
    UNITED STATES of America, Plaintiff-Appellee, v. Joseph Russell TYLER, Defendant-Appellant.
    No. 00-4850.
    United States Court of Appeals, Fourth Circuit.
    Submitted Sept. 10, 2001.
    Decided Sept. 25, 2001.
    Thomas P. McNamara, Federal Public Defender, G. Alan Dubois, Assistant Federal Public Defender, for appellant. John Stuart Bruce, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh, NC, for appellee.
    Before WIDENER, DIANA GRIBBON MOTZ, and KING, Circuit Judges.
   OPINION

PER CURIAM.

Joseph Russell Tyler pleaded guilty in July 2000 to the offense of importing cocaine and marijuana, in violation of 21 U.S.C.A. § 968 (West 1999). The criminal information charged that Tyler’s offense involved approximately forty-eight kilograms of cocaine hydrochloride and approximately 338 kilograms of marijuana. During the guilty plea proceeding, Tyler acknowledged that his sentencing range was from ten years to life imprisonment. After granting the Government’s motion for a downward departure pursuant to U.S. Sentencing Guidelines Manual § 5K1.1 (1998), the district court sentenced Tyler to a 138-month term of imprisonment. On appeal, Tyler challenges the constitutionality of the statutory sentencing scheme for his 21 U.S.C.A. § 963 offense and penalty provisions of 21 U.S.C.A. § 960 (West 1999 & Supp.2001) after Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

We reject Tyler’s challenge to the constitutionality of the federal drug statutes. In essence, Tyler argues that in the context of 21 U.S.C.A. §§ 841, 846 (West 1999), because courts uniformly treated the criteria in § 841(b) permitting enhanced maximum sentences as sentencing factors prior to Apprendi, but have since identified those facts as elements of “aggravated drug trafficking offenses,” see, e.g., United States v. Promise, 255 F.3d 150, 152 n. 1 (4th Cir.2001), Apprendi renders § 841 internally inconsistent, and thus unconstitutional. However, because the sentencing factor label applied to the drug thresholds of § 841(b) is a purely judicial construct, the creation and use of which followed the enactment of § 841, we conclude the reassignment of these facts from sentencing factors to elements of the offense following Apprendi is not of constitutional moment. See United States v. Cernobyl, 255 F.3d 1215, 1218-19 (10th Cir.2001) (citing cases from the Fifth, Seventh, and Eleventh Circuits dismissing constitutional challenges to § 841 in the wake of Apprendi); see also Promise, 255 F.3d at 168-74 (Luttig, J., concurring) (arguing the constitutional rule of Apprendi should not impact the statutory analysis of § 841). The same rationale applies to the sentencing scheme under 21 U.S.C.A. § 960, and therefore Tyler’s claim fails.

We therefore affirm the judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED. 
      
       Tyler waived prosecution by indictment and consented that the proceeding may be by information rather than by indictment.
     