United States v. Graham , 48 F. App'x 46 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4489
DENNIS FRANKLIN GRAHAM,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-95-32)
Submitted: September 24, 2002
Decided: October 7, 2002
Before WIDENER and WILKINS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Christine Witcover Dean,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
2 UNITED STATES v. GRAHAM
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Dennis Franklin Graham was convicted after a guilty plea of con-
spiracy to possess with intent to distribute and to distribute crack
cocaine. He served his seventy-two month prison sentence, was
released from custody on March 3, 2000, and then began his term of
supervised release. On March 6, 2001, the probation officer filed a
motion to revoke Graham’s supervised release. After Graham’s super-
vised release was revoked, he was sentenced to three years imprison-
ment. On appeal, Graham argues that, under Apprendi v. New Jersey,
530 U.S. 466 (2000), the district court lacked jurisdiction to sentence
him to a term of incarceration greater than the statutory maximum
applicable to an underlying conviction for an unspecified drug
amount. We affirm.
Under 18 U.S.C. § 3583(e)(3) (2000), a defendant whose super-
vised release term is revoked is subject to a maximum of five years
in prison if his underlying offense was a Class A felony; a maximum
of three years for a Class B felony; and a maximum of two years for
a Class C felony. With regard to Graham’s underlying conspiracy
conviction, if the specific drug quantity necessary for an increased
sentence under 21 U.S.C. § 841(b) (2000) was not sufficiently set
forth, he was subject only to a maximum of twenty years under
§ 841(b)(1)(C). See United States v. Promise, 255 F.3d 150, 156-57
(4th Cir. 2001), cert. denied, ___ U.S. ___, 70 U.S.L.W. 3724 (U.S.
May 28, 2002) (No. 01-6398). An offense with a twenty year maxi-
mum is classified as a Class C felony, 18 U.S.C. § 3559(a)(3) (2000),
and thus, upon revocation of supervised release, the maximum sen-
tence of two years would be applicable.
Because Graham failed to raise an Apprendi claim in district court,
our review is for plain error. See Fed. R. Crim. P. 52(b); United States
v. Olano, 507 U.S. 725, 731-32 (1993). In order to demonstrate plain
UNITED STATES v. GRAHAM 3
error, Graham must show that an error occurred, that the error was
plain, and that the error affected his substantial rights. Olano, 507
U.S. at 732. Even if Graham can satisfy these requirements, we
should not exercise our discretion to correct the error "unless the error
‘seriously affect[s] the fairness, integrity or public reputation of judi-
cial proceedings.’" Id. (quoting United States v. Young, 470 U.S. 1(1985)).
Graham’s indictment did not allege that the conspiracy involved
the distribution of any particular amount of drugs. However, the count
did list eighteen overt acts, some of which included specific drug
amounts totalling over twenty grams of crack cocaine. Graham’s
name appeared in relation to a drug amount only once: overt act 18
stated that Graham distributed .4 grams of crack cocaine on a specific
date. We find that the indictment did not adequately allege a threshold
drug quantity necessary to charge an enhanced penalty. See United
States v. Carrington, 301 F.3d 204, 209-10 (4th Cir. 2002). There-
fore, Graham was only subject to a twenty year maximum for the
underlying conviction and a two year maximum sentence for revoca-
tion of supervised release. 21 U.S.C. § 841(b)(1)(C); 18 U.S.C.
§§ 3559(a)(3), 3583(e)(3).
Thus, we find that Graham’s three year sentence was error and that
the error was plain. We need not decide, however, whether the error
affected Graham’s substantial rights. Where the evidence is over-
whelming and essentially uncontroverted as to the error, we will
decline to correct it. See United States v. Cotton, 122 S. Ct. 1781,
1786 (2002). We have reviewed the record and conclude that the evi-
dence of drug quantity, as derived from Graham’s guilty plea to the
indictment and the language of the plea agreement, was overwhelm-
ing and essentially uncontroverted. Accordingly, because the drug
quantity attributable to Graham was sufficient to invoke the enhanced
sentencing provisions of 21 U.S.C. § 841(b)(1)(B), we decline to cor-
rect his sentence.
We affirm Graham’s conviction and sentence. We deny the Gov-
ernment’s motion to strike Graham’s reply brief. We dispense with
oral argument, because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED