
    UNITED STATES of America, Appellee, v. Darius McGEE, aka D, aka D Smooth, Defendant-Appellant, Lut Muhammad, aka Luke Muhammed, aka Lut Billie, aka Lut Mohammad, Caribe Billie, Christopher Horton, Samuel Lee, aka Slick, Edgar Lee Powell, aka E Lee, aka EG, Kevin Sims, aka Ghost, Clayton Benjamin, aka Compton, Terrence Spann, aka Boast, Defendants.
    
    No. 10-5145.
    United States Court of Appeals, Second Circuit.
    June 11, 2013.
    
      Jonathan S. Freimann, Assistant United States Attorney (Robert M. Spector, Assistant United States Attorney, on the brief), for Deirdre Daly, Acting United States Attorney for the District of Connecticut, Hartford, CT, and New Haven, CT, for Appellee.
    Robert J. Sullivan, Jr., Law Offices of Robert Sullivan, Westport, CT, for Defendant-Appellant.
    PRESENT: DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges, JOHN F. KEENAN, District Judge.
    
    
      
       The Clerk of the Court is directed to amend the official caption to conform to the above. Although this appeal was previously consolidated with the appeals of McGee’s co-defendants (Docket Nos. 10-2865 and 10-4109), those appeals were dismissed in a prior order. Only McGee's appeal remains pending.
    
    
      
       The Honorable John F. Keenan, United States District Judge for the Southern District of New York, sitting by designation.
    
   SUMMARY ORDER

Defendant-appellant Darius McGee appeals from the district court’s December 17, 2010 judgment, entered after he pled guilty to one count of conspiracy to possess with intent to distribute and to distribute five grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846. Because the district court concluded that the Fair Sentencing Act of 2010 (“FSA”), Pub.L. No. 111-220, 124 Stat. 2372, did not apply retroactively to conduct committed before the FSA was enacted, McGee was sentenced to the ten-year mandatory minimum required by the version of 21 U.S.C. § 841(b)(1)(B) in effect in 2009, when McGee committed the offense. We assume the parties’ familiarity with the facts, procedural history, and issues on appeal.

In light of Dorsey v. United States, — U.S. -, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), the district court erred by not sentencing McGee in accordance with the FSA. See Dorsey, 132 S.Ct. at 2335. The government argues that we should nonetheless affirm for two reasons. First, the government argues that McGee waived his right to appeal in the plea agreement. Because the government previously stipulated to a remand for a full re-sentencing and acknowledged our ability to hear the appeal and remand, we deem the government to have waived this argument.

Second, the government argues that the sentencing error was harmless because McGee’s crime actually involved more than twenty-eight grams of cocaine base, which would subject him to the same ten-year statutory minimum under the revised version of section 841(b)(1)(B). But if the drug quantity will trigger the enhanced penalties in that section, that quantity must be charged in the indictment. See United States v. Thomas, 274 F.3d 655, 660 (2d Cir.2001) (en banc). Here, the grand jury charged McGee with a crime involving only five grams or more of cocaine base. After reviewing the record, we are not convinced that the government’s evidence in this case was so “overwhelming that the grand jury would have found” that McGee’s crime involved at least twenty-eight grams. United States v. Confredo, 528 F.3d 143, 156 (2d Cir.2008). The facts and circumstances in this case are distinguishable from those in Con-fredo and United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). Accordingly, we are not convinced the error here was harmless.

We have considered the government’s remaining arguments and find them to be without merit. Accordingly, we VACATE and REMAND for re-sentencing in accordance with 21 U.S.C. § 841(b)(1)(C).  