                                                Filed:    November 20, 2001

                     UNITED STATES COURT OF APPEALS

                         FOR THE FOURTH CIRCUIT


                                No. 00-4423
                                (CR-99-167)



United States of America,

                                                    Plaintiff - Appellee,

            versus


Keith Andre McAllister,

                                                   Defendant - Appellant.



                                 O R D E R



     The court amends its opinion filed November 8, 2001, as

follows:

     On the cover sheet, section 2, and on page 2, first line of

text:      Appellant’s   name   is   corrected    to     read   “Keith   Andre

McAllister.”

                                             For the Court - By Direction




                                              /s/ Patricia S. Connor
                                                       Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 00-4423

KEITH ANDRE MCALLISTER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, District Judge.
(CR-99-167)

Argued: September 27, 2001

Decided: November 8, 2001

Before WILKINS and WILLIAMS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by published opinion.
Judge Wilkins wrote the opinion, in which Judge Williams and Senior
Judge Hamilton joined.

_________________________________________________________________

COUNSEL

ARGUED: Melisa White Gay, Mt. Pleasant, South Carolina, for
Appellant. Alfred William Walker Bethea, Assistant United States
Attorney, Florence, South Carolina, for Appellee. ON BRIEF: Scott
N. Schools, United States Attorney, Florence, South Carolina, for
Appellee.

_________________________________________________________________
OPINION

WILKINS, Circuit Judge:

Keith Andre McAllister appeals his conviction and sen-
tence for possession with the intent to distribute cocaine, see 21
U.S.C.A. § 841 (West 1999 & Supp. 2001), arguing primarily that
§ 841 is facially unconstitutional in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), and that the district court erred in enhancing his
sentencing guidelines offense level for possession of a dangerous
weapon in connection with a narcotics offense, see United States Sen-
tencing Guidelines Manual § 2D1.1(b)(1) (1998). Although we reject
McAllister's constitutional challenge, we conclude that the district
court erred in applying the enhancement. Accordingly, we vacate
McAllister's sentence and remand for resentencing.

I.

McAllister pled guilty pursuant to a written plea agreement to one
count of possession with the intent to distribute cocaine. The indict-
ment did not allege that McAllister was responsible for any particular
quantity of cocaine, but the plea agreement stipulated that McAllister
was responsible for between five and 15 kilograms. The district court
found McAllister's total offense level to be 31, including a two-point
enhancement for possession of a dangerous weapon in connection
with a narcotics offense, and sentenced McAllister to 135 months
imprisonment.

II.

McAllister makes several challenges to his conviction and sentence
based on Apprendi, only one of which is worthy of discussion,
namely McAllister's contention that his conviction and sentence must
be set aside because 21 U.S.C.A. § 841 is facially unconstitutional.11
Because McAllister raises this issue for the first time on appeal, our
review is for plain error. See Fed. R. Crim. P. 52(b); United States v.
_________________________________________________________________

1 We reject McAllister's other Apprendi arguments without further
comment.

                   2
Olano, 507 U.S. 725, 731-32 (1993). In order to demonstrate plain
error, McAllister must show that an error occurred, that the error was
plain, and that the error affected his substantial rights. See Olano, 507
U.S. at 732; United States v. Jackson, 124 F.3d 607, 614 (4th Cir.
1997). Even if McAllister can satisfy these requirements, correction
of the error remains within our discretion, which we "should not exer-
cise . . . unless the error `seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.'" Olano, 507 U.S. at 732
(second alteration in original) (quoting United States v. Young, 470
U.S. 1, 15 (1985)).

Before turning to whether McAllister can satisfy the requirements
of plain error analysis, we pause to reiterate the relevant conclusions
reached in Apprendi and in United States v. Promise, 255 F.3d 150
(4th Cir. 2001) (en banc). Charles Apprendi pled guilty to an offense
carrying a maximum sentence of 10 years under New Jersey law.2   2 See
id. at 469-70. However, based on its determination by a preponder-
ance of the evidence that Apprendi had acted with a racially biased
purpose, the sentencing court imposed an extended term of imprison-
ment of 12 years. See id. at 471. Apprendi argued to the Supreme
Court that the imposition of a penalty greater than the statutory maxi-
mum for the offense of conviction based upon a finding by the court
by a preponderance of the evidence, rather than by a jury beyond a
reasonable doubt, violated his due process rights. The Court agreed
and adopted the following constitutional rule: "Other 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." Id. at 490. Applying
this rule to the New Jersey statutory scheme, the Court observed that
it was immaterial whether racial bias was formally labeled a "sentenc-
ing factor" by the New Jersey legislature. See id. at 494. Because
there was a difference "between what Apprendi would have received
without the finding of biased purpose and what he could receive with
it," and because race bias was not found by a jury beyond a reason-
able doubt, the Court concluded that Apprendi's constitutional rights
had been violated. Id. at 495; see id. at 497.
_________________________________________________________________

