                             PUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellant,
                  v.                               No. 02-4252
DION R. HAMLIN,
                  Defendant-Appellee.
                                        
UNITED STATES OF AMERICA,               
                 Plaintiff-Appellee,
                  v.                               No. 02-4264
DION R. HAMLIN,
              Defendant-Appellant.
                                        
           Appeals from the United States District Court
         for the Eastern District of Virginia, at Richmond.
                 James R. Spencer, District Judge.
                           (CR-01-257)

                       Argued: December 6, 2002

                       Decided: February 11, 2003

    Before NIEMEYER and WILLIAMS, Circuit Judges, and
  Henry M. HERLONG, Jr., United States District Judge for the
        District of South Carolina, sitting by designation.



Affirmed in part, vacated in part, reversed in part, and remanded with
instructions by published opinion. Judge Williams wrote the opinion,
in which Judge Niemeyer and Judge Herlong joined.
2                      UNITED STATES v. HAMLIN
                             COUNSEL

ARGUED: Vincent L. Gambale, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellant. John Bertram Mann, LEVIT, MANN & HALLI-
GAN, Richmond, Virginia, for Appellee. ON BRIEF: Paul J.
McNulty, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia; Laura C. Marshall,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellant.


                              OPINION

WILLIAMS, Circuit Judge:

   The Government appeals from the district court’s dismissal of Dion
Hamlin’s conviction under 18 U.S.C.A. § 924(c) (West 2000) for lack
of a felony predicate drug offense. The Government argues that the
district court erred in holding that the statutory maximum sentence for
offenses involving an indeterminate amount of marijuana is one year,
based on 21 U.S.C.A. § 841(b)(4) (West 1999). Instead, the Govern-
ment argues, 21 U.S.C.A. § 841(b)(1)(D) (West Supp. 2002) provides
the applicable statutory maximum of five years, and thus, Hamlin’s
drug trafficking offense is a felony and is a proper predicate offense
for the § 924(c) conviction. On cross-appeal, Hamlin asserts that the
district court erred by admitting evidence of a loaded gun, eight pack-
ets of marijuana, and currency found in his possession. Hamlin also
asserts that the evidence was insufficient to support his conviction for
possession with an intent to distribute.

   We hold that § 841(b)(1)(D) provides the applicable statutory max-
imum sentence for offenses involving an indeterminate amount of
marijuana. We also find that the district court did not err in admitting
the gun, marijuana, and currency found in Hamlin’s possession and
that the evidence is sufficient to support Hamlin’s conviction for pos-
session with an intent to distribute. Accordingly, we affirm Hamlin’s
convictions for possession and possession with intent to distribute; we
reverse the dismissal of the § 924(c) conviction; we vacate Hamlin’s
                      UNITED STATES v. HAMLIN                        3
sentence; and we remand with instructions to reinstate the § 924(c)
conviction and to resentence on all counts.

                                  I.

                                  A.

   On July 27, 2001, around 9:30 p.m., Virginia Commonwealth Uni-
versity Police Sergeant Christopher Preuss was riding bike patrol and
observed Hamlin approach public telephones at an Amoco service
station in an area known for drug activity. Looking through his binoc-
ulars, Preuss saw Hamlin holding a dark hat or bag in his hand and
saw Hamlin take an object the size of a piece of bubble gum out of
the bag and hand it to an unidentified male subject, who looked at it
and handed it back to Hamlin. The first unidentified male subject left
and returned with a second unidentified male. The second male
handed currency to Hamlin. It then appeared that something was
passed back and forth.

   Preuss approached Hamlin and told him that he needed to speak
with him. Hamlin refused and walked into the Amoco; Preuss fol-
lowed. Hamlin appeared nervous, and he kept moving his hands
toward his groin area. Preuss asked Hamlin to step outside the store
and guided Hamlin out of the store with his hand on Hamlin’s shoul-
der. Once outside, Hamlin continued to appear nervous and to reach
for his waist and pockets. Preuss told Hamlin that he was going to pat
him down for weapons. Hamlin said, "No, you are not searching me."
(J.A. at 31.) At that point, Preuss and another officer handcuffed
Hamlin so that Preuss could pat him down. During the patdown, Pre-
uss felt what he believed to be a firearm; he recovered the firearm and
placed Hamlin under arrest for possession of a concealed weapon.
After the arrest, Hamlin was thoroughly searched. Preuss recovered
eight individual packets of marijuana and $100 in United States cur-
rency from Hamlin’s person.

                                  B.

  On August 22, 2001, the grand jury returned a three count indict-
ment charging Hamlin with one count of possessing with the intent
4                       UNITED STATES v. HAMLIN
to distribute a detectable amount of marijuana, in violation of 21
U.S.C.A. § 841 (Count One), one count of possessing a detectable
amount of marijuana, in violation of 21 U.S.C.A. § 844 (Count Two),
and one count of possessing a firearm in furtherance of a drug traf-
ficking crime, in violation of 18 U.S.C.A. § 924(c) (Count Three).
The district court denied Hamlin’s motion to suppress the gun, mari-
juana, and currency found in his possession. Following a bench trial,
Hamlin was convicted on all three counts.

