United States of America v.  CARMICHAEL CANNADY, a/k/a Stokey

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4024 
CARMICHAEL CANNADY, a/k/a Stokey,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, Chief District Judge.
(CR-99-79-S)
Argued: October 29, 2001
Decided: March 22, 2002
Before LUTTIG, TRAXLER, and KING, Circuit Judges.
Affirmed by published opinion. Judge Traxler wrote the majority
opinion, in which Judge King joined. Judge Luttig wrote an opinion
concurring in part and dissenting in part.
COUNSEL
ARGUED: Cheryl Johns Sturm, Chadds Ford, Pennsylvania, for
Appellant. James McCormick Webster, III, Assistant United States
Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Stephen
M. Schenning, United States Attorney, Baltimore, Maryland, for
Appellee.

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OPINION
TRAXLER, Circuit Judge:
Carmichael Cannady pleaded guilty to a drug-related conspiracy
charge and was sentenced to 174 months of imprisonment. Cannady
appeals, contending that the district judge violated Rule 11(e)(1) of
the Rules of Criminal Procedure by participating in the plea negotia-
tions, that his guilty plea was not knowingly and voluntarily made,
and that his indictment was defective. We affirm.
I.
Cannady was charged in a four-count indictment and was sched-
uled to begin trial on June 15, 1999. That day, Cannady and the gov-
ernment reached an agreement whereby Cannady would plead guilty
to a single count of conspiracy to distribute and possess with intent
to distribute cocaine and heroin. The plea agreement included a
waiver of Cannady’s right to initiate proceedings under 28 U.S.C.A.
§ 2255, a provision that the government apparently had informed
Cannady was required by the district judge.
At the beginning of the plea proceedings, counsel for Cannady
raised the § 2255 waiver issue, stating that "[w]ith the plea agreement,
the government put in, and I guess they really want it, and they said
it is a requirement by you that he waives his right to a 2255 collateral
proceeding." J.A. 22. The judge responded, "Right." J.A. 22. Later in
the proceedings, the district judge stated:
The point is I’m not going to waste time by taking a guilty
plea and then having him file a 2255 that says Mr. Glaser
[Cannady’s attorney] didn’t prepare for trial; and, therefore,
I want to withdraw my plea and have a trial later two years
from now. That is not going to happen.
So either he decides to waive the 2255, or we are going
to go to trial, and I will get the jury down here this afternoon
and we’ll start.
* * *
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Three years from now after the 4th Circuit sends it back
as a result of a 2255, either he is satisfied completely with
what is going on, or he is not. We still have a jury standing
by. I will get them down here and we’ll start the trial.
So that’s the way it is. You know, life has decisions to be
made. I am perfectly willing to start the trial at 1:00 o’clock.
We’ll get the jury here and we’ll start.
So it is your call, Mr. Cannady. The plea agreement does
call for this. You have to knowingly, intelligently, and vol-
untarily, waive that right under the plea agreement.
* * *
I am not going to sit here and waste time with a plea
agreement where you intend, as soon as you get in jail, to
file a 2255 and start the whole thing over again. That ain’t
going to happen.
J.A. 24-25. When Cannady said that he did not know what a 2255
motion was, J.A. 25, the judge responded, "[y]ou will find out as soon
as you get to a federal system."1 J.A. 26. Then, referring to the § 2255
waiver, the judge stated:
[I]f that’s what the government wants, and if that is in the
plea agreement, if you don’t agree to that, there is no agree-
ment. I will put it that way. If you agree to it, there is an
agreement. If you don’t, you don’t. And we’re going to start
the trial, in fact, in exactly 50 minutes. The court stands in
recess.
J.A. 26.
Cannady then interjected that he had accepted the plea agreement,
1As will be discussed in footnote three, Cannady in this action does not
seek to invalidate the waiver of his right to initiate proceedings under
§ 2255.
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which prompted the district judge to ask Cannady’s attorney why he
had raised the § 2255 issue. Counsel for Cannady explained that while
Cannady wanted to plead guilty, Cannady wanted to see if the court
would accept a plea that did not include such a waiver. Counsel for
Cannady also explained that he had advised Cannady that the plea
agreement, with the § 2255 waiver, was in Cannady’s best interest
and that he had advised Cannady to accept the deal.
