                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 00-4279
VANCE CROSS, SR.,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
    for the Southern District of West Virginia, at Parkersburg.
             Joseph Robert Goodwin, District Judge.
                           (CR-99-136)

                  Submitted: November 30, 2000

                      Decided: December 4, 2001

  Before WIDENER, MICHAEL, and TRAXLER, Circuit Judges.



Vacated and remanded by unpublished per curiam opinion.


                             COUNSEL

Bradley J. Schlozman, HOWREY, SIMON, ARNOLD & WHITE,
L.L.P., Washington, D.C., for Appellant. Rebecca A. Betts, United
States Attorney, Miller A. Bushong, III, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                       UNITED STATES v. CROSS
                               OPINION

PER CURIAM:

   Vance E. Cross, Sr., appeals his 292-month sentence for conspiracy
to possess with intent to distribute methamphetamine. Cross claims
that his sentence was imposed in violation of Apprendi v. New Jersey,
530 U.S. 466 (2000), and that the district court improperly imposed
a two-level sentencing enhancement for obstruction of justice under
U.S. Sentencing Guidelines Manual § 3C1.1 (1998). We vacate
Cross’ sentence and remand for re-sentencing.

   Cross first contends that his sentence was imposed in violation of
Apprendi’s requirement that "[o]ther than the fact of a prior convic-
tion, any fact that increases the penalty for a crime beyond the pre-
scribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." Apprendi, 530 U.S. at 490. Because
Cross did not raise this challenge to his sentence before the district
court, he may only do so on appeal if he can demonstrate plain error.
United States v. Angle, 254 F.3d 514, 517 (4th Cir. 2001) (citing Fed.
R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32
(1993)). Consequently, in order to prevail on appeal, Cross must dem-
onstrate that: (1) his indictment does not include the specific threshold
drug quantities necessary for conviction under the aggravated drug
trafficking offenses in 21 U.S.C.A. §§ 841(b)(a)(A), (B) (West 2000);
(2) his resulting sentence was in excess of the statutory maximum
otherwise available under § 841(b)(1)(C); (3) sentencing in this man-
ner affected his substantial rights; and (4) this court should notice that
error. United States v. Promise, 255 F.3d 150, 156-57, 160, 161 (4th
Cir. 2001). We note that drug quantity was not charged in the indict-
ment or presented to the jury.

   Applying the plain error analysis to Cross, we find his sentence
must be vacated in light of Apprendi. Pursuant to 21 U.S.C.A.
§ 841(b)(1)(C) (West 2000), Cross was exposed to a total statutory
maximum prison term of twenty years. United States v. Angle, 254
F.3d 514, 518-19 (4th Cir. 2001) (en banc). Because the imposed 292-
month sentence exceeds the applicable statutory maximum of twenty
years, the error is plain. Promise, 255 F.3d at 156-57. With respect
to the third prong of the plain error inquiry, we have found that a sen-
                       UNITED STATES v. CROSS                        3
tence in excess of the authorized statutory maximum to which a
defendant would not otherwise be subject affects his substantial
rights. Id. Finally, we recently determined that when the sentence
imposed is defective due to a fatal error in the indictment, as is the
case here, this court should notice the error. United States v. Cotton,
261 F.3d 397, 403-04 (4th Cir. 2001). We therefore vacate Cross’
sentence, and remand to the district court for re-sentencing.

   We further address Cross’ argument that the sentencing court erred
in applying a two-level enhancement for obstruction of justice under
USSG § 3C1.1. If the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice during
the investigation, prosecution, or sentencing of his case, the Guide-
lines provide for a two-level increase in his base offense level. USSG
§ 3C1.1. A district court’s factual findings concerning obstruction of
justice are reviewed for clear error. United States v. Daughtrey, 874
F.2d 213, 217 (4th Cir. 1989). We find no error in the district court’s
imposition of the enhancement.

  We nonetheless vacate Cross’ sentence, and remand for re-
sentencing, to a sentence not to exceed twenty years. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

                                       VACATED AND REMANDED
