                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 99-4804
STEVEN LAVOUR TWITTY,
             Defendant-Appellant.
                                       
        On Remand from the United States Supreme Court.
                     (S. Ct. No. 00-5760)

                   Submitted: September 4, 2003

                      Decided: September 12, 2003

      Before WILLIAMS, MOTZ, and KING, Circuit Judges.



Vacated by unpublished per curiam opinion.


                              COUNSEL

Langdon D. Long, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
Marshall Prince, Assistant United States Attorney, Ann Agnew Cupp,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

  In 1998, Steven Twitty was indicted on two counts of possession
with intent to distribute and distribution of "quantities of" cocaine and
cocaine base. He pled guilty pursuant to a plea agreement to one
count of the indictment. The indictment did not refer to a specific
amount of drugs.

   The presentence report held Twitty responsible for selling over 1.5
kilograms of crack cocaine. Twitty objected to this quantity and
moved to withdraw his guilty plea, arguing that under the Supreme
Court’s intervening decision in Jones v. United States, 526 U.S. 227
(1999), the drug quantity should have been charged in the indictment
and proved at trial. The district court denied the motion. Twitty was
sentenced to 500 months’ imprisonment followed by five years of
supervised release.

   On appeal Twitty argued, relying on Jones, that the district court
erred in holding that the Government was not required to charge drug
quantity as an element of the offense. This court, citing cases from
four other circuits, held that the reasoning in Jones did not extend to
21 U.S.C.A. § 841(b) (West 1999 & Supp. 2003). Our opinion was
issued on May 23, 2000. On June 26, 2000, the Supreme Court held,
in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), 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 sub-
mitted to a jury, and proved beyond a reasonable doubt." The
Supreme Court granted Twitty’s petition for certiorari and remanded
the case for reconsideration in light of Apprendi. The parties have
filed supplemental briefs.

   "Apprendi dictates that in order to authorize the imposition of a
sentence exceeding the maximum allowable without a jury finding of
a specific threshold drug quantity, the specific threshold quantity must
be treated as an element of an aggravated drug trafficking offense,
i.e., charged in the indictment and proved to the jury beyond a reason-
able doubt," United States v. Promise, 255 F.3d 150, 156-57 (4th Cir.
2001) (footnotes omitted), or admitted in a guilty plea. United States
                       UNITED STATES v. TWITTY                         3
v. Pauley, 289 F.3d 254, 262 (4th Cir.), modified on other grounds on
reh’g, 304 F.3d 335 (4th Cir. 2002), cert. denied, 123 S. Ct. 1007
(2003). Here, Twitty’s 500-month sentence violates Apprendi because
the indictment charged an unspecified quantity of drugs and, under 21
U.S.C. § 841(b)(1)(C), he was subject to a maximum sentence of
twenty years. See Promise, 255 F.3d at 156.

   In raising this issue before sentencing, Twitty timely objected to
the error. Because he invoked Jones and contended that drug quantity
should have been charged in the indictment, the objection was suffi-
cient to preserve the issue. See United States v. Mackins, 315 F.3d
399, 406-07 (4th Cir.), cert. denied, 123 S. Ct. 2099 (2003). "If a
defendant has made a timely and sufficient Apprendi sentencing
objection in the trial court, and so preserved his objection, we review
de novo. . . . In such circumstances, we must reverse unless we find
this constitutional error harmless beyond a reasonable doubt, with the
Government bearing the burden of proving harmlessness." Id. at 405
(citations omitted).

   The Government can meet this burden by proving, "beyond a rea-
sonable doubt, that [the error] did not affect [the defendant’s] substan-
tial rights." Id. at 409. A sentence for a drug offense that violates
Apprendi because it exceeds the twenty-year maximum of 21 U.S.C.
§ 841(b)(1)(c) does affect a defendant’s substantial rights. Promise,
255 F.3d at 160. Thus, because Twitty’s 500-month sentence
exceeded the twenty-year statutory maximum for the single count of
conviction, the Apprendi error affected his substantial rights and
resentencing is required.

   Accordingly, we vacate Twitty’s sentence and remand for imposi-
tion of a sentence that does not exceed the twenty-year maximum of
§ 841(b)(1)(C). We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

                                                             VACATED
