UNITED STATES of America, Plaintiff-Appellee, v. Benton D. BURT, Defendant-Appellant

Benton Douglas Burt appeals his convictions and sentence for distributing methamphetamine, possessing a firearm and using a firearm during a drug trafficking offense. Burt represented himself at trial but enjoys counsel on appeal.

We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm in part, vacate in part and remand for resentencing.

I

On several occasions in October, 1991, undercover Officer Leslie Vanderpool of the Santa Rosa Police Department purchased a substance containing methamphetamine from Appellant Benton D. Burt. Paula Triehel, an informant, introduced Vanderpool to Burt. After the last purchase, Vanderpool arrested Burt. Police searched Burt and his residence under a search warrant, finding methamphetamine in Burt’s pocket, a bottle of Vitablend powder for cutting methamphetamine in the house and a black bag in the back yard. The bag contained drug distribution paraphernalia and a loaded .38 caliber revolver.

A grand jury returned an indictment against Burt and Codefendant Gayle Freeman. The indictment charged Burt with distribution of and possession with intent to distribute methamphetamine (five counts), possession of a firearm by a convicted felon and…