five years is permissible under Apprendi. To rub salt in the resultant wound, Craven further argues that he must be sentenced based on the minimum amount of marijuana contemplated by the statute (250 grams), which, with a criminal history category of I, would yield a maximum sentence of no longer than six months. See USSG § 2Dl.l(c)(17); USSG Ch.5, Pt. A (sentencing table). Craven’s argument has some problematic aspects. In the first place, Apprendi requires that “any fact (other .than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment....” 120 S.Ct. at 2355. At first blush, it is unclear whether drug quantity in this instance increases the “maximum penalty” permitted by the statute. Cf. United States v. Baltas, 236 F.3d 27 (1st Cir.2001)(<HOLDING>); United States v. LaFreniere, 236 F.3d 41 (1st
holding that where the indictment charged drug quantity but drug quantity was not submitted to the jury the district court erred in using drug quantity to increase the penalty beyond the twentyyear maximum of  841b1c holding apprendi inapplicable in heroin trafficking prosecution even though drug quantity not determined by the jury because district court sentenced defendant within the statutory maximum holding that apprendi does not apply where the defendant was sentenced to less than the statutory maximum holding that any apprendi error is harmless if the defendant is sentenced to less than the statutory maximum holding that since drug quantity did not increase the penalty beyond the prescribed statutory maximum apprendi did not require this fact to be determined by the jury