The district judge was still hesitant to accept the plea, telling coun-
sel that
what I am presented with is a big fur ball. I don’t like fur
balls. . . . You’re handing me this plea agreement, signed
with a big caveat. I don’t like that.
So what we are going to do is, we’re going to start the
trial in 46 minutes. I am not going to accept the plea agree-
ment.
J.A. 28-29. Cannady interjected again, telling the judge that he had
signed the plea agreement, and counsel for Cannady again told the
judge that Cannady wanted to plead guilty even with the § 2255
waiver included as part of the agreement. The district judge then gave
Cannady fifteen minutes to make sure he wanted to plead guilty. The
judge told Cannady: "We are not going to hedge, we are not going
back and forth. We are not going to have a fur ball. Either you volun-
tarily, knowingly, and intelligently, decide to plead guilty under the
terms and conditions of this plea agreement, or we start the trial at
1:00 precisely." J.A. 29-30.
After the recess, Cannady entered a guilty plea, which the judge
accepted. During the plea colloquy, the district judge told Cannady
that he faced a minimum sentence of ten years and a maximum sen-
tence of life. The judge did not inform Cannady that drug quantity
was an element of the crime or that the government would be required
to prove quantity beyond a reasonable doubt.
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II.
At the time Cannady pleaded guilty, Rule 11(e)(1) of the Federal
Rules of Criminal Procedure provided that "[t]he attorney for the gov-
ernment and the attorney for the defendant . . . may engage in discus-
sions with a view toward reaching a[ ] [plea] agreement," and that the
district court "shall not participate in any such discussions." Fed. R.
Crim. P. 11(e)(1) (1999).2 Although this court has never addressed
Rule 11(e)(1) in a published opinion, the rule is strictly interpreted by
other circuits. See United States v. Miles, 10 F.3d 1135, 1139 (5th Cir.
1993) ("Rule 11(e)(1) prohibits absolutely a district court from all
forms of judicial participation in or interference with the plea negotia-
tion process." (internal quotation marks omitted)); United States v.
Corbitt, 996 F.2d 1132, 1134 (11th Cir. 1993) (per curiam) (explain-
ing that Rule 11(e)(1) establishes "an absolute prohibition on all
forms of judicial participation" in plea negotiations (internal quotation
marks omitted)); United States v. Bruce, 976 F.2d 552, 558 (9th Cir.
1992) ("[T]he unambiguous mandate of Rule 11 prohibits the partici-
pation of the judge in plea negotiations under any circumstances: it
is a rule that . . . admits of no exceptions.").
On appeal, Cannady contends that the district judge violated Rule
11(e)(1) in two ways. First, Cannady contends that the judge’s com-
ments during the plea proceeding amounted to participation in the
plea negotiations. Second, Cannady contends that the judge partici-
pated in the plea negotiations by instructing the government to
include § 2255 waivers in all plea agreements brought before him. We
address these arguments in turn.
A.
Cannady argues that the district judge participated in the parties’
plea negotiations through his rather extensive comments during the
plea proceeding about § 2255 waivers. At the time these comments
were made, however, the parties had reached a definite agreement that
2The current version of the rule details the types of agreements that
may be entered into by the parties and provides that "[t]he court shall not
participate in any discussions between the parties concerning any such
plea agreement." Fed. R. Crim. P. 11(e)(1) (2001).
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had been reduced to writing and executed by Cannady and the gov-
ernment, all without any direct involvement by the district judge.
While the judge had yet to accept the plea and approve the agreement,
the agreement was final and complete as between Cannady and the
government. Because the plea negotiations between the parties had
come to an end and the parties had signed a written plea agreement
before the district judge was involved, it is hard to characterize the
judge’s comments as participation in any discussions that were con-
ducted "with a view toward reaching a[ ] [plea] agreement," which is
all that the plain language of Rule 11(e)(1) then prohibited. See
United States v. Telemaque, 244 F.3d 1247, 1249 (11th Cir. 2001)
(per curiam) (finding no violation of Rule 11(e)(1) when the district
judge, at the request of the defendant’s attorney, discussed certain
terms of an already-signed plea agreement with the defendant);
United States v. Johnson, 89 F.3d 778, 782 (11th Cir. 1996)
("Because no plea discussions occurred here, the literal terms of the
rule do not apply.").
