UNITED STATES of America, Plaintiff-Appellee, v. Anderson BENENHALEY, a/k/a Andy, Defendant-Appellant, 281 F.3d 423

Affirmed in part and vacated and remanded in part by published per curiam opinion. Judge LUTTIG wrote a dissenting opinion. OPINION PER CURIAM. Anderson Benenhaley challenges his methamphetamine conspiracy conviction and his life sentence for that conviction, in light of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”).

We affirm the conviction, vacate the sentence, and remand for resentencing. Benenhaley was indicted for various firearm and controlled substance offenses. The indictments did not specify drug quantity but simply stated that Benenhaley distributed, conspired to distribute, or conspired to possess with intent to distribute an unspecified “quantity” or “quantities” of methamphetamine.

Benenhaley pled guilty to possession of firearms as a convicted felon in violation of 18 U.S.C.A. § 922(g) (West 2000); a jury convicted him of conspiracy to possess methamphetamine with intent to distribute it and distribution of methamphetamine, in violation of 21 U.S.C.A. § 841 (West 1997) and § 846 (West 1999). Attributing 1.9 kilograms of pure methamphetamine to Benenhaley, the district court assigned him an offense level of 36. U.S. Sentencing Guidelines Manual § 2D1.1 (1998). The court then sentenced him to life imprisonment for the conspiracy count and concurrent shorter sentences on the other counts.

The life sentence exceeded the statutory maximum otherwise applicable under the then-current version of

Section 841(b)(1)(C). 21 U.S.C.A. § 841(b)(1)(C) (West 1997). Benenhaley appeals, challenging both his conviction and sentence. As the Government concedes, Apprendi and this court’s decisions in United States v. Promise, 255 F.3d 150 (4th Cir.2001) (en banc), and United States v. Cotton, 261 F.3d 397 (4th Cir.2001), require that we vacate Benenhaley’s sentence and remand for resentencing.

See Promise, 255 F.3d at 157, 160 (holding that the failure to charge a specific threshold drug quantity in the indictment and to submit the quantity to the jury constitutes plain error affecting a defendant’s substantial rights); and Cotton, 261 F.3d at 403-04, 405-07 (holding that such an error seriously affects the fairness, integrity, or public reputation of judicial proceedings, so that this court should exercise its discretion to recognize the error even if it has not been raised before the district court).

Benenhaley also contends that the absence of a specific drug quantity in his indictment requires reversal of his conviction. However, recently when another defendant, Mario Promise, made the same contention, Promise, 255 F.3d at 160 (noting that “Promise asserts that the error is in his conviction”), the en banc court expressly rejected the contention. Id. (“[w]e conclude that the error was not in Promise’s conviction”).

The en banc court held that an indictment that charges an unspecified drug quantity suffices to support a conviction under 21 U.S.C. § 841, id. at 160 and at 186 (Motz, J., joined by Judges Widener, Michael, and King concurring in this part of the principal opinion), and affirmed the conviction despite Promise’s direct challenge to it. Id. at 165. See also United States v. Dinnall, 269 F.3d 418, 423 n. 3 (4th Cir.2001) (concluding that “the error identified by Promise is not an error ... in the conviction”). Accordingly Benenhaley’s challenge to his conspiracy conviction fails.

Finally, Benenhaley asks us to direct the district court when resentencing him not to attribute to him certain methamphetamine seen in his possession, because a drug-addicted witness’s estimate supplied the only evidence of quantity. Evidence underlying a finding of drug quantity must “possess[ ] sufficient indicia of reliability to support its probable accuracy.” United States v. Uwaeme, 975 F.2d 1016, 1021 (4th Cir.1992).

The witness in question testified that he saw Benenhaley with “three or four bags,” that he did not see the bags weighed, that he estimated the bags to weigh “about four pounds, maybe five” based on a third party’s estimate of their financial value, and that Benenhaley gave him pure methamphetamine out of one of the bags. The district court used the lower estimate of four pounds, or 1.8 kilograms, and the Government otherwise established 96.65 grams of pure methamphetamine. We have approved district courts’ use of the low end of a witness’s estimate, United States v.

Lamarr, 75 F.3d 964, 972-73 (4th Cir.1996), and reliance on an estimate based on a visual comparison to a candy vial. United States v. Cook, 76 F.3d 596, 604 (4th Cir.1996). Moreover, in this case the low end of the witness’s estimate could almost be halved without any effect on Benenhaley’s offense level. U.S. Sentencing Guidelines Manual § 2Dl.l(e)(2, 3). Given these circumstances, we see no error in the district court, on remand, again considering the testimony in question. For the foregoing reasons, we affirm Benenhaley’s conviction, vacate his sentence, and remand for resentencing.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.