United States v. Meais

18 F. App'x 132

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 10, 2001
• Docket: 99-4579
• Status: Unpublished

Opinion

OPINION

PER CURIAM.

Alfred Emanuel Meáis appealed from his jury conviction and resulting 360 month sentence for conspiracy to distribute crack cocaine in violation of 21 U.S.C.A. § 846 (West Supp.1999). The Supreme Court vacated our previous opinion affirming Meais’s conviction and sentence and remanded for reconsideration under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We now affirm in part, vacate in part, and remand for re-sentencing.

Meáis alleged the district court erred in denying his motion in limine and in admitting evidence of prior bad acts. We find no abuse of discretion in admission of this evidence. See United States v. Kennedy, 32 F.3d 876, 886 (4th Cir.1994). We also find no clear error in the sentencing court’s increase of Meais’s base offense level under U.S. Sentencing Guidelines Manual § 3B1.4 (1998) for using a minor to commit the offense. See United States v. Nale, 101 F.3d 1000, 1003 (4th Cir.1996).

In addition we find no merit to Meais’s arguments that his conviction should be vacated because his co-conspirator was a government informant; that his criminal history was improperly calculated; that the amount of cocaine base attributed to him was incorrectly calculated; that he was denied the right to testify in his own behalf; or that he was denied the right of allocution.

We do find plain error, however, in regard to Meais’s sentence, vacate his sentence, and remand to the district court for re-sentencing. Under Apprendi, drug quantity must be treated as an element of an aggravated drug trafficking offense, and failure to charge a specific drug quantity in the indictment and to submit the quantity issue to the jury constitutes plain error. United States v. Cotton, 261 F.3d 397, 403-04 (4th Cir.2001) (citing United States v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc)). Failure to charge drug quantity in the indictment and to submit the issue to the jury also “seriously affeet[s] the fairness, integrity or public reputation of judicial proceedings” such that we should exercise our discretion to recognize the error. Id. (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

The district court sentenced Meáis to a term of imprisonment that exceeded the twenty-year maximum penalty provided for a violation of 21 U.S.C. § 841(b)(1)(C) based upon an “identifiable but unspecified quantity” of cocaine base. See Cotton, 261 F.3d at 403-04 (quoting Promise, 255 F.3d at 156-57). By sentencing Meáis to a term greater than twenty years, the district court sentenced Meáis for a crime for which he was neither indicted nor convicted. See id. Under Apprendi, the “indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted.” Id. (internal quotation omitted). Drug quantity was not noted in Meais’s indictment, the court’s jury instructions, or the jury’s verdict form. We therefore conclude that under Cotton, the district court exceeded its jurisdiction in sentencing Meáis for a crime with which he was never charged or convicted. For that reason, we vacate Meais’s sentence and remand to the district court for re-sentencing in light of Apprendi and Cotton. We affirm the district court’s judgment in all other respects. We dis pense with oral argument because the facts and legal contentions of the parties are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.