UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4714

SARA KATHRINE TRIPLETT LEWIS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-98-123-V)

Submitted: August 31, 2000

Decided: September 26, 2000

Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.

_________________________________________________________________

Judgment withheld by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

G. Bruce Park, LANGE & PARK, P.A., Charlotte, North Carolina,
for Appellant. Mark T. Calloway, United States Attorney, Gretchen
C. F. Shappert, Assistant United States Attorney, Charlotte, North
Carolina for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Sara Kathrine Triplett Lewis appeals her conviction and sentence
for her role in a large-scale conspiracy to distribute controlled sub-
stances in violation of 21 U.S.C. § 846 (1994). Lewis was indicted on
a single count of conspiracy to possess with intent to distribute
cocaine, cocaine base, and marijuana. After a six-day trial, the jury
returned a general verdict of guilty. The district court sentenced
Lewis based on the probation officer's recommendation that Lewis be
held accountable for a marijuana equivalency of 1911.99 kilograms.
That drug quantity yielded an Offense Level of thirty-two, see USSG
§ 2D1.1, which combined with Lewis's Criminal History Category of
I resulted in a Guidelines range of 121 to 151 months in prison. See
USSG § 5A. The district court sentenced Lewis at the low end of the
range to 121 months in prison. Lewis now appeals her conviction and
sentence.

On appeal, Lewis suggests that because the indictment charged her
with conspiracy to distribute cocaine, cocaine base and marijuana and
the jury's verdict did not specify which of the controlled substances
was the object of the conspiracy, the district court erred by sentencing
her to a term of imprisonment in excess of the statutory maximum of
21 U.S.C. § 841(b)(1)(D) (1994), which prescribes the punishment for
less than fifty kilograms of marijuana. See United States v. Rhynes,
206 F.3d 349, 380 (4th Cir. 1999), cert. denied , ___ U.S. ___, 68
U.S.L.W. 3748 (U.S. June 5, 2000) (No. 99-9386). Where, as here,
there is a general verdict on a count charging conspiracy to violate 21
U.S.C. § 841 by distributing multiple controlled substances, the sen-
tence imposed may not exceed "the statutory maximum for the [least]
of the . . . statutory objects of the conspiracy on which the verdict
could have been based." Id. (citing United States v. Quicksey, 525
F.2d 337, 340-41 (4th Cir. 1975)). In this case, the indictment charged
three statutory objects: cocaine, cocaine base, and marijuana. Section
841(b)(1)(D) mandates "a term of imprisonment of not more than 5
years" for conspiracies involving less than fifty kilograms of mari-
juana, the least of the three statutory objects. The district court
imposed a sentence of 121 months based on the probation officer's
finding that Lewis was responsible both for a large amount of mari-

                    2
juana and a significant amount of cocaine. In the absence of a special
verdict, this was error.

The Government briefly suggests that in light of the quantity of
marijuana attributed to Lewis at sentencing, Lewis's conduct fell out-
side of § 841(b)(1)(D) and she was therefore properly subject to a
statutory maximum greater than the 121 months she received. How-
ever, in the wake of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000),
while "a judge-found fact may permissibly alter a defendant's sen-
tence within the range allowed by statute for the offense simpliciter,"
when such a factor increases the statutory maximum for the offense,
it functions as an element of a greater offense than the one the jury
found the defendant had committed. United States v. Aguayo-
Delgado, ___ F.3d ___, 2000 WL 988128, at *6 (8th Cir. July 18,
2000). Consequently, "if the government wishes to seek penalties in
excess of those applicable by virtue of the elements of the offense
alone, then the government must charge the facts giving rise to the
increased sentence in the indictment, and must prove those facts to the
jury beyond a reasonable doubt." Id.; see also United States v. Shep-
pard, ___ F.3d ___, 2000 WL 988127 (8th Cir. July 18, 2000). The
Government did not do so in this case as neither the indictment nor
the jury's verdict specified the quantity of marijuana or cocaine with
which Lewis was charged.

As the Government correctly notes, because Lewis failed to raise
this issue before the district court, this court's review is limited to a
search for plain error. See Rhynes, 206 F.3d at 379; Fed. R. Crim. P.
52(b). "Rule 52(b) contains three elements that must be established
before we possess the authority to notice an error not preserved by a
timely objection: The asserted defect in the trial proceedings must, in
fact, be error; the error must be plain; and, it must affect the substan-
tial rights of the defendant." United States v. Cedelle, 89 F.3d 181,
184 (4th Cir. 1996) (citing United States v. Olano, 507 U.S. 725, 731-
32 (1993)). Even when all three of these elements are present, this
court will decline to notice an error unless it"`seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.'"
Olano, 507 U.S. at 736 (quoting United States v. Atkinson, 297 U.S.
157, 160 (1936)).

Where there is error of the type present in this case, "[t]he first
three requirements easily are satisfied." United States v. Bowens, ___

                    3
F.3d ___, ___, 2000 WL 1173993 at *11 (4th Cir. Aug. 18, 2000).
However, this court has recently held that there is no plain error wor-
thy of notice where there is overwhelming evidence that one of the
controlled substances was the sole object of the conspiracy because
in that circumstance "the error works no injustice and does not `seri-
ously affect[ ] the fairness, integrity, or public reputation of the judi-
cial proceedings.'" Id. (quoting Olano, 507 U.S. at 736). In this case,
in contrast to Bowens, there was evidence introduced regarding both
marijuana and cocaine. See Bowens, 2000 WL 1173993 at *11-12.
Consequently, as in Rhynes, it is "impossible to determine on which
statutory object or objects . . . the conspiracy conviction was based."
Rhynes, 206 F.3d at 380. There was more than a mere "isolated refer-
ence" to one of the controlled substances charged in the indictment
that might allow the sentence to stand in spite of the error. See id. at
*11-12 (citing United States v. Olano, 507 U.S. 725, 736 (1993)). We
are constrained to conclude that this is plain error worthy of notice in
the first instance on appeal.

Accordingly, as in Rhynes, we will follow the remedy employed in
Quicksey. We will withhold judgment as to Lewis's sentence giving
the Government the choice between resentencing Lewis consistent
with a marijuana conspiracy conviction or retrying her. See Rhynes,
206 F.3d at 381 (citing Quicksey, 525 F.2d at 341). If the Government
chooses to resentence Lewis, we will affirm her conviction* and
remand for sentencing. If the Government does not so choose, we will
vacate the conviction and sentence and remand for a new trial. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

JUDGMENT WITHHELD
_________________________________________________________________

*We have considered Lewis's claims concerning the district court's
rulings with respect to the presentation of the testimony of Rex Love, Sr.
and find no evidence of an abuse of discretion. See United States v.
Gravely, 840 F.2d 1156, 1163 (4th Cir. 1988).

                     4
