Panel rehearing granted and
en banc rehearing denied by
opinion filed 8/1/02
                                            UNPUBLISHED

                                  UNITED STATES COURT OF APPEALS

                                      FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,
     Plaintiff-Appellee,

     v.                                                           No. 99-4943

PATRICK FURMAN BROWN,
     Defendant-Appellant.


                          On Remand from the United States Supreme Court.
                                        (S. Ct. No. 00-6846)

                                    Submitted: November 14, 2001

                                        Decided: April 24, 2002

                       Before WIDENER, WILKINS, and TRAXLER, Circuit Judges.

____________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per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

____________________________________________________________

                                               COUNSEL

Andrew D. Grimes, Summerville, South Carolina, for Appellant.
Scott N. Schools, United States Attorney, William K. Witherspoon,
Assistant United States Attorney, Ann Agnew Cupp, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.

____________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
                                               OPINION

PER CURIAM:

   Brown was convicted in a trial by jury of conspiracy to distribute
and possession with intent to distribute crack cocaine in violation of
21 U.S.C. § 846 (Count 1); three counts of distribution and possession
with intent to distribute crack cocaine in violation of 21 U.S.C. § 841
(Counts 2, 4, and 5); and using and carrying a firearm during and in
relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)
(Count 3). The indictment did not charge, and the jury was not
instructed, as to specific drug quantities in Counts 1, 2, 4 or 5. On
December 23, 1999, Brown was sentenced to life imprisonment on
the conspiracy count (Count 1); to three concurrent 480 month terms
on the distribution counts (Counts 2, 4, and 5); and a consecutive 60
month term on the firearms count (Count 3). The sentencing order
was silent as to the guideline application but the transcript of the sen-
tencing hearing indicates that the life sentence on the conspiracy
count was arrived at by the cross-reference in Sentencing Guideline
§ 2D1.1(d)(1) to the first degree murder guideline in Guideline
§ 2A1.1, reasoning that the murder occurred during the course of a
drug trafficking conspiracy and fell within 18 U.S.C. § 1111. On
appeal to this court, the only question in the brief was this:

         WHETHER THE DISTRICT COURT ABUSED ITS DIS-
         CRETION IN APPLYING THE CROSS-REFERENCE IN
         FINDING PATRICK FURMAN BROWN COMMITTED
         FIRST DEGREE MURDER.

         a. GUIDELINES, CROSS-REFERENCE
         AND FEDERAL MURDER STATUTES.

         b. FIRST DEGREE MURDER REQUIRE-
         MENTS.

         c. DISCUSSION OF ISSUES.

Brief, p. 2.

                                                   2
   Under the discussion of issues section, the brief describes Brown's
position as follows:

         The sole issue Mr. Brown is raising on appeal is whether
         there is sufficient evidence of premeditation to support the
         lower court's finding that a first degree murder occurred in
         order to apply the cross reference.

Brief, p. 9.

   On July 27, 2000, we affirmed in an unpublished opinion, United
States v. Brown, No. 99-4943, 225 F.3d 655 (table), and decided only
the issue of the imposition of the life sentence.1 Brown's petition for
certiorari to the Supreme Court raised two issues:

          Whether in light of Apprendi vs. New Jersey, 530 U.S.
         ___, No. 99-478, 2000 W.L. 807189 (June 26, 2000) the
         United States District Court for the District of South Caro-
         lina erred in holding that drug amounts set forth in 21
         U.S.C. 841(b) are a sentencing factor rather than an element
         of the offense.

          Whether in light of Apprendi vs. New Jersey, 530 U.S.
         ___, No. 99-478, 2000 W.L. 807189 (June 26, 2000) the
         United States District Court for the District of South Caro-
         lina erred in finding that Patrick Furman Brown committed
         first degree murder and that the murder was related to the
         drug conspiracy in applying the cross-reference.

  The Supreme Court then, in the case at hand, entered its order of
February 20, 2001, 531 U.S. 1136, as follows:

         No. 00-6846. Brown v. United States. C.A. 4th Cir.
        Motion of petitioner for leave to proceed in forma pauperis
        granted. Certiorari granted, judgment vacated, and case
        remanded for further consideration in light of Apprendi v.
____________________________________________________________
   1
    Apprendi v. New Jersey was decided on June 26, 2000. 530 U.S. 466
(2000).

