959 F.2d at 1010. In a like vein, the Third Circuit concluded in United States v. Amis, 926 F.2d 328 (3d Cir. 1991), that a defendant's criminal history must be considered in identifying the statutory maximum. In that case, the defendant's criminal history boosted the statutory maximum under section 841(b)(1) to life imprisonment.

Faced with a need to improvise, several courts of appeals concluded that the phrase encompassed not merely the statutory maximum applicable to the offense of conviction simpliciter, but also the upgraded statutory maximum that results after available enhancements for prior criminal activity are taken into account. See United States v. Smith, 984 F.2d 1084, 1085 (10th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 204 (1993); United States v. Garrett, 959 F.2d 1005, 1009-11 (D.C. Cir. 1992); United States v. Amis, 926 F.2d 328, 329-30 (3d Cir. 1991); United States v. Sanchez-Lopez, 879 F.2d 541, 558-60 (9th Cir. 1989). This lexicographical choice carried with it important consequences; under the courts' construction, a defendant whose maximum possible term of imprisonment for a crime of violence or drug offense was enhanced from, say, twenty to thirty years on account of prior criminal activity, netted two additional offense levels (increasing his TOL from thirty-two to thirty-four) and found himself in a steeper sentencing range.

At least two other circuits have rejected this argument. See United States v. Amis, 926 F.2d 328 (3d Cir. 1991); United States v. Sanchez-Lopez, 879 F.2d 541 (9th Cir. 1989). In United States v. Sanchez-Lopez, the Ninth Circuit held that application of the career offender provision to the increased statutory maximum for a defendant with prior drug convictions under subsection 841(b)(1)(B) does not result in multiple enhancement of his sentence.

The courts consistently interpreted this to mean the maximum after enhancements. See, e.g., United States v. Smith, 984 F.2d 1084, 1086-87 (10th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 204, 126 L.Ed.2d 161 (1993); United States v. Garrett, 959 F.2d 1005, 1009-11 (D.C. Cir. 1992); United States v. Amis, 926 F.2d 328, 329-30 (3d Cir. 1991); United States v. Sanchez-Lopez, 879 F.2d 541, 558-60 (9th Cir. 1989). But whether the amendment is to a prior Commission position or to judicial interpretation of the Commission's position makes no difference to the analysis.

Courts addressing this definition in determining the applicable offense level under Section(s) 4B1.1 for repeat offenders uniformly held that "Offense Statutory Maximum" referred to the enhanced statutory maximum. See United States v. Sanchez, 988 F.2d 1384, 1394-97 (5th Cir.), cert. denied, 510 U.S. 878 (1993); United States v. Smith, 984 F.2d 1084, 1086-87 (10th Cir.), cert. denied, 510 U.S. 873 (1993); United States v. Morales, 964 F.2d 677, 682-83 (7th Cir.), cert. denied, 506 U.S. 903 (1992); United States v. Garrett, 959 F.2d 1005, 1009-11 (D.C. Cir. 1992); United States v. Amis, 926 F.2d 328, 329-30 (3d Cir. 1991); United States v. Sanchez-Lopez, 879 F.2d 541, 558-60 (9th Cir. 1989). Under this construction, use of the enhanced figure in Allen's case would result in an offense level of 24, producing a sentencing range of between 100-125 months.

If the Government does not file such notice, however, the lower sentencing range will be applied even though the defendant may otherwise be eligible for the increased penalty. See United States v. Smith, 984 F.2d 1084, 1087 (CA10), cert. denied, 510 U.S. 873 (1993); United States v. Garrett, 959 F.2d 1005, 1009-1011 (CADC 1992); United States v. Amis, 926 F.2d 328, 329-330 (CA3 1991); United States v. Sanchez-Lopez , 879 F.2d 541, 558-560 (CA9 1989). The Commission subsequently amended the Career Offender Guideline's commentary to preclude consideration of statutory enhancements in calculating the "offense statutory maximum."

Quiroga also asserts that the district court impermissibly "double-counted" his prior Iowa conviction for delivery of a controlled substance, because the conviction served to increase the statutory penalties for the instant offense, pursuant to 21 U.S.C. §§ 841(b) and 851, and also to classify him as a career offender pursuant to USSG § 4B1.1. Several courts have rejected comparable contentions, on the view that double enhancement is not forbidden by the Constitution as long as it is intended by the Legislature, and, in any event, there is no double enhancement where the sentencing guidelines merely establish a range of punishment within the range of penalties authorized by statute. United States v. Moralez, 964 F.2d 677, 682-83 (7th Cir. 1992); United States v. Amis, 926 F.2d 328, 330 (3d Cir. 1991); United States v. Sanchez-Lopez, 879 F.2d 541, 559 (9th Cir. 1989). Quiroga seeks to distinguish these cases by relying on recent Sixth Amendment jurisprudence, including the decision in Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007).

Although § 4B1.1 was used to increase Appellant's Criminal History category to VI, the PSR specifically states that § 4B1.1(b)(A) was not used to increase Appellant's offense level, because Appellant's calculated offense level was greater than that described in the Career Offender provision's Table. In addition, this Court has previously rejected a virtually identical double counting argument, where a defendant's criminal history was used to increase both the Criminal History category and the Offense Level. United States v. Amis, 926 F.2d 328, 329 (3d Cir. 1991). IV.

Courts addressing the issue uniformly held that, where a statute, such as 21 U.S.C. §(s) 841, provides for an enhanced penalty based on a defendant's prior criminal record, "Offense Statutory Maximum" meant the enhanced statutory maximum. See United States v. Sanchez, 988 F.2d 1384, 1394-97 (5th Cir.), cert. denied, 114 S.Ct. 217 (1993); United States v. Smith, 984 F.2d 1084, 1086-87 (10th Cir.), cert. denied, 114 S.Ct. 204 (1993); United States v. Saunders, 973 F.2d 1354, 1364 (7th Cir. 1992), cert. denied, 506 U.S. 1070 (1993); United States v. Garrett, 959 F.2d 1005, 1009-11 (D.C. Cir. 1992); United States v. Amis, 926 F.2d 328, 329-30 (3d Cir. 1991); United States v. Sanchez-Lopez, 879 F.2d 541, 558-60 (9th Cir. 1989). These courts acknowledged that the provision effectively punished recidivists twice: first to enhance the defendant's criminal history category and again to increase the defendant's offense level, but found that result consistent with Congress's desire to sentence career offenders at or near the maximum.

Where a statute, such as 21 U.S.C. § 841(b)(1)(C), provides for an enhanced maximum penalty because of a defendant's prior criminal record, the circuit courts that addressed the issue prior to the Sentencing Commission's adoption of Amendment 506 have interpreted "Offense Statutory Maximum" to mean the enhanced statutory maximum. See United States v. Smith, 984 F.2d 1084, 1086-87 (10th Cir.), cert. denied, 114 S.Ct. 204 (1993); United States v. Sanchez, 988 F.2d 1384, 1394-97 (5th Cir.), cert. denied, 114 S.Ct. 217 (1993); United States v. Saunders, 973 F.2d 1354, 1364 (7th Cir. 1992), cert. denied, 506 U.S. 1070 (1993); United States v. Garrett, 959 F.2d 1005, 1009-11 (D.C. Cir. 1992); United States v. Amis, 926 F.2d 328, 329-30 (3d Cir. 1991); United States v. Sanchez-Lopez, 879 F.2d 541, 558-60 (9th Cir. 1989). Under this interpretation, a defendant's prior convictions are, in effect, used twice: first to enhance the defendant's criminal history category and again to enhance the defendant's offense level.