphrey contends that even if the identity of his alleged co-conspirator is not an element of the offense, the district court nevertheless should have instructed the jury to determine whether there were multiple conspiracies or only one.

He reasons that because Eaton was named as a co-conspirator in both conspiracy counts (Counts One and Two) and the jury was not instructed to identify specifically Humphrey’s alleged co-conspirator, the jury could have concluded that Humphrey conspired only with Eaton, which would have compelled it to convict Humphrey of both counts, despite the fact that Counts One and Two required proof of the same elements and relied on the same facts. Such a result, Humphrey suggests, would offend due process.

The Government maintains that Humphrey was properly indicted in a case involving multiple conspiracies and that he was not entitled to an instruction of the jury requiring it to determine the number of conspiracies. Although the indictment does not so allege, the Government argues that Count One charged a “hub” or “wheel” conspiracy with Humphrey, as drug supplier, positioned at the center, and Eaton and other middlemen as spokes of the wheel. Count Two, according to the Government, charged a chain conspiracy with narcotics flowing from Humphrey through Eaton to Morrow and others working directly with Eaton.

Humphrey, in response, argues with some force that if he was involved in a hub conspiracy with Eaton, then that conspiracy necessarily included any chain conspiracy with Eaton and his buyers (e.g., Morrow), and thus there existed only one conspiracy. We note that because Humphrey neither requested a multiple conspiracy instruction nor objected to the district court’s use of a general instruction on the law of conspiracy, we review this claim for plain error. See United States v. Mack, 837 F.2d 254, 258 (6th Cir.1988).

The Government’s suggestion that Humphrey entered into a hub conspiracy with Eaton and others for certain transactions only to end that conspiracy to form a new chain conspiracy to supply drugs from Humphrey to Eaton to Morrow seems dubious at best. As we observed in United States v. Gaitan-Acevedo, “[t]he key to establishing whether distinct sub-agreements are encompassed within one single conspiracy, is to determine whether the different sub-groups are acting in furtherance of one overarching plan.” 148 F.3d 577, 586 (6th Cir.1998) (internal quotation marks omitted) (quoting United States v.

Ghazaleh, 58 F.3d 240, 245 (6th Cir.1995)). Here, with the benefit of hindsight, it seems clear that there was one overarching plan: for Humphrey to distribute narcotics to Eaton who would then resell them at a profit to third parties. While a multiple conspiracy instruction likely would have removed any doubt concerning the number of conspiracies that the jury found to be at issue, we are unconvinced that such an instruction was required.

Although the parties do not raise this issue, any error appears to he not in the jury’s instruction, but in the indictment’s seemingly duplicative counts, as Count One charges the same conduct for the same time period as that charged in Count Two. That the overt acts of Count One focus on Humphrey and the overt acts of Count Two focus on Morrow does not change the fact that both relate to the same conspiracy.

Indeed, the Government’s concession that “[Count One] would have been the only drug conspiracy count as against Humphrey were it not for the fact that Humphrey was joined at trial by Daryl Morrow” strengthens our suspicion that Count Two was surplusage. Because, however, Humphrey would have been subject to the same statutory and Guidelines penalties in either case whether he was convicted of Count One or Count Two or both, we must conclude that any error in the district court’s instruction of the jury or in the Government’s indictment of Humphrey was harmless. c.

Drug Type Determination Humphrey argues that the district court erred by failing to instruct the jury to return a special verdict on the drug type for which he was criminally responsible. He maintains that where, as here, a defendant is charged with a multiple-drug conspiracy for which the maximum statutory penalty for each drug is different, and a jury returns only a general verdict of guilty, that defendant is entitled to be sentenced under the lesser statutory penalty.

This is particularly so in his case, Humphrey contends, because there was evidence that he distributed on separate occasions both powder cocaine and crack cocaine. We reject Humphrey’s argument that he was entitled to a special verdict. See Olden v. United States, 224 F.3d 561, 567 (6th Cir.2000) (finding no entitlement to a special verdict because 21 U.S.C. § 841(a)(1) governs the distribution of “controlled substances,” and where, as here, the drugs at issue are both proscribed controlled substances). We further note that his reliance on United States v. Dale, 178 F.3d 429, 433 (6th Cir.1999), is misplaced.

