quantity function as elements by increasing the maximum penalty a defendant may receive, are they elements of an aggravated offense or are they sentencing factors with heightened due process requirements? See id. at 573, 575 (Hug, J., concurring) (disagreeing with the majority’s apparent conclusion that the penalty provisions of § 841(b) are not elements of the offense). The district court correctly interpreted Buckland as holding that drug type and quantity are not elements of the offense, but rather are material facts that must be submitted to the jury and proved beyond a reasonable doubt. The Buckland opinion emphasized that the relevant inquiry is not whether a penalty provision is an element, but rather whether it exposes the defendant to a longer sentence than woul (9th Cir.2002) (<HOLDING>); United States v. Minore, 292 F.3d 1109,
recognizing that sentencing judges have the discretion to reject any sentencing guideline but no judge is required to do so holding jury is entitled to accept the states version of the facts and reject appellants version or reject any of the witnesses testimony holding that biased on buckland we must reject valensias contention that the sentencing provisions of  841 create separate crimes holding that under the crimes code conspiracy and the completed substantive offense are separate crimes holding the crimes merge where the jury was not asked to determine whether two assaults occurredeventhough the evidence may have been sufficient to support separate crimes