United States v. Meais ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 99-4579
ALFRED EMANUEL MEAIS, a/k/a
Randolph Brown, a/k/a Kool Aid,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-98-307)
Submitted: August 24, 2001
Decided: September 10, 2001
Before WIDENER, LUTTIG, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
Michael W. Patrick, HAYWOOD, DENNY & MILLER, L.L.P., Dur-
ham, North Carolina, for Appellant. Walter C. Holton, Jr., United
States Attorney, Sandra J. Hairston, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
2 UNITED STATES v. MEAIS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Alfred Emanuel Meais 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 con-
viction and sentence and remanded for reconsideration under
Apprendi v. New Jersey, 530 U.S. 466 (2000). We now affirm in part,
vacate in part, and remand for re-sentencing.
Meais 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. Ken-
nedy, 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 convic-
tion 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 calcu-
lated; 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, ___ F.3d ___,
2001 WL 901259, at *3 (4th Cir. Aug. 10, 2001) (No. 99-4162) (cit-
UNITED STATES v. MEAIS 3
ing 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 affect[s] the fairness, integrity or pub-
lic 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 (1993).
The district court sentenced Meais 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 unspeci-
fied quantity" of cocaine base. See Cotton, 2001 WL 901259, at *3
(quoting Promise, 2001 WL 732389, at *5). By sentencing Meais to
a term greater than twenty years, the district court sentenced Meais
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 Meais for a crime with which he was
never charged or convicted. For that reason, we vacate Meais’s sen-
tence 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 dispense with oral argument because the facts and
legal contentions of the parties are adequately presented in the materi-
als before the Court and argument would not aid the decisional pro-
cess.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED