                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 98-4522
STEVEN GEORGE KELLY,
              Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 98-4527
DANIEL KELLY,
                Defendant-Appellant.
                                       
           Appeals from the United States District Court
     for the Western District of North Carolina, at Statesville.
              Richard L. Voorhees, District Judge.
                          (CR-96-33-V)

                       Argued: April 3, 2001

                      Decided: August 1, 2001

   Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.



Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
2                      UNITED STATES v. KELLY
                             COUNSEL

ARGUED: Paul Morris, LAW OFFICES OF PAUL MORRIS, P.A.,
Coral Gables, Florida, for Appellant Daniel Kelly; Robert Alan
Rosenblatt, Pinecrest, Florida, for Appellant Steven Kelly. Gretchen
C.F. Shappert, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee. ON BRIEF: Mark T. Calloway, 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Unpublished opinions are not binding precedent in this circuit.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:

   A jury convicted Steven and Daniel Kelly of a single crime — con-
spiracy to possess with intent to distribute "a quantity of cocaine and
cocaine base" in violation of 21 U.S.C. § 846 (1994). The district
court sentenced each of them to 360 months imprisonment. They
appeal, asserting a myriad of trial and sentencing errors. We affirm
their convictions but vacate their sentences and remand for re-
sentencing.

                                   I.

   We first set forth only those facts necessary to understand the legal
issues discussed within.

   In April 1996, Michael D’Ambrosia, an agent of the Florida
Department of Law Enforcement, met with James Harrington, a coop-
erating informant, who told him of the activities of two brothers, liv-
ing in the Miami area, Daniel and Steven Kelly. After D’Ambrosia
determined that the Kellys met "the criteria for investigation" by his
unit, he instructed Harrington to approach them.
                       UNITED STATES v. KELLY                       3
   Harrington did so and recorded several conversations with Daniel
Kelly. Daniel explained to Harrington that he had developed a system
to "thwart[ ] law enforcement" whenever he ran into trouble: Daniel
would periodically work for law enforcement agencies as an infor-
mant, so, if arrested, he could claim that what appeared to be illegal
actually constituted the role-playing activity of a government agent.
Daniel also brought up the subject of narcotics distribution; he told
Harrington that he was involved in narcotics trafficking in North Car-
olina, that he had received numerous requests for cocaine, that he
needed an additional source for cocaine, and then asked Harrington
to be that source.

   D’Ambrosia permitted Harrington to agree to supply cocaine to
Daniel in North Carolina. In November 1996, Harrington told Daniel
that he would bring two kilograms of cocaine to North Carolina to sell
to Daniel. Daniel agreed, relating to Harrington that Steven had
already brought four or five kilograms of cocaine to North Carolina
and that the brothers had recently sold a kilogram of cocaine in North
Carolina for $28,000.

   After checking the records of various law enforcement agencies,
D’Ambrosia found no evidence that either Kelly brother was acting
as a documented police informant. But because Daniel had told Har-
rington that he had worked with the Metro Dade Police Department,
D’Ambrosia contacted that office and learned that Officer Bobby
Haloren had some prior contact with Daniel. On November 14, 1996,
Haloren, at D’Ambrosia’s request, set up a meeting with the Kelly
brothers, which Haloren and D’Ambrosia attended. During this meet-
ing, recorded by D’Ambrosia, the Kellys described their drug contacts
in North Carolina, and suggested that they could help the officers set
up those persons for arrest. The Kellys did not mention Harrington or
the agreement to purchase cocaine from him in North Carolina. The
officers responded that they would look into the Kellys’ claims, but
specifically instructed the Kellys "not to go to North Carolina until
we, as law enforcement, conducted an inquiry into the information
that they were providing us."

   Nevertheless, within a few days, both Daniel and Steven Kelly
traveled from Florida to North Carolina, where they stayed with their
long-time friend, Richard Gregg, a Miami lawyer and former room-
4                      UNITED STATES v. KELLY
mate of Steven Kelly. Gregg was temporarily living with his parents
in North Carolina seeking to combat a serious cocaine addiction. Dan-
iel told Gregg that the Kellys came to North Carolina to purchase two
kilograms of cocaine, and that Steven had pre-sold one of the kilo-
grams to a dealer, Daryl Parkhurst, in Boone, North Carolina for
$25,000. Daniel planned to meet Harrington, who would "front" him
one kilogram of cocaine. Daniel would then give that kilogram to Ste-
ven, who would immediately sell it for $25,000, allowing the Kellys
to return and buy the second kilogram.

  Daniel arranged to meet Harrington in a hotel room in Hickory,
North Carolina on November 22, 1996 to conduct the two kilogram
deal. Law enforcement officers provided Harrington with a rental car
and placed two kilograms of cocaine in a cooler in the trunk of the
car. The officers understood that Daniel would arrive with $25,000 to
purchase at least one kilogram of cocaine.

   That morning, Gregg drove Daniel to the meeting point, and then
waited in a restaurant across the street for Daniel to return from com-
pleting the deal. When Daniel arrived on the scene, he asked Harring-
ton to "front" him the first kilogram, telling Harrington that his
brother, Steven, was already in the area, had already sold that kilo-
gram, and would return shortly with the money. Harrington refused
to "front" the cocaine or release any of it to Daniel. Instead, Harring-
ton told Daniel to go and talk to his brother and obtain the money to
purchase the drugs.

   Before Daniel could leave, however, the officers monitoring the
meeting placed him under arrest. Daniel immediately told the arrest-
ing officers that he was working with the DEA as a confidential infor-
mant. The officers then asked Daniel if he would call his brother, and
Daniel agreed. Steven Kelly arrived soon thereafter, and the police
arrested him as well.

   The officers found Gregg waiting for Daniel in the restaurant
across the street and questioned him. The government never prose-
cuted Gregg; rather, he testified at the Kellys’ trial on behalf of the
government. In addition to describing his participation in the reverse-
sting, Gregg testified that in 1995, Steven Kelly had supplied him
with cocaine, had kept between a quarter and a half a kilogram of
                        UNITED STATES v. KELLY                          5
cocaine in the apartment they shared, and had discussed selling
cocaine. Gregg further testified that during 1995 Daniel Kelly told
him that he used $60,000 to purchase illegal drugs. Additionally,
Gregg explained that he knew of at least three cocaine deals between
Steven and Daryl Parkhurst in the summer and fall of 1996, each deal
involving between two and three kilograms of cocaine, and that Ste-
ven had placed Gregg in contact with Parkhurst so that he could pur-
chase several grams of cocaine for his personal use. Gregg also
testified that in the summer of 1996 Steven introduced him to a
cocaine supplier who also transported cocaine from Miami to North
Carolina; Steven and the supplier actually showed Gregg one kilo-
gram of cocaine. Finally, Gregg confirmed that Steven stated that his
"fall-back" plan, if arrested, was to claim to be a DEA informant.

   A jury convicted both Kellys of conspiracy to possess cocaine with
intent to distribute beginning in January 1, 1995 and continuing to
November 22, 1996. The district court sentenced them to thirty years
imprisonment.

   As noted above, the Kellys raise numerous arguments on appeal.
Although we address only their two principal arguments, we have
also carefully considered their remaining contentions. Because we
have concluded that their additional claims are clearly meritless, we
do not discuss them further.

                                   II.

   Initially, and as their primary attack on their convictions, the Kellys
assert that the government failed to offer sufficient evidence to con-
vict them of conspiracy to possess with intent to distribute cocaine in
violation of 21 U.S.C. § 846.

   To prove such a conspiracy the government must establish that: (1)
an agreement to possess cocaine with intent to distribute existed
between two or more persons; (2) the defendant knew of the conspir-
acy; (3) the defendant knowingly and voluntarily became a part of the
conspiracy. United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996)
(en banc). Considering the "clandestine and covert" nature of most
conspiracies, "a [cocaine] conspiracy generally is proved by circum-
stantial evidence and the context in which the circumstantial evidence
6                      UNITED STATES v. KELLY
is adduced." Id. Challenges to the sufficiency of evidence "must over-
come a heavy burden" and a court must, of course, "consider the evi-
dence in the light most favorable to the government, making all
inferences and credibility determinations in its favor." United States
v. Hoyte, 51 F.3d 1239, 1245 (4th Cir. 1995).

   The Kellys maintain that the government’s case against them fails
because of a lack of evidence that they entered into any agreement to
commit an unlawful act. See Iannelli v. United States, 420 U.S. 770,
777 (1975) (the "essence" of conspiracy is "an agreement to commit
an unlawful act"). The Kellys rely on Daniel’s failure to bring suffi-
cient funds to purchase the cocaine from Harrington, a government
agent, at the reverse-sting and Steven’s absence from the scene of the
reverse-sting altogether. The Kellys maintain that neither of them
reached any agreement with Harrington since the drug sale was never
consummated, see e.g., United States v. Iennaco, 893 F.2d 394, 397-
98 (D.C. Cir 1990), that even if Daniel had entered into an agreement
with Harrington, the agreement could not provide the basis for a con-
spiracy conviction since Harrington was a government agent, see,
e.g., United States v. Lewis, 53 F.3d 29, 33 (4th Cir. 1995), and that
Steven’s total absence from the meeting with Harrington establishes
that he did not take part in any conspiracy.