As we noted in United States v. Neuhausser, “Dale governs in cases where a jury’s general verdict is ambiguous, such that it cannot be determined whether the jurors unanimously agreed as to one or another of the multiple drugs allegedly involved in a conspiracy.” 241 F.3d 460, 470 (6th Cir.2001). While we recognize that the jury’s general verdict in this case was ambiguous, we conclude that any error was harmless.

Unlike Humphrey, the defendants in Dale and Neuhausser were charged with conspiring to distribute cocaine (or crack cocaine) and marijuana, controlled substances subject to different statutory provisions and for which different penalty ranges are available. Here, significantly, regardless of whether a jury determined that Humphrey conspired to distribute crack cocaine, powder cocaine, or both, he still would have been subject to sentencing under § 841(b)(1)(

C) and subject to the same statutory penalty. D. Drug Quantity Determination / Apprendi With respect to jury instructions, Humphrey makes a fourth argument — that the district court violated the Supreme Court’s decision in Apprendi v. New Jersey by failing to instruct the jury to find drug quantities beyond a reasonable doubt. Because of the complexity of this issue, and because we ultimately find this claim meritorious, we review this assignment of error separately. 1. Standard of Review Our first task in evaluating Humphrey’s Apprendi challenge is to determine the appropriate standard of review.

Humphrey was sentenced in 1999, prior to Apprendi, and only made a formal Apprendi objection in his appellate brief in 2001. Because his appeal was pending at the time Apprendi was decided, Humphrey is entitled to retroactive application of a new rule of criminal prosecution. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Where a defendant raises a cognizable Apprendi challenge in district court, and raises it again on appeal, we review the Apprendi issue de novo. See United States v. Strayhorn, 250 F.3d 462, 467 (6th Cir.2001).

If, however, a defendant fails to raise the issue in the district court, or abandons it on appeal, we review for plain error only. See United States v. Graham, 275 F.3d 490, 521 (6th Cir.2001) (holding that a court may notice Apprendi errors sua sponte under plain error review, even if the issue is not raised on appeal by the defendant); see also United States v. King, 272 F.3d 366, 374 (6th Cir.2001). In his written objections to the presen-tence report, Humphrey’s lawyer stated: To find Humphrey guilty of conspiracy, all the jury needed to find was that there was an agreement as to at least one sale of cocaine.

Although the jury found that a conspiracy existed, there is no basis to gather from the jury’s verdict that it believed Eaton’s 3-5 kilogram estimate to be accurate, or that it even believed that multiple sales between Eaton and Humphrey actually took place.

Therefore, as a result of the lack of sufficient credibility regarding Eaton’s testimony as to the amount of cocaine transacted, Defendant Humphrey suggests the Court reject the recommendation stated in the PSR as to the relevant conduct in Count II and instead adopt the minimum amount which the jury must have necessarily found to support its verdict of guilty, specifically, 1/4 kilogram of cocaine, which constitutes the lowest amount of cocaine purchased by Eaton during a given sale. J.A. at 686-87.

He continues in the written objections, stating: As with Eaton, the only thing we can be sure of with regards to Cromity’s testimony is that the jury found that an agreement did exist to purchase cocaine.

As there is insufficient evidence to support an amount of cocaine higher than that which the jury must necessarily have found to support Humphrey’s conviction, Defendant requests that the Court reject the PSR’s recommendation regarding relevant conduct and that the Court instead hold Humphrey accountable in Count 1 for the sale of/ kilogram of powder cocaine — a quantity which represents the minimum amount which Cromity indicated he had purchased from Humphrey. J.A. at 689-90.

At the sentencing colloquy, Humphrey’s attorney reiterated his objections and made the following request: If the Court finds, as we would ask the Court to do, that the total relevant conduct is less than five kilos, it would be a ten-year mandatory sentence, and I would ask the Court to consider that this is a — this is ten years of a man’s life, perhaps more under the guideline calculations, maybe as much as 20 years of a man’s life that’s going to be decided by the testimony of these individuals [Eaton and Cromity].