                                                    3
        New Jersey, 530 U.S. 466 (2000). Reported below: 225 F.3d
        655.

   Although the only question raised on appeal to us was whether or
not there was sufficient evidence of premeditation to support the find-
ing of the district court that a first degree murder had occurred in
order to apply the cross-reference to first degree murder under the
Sentencing Guidelines, we are of opinion that on the facts of this case
as related above, Apprendi having been decided on June 26, 2000 and
the Apprendi mandate having issued on July 26, 2000, between the
sentencing by the district court on December 23, 1999, and our deci-
sion on July 27, 2000, the case should have been remanded by us for
resentencing in the light of Apprendi under such decisions as United
States v. Johnson, 457 U.S. 537, 562 (1982), which held that the law
in effect at the time of a decision by an appellate court is the law
which should be applied by that court in a criminal case on direct
appeal.

   We required supplemental briefing in view of Apprendi, which
raised the issues discussed below. Apprendi held that "[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt." After reviewing
Brown's convictions and sentences for plain error in light of
Apprendi, we affirm in part, vacate in part, and remand for resentenc-
ing. See United States v. Promise, 255 F.3d 150, 154 (4th Cir. 2001)
(en banc) (discussing plain error standard of review), petition for cert.
filed, Sept. 20, 2001 (No. 01-6398).

   Brown argues four issues on remand. First, Brown argues on
remand that § 841 is unconstitutional after Apprendi. The case on
which he relies for support was vacated and the Ninth Circuit, sitting
en banc, concluded that § 841 was not facially unconstitutional. See
United States v. Buckland, 259 F.3d 1157 (9th Cir.), reh'g en banc
granted, 265 F.3d 1085 (9th Cir. 2001), en banc, 277 F.3d 1173 (9th
Cir. 2002). Moreover, we recently held that #7F8E # 841 is not facially
unconstitutional." United States v. McAllister, 272 F.3d 228, 232 (4th
Cir. 2001). We hold that Brown is not entitled to relief on this claim.

  Second, Brown challenges the district court's jurisdiction as to
Counts 2, 4, and 5. He contends that, in light of Apprendi, the indict-

                                                     4
ment is defective because it failed to charge the quantity of crack
cocaine as an element of the offense in Counts 2, 4, and 5, thereby
depriving the district court of jurisdiction. We hold that the indict-
ment properly charged the offenses for which Brown was convicted.
See Promise, 255 F.3d at 160 (finding indictment sufficient where it
charged defendant with conspiracy to possess with intent to distribute
"a quantity of cocaine and cocaine base"). There is no constitutional
or like rule forbidding Congress from making unlawful the possession
or distribution of a controlled substance without reference to quantity.

   Third, he contends that his life and concurrent forty-year sentences
are invalid after Apprendi.2 In Promise, we applied Apprendito drug
offenses in §§ 841 and 846 and held that "the specific threshold
[drug] quantity must be treated as an element of an aggravated drug
trafficking offense, i.e., charged in the indictment and proved to the
jury beyond a reasonable doubt." Id. at 156-57 (footnotes omitted).
Here, drug quantity was not charged in the indictment or submitted
to the jury.

   Brown received a life sentence on Count 1. The district court
applied the murder cross-reference under USSG § 2A1.1, which sets
a base offense level of 43, resulting in a presumptive life sentence in
all cases.3 The court then sentenced Brown to three 480-month con-
current sentences for Counts 2, 4, and 5. Brown also received a con-
secutive five-year sentence on Count 3.

   Because the murder occurred during the course of the conspiracy,
____________________________________________________________
   2
     Brown urges us to reconsider our decision in United States v. Kinter,
235 F.3d 192 (4th Cir. 2000) (holding that Apprendi does not apply to
judge's exercise of sentencing discretion within statutory range, so long
as defendant's sentence is not set beyond maximum term specified in
substantive statute), cert. denied, 121 S. Ct. 1393 (2001). We decline to
do so because "a panel of this court cannot overrule, explicitly or implic-
itly, the precedent set by a prior panel of this court[;] [o]nly the Supreme
Court or this court sitting en banc can do that." Mentavlos v. Anderson,
249 F.3d 301, 312 n.4 (4th Cir.), cert. denied, 122 S. Ct. 349 (2001).
   3
     The sentencing guideline sentencing table provides that a base level
offense of 43 carries life imprisonment. USSG Ch. 5, Pt. A (sentencing
table).