  The fundamental difficulty with these contentions is their premise
— that the government’s case rests on proof of a conspiracy between
Harrington and Daniel, or Harrington and Steven. In fact, the govern-
ment’s case against the Kelly brothers was not based on a conspiracy
with Harrington. Rather, the government presented evidence from
which a jury could reasonably conclude that the Kellys conspired with
each other (and Gregg) to distribute cocaine.

   Harrington testified that Daniel approached him about obtaining
cocaine, telling Harrington that he and his brother would purchase
two kilograms of cocaine in North Carolina to distribute there.
Gregg’s testimony confirmed that both Daniel and Steven planned to
purchase and distribute the drugs obtained from Harrington in North
Carolina. Daniel told Gregg that he and his brother were coming to
North Carolina "[t]o do a drug deal;" he even told Gregg "how the
deal was going to work." Gregg testified that Daniel explained to him
that:
                       UNITED STATES v. KELLY                        7
    [H]e was going to meet the person, his source, which he did
    not identify. That the source was going to have two kilos.

       As soon as he met the source and saw he had the two
    kilos, he was going to go outside and meet Steven, who
    would then come over, take the first kilo, give it to Daryl,
    who had it pre-sold in Boone for $25,000.

       Daryl would drive up, sell it, come back; and then with
    the $25,000 given to Steve, then would go back to Daniel,
    who would pay his source.

       And then the second kilo would be fronted to them, or
    Daryl would have some time to sell it and then get the rest
    of the money, which would be their profit.

Moreover, Gregg explained that the night before the reverse-sting,
Steven spoke with "Daryl" several times and then drove out to meet
him. Finally, Gregg testified to his own participation in the deal —
to driving Daniel "[t]o meet the source, James Harrington, to do the
two kilo deal."

   Independent acts of both Kelly brothers corroborated Gregg’s and
Harrington’s testimony. Both Kellys met with Agent D’Ambrosia and
confided intimate knowledge of drug trafficking in North Carolina.
D’Ambrosia and other law enforcement officers specifically told the
Kellys that they were not to travel to North Carolina, yet only days
later both brothers went to North Carolina without notifying any law
enforcement officer. Daniel actually attempted to obtain the cocaine
from Harrington and Steven, a resident of Florida, was so close to the
scene of the thwarted purchase that he quickly arrived there after
Daniel called him.

   Moreover, the government offered evidence that the Kellys
engaged in other acts to further their drug conspiracy apart from the
reverse-sting. As the district court found when it reviewed this issue
on the Kellys’ motion for acquittal, Gregg’s testimony established a
long pattern of drug activity during the period of the conspiracy. Con-
trary to the Kellys’ contention that the government failed to charge
8                      UNITED STATES v. KELLY
these other drug transactions, the indictment charged the Kellys with
a conspiracy to possess and distribute cocaine with each other and
unnamed co-conspirators from January 1, 1995 and November 22,
1996.

  In sum, taking the facts in the best light for the prosecution, as we
must, the government presented ample evidence to support the jury
verdict that the Kellys engaged in a conspiracy to possess cocaine
with intent to distribute.

                                 III.

   We turn to the principal ground on which the Kellys challenge their
sentences — their contention that their sentences violate the rule
established in Apprendi v. New Jersey, 530 U.S. 466 (2000).

   The government charged each Kelly brother with conspiracy to
possess with intent to distribute "a quantity of cocaine and cocaine
base," but the indictment did not specify the precise quantities of the
cocaine or cocaine base, and the jury made no finding as to drug type
or quantity. After conducting an extended sentencing hearing, the dis-
trict court found by a preponderance of the evidence that Daniel Kelly
was responsible for at least 2 but less than 3.5 kilograms of cocaine
and Steven Kelly was responsible for at least 3.5 but less than 5 kilo-
grams of cocaine. Both brothers were over eighteen years old at the
time of the conspiracy and had previously been convicted of several
violent or drug-related felonies. Relying on USSG § 4B1.1, the dis-
trict court sentenced them, as career offenders, to 30 years imprison-
ment.