And the testimony simply, while it may have been enough, it may have been enough to a jury to say clearly there was an agreement, perhaps an ongoing agreement for a certain period of time between Mr. Humphrey and Mr. Cromity in one count and Mr. Humphrey and Mr. Eaton in another count to distribute cocaine, that’s all the jury had to believe beyond a reasonable doubt, was that there was such an agreement[.][T]hey didn’t even have to believe a transaction took place.

The only cooperation [sic] that existed for their testimony were certain tapes and certain phone calls, but they don’t corroborate this whole amount of drugs the Government’s trying to put into play here at sentencing. And I would ask the Court that — to apply perhaps a higher standard to the type of ... relevant conduct, whatever you want to call it, in this case.... And if it does that, it will find the Government’s not met its burden, and it will impose a mandatory minimum sentence based on a quantity of less than five kilos and a guideline sentence based upon that same quantity. J.A. at 466-67.

Humphrey could not have known at the time of his sentencing that Apprendi would be decided a year later. Nevertheless, Humphrey objected at the sentencing hearing to both the amount of drugs attributed to him and the standard of proof required to support that amount. He reiterated this objection as a formal Apprendi objection on appeal. The dissent dismisses these passages from the record as mere “factual challenges” to the drug quantity recommendations in the presentence report.

The dissent charges that, absent some specific challenge to the district court’s authority to find drug amounts by a preponderance of the evidence, we may review Humphrey’s Apprendi challenge for plain error only. We disagree. The preservation of a constitutional right is not a parlor game. Defendants should not be required, on penalty of forfeiture, to guess not only which substantial right will be impacted by a pending Supreme Court decision, but also which precise sequence of words will be necessary to preserve that right on appeal.

Neither do we find the Federal Rules of Criminal Procedure or precedent to require such a standard.

Rule 51 of the Federal Rules of Criminal Procedure states: Exceptions to rulings or orders of the court are unnecessary and for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which that party desires the court to take or that party’s objection to the action of the court and the grounds therefor; but if a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice that party.

We agree with the Second Circuit, that “[T]o communicate the ‘nature’ of a claim, a party does not have to present precise or detailed legal arguments.” United States v. Sprei, 145 F.3d 528, 533 (2d Cir.1998) (internal quotation marks omitted). All that is required is that the party “make[ ] known to the court the action which that party desires the court to take or that party’s objection to the action of the court and the grounds therefor.” Fed.R.Crim.P. 51; cf. Cool v.

United States, 409 U.S. 100, 101 n. 2, 93 S.Ct. 354, 34 L.Ed.2d 335 (1972) (noting that a defense objection to jury instructions, while not a “model of clarity” was sufficient to preserve the objection on appeal); Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1312 (11th Cir.2000) (holding that an objection as to “foundation” of evidence sufficient to preserve a Dauberb objection on appeal).

Humphrey’s attorney may have conceded that, under then-current law, it was within the district court’s authority to find drug quantities using the preponderance of the evidence standard; nevertheless, it is apparent from the record that Humphrey’s attorney challenged the propriety of that standard. Although Humphrey’s attorney articulated his objection on the basis of sufficiency of the evidence, he urged the district court to consider only those facts that were proved to a jury beyond a reasonable doubt.

The district court implicitly acknowledged the objection during the sentencing colloquy, stating: This Court finds by a preponderance of the evidence that the quantity of drugs that is reasonably foreseeable in furtherance of the jointly undertaken criminal activity is at least 50 but less than 150 kilograms of cocaine. The Defendant’s argument goes directly to the credibility of Eaton and Cromity. Basically, the argument is they are not reliable and cannot be believed.

Although, the jury in this case was not called upon to determine quantity of cocaine or crack, the jury was called upon to pass on the credibility of the witnesses. J.A. at 482-83 (emphasis added). The dissent emphatically cites United States v. Page, 232 F.3d 536 (6th Cir.2000), as foreclosing de novo review unless the defendant expressly challenges the district court’s authority to determine drug quantities.

However, such a formal objection requirement ignores the fact that Apprendi was decided upon both the Sixth Amendment jury and notice provisions and the Due Process Clauses of the Fifth and Fourteenth Amendments.