2 Apprendi also pled guilty to two other offenses not relevant here. See
Apprendi, 530 U.S. at 469-70.

                   3
In Promise, we addressed two claims that 21 U.S.C.A. § 841, as
applied to the defendant, violated the rule announced in Apprendi.
The first portion of § 841, subsection (a), prohibits, inter alia, posses-
sion of controlled substances with the intent to distribute them. See
21 U.S.C.A. § 841(a)(1). Subsection (b)(1) sets forth various penalties
that vary according to, inter alia, the quantity of the particular con-
trolled substance at issue. See id. § 841(b)(1). Although no legislative
history speaks to the question, we have previously held that Congress
intended these "specific threshold drug quantities" to be sentencing
factors rather than elements of "aggravated drug trafficking offenses."3   3
See, e.g., United States v. Dorlouis, 107 F.3d 248, 252 (4th Cir.
1997). These factors determine the maximum penalty that may be
imposed on a particular defendant; for example, an individual who
possesses with the intent to distribute an identifiable but unspecified
quantity of cocaine is subject to a term of imprisonment of no more
than 20 years (if no other aggravating circumstance is present). See
21 U.S.C.A. § 841(b)(1)(C). A sentence exceeding 20 years may be
imposed, however, upon an additional finding that the offense
involved, for example, five kilograms or more of cocaine. See 21
U.S.C.A. § 841(b)(1)(A)(ii).

Promise argued that because a specific threshold drug quantity had
neither been charged in his indictment nor proven to the jury beyond
a reasonable doubt, his conviction and sentence were unconstitutional
in light of Apprendi. He argued that his conviction was unconstitu-
tional because Apprendi mandated that drug quantity was an element
of his offense of conviction; he claimed that his sentence was uncon-
stitutional because he received a term of imprisonment greater than
that which he could have received without a finding of the threshold
drug quantity. We rejected the first argument, holding that Promise's
conviction was valid because it was not based on any facts not
charged in the indictment and found by the jury beyond a reasonable
doubt. See Promise, 255 F.3d at 160. We accepted the second argu-
ment, however, holding that, under Apprendi, a defendant may not
_________________________________________________________________

3 "Specific threshold drug quantities" are the quantities set forth in
§ 841, a finding of which subjects a defendant to a sentence of ten years
to life imprisonment (§ 841(b)(1)(A)) or five to 40 years imprisonment
(§ 841(b)(1)(B)). An "aggravated drug trafficking offense" is one that
involves a specific threshold drug quantity as an element.

                   4
receive a sentence exceeding 20 years based on drug quantity unless
the specific threshold drug quantity is charged in the indictment and
proven to the jury beyond a reasonable doubt.44 See id. at 156-57.

McAllister raises an argument here that is related to those made in
Promise: He contends that § 841 is facially unconstitutional in light
of Apprendi because § 841 requires that drug quantity findings be
made by a sentencing judge rather than a jury. McAllister is mistaken
concerning what § 841 requires. Section 841 simply defines a crime
and assigns penalty ranges depending upon particular characteristics
of the crime. See United States v. Brough, 243 F.3d 1078, 1079 (7th
Cir. 2001), cert. denied, 70 U.S.L.W. 3076 (U.S. Oct. 1, 2001) (No.
01-89). Nothing in the statute purports to prescribe a process by
which the elements of the crime and other relevant facts must be
determined. See United States v. Cernobyl, 255 F.3d 1215, 1219 (10th
Cir. 2001); Brough, 243 F.3d at 1079. Accordingly, nothing in § 841
conflicts with the Apprendi rule, which governs that process only. We
therefore reject McAllister's argument and join the Fifth, Sixth, Sev-
enth, and Tenth Circuits in holding that § 841 is not facially unconsti-
tutional. See Cernobyl, 255 F.3d at 1219; United States v. Martinez,
253 F.3d 251, 256 n.6 (6th Cir. 2001); Brough, 243 F.3d at 1079-80;
United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000) (per
curiam), cert. denied, 121 S. Ct. 2015 (2001).

We note that one court of appeals has held that Apprendi renders
§ 841 facially unconstitutional. See United States v. Buckland, 259
F.3d 1157, 1163-68 (9th Cir. 2001), reh'g en banc granted, 2001 WL
1091167 (Sept. 14, 2001). But see Buckland, 259 F.3d at 1169
(Duplantier, J., dissenting). In Buckland, the majority noted circuit
precedent holding that Congress plainly intended that drug quantity
would be a sentencing factor rather than an element of the offense
defined in § 841. See id. at 1163 (citing United States v. Nordby, 225
F.3d 1053, 1058 (9th Cir. 2000)). Based on this case law, the majority
concluded that § 841 "permit[s]" the sentencing judge to make a find-
ing as to specific threshold drug quantity that increases the maximum
sentence beyond what could be imposed in the absence of such a find-
_________________________________________________________________

4 A plurality of the court declined to notice the sentencing error on
plain error review for reasons not relevant here. See id. at 161-64 (Wil-
kins, J.).

