at 572. We did so “by treating drug quantity and type, which fix the maximum sentence for a conviction, as we would any other material fact in a criminal prosecution: it must be charged in the indictment, submitted to the jury, subject to the rules of evidence, and proved beyond a reasonable doubt.” Id. at 568. Buckland is not altogether clear about whether the penalty provisions of § 841(b) are elements of an aggravated offense or are sentencing factors with heightened due process requirements. In fact, we rejected the distinction altogether, stating that “[t]he days of semantical hair splitting between ‘elements of the offense’ and ‘sentencing factors’ are over” and overruling case law to the contrary. Id. at 566 (citation omitted). Yet, if material facts such as dru (9th Cir.2002) (<HOLDING>), cert. denied, 537 U.S. 1146, 123 S.Ct. 948,
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 that when the indictment charges that a certain minimum quantity of drugs is involved in the offense proof of that quantity is a fourth element of the offense holding that for purposes of advising a defendant of the elements of a charge during a plea colloquy drug quantity is the functional equivalent of a critical element even though ajdmittedly  a finding of drug quantity is not necessary to convict a defendant of violating    841a holding that postapprendi drug quantity is an element of the offense to be proven to jury holding that drug quantity is an element of an offense under 21 usc  841