See Apprendi, 530 U.S. at 476, 120 S.Ct. 2348 (“At stake in this ease are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without due process of law, and the guarantee that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” (emphasis added) (internal quotation marks and citations omitted)).

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.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Although related, the Sixth Amendment right to trial by jury and the due process right to be convicted by evidence beyond a reasonable doubt are independent legal entitlements. See Apodaca v.

Oregon, 406 U.S. 404, 411, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) (“We are quite sure ... that the Sixth Amendment itself has never been held to require proof beyond a reasonable doubt in criminal cases. The reasonable-doubt standard developed separately from both the jury trial and the unanimous verdict.”). In fact, we confirmed this point in United States v. Reb- mann, 226 F.3d 521 (6th Cir.2000), when we found that a defendant who had waived her right to a trial by jury “did not waive the right to have a court decide any remaining elements of the offense beyond a reasonable doubt.” Id. at 524.

The preservation of a constitutional objection should not rest on magic words; it suffices that the district court be apprised of the objection and offered an opportunity to correct it. Humphrey’s attorney never formed the words “Appren-di,” but we find the substance of his objection to the drug quantity determination, combined with his objection to the standard of evidence to be used, sufficient to notify the district court of the basis for the objection, and sufficient to preserve the issue for de novo review on appeal.

See Strayhorn, 250 F.3d at 467 (“Although [the defendant] did not utter the words ‘due process’ at either [the plea or sentencing hearing], he made it well known that he disputed the district court’s factual finding with respect to drug quantity.”); United States v. Stokes, 261 F.3d 496, 498-99 (4th Cir.2001) (finding the Apprendi issue preserved for harmless error review where a defendant objected to jury in-struetions that allowed conviction for any “measurable amount” of drugs rather than the indicted amount); United States v.

McCulligan, 256 F.3d 97, 101 (3d Cir.2001) (holding that where a jury’s finding fit the definition of one crime and not another, and the defendant argued that he should be sentenced under the correct statutory maximum, “intonation of the word ‘Ap-prendi’ is unnecessary” to preserve the issue for appeal). Furthermore, Page can be distinguished. In Page, we found that defendants who raised their Apprendi challenge for the first time on appeal were entitled only to plain error review of their claims. Id. at 543, 120 S.Ct. 2348.

Contrary to the dissent’s effort to wrench every ounce of inference from that case, however, nothing in Page indicates what type of objection— if any — the defendants registered in the district court. Page may have addressed the standard of review applicable when a party fails to object in the district court, but Page offers no guidance as to what type of objection is sufficient to preserve an Apprendi challenge on appeal.

Indeed, the first such case in our Circuit to address whether an objection to the quantity of drugs attributed to a defendant is sufficient to preserve the Apprendi error is our opinion in Stmyhom, which held that it was sufficient. See Strayhorn, 250 F.3d at 467. The dissent is correct that several of our sister circuits have adopted a different approach, and have held that factual challenges to the calculation of drug amounts in the district court, by itself, may be insufficient to preserve the Apprendi issue on appeal. See, e.g., United States v.

Candelario, 240 F.3d 1300, 1304 (11th Cir.2001) (stating that “[a] defendant’s objection to the quantity of drugs that the Government attributes to him is not, on its own, a constitutional objection”), cert. denied, 533 U.S. 922, 121 S.Ct. 2535, 150 L.Ed.2d 705 (2001). However, it is by no means clear that this rationale is consistently applied. See United States v. Vazquez, 271 F.3d 93, 96 (3d Cir.2001) (applying plain error review because the defendant did not “contest the drug quantity evidence at any stage of the proceedings” (emphasis added)).

In any event, notwithstanding the binding effect of Stmyhom, even under a more rigorous requirement for an objection, it is plain that Humphrey preserved the Apprendi error in the district court. See Candelario, 240 F.3d at 1304 (indicating that a defendant who objects to the preponderance of evidence standard for drug quantity calculations preserves the Ap-prendi challenge for appeal); cf. United States v. Buckland, 277 F.3d 1173, 1178 (9th Cir.2002) (applying plain error because the defendant did not object to the district court’s use of the preponderance of the evidence standard for determining drug quantity).

