                      Rehearing granted, July 30, 2002




                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,                 
                 Plaintiff-Appellee,
                 v.
                                                        No. 00-4105
SHANELL WILLOUGHBY; RODNEY
EDWARD WALL, a/k/a Big Rodney,
            Defendants-Appellants.
                                          
UNITED STATES OF AMERICA,                 
                 Plaintiff-Appellee,
                 v.                                     No. 00-4455
JOHN BARRY MCLENDON,
             Defendant-Appellant.
                                          
UNITED STATES OF AMERICA,                 
                 Plaintiff-Appellee,
                 v.
                                                        No. 00-4539
WALTER HAYWOOD WILLOUGHBY,
a/k/a Big Walt,
                Defendant-Appellant.
                                          
            Appeals from the United States District Court
      for the Western District of North Carolina, at Charlotte.
               Richard L. Voorhees, District Judge.
                            (CR-99-24)

                      Argued: February 28, 2002

                        Decided: April 29, 2002
2                  UNITED STATES v. WILLOUGHBY
    Before WILKINS, LUTTIG, and GREGORY, Circuit Judges.



Vacated and remanded in part and affirmed in part by unpublished per
curiam opinion.


                            COUNSEL

ARGUED: Jeffrey B. Welty, POYNER & SPRUILL, L.L.P.,
Raleigh, North Carolina, for Appellant Walter Willoughby; Edward
Anthony Fiorella, Jr., HARKEY, LAMBETH, NYSTROM, FIO-
RELLA & MORRISON, L.L.P., Charlotte, North Carolina, for
Appellant McLendon; James Ernest Gronquist, Charlotte, North Car-
olina, for Appellant Wall; Charles Linwood Morgan, Jr., Charlotte,
North Carolina, for Appellant Shanell Willoughby. Douglas Scott
Broyles, Assistant United States Attorney, Charlotte, North Carolina,
for Appellee. ON BRIEF: E. Fitzgerald Parnell, III, POYNER &
SPRUILL, L.L.P., Charlotte, North Carolina, for Appellant Walter
Willoughby. Robert J. Conrad, Jr., 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Unpublished opinions are not binding precedent in this circuit.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:

   Shanell Willoughby, Rodney Edward Wall, John Barry McLendon,
and Walter Haywood Willoughby were each indicted for and con-
victed of drug offenses. They now appeal their convictions and sen-
tences.
                     UNITED STATES v. WILLOUGHBY                       3
                                   I.

   For the purposes of this appeal only counts One and Four are rele-
vant. Count One charged all four defendants with a drug conspiracy
in violation of 21 U.S.C. § 846. More specifically, they were charged
with conspiring to violate section 21 U.S.C. § 841(a)(1), by possess-
ing with intent to distribute and by distributing "a quantity of cocaine
and cocaine base," and 21 U.S.C. § 860, by possessing with intent to
distribute and by distributing "a quantity of cocaine and cocaine base
within 1,000 feet" of a protected area, such as school or a playground.
J.A. 50. Each defendant was found guilty on that count.

   Count Four charged Shanell Willoughby and Wall with "know-
ing[ ], willful[ ] and unlawful[ ] possess[ion] with intent to distribute
a quantity of cocaine base in violation of" section 841(a)(1). J.A. 51.
Both were convicted of that count.

                                   A.

  First, we ascertain the maximum penalties that could have been
imposed on defendants pursuant to Count I.

   Count I charged defendants with conspiracy to violate sections
841(a)(1) and 860, all in violation of section 846. The maximum sen-
tence for violating both sections 860 and 841(a) is the maximum
under section 860 because section 841(a)(1) is a lesser included
offense of section 860. See Schmuck v. United States, 489 U.S. 705
(1989) (adopting "the elements" approach to ascertaining whether an
offense is a lesser included one). That is so because section 860 pun-
ishes those violations of section 841(a)(1) that are committed within
1,000 feet of protected areas.

   The maximum penalty under section 860 is double the maximum
penalty under section 841(a)(1). Because the indictment does not
specify drug quantity and because that question was not submitted to
the jury to be found beyond reasonable doubt, conviction on section
841(a)(1) subjects defendants to the maximum penalty specified in
section 841(b)(1)(C), which is 20 years imprisonment, absent prior
drug felony convictions. United States v. Promise, 255 F.3d 150 (4th
4                    UNITED STATES v. WILLOUGHBY
Cir. 2001) (en banc), petition for cert. filed (Sept. 20, 2001); United
States v. Cotton, 261 F.3d 397 (4th Cir. 2001), cert. granted, 122
S. Ct. 803 (2002). Consequently, absent a prior drug felony convic-
tion, these defendants are subject to 40 years’ imprisonment for viola-
tion of section 860. Because section 846 exposes the defendants to the
same penalties as the underlying substantive sections, the maximum
sentence under Count One is 40 years.

   Turning to Count Four, which alleges a violation of section
841(a)(1), but does not specify drug quantity, we conclude, pursuant
to Promise and Cotton, that conviction on this Count subjects Wall
and Shanell Willoughby to at most 20 years of imprisonment (absent
prior felony drug convictions) — the maximum under section
841(b)(1)(C).

                                   B.

