United States v. Jack Sherman Steward

ORDER

The opinion filed October 8, 1998, 7 F.3d 164 , is withdrawn.

OPINION

Jack Sherman Steward appeals from his convictions for attempting to sell methamphetamine in violation of 21 U.S.C. § 841 (a)(1) and 21 U.S.C. § 846 , and use of a firearm in relation to a drug offense, in violation of 18 U.S.C. § 924 (c). Steward also appeals his sentence. We affirm the judgment of conviction but vacate the sentence and remand to the district court for resen-tencing.

Steward was convicted of attempting to sell undercover agent Bernard Zapor of the Bureau of Alcohol, Tobacco, and Firearms one-fourth of a pound of methamphetamine, a Schedule II controlled substance. See 21 U.S.C. § 812 . The government’s evidence at trial revealed that Steward and Zapor discussed a methamphetamine transaction and then met to complete the sale in the parking lot of the Fairfield Inn in Phoenix, Arizona. Officers immediately arrested Steward. They found a loaded semiautomatic handgun in the waistband of his pants. Subsequent analysis of the drugs determined that the substance Steward provided the undercover agent was not methamphetamine. Instead, it was ephedrine, a substance used in the manufacture of…