                  5
ing. Id. at 1165. The majority concluded that § 841 is therefore incon-
sistent with the rule announced in Apprendi. See id.

The flaw in this reasoning, in our view, is that it fails to recognize
the difference between permitting the sentencing judge to determine
drug quantity--by remaining silent regarding what process should be
employed to determine drug quantity--and requiring that drug quan-
tity be determined by the sentencing judge. Section 841, of course, is
silent regarding all questions of how facts will be determined, includ-
ing even the question of whether the elements of the § 841 offense
must be alleged in an indictment and proven to the jury beyond a rea-
sonable doubt. But that does not mean that the statute is inconsistent
with the constitutional requirement that elements be alleged in an
indictment and proven to the jury beyond a reasonable doubt. Simi-
larly, the mere fact that the statute is silent regarding whether sentenc-
ing factors must be treated as elements in order for those factors to
increase the defendant's statutory maximum sentence does not make
the statute inconsistent with the constitutional requirement that those
factors receive that treatment. We therefore decline to adopt the Ninth
Circuit's analysis.

III.

McAllister also contends that the district court erred in enhancing
his offense level for possession of a firearm during a drug felony
because no reliable evidence supported application of the enhance-
ment. The sole evidence upon which the district court based the
enhancement was contained in a Drug Enforcement Administration
(DEA) investigation report concerning information provided by
Michael Blount. According to the report, Blount, who was incarcer-
ated at the time of the interview, stated that McAllister purchased
drugs from him during 1991 and 1992 and that Blount saw McAllister
with handguns "on many occasions." DEA Form 6 at 2. Blount was
not present at the sentencing hearing, nor was the DEA agent to
whom Blount spoke. The report was admitted into evidence and por-
tions of it were read into the record by another DEA agent who was
neither involved in this investigation nor present when Blount made
this statement.55 Although the district court credited Blount's state-
_________________________________________________________________

5 The same DEA agent also testified that another DEA investigation
report contained a statement from McAllister's girlfriend that she once

                  6
ment, the court recognized that Blount did not state whether the hand-
guns were "possessed in connection with a drug trafficking offense."
J.A. 148. Nevertheless, the court applied the enhancement, conclud-
ing that "there's no indication that it was improbable that those guns
would be used for drug related offenses." Id.

Section 2D1.1(b)(1) allows for a two-level increase in a defen-
dant's base offense level "[i]f a dangerous weapon (including a fire-
arm) was possessed." U.S.S.G. § 2D1.1(b)(1). Under relevant conduct
principles, the enhancement applies when "the weapon was possessed
in connection with drug activity that was part of the same course of
conduct or common scheme as the offense of conviction." United
States v. Ortega, 94 F.3d 764, 767 (2d Cir. 1996) (internal quotation
marks omitted). Application Note 3 of the Commentary to § 2D1.1
states that "[t]he enhancement for weapon possession reflects the
increased danger of violence when drug traffickers possess weapons.
The adjustment should be applied if the weapon was present, unless
it is clearly improbable that the weapon was connected with the
offense." U.S.S.G. § 2D1.1(b)(1), comment. (n.3). In order to prove
that a weapon was present, the Government need show only that the
weapon was possessed during the relevant illegal drug activity. See
United States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997); United
States v. Apple, 962 F.2d 335, 338 (4th Cir. 1992). We review find-
ings of fact relating to sentencing enhancements for clear error. See
Harris, 128 F.3d at 852.

Here, the Government failed to present sufficient evidence from
which it could be reasonably concluded that McAllister possessed a
dangerous weapon during any illegal drug activity. Blount's statement
makes only two assertions regarding McAllister, that McAllister was
a narcotics customer of Blount's, and that Blount saw McAllister with
handguns many times. The statement does not reveal whether Blount
saw McAllister when the two were conducting drug transactions, nor
does it indicate whether he saw McAllister on other occasions. There-
_________________________________________________________________
saw McAllister with a handgun. The district court did not base the
enhancement on that statement, however, because the court concluded
that the Government failed to establish a connection between the weapon
allegedly seen by the girlfriend and any illegal drug activity.

                  7
fore, as the district court recognized, the report does not assert that
Blount ever saw McAllister with a handgun during a narcotics trans-
action. Without a description by Blount of the circumstances under
which he saw McAllister possess handguns, the district court could
only speculate regarding whether Blount ever observed McAllister in
possession of a handgun during a drug transaction. Accordingly, we
conclude that the district court clearly erred in applying the enhance-
ment.

IV.

For the foregoing reasons, we hold that Apprendi does not render
§ 841 facially unconstitutional and we therefore affirm McAllister's
conviction; however, we conclude that the district court erred in
applying the § 2D1.1(b)(1) enhancement, and we therefore vacate
McAllister's sentence and remand for resentencing.

AFFIRMED IN PART, VACATED IN PART,
AND REMANDED

                  8