However, where necessary to serve the purposes of Rule 11(e)(1),
courts have found violations of the rule even in cases where the dis-
trict judge technically did not participate in "discussions with a view
toward a[ ] [plea] agreement." See Johnson, 89 F.3d at 782 (noting
that "the decisions under [Rule 11(e)(1)] have put a gloss on the rule
to implement a broader purpose"). Rule 11(e)(1)’s strict prohibition
against judicial participation in plea negotiations is widely viewed as
serving several purposes:
First, it diminishes the possibility of judicial coercion of a
guilty plea, regardless whether the coercion would actually
result in an involuntary guilty plea. Second, the judge’s
involvement in the negotiations is apt to diminish the
judge’s impartiality. By encouraging a particular agreement,
the judge may feel personally involved, and thus, resent the
defendant’s rejection of his advice. Third, the judge’s partic-
ipation creates a misleading impression of his role in the
proceedings. The judge’s role seems more like an advocate
for the agreement than a neutral arbiter if he joins in the
negotiations.
United States v. Daigle, 63 F.3d 346, 348 (5th Cir. 1995) (citations
omitted); see also United States v. Bierd, 217 F.3d 15, 19 (1st Cir.
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2000) (offering somewhat different formulation of the purposes of
Rule 11(e)(1)); Bruce, 976 F.2d at 557 (same). We will assume that
it is proper to extend Rule 11(e)(1) beyond its plain terms in order to
give effect to these purposes, as other circuits have done. But even
considering these purposes, we find no error.
First, contrary to Cannady’s assertion, we find nothing coercive
about the district judge’s comments during the plea proceeding. As
noted above, Cannady and the government, on the day the trial was
scheduled to begin, reached an agreement that was satisfactory to all
concerned. But when the agreement was presented to the court, Can-
nady began inquiring as to whether the judge would allow him to
change the terms to which Cannady had already agreed. In effect,
Cannady was attempting to reopen the negotiation process and
involve the district judge in the renewed negotiations, which the dis-
trict court declined to do. In the end, the district court may have given
Cannady a relatively short time to decide, once and for all, whether
he wanted to accept the terms of the plea agreement. However, by
reminding Cannady that his trial was scheduled to begin that day and
that he no longer had the luxury of lingering over a decision, the court
was only requiring Cannady to make a decision—either plead guilty
or go to trial. But nothing in the court’s comments can be viewed as
coercing Cannady into pleading guilty.3
3In this action, Cannady seeks only to set aside his guilty plea; he does
not seek to invalidate the § 2255 waiver itself. But in the course of argu-
ing that the district judge coerced him into accepting the plea agreement,
Cannady states that waivers of the right to initiate § 2255 proceedings
"ha[ve] been held illegal by many if not all appellate courts." See Brief
of Appellant at 17. This statement is simply incorrect. Although this
court has not yet directly addressed the validity of such waivers, the
courts considering the issue have found § 2255 waivers to be generally
valid, subject to the same conditions and exceptions applicable to waiv-
ers of the right to file a direct appeal. See Garcia-Santos v. United States,
273 F.3d 506, 509 (2nd Cir. 2001) (per curiam); United States v. Cock-
erham, 237 F.3d 1179, 1183 (10th Cir. 2001), cert. denied, 122 S. Ct.
