                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                  No. 01-4342
DERICK ANTHONY PETERSEN, a/k/a
Sean, a/k/a Seth Byrd,
                Defendant-Appellant.
                                       
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
                  Robert E. Payne, District Judge.
                           (CR-00-155)

                  Submitted: November 27, 2001

                      Decided: December 17, 2001

    Before WIDENER, TRAXLER, and KING, Circuit Judges.



Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


                             COUNSEL

Marcia Gail Shein, LAW OFFICE OF MARCIA G. SHEIN, P.C.,
Decatur, Georgia, for Appellant. Paul J. McNulty, United States
Attorney, Brian R. Hood, Assistant United States Attorney, Rich-
mond, Virginia, for Appellee.
2                     UNITED STATES v. PETERSEN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Derick A. Petersen appeals his 262-month sentence for possessing
cocaine base with the intent to distribute in violation of 21 U.S.C.A.
§ 841 (West 1999 & Supp. 2001). We affirm in part, vacate in part,
and remand with instructions for resentencing.

   First, Petersen argues Congress’ decision to continue punishing
convicted crack cocaine dealers more severely than powder cocaine
dealers, in light of the 1995 and 1997 reports by the United States
Sentencing Commission, violates his Eighth and Fourteenth Amend-
ment rights. We disagree. The Sentencing Commission reports "[do]
not change our earlier holdings" on the constitutionality of the sen-
tencing disparity between crack cocaine and powder cocaine. United
States v. Banks, 130 F.3d 621, 626 (4th Cir. 1997) (quoting United
States v. Hayden, 85 F.3d 153, 158 (4th Cir. 1996)). "Congress could
rationally have concluded that distribution of cocaine base [crack] is
a greater menace to society than distribution of cocaine powder and
warranted greater penalties because it is less expensive and, therefore,
more accessible, because it is considered more addictive than cocaine
powder and because it is specifically targeted toward youth." Id.
Thus, we affirm the district court’s denial of Petersen’s motion to
declare his sentence unconstitutional on this ground.

   Second, the Government concedes Petersen’s sentence is invalid
under Apprendi v. New Jersey, 530 U.S. 466 (2000), because it
exceeds the 240-month statutory maximum of 21 U.S.C.A.
§ 841(b)(1)(C) and because the indictment failed to allege a threshold
drug quantity. We agree. The imposition of a sentence beyond the
statutory maximum of 21 U.S.C.A. § 841(b)(1)(C) is plain error
where the threshold drug quantity was not alleged in the indictment
or submitted to the jury. This error affects a defendant’s substantial
rights and is jurisdictional in nature. See United States v. Dinnall, No.
                      UNITED STATES v. PETERSEN                        3
99-4936, ___ F.3d ___ (4th Cir. Oct. 15, 2001). "Where the plain
error at issue is jurisdictional, as here, the quantum of evidence alleg-
edly supporting indictment or conviction of an aggravated drug
offense based on a threshold drug quantity is irrelevant to the exercise
of our discretion to notice such error." Dinnall, slip op. at 8. Thus, we
vacate Petersen’s sentence and remand for resentencing with instruc-
tions to sentence him to a term not to exceed twenty years imprison-
ment.

   We dispense with oral argument because the facts and legal conten-
tions 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
