that may increase the penalty beyond the statutory maximum must be pleaded in an indictment. See Apprendi, 530 U.S. at 477 n. 3, 120 S.Ct. 2348. In a letter submitted pursuant to Fed. R.App. P. 28(j) and dated November 6, 2001, the Government informed the Court that, in light of United States v. Cotton, 261 F.3d 397 (4th Cir.2001), petition for cert. filed, 70 U.S.L.W. 3348 (Oct. 31, 2001) (No 01-687), the Government now takes the position that, after Apprendi, the threshold drug quantities set forth in 21 U.S.C. § 841(b)(1)(A) and (b)(1)(B) must be alleged in a federal indictment to support a sentence in excess of the otherwise applicable statutory maximu (1st Cir.) (treating a similar error as an error in conviction), cert. denied, 532 U.S. 1023, 121 S.Ct. 196 2, 675-76 (2d Cir.1998) (<HOLDING>); Gore, 154 F.3d at 47-48 (holding that the
holding that an arithmetical error that increased a defendants base offense level pursuant to the sentencing guidelines affected his substantial rights holding that because the district courts error resulted in the imposition of a sentence substantially greater than the maximum otherwise permitted under the sentencing guidelines the error affected the defendants substantial rights and the fairness of the judicial proceedings holding that arithmetical error that resulted in an increase to a defendants base offense level pursuant to the sentencing guidelines affected his substantial rights even though the resulting sentence was within the range for the correct offense level holding that the defendants sentence was based on the career offender guidelines despite the fact that the district court calculated an offense level pursuant to the crack guidelines holding that the sentencing courts conclusion that there was simply no way to avoid the base offense level did not indicate mandatory application of the guidelines