UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 99-4653

ANTHONY THOMAS FOYE,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph Robert Goodwin, District Judge.
(CR-99-23)

Submitted: March 14, 2000

Decided: March 23, 2000

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

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Hunt L. Charach, Federal Public Defender, Edward H. Weis, First
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Rebecca A. Betts, United States Attorney, Monica K.
Schwartz, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Anthony Thomas Foye was convicted of two counts of distributing
cocaine base (crack) in violation of 21 U.S.C.A.§ 841(a)(1) (West
Supp. 1991), 18 U.S.C. § 2 (1994). Foye appeals his sentence of 235
months imprisonment on two grounds. He contends that the enhanced
penalties in § 841(b) were inapplicable under Jones v. United States,
526 U.S. 227 (1999), because the amount of crack was not charged
in the indictment or proved to the jury beyond a reasonable doubt. He
also argues that the district court clearly erred in finding that he
obstructed justice by failing to appear at a guilty plea hearing. See
U.S. Sentencing Guidelines Manual § 3C1.1 (1998). We affirm.

On May 13, 1998, Foye sold crack to an informant under surveil-
lance near Charleston, West Virginia. He agreed to plead guilty to a
one-count information charging possession of crack with intent to dis-
tribute pursuant to a plea agreement. Foye failed to appear at the
guilty plea hearing. After his arrest several weeks later in Ohio, Foye
informed the district court that he no longer wished to plead guilty,
but wanted to waive his right to indictment. The district court refused
to accept either the plea agreement or the belated waiver of indict-
ment. Foye was then indicted for distributing crack and possessing
crack with intent to distribute, but the indictment was dismissed with-
out prejudice for violation of the Speedy Trial Act.* The government
later reindicted Foye on the same charges. He went to trial and was
convicted.

Foye first argues that, under Jones, the district court could not con-
stitutionally impose the enhanced penalty unless the basis for the
_________________________________________________________________
*The court found that Foye had not made a timely in-court waiver of
his right to indictment in connection with the information filed in June
1998.

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enhancement (the amount of drugs) had first been charged in the
indictment, submitted to the jury, and proved beyond a reasonable
doubt. In Jones, the Supreme Court held that certain factors which
increase the penalty under the federal carjacking statute, see 18
U.S.C.A. § 2119 (West Supp. 1999), are elements of the offense
rather than sentencing enhancements. See Jones , 526 U.S. at 251-52.
However, no circuit has extended Jones to§ 841(b). See United States
v. Thomas, ___ F.3d ___, 2000 WL 228218 (2d Cir. Feb. 14, 2000)
(holding that drug quantity remains a sentencing factor); see also
United States v. Rios-Quintero, ___ F.3d ___, 2000 WL 146319 (5th
Cir. Feb. 10, 2000); United States v. Hester, 199 F.3d 1287, 1292
(11th Cir. 2000); United States v. Jones, 194 F.3d 1178, 1185 (10th
Cir. 1999), petition for cert. filed, Feb. 10, 2000 (No. 99-8176);
United States v. Williams, 194 F.3d 100, 104-07 (D.C. Cir. 1999).
Consequently, we decline to extend Jones to§ 841(b).

Next, Foye challenges the district court's decision to give him an
obstruction of justice adjustment for his failure to appear at the hear-
ing where he was scheduled to plead guilty under the single-count
information. Because Foye did not object to this adjustment in the dis-
trict court, we review the district court's decision under the plain error
standard of review. See United States v. Olano , 507 U.S. 725, 731-36
(1993).

An adjustment for obstruction of justice should be given if the
defendant willfully obstructed or impeded the administration of jus-
tice during the investigation, prosecution, or sentencing of the instant
offense, or a closely related case, such as a co-defendant's case. See
USSG § 3C1.1, comment. (n.1). Failure to appear as ordered for a
judicial proceeding is conduct to which the adjustment applies. See
USSG § 3C1.1, comment. (n.4(e)).

Foye contends that his failure to appear does not warrant an
obstruction of justice adjustment because it occurred in connection
with a prior case, rather than during the investigation, prosecution, or
sentencing of the instant offense. As used in the sentencing guide-
lines, "offense" means the offense of conviction and all relevant con-
duct. USSG § 1B1.1, comment. (n.1(l)). The term "instant" is used "to
distinguish the violation for which the defendant is being sentenced
from a prior or subsequent offense." Id.

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In this case, all the events that took place after Foye's initial arrest
were part of an ongoing prosecution for his sale of crack to the infor-
mant in May 1998. Even if Foye's prosecution under the second
indictment is viewed as a subsequent case, it is a closely related case,
and thus the adjustment would apply under Application Note 1. More-
over, the Eighth Circuit has held that a defendant who committed per-
jury at his first trial, and had his conviction reversed, could receive
an adjustment for obstruction of justice based on that perjury after he
pled guilty to a lesser charge. See United States v. Has No Horse, 42
F.3d 1158, 1159-60 (8th Cir. 1994) (original trial was part of prosecu-
tion for offense to which defendant pled guilty on remand). Conse-
quently, the district court did not plainly err in making the adjustment
in Foye's case.

We therefore affirm the sentence. 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

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