                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4564



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


RUSSELL FLOYD FRESHOUR,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:05-cr-00235)


Submitted:   May 25, 2007                 Decided:   August 23, 2007


Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.


Affirmed in part, and vacated and remanded in part by unpublished
per curiam opinion.


David G. Belser, BELSER & PARKE, P.C., Asheville, North Carolina,
for Appellant. Gretchen C.F. Shappert, United States Attorney,
Charlotte, North Carolina; Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Russell Floyd Freshour was found guilty by a jury of

manufacturing and possessing with intent to distribute fifty grams

of more of methamphetamine and was sentenced to 210 months of

imprisonment.          On   appeal,   Freshour     argues:      (1)   there   was

insufficient evidence that he possessed with intent to distribute

fifty   grams    of    actual   methamphetamine;        (2)   because    of   the

Government’s failure to prove he distributed fifty grams of actual

methamphetamine, he should be resentenced; and (3) his Sixth

Amendment rights were violated because he was sentenced based on

facts not found by the jury or admitted by him.                       See United

States v. Booker, 543 U.S. 220 (2005).                  For the reasons that

follow, we affirm Freshour’s conviction but vacate his sentence and

remand for resentencing.

           Regarding Freshour’s first issue, the Government concedes

that the evidence was insufficient to support the drug weight

element   of    Freshour’s    offense    but   argues    that   the   error   was

harmless as he was sentenced below the statutory maximum for the

offense with no drug weight.            In order to sentence a defendant

pursuant to     21 U.S.C.A. § 841(b)(1)(A) or (B) (West 2000 & Supp.

2007), for a Schedule I or II drug (here methamphetamine), 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 reasonable doubt.


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United States v. Promise, 255 F.3d 150, 156-57 (4th Cir. 2001); see

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).                    Otherwise, the

defendant    must    be    sentenced     within       the   twenty-year    statutory

maximum contained in § 841(b)(1)(C). Promise, 255 F.3d at 156, 157

n.7.   Because Freshour was sentenced below the statutory maximum,

we find that the Government has demonstrated that the error was

harmless.    See Fed. R. Crim. P. 52(a) (stating standard); United

States v. Hastings, 134 F.3d 235, 240-41 (4th Cir. 1998) (same).

Thus, we affirm Freshour’s conviction.

            Regarding the second issue, the Government agrees with

Freshour    that    there    is   a    dearth    of    record   evidence       that   he

possessed    with    intent       to   distribute       fifty   grams     of    actual

methamphetamine.      The Government therefore also seeks resentencing

on this basis.      The Government notes that although there was ample

evidence     that         Freshour      distributed          large    amounts         of

methamphetamine, record evidence only shows that he was responsible

for    approximately        forty      grams    of     actual    methamphetamine.

(Appellee’s Br. at 10, 15-16).                  Thus, in accordance with the

parties’ position, we vacate and remand Freshour’s sentence and

instruct the district court to resentence him in accordance with

this opinion.

            Finally, because we vacate his sentence and remand for

resentencing, we decline to address Freshour’s third issue: that he

was sentenced in violation of the Sixth Amendment.                      We dispense


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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.



                                                  AFFIRMED IN PART;
                                      VACATED AND REMANDED IN PART




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