United States v. Darcy Jay Betterton

GRUENDER, Circuit Judge.

Darcy Jay Betterton appeals his conviction on three counts of possession with intent to distribute a controlled substance *829after having been previously convicted of at least one felony drug offense, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(B) and 851. In addition, Betterton raises for the first time on appeal the argument that his sentence, based on the application of the United States Sentencing Guidelines in a mandatory fashion, was unconstitutional. For the reasons discussed below, we affirm the conviction but vacate Betterton’s sentence and remand to the…