                                                    5
the district court properly included the murder as relevant conduct.
Relying on drug quantity in the pre-sentence report, the district court,
however, improperly assumed that the maximum sentence under
§ 846 was life imprisonment. Under Apprendi, since drug quantity
was not included in the indictment, the maximum sentence for Count
1 is 20 years.4 Imposing a life sentence by using the murder cross-
reference violated the guidelines, which state: "Where the statutorily
authorized maximum sentence is less than the minimum of the appli-
cable guideline range, the statutorily authorized maximum sentence
shall be the guideline range." USSG § 5G1.1(a).5 We therefore find
that there is error and that the error is plain. Promise, 255 F.3d at 156-
57, 160.

    As to Counts 2, 4, and 5, the district court sentenced Brown to
three 40 year sentences, running concurrently with his life sentence.
No drug quantity was charged, therefore, the maximum sentence for
Counts 2, 4, and 5, like Count 1, is 20 years. 21 U.S.C.
§ 841(b)(1)(C). United States v. Angle, 254 F.3d 514 (4th Cir. 2000)
(en banc), cert. denied, 122 S.Ct. 309 (2001). Since drug quantity was
not charged in the indictment, the maximum prison term for his multi-
ple convictions is 85 years. Count 1, 2, 4, and 5 each carry a 20-year
sentence. Count 3 carries a five-year term. USSG§5G1.2(d) states:
"If the sentence imposed on the count carrying the highest statutory
maximum is less than the total punishment, then the sentence imposed
on one or more of the other counts shall run consecutively, but only
to the extent necessary to produce a combined sentence equal to the
____________________________________________________________
   4
     21 U.S.C. § 846 requires the same penalty as that prescribed for the
underlying offense, the commission of which was the object of the con-
spiracy. Since no drug amount was alleged in the indictment or presented
to the jury for any count, the maximum allowable sentence is 20 years.
   5
     We agree with the Seventh Circuit which recently addressed this
guideline provision in United States v. Westmoreland, 240 F.3d 618, 636
(7th Cir. 2001). The court stated, "it is not possible to apply the cross-
reference in a manner that produces a sentence greater than the statutory
maximum applicable to the charged crime . . . . Therefore, even though
the murder cross-reference will always allow for a life sentence, the
Guidelines require that the cross-reference only increase the defendant's
sentence at most to the statutory maximum associated with the charge on
which the defendant was convicted." 240 F.3d at 636.

                                                   6
total punishment." Under the sentencing guidelines, the four 20-year
terms and one five-year must be imposed consecutively for a total of
85 years.

   Because Brown's life sentence exceeds the total statutory maxi-
mum prison term of 85 years for multiple convictions involving an
unspecified amount of drugs, we hold that the error in Brown's life
sentence affects his substantial rights. United States v. Angle, 254
F.3d 514, 518-19 (4th Cir.) (en banc), cert. denied, 122 S. Ct. 309
(2001); United States v. White, 238 F.3d 537, 542-43 (4th Cir.), cert.
denied, 121 S. Ct. 2235 (2001). Thus, Brown "can demonstrate that
[his] sentence is `longer than that to which he would otherwise be
subject.'" United States v. Cotton, 261 F.3d 397, 403 (4th Cir. 2001)
(quoting Angle, 254 F.3d at 518), petition for cert. filed, Oct. 31,
2001; cf. United States v. Roberts, 262 F.3d 286, 292 (4th Cir. 2001)
(holding that defendants' substantial rights not affected where sen-
tencing guidelines stacking rules required imposition of consecutive
sentences totaling 240 years for one defendant and 380 years for the
other).

   Having concluded that there is plain error affecting Brown's sub-
stantial rights, we exercise our discretion to notice the error. Cotton,
261 F.3d at 404-05.

   Accordingly, we vacate Brown's life sentence and remand for
resentencing consistent with USSG §§ 5G1.1(a), 5G1.2(d) and White,
238 F.3d at 543. We affirm the judgment of conviction in all other
respects. We dispense with oral argument because the facts and legal
contentions 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

                                                   7
