Sharpnack

MEMORANDUM ***

Roy Sharpnack appeals from the district court’s imposition of a 57-month sentence following his plea of guilty to the charge of *307 manufacturing marijuana in violation of 21 U.S.C. § 841 (a)(1). The facts and prior proceedings are known to the parties, and are restated herein only as necessary.

I

Sharpnack first contends that the district court, by departing upward on the basis of his conduct while awaiting sentencing, violated the Sixth Amendment because it imposed a higher term of imprisonment on the basis of facts not submitted to a jury and proved beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 490 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000).

Apprendi states that, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” Id. at 490 , 120 S.Ct. 2348 (emphasis added). Thus, we have held that, before a defendant can raise an Apprendi claim, he must first satisfy a “threshold condition,” namely “that the actual sentence imposed [is] longer than the maximum sentence for the crime for which he has been…