   At the sentencing proceeding, the district court ruled that because
the indictment for Count One did not allege drug quantity or an intent
to distribute for remuneration, the statutory maximum sentence was
one year, under 21 U.S.C.A. § 841(b)(4). Based on this ruling, the
court dismissed Count Three for lack of a felony predicate drug offense.1
The district court sentenced Hamlin to three months imprisonment on
the merged Counts One and Two. The Government timely filed a
notice of appeal, and Hamlin timely filed a notice of cross-appeal. We
first address the Government’s argument regarding the proper statu-
tory maximum sentence for offenses involving an indeterminate
amount of marijuana and then address the two issues Hamlin raises
on cross-appeal.

                                    II.

                                    A.

    The Government argues that the district court erred by granting
Hamlin’s motion to dismiss Count Three for lack of a predicate fel-
ony drug offense. The district court granted Hamlin’s motion because
it found that the predicate offense, Count One, possessing a detectable
amount of marijuana with the intent to distribute, had a statutory max-
imum penalty of one year, based on 21 U.S.C.A. § 841(b)(4). (J.A. at
162.) The Government argues that the applicable statutory maximum
sentence is five years, based on 21 U.S.C.A. § 841(b)(1)(D). The
question of which statute provides the applicable statutory maximum
    1
    A conviction for possession of a firearm in furtherance of a drug traf-
ficking crime under 18 U.S.C.A. § 924(c) requires that the predicate drug
trafficking offense be a felony. 18 U.S.C.A. § 924(c)(2).
                        UNITED STATES v. HAMLIN                           5
is a legal issue that we review de novo. United States v. Hall, 972
F.2d 67, 69 (4th Cir. 1992).

   Under Apprendi v. New Jersey, 530 U.S. 466 (2000), "the maxi-
mum penalty that may be imposed upon a defendant is the maximum
penalty allowed by statute upon proof of only those facts alleged in
the indictment and found by the jury beyond a reasonable doubt."
United States v. Promise, 255 F.3d 150, 156 n.5 (4th Cir. 2001)
(emphases deleted), cert. denied, 122 S. Ct. 2296 (2002). Because
Hamlin’s indictment did not allege a specific quantity of marijuana,
Hamlin’s sentence on Count One cannot exceed the statutory maxi-
mum penalty for possessing with the intent to distribute an indetermi-
nate amount of marijuana.

   The Government argues that 21 U.S.C.A. § 841(b)(1)(D), which
provides for a maximum sentence of five years "[i]n the case of less
than 50 kilograms of marihuana," furnishes the applicable statutory
maximum. Hamlin argues that 21 U.S.C.A. § 841(b)(4) is the proper
default sentencing provision. Section 841(b)(4) provides that
"[n]otwithstanding paragraph (1)(D) of this subsection, any person
who violates subsection (a) of this section by distributing a small
amount of marihuana for no remuneration shall be treated as provided
in section 844 of this title." 21 U.S.C.A. § 841(b)(4). The maximum
term of imprisonment under § 844 is one year. Hamlin asserts that,
absent an allegation in the indictment and jury finding with respect to
either quantity or remuneration, § 841(b)(4) is the default sentencing
provision, and the maximum allowable sentence is one year.

  We agree with the government that § 841(b)(1)(D) provides the
applicable statutory maximum for marijuana violations where the
quantity of the drug is undetermined. Other circuits have reached the
same result.2 See United States v. Bartholomew, 310 F.3d 912, 925
   2
     The Second and the Sixth Circuits considered the issue, as we do, in
the absence of any controlling circuit precedent as to the applicable statu-
tory maximum sentence for offenses involving an indeterminate amount
of marijuana. The Fifth Circuit, which was presented with the argument
that § 841(b)(4) provides the applicable statutory maximum sentence in
United States v. Walker, 302 F.3d 322 (5th Cir. 2002), relied on its ear-
lier precedent to hold that § 841(b)(1)(D) provided the maximum sen-
tence. See Walker, 302 F.3d at 324 (citing United States v. Garcia, 242
F.3d 593, 599-600 (5th Cir. 2001)).
6                      UNITED STATES v. HAMLIN
(6th Cir. 2002); United States v. Walker, 302 F.3d 322, 324-25 (5th
Cir. 2002); United States v. Outen, 286 F.3d 622, 638 (2d Cir. 2002).
We agree with the reasoning of the Second and Sixth Circuits that
"[b]ecause Apprendi is concerned with the facts that a jury must
decide, ‘the proper "baseline" or "default" provision is not the provi-
sion with the lowest penalty, but rather the one which states a com-
plete crime upon the fewest facts.’" Bartholomew, 310 F.3d at 925
(quoting Outen, 286 F.3d at 638). Clearly § 841(b)(1)(D) is the "base-
line" provision because it states a complete crime upon the fewest
facts. Section 841(b)(4) is a mitigating exception to the five-year stat-
utory maximum found in § 841(b)(1)(D). The Supreme Court in
Apprendi recognized that the existence of possible "facts in mitiga-
tion" does not affect the statutory maximum. See Apprendi, 530 U.S.
at 490 n.16 ("If facts found by a jury support a guilty verdict of mur-
der, the judge is authorized by that jury verdict to sentence the defen-
dant to the maximum sentence provided by the murder statute. If the
defendant can escape the statutory maximum by showing, for exam-
ple, that he is a war veteran, then a judge that finds the fact of veteran
status is neither exposing the defendant to a deprivation of liberty
greater than that authorized by the verdict according to statute, nor is
the judge imposing upon the defendant a greater stigma than that
accompanying the jury verdict alone."). Similarly, here, the possibil-
ity that the defendant can "escape the statutory maximum" by show-
ing that he distributed "a small amount of marijuana for no
remuneration" does not affect the five-year statutory maximum set by
§ 841(b)(1)(D).

