Prentiss did not deal with an Apprendi challenge to a defective indictment, and some of our post- Prentiss cases, in the absence of a constitutional objection below, have continued to apply a plain error analysis to indictments that failed to state a quantity of drugs. See United States v. Lujan, 268 F.3d 965, 967 (10th Cir. 2001); United States v. Price, 265 F.3d 1097, 1107-08 (10th Cir. 2001), cert. denied, ___ U.S. ___, 122 S.Ct. 2299, 152 L.Ed.2d 1056 (2002). We need not comment on the application of Prentiss to non- Apprendi claims in the wake of Cotton, as we are guided by the Court's recent instruction that we review Apprendi challenges to an indictment's omission of drug quantity for plain error where no constitutional objection was raised below.

(See Dkt. Nos. 1002 1003.) The Government then filed a motion to reconsider, arguing that U.S. Sentencing Guidelines Manual § 5G1.2(d) and the Tenth Circuit's intervening decision in United States v. Price, 265 F.3d 1097 (10th Cir. 2001), required imposition of consecutive rather than concurrent sentences. (Dkt. Nos. 1006 1009.

Similarly, the imposition of consecutive sentences, each for a term not in excess of the statutory maximum, punishes the defendant for the manner in which he committed the crimes based on the objective standard of quantity determined under U.S.S.G. § 2D1.1(a)(3)(C)(2) (Drug Quantity Table).See also United States v. Price, 265 F.3d 1097, 1109 (10th Cir. 2001) ("Because § 5G1.2(d) is a mandatory provision . . . [t]he district court would be required to impose twenty-year terms on defendant's seven drug convictions and to run these sentences . . . consecutively, resulting in a total consecutive sentence of 208 years."); United States v. Page, 232 F.3d 536, 542 (6th Cir. 2000), cert. denied, 532 U.S. 1056, 121 S.Ct. 2202, 149 L.Ed.2d 1032 (2001) (using a § 5G1.2(d) stacking approach to affirm despite Apprendi error); United States v. Ervasti, 201 F.3d 1029, 1045-46 (8th Cir. 2000) (explaining and implementing § 5G1.2(d)). We conclude, therefore, that even if Buckland had been indicted only under 21 U.S.C. § 841(b)(1)(C), the trial judge, using the Guidelines and § 5G1.2(d), would have been required to sentence him to 324 months made up of consecutive sentences, each of which would not have exceeded 20 years.

Previously, in Price's direct appeal, we held that although Price's life sentences for the drug counts were invalid under Apprendi v. New Jersey, 530 U.S. 466 (2000), that plain error did not affect Price's substantial rights because the district court would have been required, under a guideline that was mandatory at the time, to run the seven 20-year terms consecutively (along with sentences for several other counts) effectively resulting in a life sentence of 208 years. United States v. Price (Price I), 265 F.3d 1097, 1107-08 (10th Cir. 2001), abrogated in part by United States v. Booker, 543 U.S. 220 (2005). And in a later appeal, we held that Price did not qualify for a sentence reduction based on a lowered sentencing range for offenses involving particular amounts of cocaine base because his range was calculated based on a murder cross-reference, not drug quantity.

On direct appeal in 2001, we found that Mr. Price's life sentences for the drug charges under 21 U.S.C. § 841(b)(1)(A) were plainly erroneous because the drug quantity had not been submitted to the jury. See United States v. Price , 265 F.3d 1097, 1108 (10th Cir. 2001). We concluded that Mr. Price "should have been sentenced under § 841(b)(1)(C), which provides for a maximum sentence of twenty years for each of [his] seven narcotics convictions." Id.

At the time of Mr. Hollis's sentencing, there was no Tenth Circuit authority on whether the provision was mandatory or discretionary. See United States v. Price, 265 F.3d 1097, 1109 (10th Cir. 2001). In Price, this court resolved the issue and determined that application of § 5G1.2(d) was mandatory.

Defendant-Appellant Joshua Price, Jr., seeks rehearing, with suggestion for en banc consideration, from this panel's decision denying him a certificate of appealability (COA), see 28 U.S.C. § 2253(c), to appeal the district court's decision denying him 28 U.S.C. § 2255 relief from his federal drug trafficking convictions. See United States v. Price, 265 F.3d 1097, 1100-01 (10th Cir. 2001) (listing Price's twenty-one federal convictions). In his rehearing petition, Price asks us to reconsider his claims that Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), requires us to vacate his sentences because the jury never found the type and quantity of drugs for which the district court sentenced him, and never found that Price killed a government witness, a factual finding the district court made in applying U.S.S.G. § 2A1.1 to enhance Price's sentence.See Price, 118 Fed.Appx. at 471.

of the mandatory rather than the discretionary and the majority of circuits that have decided the issue have found that § 5G1.2(d) is mandatory. See United States v. Outen, 286 F.3d 622, 640 n. 19 (2d Cir. 2002) ("We have held that the application of § 5G1.2 is largely mandatory."); United States v. Diaz, 296 F.3d 680, 684 (8th Cir. 2002) (en banc) ("§ 5G1.2 mandates consecutive sentences in those cases in which the total punishment exceeds the statutory maximum for any one count."); United States v. Buckland, 289 F.3d 558, 570 (9th Cir. 2002) (en banc) ("[I]f the Guidelines calculation exceeds the statutory maximum for any count in a case involving multiple counts, then the mandatory provisions of § 5G1.2(d) come into play regarding the question of consecutive sentences."); United States v. Angle, 254 F.3d 514, 518 (4th Cir. 2001) (en banc) ("[T]he district court must impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment.") (emphasis added); United States v. Price, 265 F.3d 1097, 1109 (10th Cir. 2001) ("This court agrees with those circuits which have concluded that § 5G1.2(d) is a mandatory provision."). But see United States v. Velasquez, 304 F.3d 237, 242-43 (3d Cir. 2002) (stating that 18 U.S.C. § 3584 gives district courts discretion to impose consecutive or concurrent sentences); United States v. Vasquez-Zamora, 253 F.3d 211, 214 (5th Cir. 2001) (holding that the district court had discretion under 5G1.2(d) to impose a consecutive or concurrent sentence).

Because § 5G1.2(d) mandates consecutive sentences in those cases in which the total punishment exceeds the statutory maximum for any one count and the district court's calculation of total punishment is not affected by an Apprendi error, remand to allow the district court to consider whether to impose consecutive or concurrent sentences would be an idle act. See United States v. Price, 265 F.3d 1097, 1109 (10th Cir. 2001) (because § 5G1.2(d) is mandatory, the court did not have to engage in "idle speculation as to the sentence the district court could impose upon remand" (internal quotation omitted)); but see United States v. Vasquez-Zamora, 253 F.3d 211, 214 (5th Cir. 2001) (district court has discretion under the guidelines). The Bradford and Hollingsworth courts believed that the Sturgis court found remand unnecessary because the record was "so clear that we [were] able to recalculate the appellants' sentences ourselves."

We have held that U.S.S.G. § 5G1.2(d) is a mandatory provision because it speaks "in terms of `shall' rather than `may.'" United States v. Price, 265 F.3d 1097, 1109 (10th Cir. 2001). Therefore, absent its Apprendi error, the district court nevertheless would have been required to impose twenty-year terms for each of appellant's drug convictions and to run the sentences consecutively to the extent necessary to produce a combined sentence equal to 286 months, the same effective sentence appellant is serving now.