Having determined that de novo review governs this appeal, we proceed to the merits of the challenge. 2. Analysis Humphrey argues that the quantity of drugs attributable to him as relevant conduct is an element of the offense that should properly have been submitted to the jury for determination beyond a reasonable doubt. The failure of the jury to make such a finding, he submits, violated the Supreme Court’s decision in Apprendi and requires resentencing.

The consequence of this alleged violation, Humphrey maintains, is that he was subjected to an increased penalty for conduct not charged in the indictment based on the district court’s finding by a preponderance of the evidence that he was responsible for 50-150 kilograms of cocaine. At oral argument, the Government conceded that the district court’s sentencing of Humphrey offended Apprendi, as construed by our decision in United States v. Ramirez, 242 F.3d 348 (6th Cir.2001).

As our discussion below reveals, we too conclude that Humphrey has demonstrated an Apprendi violation that requires us to vacate his sentence and remand this case for resen-tencing. The Supreme Court in Apprendi 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.” 530 U.S. at 490, 120 S.Ct. 2348.

Although Humphrey was indicted for and convicted of violations of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A), the jury’s failure to determine beyond a reasonable doubt the quantity of drugs for which Humphrey should be held responsible properly required him to be sentenced only under 21 U.S.C. § 841(b)(1)(C). See Ramirez, 242 F.3d at

Section 841(b)(1)(

C) provides for a maximum penalty of twenty years except where, as here, a defendant has a prior felony drug conviction, in which case a defendant is subject to a thirty-year maximum statutory penalty. Because the district court’s twenty-year sentence did not exceed the thirty-year maximum statutory penalty, on this basis alone, Humphrey can state no error.

Our Apprendi analysis, however, does not end with a finding that Humphrey’s sentence did not exceed the prescribed statutory maximum penalty, as a defendant may nevertheless state an Ap-prendi violation where he can demonstrate that the district court’s factual determination resulted in an increase of the range of statutory penalties applicable to the defendant for purposes of sentencing. Cf.

Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (“[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” (citation omitted)). We have recognized that such a violation may be stated when a district court’s drug quantity determination subjects a defendant to a mandatory-minimum term of imprisonment, which would not have been triggered but for the district court’s findings. In United States v.

Flowal, we vacated the defendant’s mandatory sentence of life imprisonment without the possibility of parole and remanded for resentencing where the district court’s drug quantity finding alone rendered the defendant ineligible for a nonmandatory minimum sentence, observing that: This difference [between possible penalties] is significant in this case because the trial judge’s determination of the weight of the drugs took away any discretion in terms of imposing a shorter sentence.

It is not a foregone conclusion that the trial judge would have sentenced Flowal to life without the possibility of release if a jury had determined the drugs weighed 4.997 kilograms. In fact, if the jury had determined that the drugs weighed less than 500 grams, a life sentence would not have even been an option under 21 U.S.C. § 841(b)(1)(C). The judge’s determination effectively limited the range of applicable penalties and deprived Flo-wal of the opportunity to receive less than life imprisonment without the possibility of release. 234 F.3d 932, 937 (6th Cir.2000).

Likewise, in Ramirez, we vacated the defendant’s twenty-year mandatory sentence under § 841(b)(1)(

A) and remanded his case for resentencing where the applicable statutory penalty was determined exclusively by the district court’s drug quantity finding. There, we observed that “[aggravating factors, other than a prior conviction, that increase the penalty from a nonmandatory minimum sentence to a mandatory minimum sentence, or from a lesser to a greater minimum sentence, are now elements of the crime to be charged and proved.” Ramirez, 242 F.3d at 351—52.

The failure of the jury to determine beyond a reasonable doubt the quantity of drugs for which Ramirez was criminally responsible where the Government had neither charged nor sought to prove to the jury a drug quantity sufficient to trigger a mandatory minimum sentence, we concluded, required him to be sentenced under § 841(b)(1)(C). In United States v. Strayhom, we again vacated a defendant’s sentence and remanded his case for resentencing after a district court’s attribution of 414 pounds of marijuana to the defendant resulted in a ten-year mandatory minimum sentence under § 841(b)(1)(B).

