                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 03-4083



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

           versus


GEROME MAURICE GORDON, a/k/a Lance Fitzgerald
Stewart, a/k/a Richie, a/k/a Michael Anthony
Martin, a/k/a Julian Hugh Martin,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CR-
00-253-PJM)


Argued:   November 30, 2005                 Decided:   March 16, 2006


Before WIDENER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished
opinion. Senior Judge Hamilton wrote the opinion, in which Judge
Widener joined. Judge Gregory wrote a separate opinion concurring
in part and dissenting in part.


ARGUED: Thomas Harold Ostrander, Bradenton, Florida, for Appellant.
Steven M. Dunne, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.       ON
BRIEF: Harvey Greenberg, Towson, Maryland, for Appellant. Thomas
M. DiBiagio, United States Attorney, Mythili Raman, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
HAMILTON, Senior Circuit Judge:

     Gerome Gordon pled guilty to one count of conspiracy to

distribute and to possess with intent to distribute 1000 or more

kilograms of marijuana, 21 U.S.C. §§ 841(b)(1)(a)(vii) and 846, and

was sentenced to 188 months’ imprisonment.                 For the reasons stated

below, we affirm Gordon’s conviction but vacate his sentence and

remand the case for resentencing.



                                          I

     On March 11, 2002, a federal grand jury returned a second

superseding     indictment         charging    Gordon      and    four    others    with

conspiracy to distribute and to possess with intent to distribute

1000 or more kilograms of marijuana in “the District of Maryland,

the Southern District of California, the Central District of

California, . . . and elsewhere,” (J.A. 18), in violation of 21

U.S.C.    §§    841(b)(1)(a)(vii)        and     846.        On    July    31,     2002,

approximately two weeks before his trial was scheduled to begin,

Gordon, without a plea agreement with the government, pled guilty

to the one-count second superseding indictment.

     At   the       plea   hearing,    the     district     court    asked       various

questions      of    Gordon   to    ensure     that   he    understood      what    was

happening, was not under the influence of alcohol or drugs, and was

not under the care of any mental health professional, psychiatrist,

or psychologist. The court also asked Gordon whether he understood


                                          3
that the charge to which he was pleading guilty was conspiracy to

distribute and to possess with intent to distribute 1000 or more

kilograms of marijuana. Gordon acknowledged that he understood the

charge and repeatedly stated that he wished to plead guilty to the

charge.

     During   the   plea    hearing,   the   government   made   a   factual

proffer.     Gordon admitted to most of the factual proffer, but

denied the existence of certain facts.         However, Gordon did admit,

among other things, that during the charged conspiracy: (1) he

“along with his co-defendants, coordinated the transportation of

over a thousand kilograms of marijuana from California to various

points along the east coast, including Maryland,” (J.A. 106-07);

(2) he gave marijuana to persons who used trucking companies for

the transportation of marijuana; (3) he had told a cooperating

defendant that he had on several occasions moved marijuana from San

Diego to a storage facility in Fontana, California, where the

marijuana    was   loaded   into   trucks    for   transportation;   (4)   he

participated directly in the sale and transportation of marijuana;

and (5) on numerous times he was captured engaging in recorded

conversations during which he spoke about the transportation of

marijuana.     Following the government’s factual proffer, Gordon

stated that his decision to plead guilty was “voluntary,” that

nobody had threatened or coerced him to plead guilty, and that he

was “pleading guilty because [he was] guilty in this case.”            (J.A.


                                       4
116-17). Thereafter, the district court accepted Gordon’s plea and

found him guilty of the charged offense.

       Gordon        was     sentenced      on    January        3,    2003.        During   the

sentencing hearing, Gordon contended that he was accountable for

approximately 315 kilograms of marijuana, which would have placed

him    at   a    base      offense    level       of    26   under      the    United     States

Sentencing           Guidelines.1           The       district        court    rejected      this

contention, finding that Gordon was responsible for at least 1000

kilograms of marijuana, which placed Gordon at a base offense level

of 32.      The court relied on Gordon’s admission at the plea colloquy

that       he,       along     with      his      codefendants,              coordinated     the

transportation of 1000 kilograms of marijuana from California to

Maryland.        Alternatively, the court concluded that the extensive

evidence        of    marijuana      trafficking         produced       at    the   sentencing

hearing supported the finding, by a preponderance of the evidence,

that Gordon was accountable for 1000 kilograms of marijuana for

sentencing purposes.

