UNPUBLISHED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Affirmed in part, and vacated and remanded in part by unpublished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Unpublished opinions are not binding precedent in this circuit.
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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