Significant to this case, the indictment in Strayhom, like those at issue in Flowal and Ramirez, failed to specify the quantity of drugs for which the Government sought to hold the defendant criminally responsible. In setting aside Strayhorn’s sentence, we observed that: Under Ramirez, if the government seeks to convict and sentence Strayhorn under § 841(b)(1)(

B) for conspiracy to possess more than 100 kilograms of marijuana, it must indict him appropriately and then prove the elements of that offense beyond a reasonable doubt. Otherwise, the government may indict a defendant under the provision with the lowest statutory maximum sentence and then, as in this case, rely on relevant conduct findings to achieve what it otherwise might not if held to a higher burden of proof, namely a sentence under a separate offense’s enhanced penalty provision. 250 F.3d at 470.

Consistent with our holdings in Flowal, Ramirez, and Strayhorn, we find that the district court violated Apprendi when it sentenced Humphrey to a mandatory sentence of 240 months. Although the district court properly found that Humphrey was subject to a Guidelines sentencing range of 235 to 293 months, it nevertheless erroneously believed that it was required to sentence Humphrey to a mandatory minimum sentence of 240 months, as provided for in § 841(b)(1)(A).

We recognize that Ramirez and Strayhorn are distinguishable inasmuch as those cases involved situations in which the statutory mandatory minimum imposed was equivalent to the statutory maximum; Humphrey, by contrast, was sentenced to a twenty-year mandatory minimum sentence under § 841(b)(1)(A), despite the fact that he should have been sentenced under § 841(b)(1)(C), which provides for a thirty-year statutory maximum penalty. A close inspection of Flowal, Ramirez, and Strayhorn reveals that such a distinction is of no consequence.

The rationale underlying each of these panel’s decisions was not that the mandatory minimum sentence of one provision was less than or equal to the statutory maximum of another, but a concern that the district court was compelled to issue a sentence that, but for its drug quantity determination, it would not have been obligated (or even permitted) to impose. See Strayhorn, 250 F.3d at 470 (“It matters not, according to Ramirez, that the statutory maximum for § 841(b)(1)(

D) is equivalent to the statutory mandatory minimum for § 841(b)(1)(B).”); Ramirez, 242 F.3d at 351 (noting that the difference between a statutory maximum penalty and a mandatory-minimum penalty of the same length is significant because the trial judge’s determination of the weight of the drugs “took away any discretion in terms of imposing a shorter sentence.” (quoting Flowal, 234 F.3d at 937)). Indeed, the district court in the instant case, even if it had been so inclined, would not have sentenced Humphrey to 235 months, the low end of the Guidelines sentencing range, because it believed that the twenty-year statutory mandatory minimum sentence set forth in § 841(b)(1)(

A) removed its authority to do so. It is precisely this situation that we confronted in Flowal, Ramirez, and Strayhorn and that we concluded offended the rule of Appren-di. The jury in this case should have determined beyond a reasonable doubt the quantity of drugs for which Humphrey was criminally responsible.

In the absence of such a finding, the district court, consistent with our holding in Ramirez, properly should have sentenced Humphrey under § 841(b)(1)(C), which sets forth a thirty-year enhanced statutory maximum penalty, and significantly, no mandatory minimum term of imprisonment where, as here, no death or serious bodily injury has resulted from use of the substance. We accordingly vacate Humphrey’s sentence and remand this case to permit the district court an opportunity to resentence him within the appropriate Guidelines sentencing range. This Court’s recent decisions in United States v.

King and United States v. Garcia, 252 F.3d 838 (6th Cir.2001), both support and limit our holding today. King presents facts analogous to the case at bar. In King, two defendants were convicted by a jury and sentenced under the overlapping provisions of 21 U.S.C. § 841 for methamphetamine trafficking; in neither instance were the drug amounts specified in the indictment or submitted to the jury. One of the defendants was a prior felon and thus faced between zero and thirty years of imprisonment for trafficking in any detectable amount of drugs under § 841(b)(1)(C).

He faced a maximum range of twenty years to life for possessing fifty grams or more of methamphetamine under § 841(b)(1)(A). The district judge found the defendant responsible for more than 300 grams but less than one kilogram of methamphetamine and sentenced him to 240 months (twenty years) of imprisonment and ten years of supervised release. As in the present case, the Government in King admitted at oral argument that the district court had erred under Ramirez. King, 272 F.3d at 375.

