United States v. Calvin Dyess

When we decided this case in 2007 on direct appeal, the Supreme Court had made clear that any fact increasing the maximum penalty for a crime must be *366charged in the indictment. United States v. Cotton, 535 U.S. 625, 627,122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). We consider this part of the constitutional test under Apprendi. United States v. Promise, 255 F.3d 150, 156-57 (4th Cir.2001) (en banc). In his argument before this…