       The district court also applied, over Gordon’s objections, a

two-level        enhancement          for      possession         of     a     firearm,      USSG

§ 2D1.1(b)(1), a two-level enhancement for being an organizer,

manager, or leader of a criminal activity, USSG § 3B1.1(c), and a



       1
      Notably, Gordon never moved to withdraw his guilty plea to
conspiracy to distribute and to possess with intent to distribute
1000 or more kilograms of marijuana, 21 U.S.C. §§ 841(b)(1)(a)(vii)
and 846.

                                                  5
two-level enhancement for obstruction of justice, USSG § 3C1.1.

After    applying     a   two-level       reduction   for   acceptance   of

responsibility, USSG § 3E1.1(a), the court set Gordon’s offense

level at 36, resulting in a sentencing range of 188 to 235 months’

imprisonment.2      Gordon was sentenced to 188 months’ imprisonment

and, thereafter, noted a timely appeal.



                                      II

     Gordon argues that the sentence imposed upon him by the

district court violated his Sixth Amendment rights. Because Gordon

failed to raise this issue in the district court, we review for

plain error.     United States v. Harp, 406 F.3d 242, 247 (4th Cir.

2005).    To establish plain error, Gordon must show that an error

occurred, that the error was plain, and that the error affected his

substantial rights.       United States v. Olano, 507 U.S. 725, 732

(1993); United States v. White, 405 F.3d 208, 215 (4th Cir. 2005).

If Gordon establishes these requirements, we may exercise our

discretion to notice the error “only when failure to do so would

result in a miscarriage of justice, such as when the defendant is

actually innocent or the error seriously affects the fairness,

integrity or public reputation of judicial proceedings.”            United

States v. Hughes, 401 F.3d 540, 555 (4th Cir. 2005) (citation and

internal quotation marks omitted).            To establish that a Sixth


     2
        Gordon’s criminal history category was I.

                                      6
Amendment error occurred in his sentencing, Gordon must show that

the district court imposed a sentence exceeding the maximum allowed

based only on the facts that he admitted.             United States v. Evans,

416 F.3d 298, 300-01 (4th Cir. 2005); see also United States v.

Booker, 125 S. Ct. 738, 756 (2005) (Stevens, J., opinion of the

Court)   (“Any   fact   (other   than    a    prior    conviction)   which    is

necessary to support a sentence exceeding the maximum authorized by

the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable

doubt.”).

     In this case, Gordon admitted during the plea colloquy that

he, along with his codefendants, coordinated the transportation of

1000 or more kilograms of marijuana from California to Maryland.

However, at no time during either the plea colloquy or at the

sentencing hearing did Gordon admit that he possessed a firearm,

was an organizer, manager, or leader of a criminal activity, or

that he obstructed justice.       Based on Gordon’s admission that he

coordinated   the   transportation       of   1000    or   more   kilograms   of

marijuana, his maximum offense level was 32.3              Based on an offense


     3
      Gordon argues that his admission that he, along with his
codefendants, coordinated the transportation of 1000 or more
kilograms of marijuana was only an admission that he and his
codefendants transported marijuana, and that at other times his
codefendants transported marijuana without his participation, and
that in the aggregate the quantity shipped both with and without
his participation exceeded 1000 kilograms. We reject this argument
for the same reason the district court did.      The most natural
reading of Gordon’s admission is that Gordon himself, with the

                                     7
level    of   32   and   a   criminal   history   category   of   I,   Gordon’s

sentencing range would have been 121 to 151 months’ imprisonment.4

Because Gordon’s 188 month sentence exceeds the maximum authorized

by the facts he admitted, a Sixth Amendment error occurred. Evans,

416 F.3d at 300-01.          Under our decision in Hughes, we must notice

this plain error. Hughes, 401 F.3d at 555-56 (concluding error was

plain and warranted reversal where district court imposed sentence


assistance of his codefendants, coordinated the transportation of
1000 kilograms or more of marijuana from California to Maryland.
Thus, Gordon’s admission went well beyond a mere admission that he
knowingly and willfully agreed to participate in the charged
conspiracy and committed an overt act in furtherance of the
conspiracy. Cf. North Carolina v. Alford, 400 U.S. 25, 32 (1970)
(“Ordinarily a judgment of conviction resting on a plea of guilty
is justified by the defendant’s admission that he committed the
crime charged against him and his consent that judgment be entered
without a trial of any kind.”). His admission contained an express
statement that during the charged conspiracy he coordinated the
transportation   of   1000   kilograms  or   more  of   marijuana.
Unquestionably, Gordon’s factual admission authorized the court to
set his base offense level at 32.      Evans, 416 F.3d at 300-01
(holding that, if sentence does not exceed maximum authorized by
facts admitted by defendant or found beyond a reasonable doubt,
there is no Sixth Amendment violation).
     4
      For purposes of determining whether the district court erred,
we use Gordon’s sentencing range based on the facts he admitted
before adjusting that range for acceptance of responsibility.
Evans, 416 F.3d at 300 n.4.      As noted in Evans, acceptance of
responsibility “is not a fact that is alleged in an indictment or
presented to the jury.”     Id.   “Neither is it a fact that the
defendant can admit.       Instead, a district court may grant
acceptance of responsibility only after making findings of fact
based on several considerations--only one of which is whether the
defendant admitted his guilt.” Id. We note that Gordon challenges
the district court’s decision to deny him an additional one level
reduction for acceptance of responsibility pursuant to USSG
§ 3E1.1(b). We have reviewed this challenge and conclude that the
district court correctly found that Gordon did not timely notify
the government of his intention to plead guilty.