   Because the applicable statutory maximum sentence for Count One
is five years, it may serve as a predicate for the offense of carrying
a firearm during a drug trafficking crime. See 18 U.S.C.A.
§ 924(c)(2). Accordingly, we reverse the district court’s dismissal of
Count Three and remand with instructions to reinstate the conviction
on Count Three. We also vacate the sentence on the merged Counts
One and Two and remand for resentencing on all Counts.

                                   B.

   We turn now to Hamlin’s arguments on appeal. He argues that: (1)
the district court erred in denying the motion to suppress the loaded
                       UNITED STATES v. HAMLIN                         7
gun, packets of marijuana, and currency found in his possession; and
(2) the evidence was insufficient to support his conviction.

                                   1.

   Hamlin argues that the district court erred in failing to determine
that he was arrested from the moment that Officer Preuss took him
outside the service station. He argues that the fact that he was hand-
cuffed and not free to leave made the encounter an arrest and not an
investigative detention under the rule announced in Terry v. Ohio, 392
U.S. 1, 21 (1968). Because, Hamlin argues, Preuss did not have prob-
able cause to make a warrantless arrest, the arrest was unconstitu-
tional and the firearm, marijuana, and currency should be suppressed.
We review the factual findings underlying a motion to suppress for
clear error and the district court’s legal determinations de novo.
United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). When a
suppression motion has been denied, we review the evidence in the
light most favorable to the government. United States v. Seidman, 156
F.3d 542, 547 (4th Cir. 1998). We review de novo the legal determi-
nations in the district court’s conclusion that Preuss’s actions did not
amount to an arrest. United States v. Sinclair, 983 F.2d 598, 601 (4th
Cir. 1993).

   Hamlin’s argument that the fact that he was not free to leave con-
verted the Terry stop into a custodial arrest is without merit. See Sin-
clair, 983 F.2d at 603 ("[T]he perception that one is not free to leave
is insufficient to convert a Terry stop into an arrest."). Moreover, the
use of handcuffs did not convert the encounter into a custodial arrest
because the use was reasonably necessary to protect the officer’s
safety. During Terry stops, officers may take "steps reasonably neces-
sary to maintain the status quo and to protect their safety." Id. at 602.
Preuss had a right to conduct a patdown for concealed weapons
because Hamlin’s nervousness and his repeated attempts to reach
toward his groin area gave Preuss reason to believe that Hamlin was
armed and dangerous. See id. at 603 (noting that "experience with
drug traffickers might lead law enforcement officials to fear bodily
harm in conducting a Terry stop"). When Preuss told Hamlin he was
going to pat him down, Hamlin said, "No, you are not searching me."
(J.A. at 31.) At that point, the handcuffs were reasonably necessary
to accomplish the pat down for weapons. Cf. United States v. Critten-
8                     UNITED STATES v. HAMLIN
don, 883 F.2d 326, 329 (4th Cir. 1989) (use of handcuffs did not con-
vert stop and frisk into an arrest); Sinclair, 983 F.2d at 603 (use of
drawn weapons did not convert investigative stop into an arrest).
Accordingly, the district court did not err in denying Hamlin’s motion
to suppress.

                                  2.

   Hamlin next contends that the evidence was insufficient to support
his conviction on Count One. A defendant challenging the sufficiency
of the evidence to support a conviction "must overcome a heavy bur-
den." United States v. Hoyte, 51 F.3d 1239, 1245 (4th Cir. 1995). We
must sustain the verdict if there is substantial evidence, taken in the
light most favorable to the government, to support the conviction.
United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996) (en
banc). Viewing all of the evidence and the inferences to be drawn
therefrom in the light most favorable to the Government, we conclude
that the evidence is sufficient to support Hamlin’s conviction on
Count One.

                                 III.

   For the reasons stated herein, we affirm Hamlin’s conviction on
Count One; we reverse the dismissal of Count Three; we vacate the
sentence on the merged Counts One and Two; and we remand with
instructions to reinstate the conviction on Count Three and resentence
as to all Counts.

           AFFIRMED IN PART, VACATED IN PART, REVERSED
              IN PART, AND REMANDED WITH INSTRUCTIONS
