UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 99-4579

ALFRED EMANUEL MEAIS, a/k/a

Randolph Brown, a/k/a Kool Aid,

Defendant-Appellant. 

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

N. Carlton Tilley, Jr., Chief District Judge.

(CR-98-307)

Submitted: August 24, 2001

Decided: September 10, 2001

Before WIDENER, LUTTIG, and KING, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion. 

COUNSEL

Michael W. Patrick, HAYWOOD, DENNY & MILLER, L.L.P., Durham, North Carolina, for Appellant. Walter C. Holton, Jr., United

States Attorney, Sandra J. Hairston, Assistant United States Attorney,

Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Alfred Emanuel Meais appealed from his jury conviction and

resulting 360-month sentence for conspiracy to distribute crack

cocaine in violation of 21 U.S.C.A. § 846 (West Supp. 1999). The

Supreme Court vacated our previous opinion affirming Meais’s conviction and sentence and remanded for reconsideration under

Apprendi v. New Jersey, 530 U.S. 466 (2000). We now affirm in part,

vacate in part, and remand for re-sentencing. 

Meais alleged the district court erred in denying his motion in

limine and in admitting evidence of prior bad acts. We find no abuse

of discretion in admission of this evidence. See United States v. Kennedy, 32 F.3d 876, 886 (4th Cir. 1994). We also find no clear error

in the sentencing court’s increase of Meais’s base offense level under

U.S. Sentencing Guidelines Manual § 3B1.4 (1998) for using a minor

to commit the offense. See United States v. Nale, 101 F.3d 1000, 1003

(4th Cir. 1996). 

In addition we find no merit to Meais’s arguments that his conviction should be vacated because his co-conspirator was a government

informant; that his criminal history was improperly calculated; that

the amount of cocaine base attributed to him was incorrectly calculated; that he was denied the right to testify in his own behalf; or that

he was denied the right of allocution. 

We do find plain error, however, in regard to Meais’s sentence,

vacate his sentence, and remand to the district court for re-sentencing.

Under Apprendi, drug quantity must be treated as an element of an

aggravated drug trafficking offense, and failure to charge a specific

drug quantity in the indictment and to submit the quantity issue to the

jury constitutes plain error. United States v. Cotton, ___ F.3d ___,

2001 WL 901259, at *3 (4th Cir. Aug. 10, 2001) (No. 99-4162) (cit2 UNITED STATES v. MEAIS
ing United States v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc)).

Failure to charge drug quantity in the indictment and to submit the

issue to the jury also "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings" such that we should exercise

our discretion to recognize the error. Id. (quoting United States v.

Olano, 507 U.S. 725, 736 (1993). 

The district court sentenced Meais to a term of imprisonment that

exceeded the twenty-year maximum penalty provided for a violation

of 21 U.S.C. § 841(b)(1)(C) based upon an "identifiable but unspecified quantity" of cocaine base. See Cotton, 2001 WL 901259, at *3

(quoting Promise, 2001 WL 732389, at *5). By sentencing Meais to

a term greater than twenty years, the district court sentenced Meais

for a crime for which he was neither indicted nor convicted. See id.

Under Apprendi, the "indictment must contain an allegation of every

fact which is legally essential to the punishment to be inflicted." Id.

(internal quotation omitted). Drug quantity was not noted in Meais’s

indictment, the court’s jury instructions, or the jury’s verdict form.

We therefore conclude that under Cotton, the district court exceeded

its jurisdiction in sentencing Meais for a crime with which he was

never charged or convicted. For that reason, we vacate Meais’s sentence and remand to the district court for re-sentencing in light of

Apprendi and Cotton. We affirm the district court’s judgment in all

other respects. We dispense with oral argument because the facts and

legal contentions of the parties are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED

UNITED STATES v. MEAIS 3