                                        8
under    mandatory    Guidelines     based    on   judicial     factfinding,

increasing sentencing range beyond that which could have been

imposed on the basis of facts found by jury or admitted by

defendant).5



                                     III

     Gordon raises several additional arguments that he contends

should be resolved in his favor.           We have reviewed each of these

arguments and find them to be without merit.          Accordingly, for the

reasons stated herein, we affirm Gordon’s conviction but vacate his

sentence and remand the case for resentencing.               On remand, the

district     court   need   not   revisit    any   issue    concerning   drug

quantity.6

                                                           AFFIRMED IN PART,
                                                            VACATED IN PART,
                                                                AND REMANDED




     5
      As in Hughes, “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time of [Gordon’s] sentencing.” 401 F.3d at 545 n.4.
     6
      Gordon has filed three motions to file supplemental briefs
and a motion to have the government at its expense produce a
portion of a trial transcript from a related case.     The court
denies these motions.

                                      9
GREGORY, Circuit Judge, concurring in part and dissenting in part:

     Although    I   concur   with   the   reasoning   and   result    of   the

majority opinion in all other respects, I respectfully disagree

with its conclusion that Gordon admitted the quantity of marijuana

attributable to him during his plea hearing.           Therefore, I believe

that the judicial quantity finding created a Sixth Amendment error

in Gordon’s sentence in addition to the enhancements discussed by

the majority.     As a result, I would vacate Gordon’s sentence on

this basis as well, leaving quantity open to challenge upon remand.

     As an initial matter, I note that although the indictment

charged that the marijuana conspiracy involved more than 1000

kilograms, Gordon’s plea of guilty to that charge did not alone

establish the quantity attributable to him for sentencing purposes.

Under the Guidelines, different participants in a drug conspiracy

may be held accountable for different amounts.          USSG § 1B1.3 & cmt.

n.2 (discussing the determination of a defendant’s relevant conduct

arising from jointly undertaken criminal activity and providing

that a defendant is responsible for the conduct of others that is

“in furtherance of the jointly undertaken criminal activity” and

“reasonably     foreseeable     in   connection    with      that     criminal

activity”). Therefore, when an indictment attributes a quantity to

a conspiracy as a whole, but does not ascribe an amount to a

particular defendant, we have held that the defendant’s plea of

guilty to that charge does not set the defendant’s responsibility


                                     10
at that amount for sentencing.          United States v. Gilliam, 987 F.2d

1009 (4th Cir. 1993) (vacating sentence based upon the 30 kilograms

of   cocaine   charged       in   the   conspiracy      indictment    where    the

indictment did not specify that that quantity was attributable to

the defendant and remanding for the district court to make a

finding in that regard).

       In the present case, Gordon pleaded guilty to a generally

worded indictment that attributed 1000 kilograms of marijuana to

the conspiracy as a whole.           Gordon argues that he did not admit

that any more than 315 kilograms was attributable to him.                      This

quantity corresponds to an offense level of 26 and, in conjunction

with   Gordon’s    criminal       history    category   of   I,    establishes   a

sentencing range of 63 to 78 months’ imprisonment.                Therefore, the

use of the judge’s finding that at least 1000 kilograms were

attributable      to   him   in    imposing    a   188-month      sentence    would

establish plain error under the Sixth Amendment just as the other

enhancements do.       See United States v. Evans, 416 F.3d 298, 300

(4th Cir. 2005); United States v. Hughes, 401 F.3d 540, 555 (4th

Cir. 2005).    See also United States v. Collins, 415 F.3d 304, 311-

14 (4th Cir. 2005) (holding that it was a Sixth Amendment error

under Apprendi v. New Jersey, 530 U.S. 466 (2000), for defendant,

convicted of conspiracy to distribute 50 or more grams of cocaine

base, to be sentenced to the statutory minimum sentence for 50 or




                                        11
more grams of cocaine base without a jury finding that amount

attributable to him).