821 (2002); DeRoo v. United States, 223 F.3d 919, 923 (8th Cir. 2000);
Watson v. United States, 165 F.3d 486, 488-89 (6th Cir. 1999); United
States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (per curiam); United
States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993); see also United
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When we consider the district judge’s comments in light of the
remaining purposes behind Rule 11(e)(1), we still cannot conclude
that Rule 11(e)(1) was violated. The judge never suggested that Can-
nady should plead guilty or otherwise advocated a particular course
of action. Certainly the judge’s comments during the plea proceeding
made it clear that he generally favored the inclusion in plea agree-
ments of waivers of § 2255 rights. But these comments occurred dur-
ing the district judge’s attempts to ensure that Cannady was
knowingly and voluntarily entering into the agreement, which the
judge, of course, was required to do. See Fed. R. Crim. P. 11(d)
(requiring a district court to ensure that guilty pleas are voluntarily
made); United States v. Carver, 160 F.3d 1266, 1269 (10th Cir. 1998)
("[O]nce the parties have ‘hammered out’ the details of their agree-
ment, Rule 11(e) does not prevent the sentencing judge from ques-
tioning the defendant regarding the terms, consequences, and
acceptance of the plea agreement or from providing the defendant
with information relating to these matters."). The district judge was
presented with a defendant who was effectively seeking the judge’s
permission to delete from a plea agreement a term that the defendant
had already accepted, and the judge’s comments certainly revealed his
frustration with the situation. But given the unusual circumstances of
this case, we cannot conclude that the district judge’s comments
amounted to a violation of Rule 11(e)(1). See Carver, 160 F.3d at
1269 (finding no Rule 11(e)(1) violation where the judge during a
"problematic interchange" made comments that "evidenced some
frustration," because the "comments were prompted by an attempt to
resolve the inconsistent positions taken by the defendant during the
sentencing hearing and were, if anything, related to defendant’s con-
States v. Brown, 232 F.3d 399, 405-06 (4th Cir. 2000) (in case where
plea agreement included waiver of direct appeal and § 2255 rights, con-
cluding that waiver of direct appeal was valid and enforceable, but not
addressing the § 2255 waiver). Some courts, however, have concluded
that the right to file a § 2255 action based on counsel’s ineffectiveness
with regard to the negotiation of the plea or the voluntariness of the plea
is not barred by the waiver. See Cockerham, 237 F.3d at 1184; DeRoo,
223 F.3d at 924; Jones v. United States, 167 F.3d 1142, 1145 (7th Cir.
1999). Should Cannady later elect to bring a § 2255 action, the scope and
effect of the waiver will then be ripe for consideration.
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sideration of whether or not to withdraw his already negotiated plea
agreement").
B.
Having considered the effect of the district judge’s comments dur-
ing the plea proceeding itself, we now consider Cannady’s claim that
the judge participated in the plea negotiations by directing the govern-
ment’s attorneys to include in all plea agreements the defendant’s
waiver of the right to collaterally challenge the guilty plea.
If a district judge instructs the government to include a particular
provision in all of its plea agreements, such an instruction, made only
to the government and not in the context of any particular plea negoti-
ation, would not appear to be, in the strictest sense, the equivalent of
participation in plea negotiations between the government and any
given defendant. It could be argued, however, that by directing the
inclusion of a particular provision, the judge in effect has become a
before-the-fact participant in every plea negotiation undertaken by the
government. Should a defendant balk at the term required by the dis-
trict judge, the government will almost assuredly explain the judge’s
directive, thus leaving a defendant who wants to plead guilty with no
real choice but to accept the provision required by the judge. Simi-
larly, the government will include the term in every plea agreement,
even in cases where the government would not have otherwise
insisted on the term. As to any given plea negotiation, then, the dis-
trict judge’s directive would have the same effect as would the judge
being physically present during each negotiation and instructing the
parties that no agreement would be accepted unless it included the
particular provision. Cf. United States v. Kraus, 137 F.3d 447, 455
(7th Cir. 1998) (finding violation of Rule 11(e)(1) because, inter alia,
the district judge’s comments about terms that would be acceptable
"almost surely had the effect of directing the parties toward one set
of alternatives to the possible exclusion of others that the parties
themselves might have explored"). We need not, however, decide
whether it is proper for a district judge to require all plea agreements
brought before him to include particular terms, because the record in
this case is insufficient to support Cannady’s claim that the judge
issued such a directive.
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At the beginning of the plea proceedings, counsel for Cannady
stated that the government "said it is a requirement by you that [Can-
nady] waives his right to a 2255 collateral proceeding," to which the
district judge responded, "Right." J.A. 22. Certainly this response
could mean, as Cannady contends, that the district judge in fact
required the inclusion of § 2255 waivers in all plea agreements
brought before him. However, the district judge, referring to the
§ 2255 waiver, later said to Cannady, "if that’s what the government
wants, and if that is in the plea agreement, if you don’t agree to that,
there is no agreement." J.A. 26. This statement seems to be inconsis-
tent with Cannady’s claim that the § 2255 waiver was required by the
district judge. Given the ambiguity of the record before us, we cannot
draw any conclusions about what the district judge did or did not say
to the government with regard to § 2255 waivers.4 And because this
aspect of Cannady’s Rule 11(e)(1) challenge is dependent on his
assertion that the district judge required the inclusion of a § 2255
waiver in all plea agreements, the challenge necessarily fails.5
III.