This Court agreed, and found that the district court had erred because the district judge’s finding and mandatory minimum sentence of twenty years had increased the prescribed range of penalties to which the defendant was exposed. Id. at 375, 378 (citing Ramirez, 242 F.3d at 350). However, in the very same case, this Court found no Apprendi violation where the other defendant’s sentence under the Guidelines exceeded but did not equal the mandatory minimum of § 841(b)(1)(A), yet still remained within the statutory maximum of § 841(b)(1)(C).

Like the first defendant, the second defendant was found by a preponderance of the evidence to have trafficked in between 300 grams and one kilogram of methamphetamine. Because he had no prior convictions, he was exposed to a mandatory minimum of ten years and a maximum of life under § 841(b)(1)(A). With no amount specification, he would have faced no minimum and a maximum of twenty years under § 841(b)(1)(C). This second defendant was sentenced to 151 months (twelve years and seven months). Relying upon this Court’s decision in United States v.

Garcia, we found that the district court had not erred because the twelve years and seven months of imprisonment, while it exceeded the ten-year mandatory minimum of § 841(b)(1)(A), did not equal the ten-year minimum of the same provision. See King, 272 F.3d at 377-78. While this result seems anomalous, it is dictated by a prior ruling. In United States v. Garcia, which King cited, the indictment did not specify a quantity of drugs. At allocution, the defendant explicitly admitted to only an amount of marijuana that carried a five— to forty-year sentence under § 841(b)(1)(B).

Using the preponderance of the evidence standard, the district judge found that the defendant had possessed enough drugs to sentence him to a range of ten years to life under § 841(b)(1)(A). The judge sentenced the defendant under the Guidelines to eleven years and three months. Although the sentence exceeded the five-year minimum under § 841(b)(1)(B) (as well as the ten-year minimum of § 841(b)(1)(A)), this Court found no Apprendi violation because the sentence imposed — eleven years and three months — was in excess of, but not “at the bottom of the higher statutory range.” Garcia, 252 F.3d at 843.

Because the sentence did not equal the statutory minimum, “nothing indieate[d] that the district court thought itself constrained by a specific statute to impose the sentence it did.” Id. After Garcia and King we are left with an inordinately complicated Apprendi doctrine. Although it is obvious that the limitations placed upon Ramirez lead to peculiar results, we are constrained by the principle of stare decisis to abide by those decisions. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985).

It is also apparent that much of our current Apprendi jurisprudence, as it relates to mandatory mínimums, rests upon what was in the mind of the district judge when she sentenced the defendant. Under our current doctrine, a district judge may sentence a defendant to a term of imprisonment which exceeds, but does not equal, the mandatory minimum of a higher penalty range without concern that such a sentence will raise an inference that she felt herself constrained by the mandatory* minimum. See Garcia, 252 F.3d at 843.

However, if evidence in the record indicates that the judge thought herself constrained to sentence the defendant within the higher statutory range, such evidence will demonstrate a potential Ap-prendi violation. See Strayhorn, 250 F.3d at 470. A penalty which exactly equals the bottom of the higher range is probative of such a perception of constraint. See United States v. Stafford, 258 F.3d 465, 479 n. 9 (6th Cir.2001). We anticipate that this Apprendi cacophony soon will be harmonized by the Supreme Court. See Harris v.

United States, 122 S.Ct. 663, 151 L.Ed.2d 578, 2001 WL 716327 (Dec. 10, 2001) (granting certiorari on the question of whether fác-tual findings that result in an increased mandatory minimum sentence must be alleged in an indictment and proved beyond a reasonable doubt). In the meantime, we are called upon to decide cases in conformity with the law. While we recognize the frustration expressed in the dissent, we find its suggested resolution to this case wanting, both as a practical matter and as a matter of jurisprudence.

The dissent’s argument relies on two interdependent assumptions: first, that our precedent in this area is not just complex, but fundamentally irreconcilable; second, that because it is irreconcilable, we are free to ignore some cases in favor of others. Neither of these assumptions can withstand scrutiny. As the dissent acknowledges, the Supreme Court’s Ap-prendi decision offers more than one formulation of the test — one that appears to support a “statutory maximum” rule, and another that appears to support an “increased range” rule.

