OPINION OF THE COURT
Vincent Gori challenges the sentence imposed for his involvement in a conspiracy to distribute a controlled substance. We affirm the District Court.
I.
The Government charged Gori, under 21 U.S.C. § 846, with one count of conspiracy to violate 21 U.S.C. § 841(a)(1), which makes it illegal “to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 1 Although the indictment did not allege the precise weight of drugs involved in the conspiracy, it charged Gori with “intent to distribute more than 600 grams of methamphetamine.” 21 U.S.C. § 841(b)(l)(A)(viii) mandates a minimum ten-year sentence for distributing more than 500 grams of a “mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers.”
Gori pled guilty, but specifically refused to stipulate to the amount of drugs involved. He waived his right to a jury trial on this issue and agreed that the District Court should determine, beyond a reasonable doubt, the amount of methamphetamine he distributed. Based on the Government’s evidence of eight transactions, in which Gori sold a total of 969.8 grams of a mixture containing methamphetamine to an undercover law-enforcement officer, the Court found that more than 500 grams of a mixture containing methamphetamine were involved in the conspiracy. Therefore, it sentenced Gori to the statutory minimum of ten years under § 841(b)(l)(A)(viii). In addition, the Court refused to grant Gori’s motion for a downward departure from the United States Sentencing Guidelines (“U.S.S.G.”) based on his claim that the average purity of the mixtures he sold in those eight transactions was only 2.7 percent. This appeal followed.
II.
A. Due process
Gori contends that his indictment did not specifically allege the amount of methamphetamine involved in the conspiracy, thereby denying him due process. He argues that “the amount of drugs allegedly involved should be held to constitute an element of the offense” and thus the Government’s “failure to allege the specific amount of drugs involved constitutes a failure to charge a crime.” Gori further argues that the Government’s failure to mention in its indictment the specific amount of drugs involved violates
Apprendi v. New
Jersey,
We discern no due process violation. The indictment stated clearly the crime charged against Gori. Moreover, the in *237 dictment’s allegation that the conspiracy involved “more than 500 grams of methamphetamine” put Gori on notice that, if convicted, he would receive a sentence of at least ten years under § 841(b)(1) (A)(viii).
Moreover, this case does not offend
Ap-prendi.
It holds that sentence enhancements, other than a prior conviction, that increase a criminal defendant’s punishment beyond the statutory maximum for the crime charged must also be included in the indictment and proved beyond a reasonable doubt.
Apprendi,
B. Aggregation of multiple transactions to determine amount of methamphetamine involved
Gori alleges the District Court erred in determining that more than 500 grams of methamphetamine were involved in the conspiracy because no single sale or transaction involved over 500 grams. He argues that § 841(b)(1)(A) penalizes a “violation” of § 841(a) and that each sale or transaction should be viewed as a separate violation. He cites
United States v. Winston,
We disagree.
Winston’s
holding disallowing aggregation of multiple drug transactions for § 841(b) purposes did not extend to multiple drug transactions as part of a conspiracy. Here, all eight drug transactions comprise the conspiracy to which Gori pled guilty. While no Third Circuit ease squarely addresses this issue, we find persuasive
United States v. Pruitt,
Even were we not to aggregate transactions in applying § 846, Gori’s sentence would still be proper.
United States v. Boone,
*238 C. Whether what Gori sold was a “mixture”
Gori alleges that he did not sell more than 500 grams of a mixture containing methamphetamine, for which § 841(b)(l)(A)(viii) prescribes a penalty. He reasons that, because the drugs he sold were so diluted they were effectively unmarketable, they were not a “mixture.” He therefore contends that his sentence should reflect not the total weight (i.e., methamphetamine plus cutting agent) of the drugs he sold, but only the weight of the pure methamphetamine contained therein - twenty-seven grams.
We reject this argument as well. While § 841 does not explicitly define “mixture,” the Supreme Court has said that a drug combined with a carrier medium “used to facilitate the distribution of the drug” is a mixture.