      The majority rejects this argument, concluding that Gordon did

admit responsibility for 1000 or more kilograms of marijuana in his

plea hearing.   It therefore finds no Sixth Amendment error with

respect to this aspect of his sentence and directs the district

court that it need not readdress the quantity dispute upon remand.

The majority relies upon Gordon’s admission that he, “along with

his   co-defendants,   coordinated    the   transportation   of   over   a

thousand kilograms of marijuana from California to various points

along the east coast, including Maryland.”       J.A. 106-07 (emphasis

added).   It reasons that the most natural interpretation of this

language is that Gordon was admitting his personal responsibility

for the 1000-kilogram figure.    I cannot agree.

      On its face, the language of Gordon’s admission does not

separate out Gordon’s conduct from that of his codefendants.          The

majority’s reading notwithstanding, I believe that Gordon supplies

the more natural reading--that in aggregate, the amounts that

Gordon coordinated and the amounts that others coordinated without

his involvement totaled in excess of 1000 kilograms.

      At oral argument, the government agreed that the indictment

was not so specific as to attribute an amount to Gordon, yet argued

that the language of Gordon’s admission was more precise.         I do not

accept this distinction.    The indictment charges that Gordon and


                                 12
his codefendants “did knowingly combine, conspire, confederate and

agree with one another . . . to distribute and possess with intent

to distribute more than 1000 kilograms of marijuana.”            J.A. 18-19.

At his plea hearing, Gordon admitted that he, “along with his co-

defendants, coordinated the transportation of over a thousand

kilograms of marijuana.” J.A. 106-07. The admission specifies the

conduct involved (coordinating), but it goes no further toward

distinguishing      Gordon’s   amount    from   that    attributable   to   the

conspiracy as a whole. Thus, the admission can hardly be described

as more precise than the charge in the indictment.              Indeed, they

are virtually indistinguishable.

     Moreover, putting the plea hearing admission in context only

confirms that Gordon was not admitting to the 1000 kilograms.

Gordon’s plea was atypical in that he and the government never

entered into a plea agreement or otherwise stipulated to the

relevant   facts.       Rather,   throughout      the    proceedings   below,

including during his plea hearing, Gordon disputed the government’s

allegations of the extent of his responsibility.            Ultimately, when

he decided to plead guilty, Gordon was “prepared to admit his guilt

as to the conspiracy,” but not “everything the government says he

did.”    J.A. 94.     The government understood that Gordon would not

admit to all of its allegations and particularly the quantity

issue.     On   two    separate   occasions     during    the   hearing,    the




                                        13
government counsel informed the district court that the quantity

involved could be open to challenge at the sentencing hearing.

     Finding itself without agreed-upon facts, the district court

ultimately decided to determine the factual basis for Gordon’s plea

through a proffer by the government.               Under this process, the

government would read its proposed statement of facts sentence by

sentence, and Gordon would admit or deny each one.                   From the

instructions of the court, Gordon was aware that he needed to admit

sufficient facts through the proffer for the district court to

support his plea to the conspiracy charge.               Therefore, it is no

surprise that when presented with a generally worded statement, the

language   of   which    echoed   the   language    of   the   charge,   Gordon

admitted to “coordinat[ing] the transportation” of marijuana as

part of his plea.       When the allegations became more specific as to

quantities, Gordon admitted certain facts, but denied others.               The

amounts that Gordon admitted fall short of 1000 kilograms.

     Finally, the district judge’s own comment after the factual

proffer that “basically everything is on the table” for Gordon’s

sentencing suggests that, at the time, even he did not understand

Gordon’s admission to have resolved the quantity issue.             J.A. 121.

Indeed, at sentencing, the district court effectively treated

quantity as unresolved, allowing extensive evidence from both sides

directed at the amount to be attributed to Gordon.               The district

court then made a finding that more than 1000 kilograms were


                                        14
attributable to Gordon by a preponderance of the evidence and

imposed a sentence based upon that quantity and additional judge-

found facts.    Just as the use of the other enhancements violated

Gordon’s Sixth Amendment rights, so did the use of the quantity

finding.    See Evans, 416 F.3d at 300.

       Thus, in light of the general wording of the admission and the

circumstances surrounding it, I do not agree that Gordon admitted

the fact that over 1000 kilograms of marijuana was attributable to

him.   Therefore, I would find a Sixth Amendment error on this basis

as well and leave this issue open to challenge before the district

court upon resentencing.




                                  15