Nevertheless, the dissent faults this Court for failing to adhere to what it describes as a “statutory maximum”

interpretation of Apprendi. The dissent extracts from our decisions in United States v. Page and United States v. Munoz, 233 F.3d 410 (6th Cir.2000), among others, an exclusive “statutory maximum”

interpretation of Apprendi. As with the standard of review, however, none of these decisions preclude a companion “increased range” rule that would cover mandatory mínimums. Page held that Apprendi had been violated because the sentence exceeded the statutory maximum — it said nothing about Apprendi’s application to mandatory mínimums. Munoz held that Apprendi had not been violated where a sentence did not exceed the statutory maximum, but again, we cannot infer from Munoz that the panel intended to endorse an exclusive “maximum only” rule.

The dissent argues that our decision in Flowal — which was actually argued before Munoz, but decided two weeks afterward — took an “unwarranted” turn from the “maximum only” rule of Page and Munoz. But there is nothing fundamentally irreconcilable about Apprendi protecting a defendant from a sentence that exceeds the statutory maximum and a sentence that increases the range of penalties by raising the mandatory minimum. Cases should be construed as to avoid intra-circuit conflicts, not to create them. Cf., e.g., Hale v.

Arizona, 993 F.2d 1387, 1393 (9th Cir.1993) (noting that for prudential reasons, a court avoids unnecessary conflicts with other circuits). Nevertheless, the dissent insists that Flowal and its progeny have spawned a “line of cases parallel to, but at odds with, another distinct line of cases following the ‘statutory maximum’ rule of Munoz, Page, and Rebmann.” This concept of a “parallel precedent” is nothing more than a bugbear. Nearly every case the dissent marshals to prove the existence of this “parallel precedent” is an unpublished decision with no binding effect. See 6th Cir. R. 28; United States v.

Ennenga, 263 F.3d 499, 504 (6th Cir.2001) (unpublished decisions are not controlling precedent); Salamalekis v. Comm’r of Soc. Sec., 221 F.3d 828 (6th Cir.2000) (same). On the contrary, as demonstrated in King and Garcia above, even those panels that have found no Apprendi error with respect to mandatory mínimums have been bound by the principle of stare decisis to acknowledge or distinguish Flowal, Strayhom, or Ramirez. See, e.g., King, 272 F.3d at 374; United States v. Laster, 258 F.3d 525, 581-82 (6th Cir.2001); Stafford, 258 F.3d at 479 n. 9; Garcia, 252 F.3d at 843.

It is axiomatic that a court of appeals must follow the precedent of prior panels within its own circuit. See, e.g., FDIC v. Abraham, 137 F.3d 264, 268-69 (5th Cir.1998); United States v. Hogan, 986 F.2d 1364, 1368 (11th Cir.1993); Salmi, 774 F.2d at 689; In re Penn Central Transp. Co., 553 F.2d 12, 15 (3d Cir.1977); Doe v. Charleston Area Med. Ctr., 529 F.2d 638, 642 (4th Cir.1975); United States v. Olivares-Vega, 495 F.2d 827, 829 (2d Cir.1974); see also 6th Cir. R. 206(c).

Yet the dissent invites us to believe that the principle of stare decisis obliges us to bifurcate our post Apprendi- jurisprudence into a “first” line of cases, which we must follow, and a “second” line of cases, which we are (presumably) free to ignore. Even if we were to agree with the dissent, and believe Flowal and its progeny to have been decided wrongly, we cannot condone the suggestion that we are at liberty simply to overlook these decisions.

See, e.g., Salmi, 774 F.2d at 689 (“The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.”); Ramirez, 242 F.3d at 352 (Siler, J., concurring) (expressing doubt that Apprendi reaches mandatory mínimums, but concurring in the decision because the panel could not overrule Flowal); Davis v.

Estelle, 529 F.2d 437, 441 (5th Cir.1976) (“One panel of this Court cannot disregard the precedent set by a prior panel, even though it conceives error in the precedent.” (emphasis added)). Ultimately, we are unsure of how the dis

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