   Before turning to each appellant’s sentence, we address their con-
tention, not raised below, Br. of Appellants at 17, that no instructions
were given to the jury on section 860 and that the jury returned no
verdict on that section. The record reveals that the whole indictment
was read to the jury and that the jury received a copy of the indict-
ment for their deliberations. J.A. 1418-21. The indictment charged
defendants with the conspiracy to violate section 860. And it not only
specifically stated that the offense took place within 1,000 feet of pro-
tected areas but it also listed those protected areas. J.A. 50 (charging
with conspiracy to possess and distribute drugs "within 1,000 feet of
a school and/or within 1,000 feet of a playground, to wit: McRae Ele-
mentary School in Morven, NC, Anson Middle School in Wadesboro,
NC and The Helen Schuler Hartman Memorial Park in Jefferson,
SC"), J.A. 1418-1420 (reading the indictment to the jury). After read-
ing the indictment, the judge went on to "define certain of the[ ] terms
used in the essential elements," such as "a conspiracy," "possession,"
"knowing" and "willful." J.A. 1421-1434. The judge also instructed
the jury that if he did not "define any particular words, [the jury was
to] assign to them their ordinary, everyday meanings." J.A. 1421. The
jury then returned a verdict of guilty on Count One of the Indictment.
J.A. 1441-44.

   We assume, without deciding, that reading the indictment to the
jury, accompanied by the above explanation, constituted insufficient
                     UNITED STATES v. WILLOUGHBY                       5
jury instructions. We also assume that defendants’ substantial rights
were affected. However, in light of the evidence introduced at trial
establishing proximity, J.A. 868-73, we exercise our discretion and
decline to notice the error. Cf. Johnson v. United States, 520 U.S.
461, 470 (1997) (holding, under a plain error analysis, that a failure
to charge the jury with an essential element did not warrant reversal
of the conviction where the evidence supporting that element was
overwhelming).

                                   C.

   Wall, convicted of both Counts One and Four, received a life sen-
tence. The government correctly concedes that his sentence must be
vacated because the maximum sentence he can receive, absent prior
drug felony convictions, is 40 years for Count One and 20 years for
Count Four, for a total of 60 years. See United States v. Angle, 254
F.3d 514 (4th Cir. 2001) (en banc) (allowing imposition of consecu-
tive sentences to reach the total punishment mandated by the Guide-
lines). Thus, we remand for resentencing.

   Walter Willoughby was convicted of Count One, receiving 30
years’ imprisonment. We see no error in his sentence, as it does not
exceed the maximum of 40 years, which he could have received for
violating section 846.

   We also find no error in Shanell Willoughby’s sentence. Because
she was indicted for and convicted of Counts One and Four, she was
eligible for up to 60 years’ imprisonment. The court imposed, how-
ever, 20 years on both counts, to be served concurrently.

   McLendon was indicted on Count One. However, the Judgment
Form lists section 841(a)(1), rather than section 860, as the object of
the conspiracy. J.A. 1495. We believe this change occurred after the
district court sustained McLendon’s objection to an "enhancement"*
under section 860 for distribution within 1,000 feet of a protected
area, J.A. 1500. The court apparently agreed with McLendon that

  *Not surprisingly, prior to Apprendi v. New Jersey, 530 U.S. 466
(2000), the fact that one violated section 841(a) in a protected area was
viewed as a sentence enhancement, rather than an essential element.
6                   UNITED STATES v. WILLOUGHBY
McRae Elementary School, being closed, no longer qualifies as a pro-
tected area, J.A. 1623 (McLendon’s Response/Objections to PSR).

   Because McLendon’s judgment lists only section 841(a)(1), rather
than section 860, and because no drug quantity was charged in the
indictment or found by the jury, McLendon’s sentence may not
exceed the penalties under section 841(b)(1)(C). McLendon was sen-
tenced to 27 years. McLendon’s Pre-Sentence Report indicates that he
has a prior felony drug conviction, J.A. 1617 (state conviction for
possession with intent to sell/deliver cocaine, which resulted in 3
years imprisonment, suspended, 180 days active imprisonment). This
prior conviction may render him eligible for 30 years imprisonment
under section 841(b)(1)(C) if the government timely provided
McLendon with a proper notice under section 851(a).

   Because the record is silent on this issue, we vacate McLendon’s
sentence and remand to the district court to ascertain whether such
notice was given. If it was, the court may enter an appropriate order,
reinstating his original sentence. If it was not, the sentence should be
adjusted accordingly, not to exceed 20 years.

                                  II.

   We conclude that the remaining claims are without merit. As
revealed by the record, there was sufficient evidence to sustain the
convictions of each defendant. There was also sufficient evidence for
the district court to impose a two-level enhancement on Walter Wil-
loughby’s and McLendon’s sentences under U.S.S.G. § 2D1.1(b)(1)
for possession of a dangerous weapon.

   Likewise, there was no error in the evidentiary rulings. The court
properly refused to suppress evidence seized pursuant to a search war-
rant from Shanell Willoughby’s and Rodney Wall’s home. The court
also did not abuse its discretion by refusing to admit a letter to
McLendon from a cooperating co-conspirator. Finally, the court did
not commit plain error in admitting Shanell Willoughby’s statements
to police.
                   UNITED STATES v. WILLOUGHBY                     7
                          CONCLUSION

   For the reasons stated herein, we vacate and remand for resentenc-
ing of appellants Wall and McLendon. We affirm the judgment of the
district court in all other respects.

                                                    It is so ordered.