   While this case was on appeal, the Supreme Court decided
Apprendi, in which it announced a new rule of constitutional law. In
Apprendi, the Court upheld a challenge to a hate-crime statute that
included a sentence enhancement that the trial judge could apply upon
finding by a preponderance of the evidence that the defendant’s crime
was motivated by racial animosity. The Supreme Court struck down
the provision as unconstitutional, holding 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." 530 U.S. at 490.
                        UNITED STATES v. KELLY                           9
Although Apprendi involved a trial judge’s application of a hate-
crime sentence enhancement, federal appellate courts have uniformly
applied its rule to 21 U.S.C. § 841. See United States v. Promise, ___
F.3d ___, No. 99-4737, 2001 WL 732389, at *5 (4th Cir. June 29,
2001) (collecting cases). The Kellys contend that because their sen-
tences exceed § 841(b)(1)(C)’s twenty-year maximum, Apprendi
requires that we remand their cases for re-sentencing.

   Because the Kellys failed to raise their Apprendi argument before
the district court, we review for plain error only. See Fed. R. Crim.
P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). "Rule
52(b) contains three elements that must be established before we pos-
sess the authority to notice an error not preserved by a timely objec-
tion: The asserted defect in the trial proceedings must, in fact, be
error; the error must be plain; and, it must affect the substantial rights
of the defendant." United States v. Cedelle, 89 F.3d 181, 184 (4th Cir.
1996) (citing Olano, 507 U.S. at 731-32). Even when all three ele-
ments are present, we may decline to notice an error if it does not
"‘seriously affect 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)).

   Recently, this court, sitting en banc, considered, in the context of
21 U.S.C. § 841, whether the failure to charge drug quantity in the
indictment and submit the quantity issue to the jury required that we
vacate the sentence and remand for re-sentencing under Apprendi. See
Promise, 2001 WL 732389, at *1. The court was sharply divided and
the decision contained five separate opinions. While a majority of the
judges voted to affirm Promise’s conviction, they did so on differing
grounds.

   Judge Wilkins announced the judgment of the court. In his opinion,
Judge Wilkins concluded that Apprendi mandated that drug quantity
be treated as an element of an aggravated drug offense under § 841,
and that the failure to charge this offense element in the indictment
and submit this issue to the jury constituted plain error. See id. at *8.
Judge Wilkins also concluded that the error affected a defendant’s
substantial rights when the defendant’s sentence for conspiring to dis-
tribute a controlled substance exceeded the twenty-year statutory
maximum in 21 U.S.C. § 841(b)(1)(C). See id. A majority of the
10                      UNITED STATES v. KELLY
court, made up of Judges Widener, Williams, Michael, Motz, Traxler
and King, joined these parts of Judge Wilkins’s opinion.

   A different majority of the court voted nonetheless to affirm the
defendant’s conviction. Four judges, Chief Judge Wilkinson, and
Judges Niemeyer, Luttig and Gregory, writing in three separate opin-
ions, affirmed on the ground that, in the context of § 841, drug quan-
tity was properly viewed as a sentencing factor, and not an offense
element that needed to be charged in the indictment or submitted to
the jury, and therefore the maximum sentence permitted by the statute
was life imprisonment.

   Judges Wilkins, Williams and Traxler also voted to affirm Prom-
ise’s conviction, although on a different basis. These three members
of the court agreed that the failure to treat drug quantity as an offense
element in § 841 constituted plain error affecting the defendant’s sub-
stantial rights. They nonetheless voted to affirm the conviction, con-
cluding — on the basis of "a balancing of numerous considerations,"
including the strength of the government’s evidence and the fact that
a pre-trial notice of drug quantity was provided to the defendant —
that the error should not be corrected, id. at *10 n.9; Chief Judge Wil-
kinson joined this portion of their opinion on the ground that, assum-
ing arguendo "there was an error in the proceedings below," it did not
merit reversal under Olano. Id. at *11. These judges did not address
precisely how they weighed these considerations, or which consider-
ation was dispositive. See id. at *35 n.3 (Motz, J., concurring in part
and dissenting in part). However, they repeatedly characterized the
pretrial notice as "critical," id. at *10 & n.9, and did not respond to
the dissent’s suggestion that, in light of this emphasis, absent such
pretrial notice, "even overwhelming and uncontroverted evidence of
a defendant’s guilt" would be an "insufficient" basis "not to notice"
such an error. Id. at *35 n.3 (Motz, J., concurring in part and dissent-
ing in part). Given this, we believe that such notice is indeed critical
to these judges’ decision as to whether to correct the error.