Chapman v. United States,
Furthermore, we decline to read a “purity” requirement into § 841’s definition of “mixture” because the statute already provides that a drug must contain a “detectable amount of methamphetamine” to give *239 rise to criminal liability. See 21 U.s.c. § 841(b)(1)(A)(viii). congress has made the policy decision that purity is not an element of § 841(b)(1)(A)(viii). For us to go further crosses the Rubicon to the forbidden shore of judicial legislation. We decline the invitation.
Whether the drugs Gori sold contain a "detectable amount of methamphetamine" is a question of fact, the determination of which we overturn only if clearly erroneous. See United States v. Miele,
D. Failure to grant a downward departure due to the methamphetamine's dilution
Gori challenges the District court's failure to depart downward from the U.S.S.G. due to the low purity (as noted, 2.7 percent on average) of the methamphetamine mixture he sold. We may review a claim for downward departure only when the District court was not aware of its authority to grant a downward departure. United States v. Georgiadis,
The District Court was correct in refusing to depart downward, because to do so based on the low quality of a drug is an improper exercise of discretion. See, e.g., United States v. Beltran,
Downward departures are proper only "if the court finds `that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing commission in formulating the guidelines that should result in a sentence different from that described." U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). In this case, as the Upthegrove court noted, the Sentencing commission explicitly decided to make a defendant's sentence turn on a drug's weight, not its purity. Upthegrove,
E. Claim that methamphetamines are a Schedule III drug rather than a Schedule II drug
Finally, Gori argues that 21 U.s.c. § 812(c) classifies powdered methamphetamine as a Schedule III drug, for which the maximum punishment is five years, rather than the ten years he received for a Schedule II drug. Gori acknowledges that *240 21 C.F.R. § 1308.12(d) reclassifies methamphetamine as a Schedule II drug, but nonetheless contends that the statute’s classification must take precedence over that in the regulation.
Whatever the validity of this argument, it is irrelevant here. Section 841(b)(l)(A)(viii) imposes a minimum ten-year penalty for illegal activity involving “500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers.” The clear language of § 841 (b)(l)(A)(viii) indicates that its ten-year minimum penalty depends on whether a defendant has dealt in more than 500 grams of a methamphetamine mixture and not at all on the schedule in which methamphetamine belongs.
Moreover, Gori is wrong that § 812’s classification of methamphetamine supersedes the subsequent regulation. 21 U.S.C. § 811(a)(1) expressly authorizes the Attorney General to “transfer between such schedules any drug or other substance” upon making findings and in accordance with typical notice and comment rulemaking procedures. 21 C.F.R. § 1308.12(d) was properly promulgated.
See, e.g., United States v. Roark,
!¡! ‡ ‡ ‡ ‡ ‡
We affirm the District Court’s sentence.
Notes
. 21 U.S.C. §’846 states that conspiracy to violate, inter alia, § 841 "shall be subject to the same penalties as those prescribed for [§ 841], the commission of which was the object of the ... conspiracy.”
. As Gori’s Pre-Sentence Report noted, under U.S.S.G. § 2D 1.1 (c)(4), this amount of methamphetamine dictates an offense level of 32 and hence a sentence of 121 to 151 months *238 (when the Criminal History Category is I). The Pre-Sentence Report recommended a two-point decrease for acceptance of responsibility, leaving an offense level of 30 and a sentencing range between 97 and 121 months. The District Court sentenced Gori to 120 months imprisonment.
. Our holding is also consistent with the U.S.S.G.'s method of calculating a drug’s weight.
See
U.S.S.G. § 2D 1.1(c). Note A (''[T]he weight of a controlled substance ... refers to the entire weight of any mixture or substance
containing a detectable amount of the controlled
substance.”) (emphasis added);
id.
§ 2D1.1, cmt. n.l (" 'Mixture or substance’ as used in this guideline has the same meaning as in 21 U.S.C. § 841, except as expressly provided. Mixture or substance does not include materials that
must be separated
from the controlled substance before the controlled substance can be used.”) (emphasis added).
Compare United States v. Rodriguez,