United States of America v. Booker, 543 U.S. 220 2005 . For the reasons that follow, we affirm Freshour’s…

UNPUBLISHED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Affirmed in part, and vacated and remanded in part by unpublished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Unpublished opinions are not binding precedent in this circuit.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

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