court "believe[d] that the Defendant and Roosevelt Scott were jointly involved in their own conspiracy with regard to distributing powder cocaine that the defendant turned into crack.”).) While it is true Theus was charged and convicted of the larger powder cocaine conspiracy, the record is clear, to the extent the district court identified a smaller uncharged conspiracy, the smaller conspiracy involved the production and distribution of crack cocaine. Whether a variance involving the drug type is permissible presents some interesting questions, particularly in the powder/crack cocaine area, but those issues are not before the court. Instead, Theus argues counsel was ineffective for failing to argue Apprendi v. New Jersey, 530 U.S. 466, 495, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (<HOLDING>), operates to require a jury determination of
holding that facts that increase the maximum sentence a defendant faces must be proven to a jury beyond a reasonable doubt holding that all facts that would enhance the defendants sentence above the statutory maximum must be found by a jury holding any fact other than a prior conviction that increases the maximum penalty beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt holding that any fact that increases a sentence beyond the prescribed statutory maximum must be proven beyond a reasonable doubt to a jury holding facts elevating a sentence beyond the statutory maximum must be found by a jury