Cannady also raises several challenges to his guilty plea based on
the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S.
466 (2000). We considered the effect of Apprendi in United States v.
Promise, 255 F.3d 150 (4th Cir. 2001) (en banc), petition for cert.
filed, Sept. 20, 2001 (No. 01-6398). In Promise, this court concluded
4In its brief, the government asserts that the district judge never
directed that all plea agreements include a § 2255 waiver, but merely
suggested that the government consider including such a term. During
the plea proceeding, however, the government’s attorney involved with
Cannady’s plea offered no information about the nature of the judge’s
statement.
5Nothing in the record suggests that Cannady ever raised this argument
below, which would require review of the issue under a plain error stan-
dard. See United States v. Vonn, No. 00-973, 2002 WL 331733, at *5
(U.S. March 4, 2002) (holding that Rule 11 errors not raised to the dis-
trict court are reviewed for plain error only); United States v. Martinez,
277 F.3d 517, 527 (4th Cir. 2002) (same). However, because we con-
clude that the district court did not violate Rule 11(e)(1), the standard of
review is not critical to our analysis of this issue.
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that under Apprendi, drug quantity is an element of the aggravated
drug offenses set forth in 21 U.S.C.A. §§ 841(b)(1)(A) and
841(b)(1)(B) (West 1999 & Supp. 2001). See Promise, 255 F.3d at
156. Therefore, unless the quantity of drugs is alleged in the indict-
ment and submitted to the jury, the defendant may be convicted only
under 21 U.S.C.A. § 841(b)(1)(C) (West Supp. 2001), which governs
offenses involving an unspecified quantity of drugs and sets forth a
maximum sentence of twenty years. See id.; see also United States v.
Martinez, 277 F.3d 517, 528-29 (4th Cir. 2002). The indictment in
this case did not allege the quantity of drugs involved. Thus, under
Apprendi and Promise, Cannady could be convicted and sentenced
only for a conspiracy to violate § 841(b)(1)(C).
A.
Cannady pleaded guilty before the Supreme Court’s decision in
Apprendi and this court’s decision in Promise were filed. Therefore,
during the plea colloquy, the district court did not inform Cannady
that drug quantity was an element of the drug offense underlying his
conspiracy charge. In addition, the district court informed Cannady
that he faced a maximum sentence of life imprisonment, instead of the
maximum sentence of twenty years allowed after Apprendi. Cannady
contends that by virtue of these errors, his plea was not knowingly
and voluntarily made and should therefore be vacated. See Fed. R.
Crim. P. 11(c) ("Before accepting a plea of guilty or nolo contendere,
the court must address the defendant personally in open court and
inform the defendant of, and determine that the defendant understands
. . . (1) the nature of the charge to which the plea is offered, the man-
datory minimum penalty provided by law, if any, and the maximum
possible penalty provided by law. . . ."). Because Cannady makes
these arguments for the first time on appeal, they are reviewed for
plain error only. See United States v. Vonn, No. 00-973, 2002 WL
331733, at *5 (U.S. March 4, 2002); Martinez, 277 F.3d at 527.
We can easily dispose of Cannady’s first contention. As noted
above, drug quantity is not an element of § 841(b)(1)(C) violations.
The district court, therefore, committed no Rule 11 error, plain or oth-
erwise, when advising Cannady of the nature of the charges against
him. See Martinez, 277 F.3d at 530.
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Cannady’s challenge based on the district court’s advice about the
maximum sentence faced by Cannady, however, requires additional
analysis. Although the district court’s statement that Cannady faced
a maximum sentence of life imprisonment was correct at the time it
was made, the information is no longer correct after Apprendi and
Promise. Because the law changed between the time of the plea and
this appeal, we treat the district court’s now-incorrect information as
plain error. See Martinez, 277 F.3d at 530, 532. The mere fact that
error occurred, however, is not enough; to warrant relief, Cannady
must also establish that he was prejudiced by the error. See Fed. R.
Crim. P. 11(h) ("Any variance from the procedures required by this
rule which does not affect substantial rights shall be disregarded.");
Vonn, 2002 WL 331733 at *5 (explaining that under plain error
review, the defendant "has the burden to show that his substantial
rights were affected" (internal quotation marks omitted)); Martinez,
277 F.3d at 532 (explaining that a defendant raising a Rule 11 error
for the first time on appeal bears the burden of establishing that he
was prejudiced by the district court’s error).
Cannady, however, makes no argument in his brief as to how the
district court’s advice about the maximum sentence he faced affected
his decision to plead guilty, nor does he contend that he would not
have pleaded guilty if he had known that his sentence could not have
exceeded twenty years. Instead, Cannady simply points out the error
and suggests that the existence of the error entitles him to relief. This
is clearly insufficient to carry his burden of establishing "that, absent
the Rule 11 errors, he would not have entered into his plea agree-
ment." Martinez, 277 F.3d at 532.
Moreover, there is nothing in the record submitted to this court that
would support such a conclusion. Although it is apparent from the
record that Cannady would have preferred that his plea agreement not
include the § 2255 waiver, it is even more apparent that Cannady did
not want to go to trial under any circumstances. See J.A. 46 ("Judge
Smalkin, I am not trying to waste your time. I’m signing this plea vol-
untarily."); J.A. 47 ("I really don’t want to say anything, Judge
Smalkin, to make me go to trial. I don’t want to go to trial. I do want
to sign this plea agreement."). In addition, Cannady received consid-
erable benefits from the plea agreement — the government dropped
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three charges carrying substantial penalties6 and stipulated to drug
quantities involved in the conspiracy count to which Cannady pleaded
guilty. Under these circumstances, the district court’s error with
regard to the maximum sentence faced by Cannady does not warrant
the setting aside of Cannady’s guilty plea. See Martinez, 277 F.3d at
532-33 (concluding that the defendant failed to carry his burden of
showing prejudice from the district court’s incorrect advice about the
maximum sentence faced by the defendant).
B.
Cannady also contends that the indictment is invalid after Apprendi
because it did not allege the quantity of drugs involved in the drug
conspiracy. This argument is without merit. The failure to allege drug
quantity in an indictment does not invalidate the indictment, but
instead prevents the court from sentencing the defendant to more than
the twenty years authorized by § 841(b)(1)(C). See United States v.
Dinnall, 269 F.3d 418, 423 n.3 (4th Cir. 2001); Promise, 255 F.3d at
160. Because Cannady was sentenced to 174 months, no error arises
from the omission of drug quantity from the indictment.7
6The charges dropped by the government were: (1) distribution and
possession with intent to distribute heroin, for which Cannady faced a
(post-Apprendi) maximum sentence of twenty years, see 21 U.S.C.A.
§ 841(b)(1)(C) (West Supp. 2001); (2) conspiracy to use and carry fire-
arms in relation to a drug trafficking offense, for which Cannady faced
a maximum sentence of twenty years, see 18 U.S.C.A. §§ 924(c)(1) &
924(o) (West 2000); and (3) possession of ammunition by a felon, see 18
U.S.C.A. § 922(g) (West 2000), for which Cannady faced a maximum
sentence of ten years, see 18 U.S.C.A. § 924(a)(2) (West 2000).
7Cannady’s suggestion that the indictment was defective because it did
not allege his role in the offense (for which the district court enhanced
Cannady’s base offense level during sentencing) is likewise without
merit. See United States v. Kinter, 235 F.3d 192, 199-201 (4th Cir.) (con-
cluding that Apprendi does not affect a judge’s application of enhance-
ments under the Sentencing Guidelines when the enhancement does not
increase the defendant’s sentence beyond the statutory maximum), cert.
denied, 121 S. Ct. 1393 (2001).
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IV.
We conclude that Cannady’s indictment was sufficient, and we find
no error in the conduct of the plea proceeding that warrants vacating
Cannady’s guilty plea. Accordingly, we hereby affirm Cannady’s
conviction and sentence.
AFFIRMED
LUTTIG, Circuit Judge, concurring in part and dissenting in part:
I concur in all of the majority’s opinion, except for Part III(A),
wherein the majority rejects Cannady’s claim that his indictment was
defective because it failed to allege drug quantity. For the reasons
explained in United States v. Benenhaley, 2002 WL 242337 (4th Cir.)
(Luttig, J., dissenting), I believe that the majority’s view that "drug
quantity is not an element of § 841(b)(1)(C) violations," majority op.
at 11, is incorrect.
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