   Four other members of the court, Judges Widener, Michael, Motz
and King, dissented from the judgment in Promise, concluding that
this court would abuse its discretion in failing to notice and correct
the plain error regardless of the strength of the prosecution’s evidence
or whether pre-trial notice was provided to the defendant, and so
                        UNITED STATES v. KELLY                         11
voted to vacate the defendant’s illegal sentence and remand for re-
sentencing. See id. at *33 (Motz, J., concurring in part and dissenting
in part). Moreover, in an opinion concurring in the judgment, two
other members of the court similarly indicated their view that if drug
quantity were an element (and they did not believe it was), failure to
charge it constituted plain error that had to be corrected. See id. at *13
(Niemeyer, J., concurring in the judgment, joined by Gregory, J.).

   Applying Promise here, it is clear that imposition of thirty-year
sentences on the Kellys for an offense element — drug amount —
that was neither charged in the indictment nor proven to the jury con-
stitutes plain error. In Promise, this court held that Apprendi mandates
this result. Moreover, this error affects the Kellys’ substantial rights,
just as in Promise this court held that a similar error affected Prom-
ise’s substantial rights. The only remaining issue, then, is whether we
should exercise our discretion to correct the error.

   No matter what view is taken as to the proper approach to this ulti-
mate question, i.e., whether pre-trial notice and the strength of the
government’s evidence have any place in determining whether to cor-
rect this plain error, in this case the result is the same — the plain
error must be corrected. First, under the approach and for the reasons
articulated by the four dissenters in Promise, the error must be cor-
rected because, regardless of any pre-trial notice or strong govern-
ment evidence, "sentencing a man for a crime for which he was
neither charged nor convicted affects the fairness, integrity and public
reputation of judicial proceedings." Id. at *33 (Motz, J., concurring in
part and dissenting in part). See also id. at *13 (Niemeyer, J., concur-
ring, joined by Gregory, J.). Moreover, if a pretrial notice is indeed
of "critical" import, as other members of the Promise court believed,
id. at *10 & n.9, the plain error in this case must be corrected because
the government provided no pretrial notice informing the Kellys of
the amount of drugs it attributed to them. Thus, that factor, which was
"critical" to the decision of the members of the majority who found
plain error but declined to correct that error in Promise, is absent here.

   In sum, under either approach, we must conclude that the plain
error affecting the Kellys’ substantial rights — failure to charge in the
indictment the essential element of drug amount — "‘seriously affec-
t[ed] the fairness, integrity or public reputation of judicial proceed-
12                       UNITED STATES v. KELLY
ings.’" Olano, 507 U.S. at 736 (quoting United States v. Atkinson, 297
U.S. 157, 160 (1936)). Accordingly, we exercise our discretion to
notice and correct this error, and vacate the Kellys’ sentences and
remand for re-sentencing.

                                    IV.

   For the foregoing reasons, we affirm the convictions of Steven
Jerome Kelly and Daniel Kelly, but vacate their sentences and remand
for re-sentencing.*

                                AFFIRMED IN PART AND VACATED
                                       AND REMANDED IN PART

   *Under the enhanced penalties provision of § 841(b)(1)(C), the statu-
tory maximum for those, like the Kellys, who are convicted of violating
§ 846, "after a prior conviction for a felony drug offense has become
final," is thirty years. If the district court had sentenced the Kellys under
§ 841(b)(1)(C), this case would not present an Apprendi issue because
their thirty-year sentences would not exceed the statutory maximum.
   For the government to take advantage of § 841(b)(1)(C), however, it
must file a pre-trial notice under 21 U.S.C. § 851 identifying the prior
offenses upon which it intends to rely. See United States v. Foster, 68
F.3d 86, 89 (4th Cir. 1995). The Kellys claim that the government failed
to file timely § 851 notices. When they raised this objection at their sen-
tencing hearing, the government maintained that "the point [was] moot"
given the district court’s application of the career offender provisions of
the sentencing guidelines. For this reason, the district court never
resolved the factual dispute over the timeliness of the government’s
§ 851 notices. Because the district court did not sentence the Kellys
under § 841(b)(1)(C) or ever find the § 851 notices timely, we cannot
affirm their sentences on this basis. The government, however, may of
course argue to the district court at re-sentencing that it did indeed timely
file the § 851 notices. See United States v. Henaud, 81 F.3d 484, 487 (4th
Cir. 1996) (district court may consider sentencing argument at resentenc-
ing — even if argument waived at prior sentencing — if not barred from
doing so by appellate court mandate).
