                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                                No. 00-4393
MICHAEL LANE SUTTON,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
          for the District of South Carolina, at Columbia.
                  Dennis W. Shedd, District Judge.
                          (CR-99-885-DWS)

                      Submitted: January 23, 2002

                      Decided: February 7, 2002

       Before LUTTIG, MOTZ, and KING, Circuit Judges.



Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


                             COUNSEL

Joseph P. Strom, Jr., STROM & YOUNG, L.L.P., Columbia, South
Carolina, for Appellant. J. Rene Josey, United States Attorney, Jane
B. Taylor, Assistant United States Attorney, Columbia, South Caro-
lina, for Appellee.
2                      UNITED STATES v. SUTTON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   Michael Lane Sutton pled guilty to one count of conspiracy to dis-
tribute marijuana, in violation of 21 U.S.C.A. §§ 841(a)(1), 846 (West
2000). He appeals his sentence. Sutton’s attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious issues for appeal, but raising three issues
for our consideration. While this appeal was pending, the Supreme
Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000), and we
ordered supplemental briefing on the impact of Apprendi on Sutton’s
sentence. Sutton has not filed a pro se supplemental brief, despite
being advised of his right to do so. On Sutton’s motion, we decide
this case without oral argument.

   Sutton first argues that the district court erred in refusing to reduce
his offense level based on his role in the offense. A district court’s
determinations as to the defendant’s role in an offense are reviewed
for clear error. See United States v. Daughtrey, 874 F.2d 213, 218
(4th Cir. 1989). At sentencing, Sutton argued for a four level decrease
in his offense level under § 3B1.2(a) of the Sentencing Guidelines*
because "he was only recruited as a courier in a single smuggling
transaction." See USSG § 3B1.2, comment. (n.2).

   We have held that a drug courier is not necessarily a minor or mini-
mal participant in a drug conspiracy, and that application of § 3B1.2
is a function of the defendant’s culpability, not merely his courier sta-
tus. See United States v. White, 875 F.2d 427, 434 (4th Cir. 1989).
Our review of the record convinces us that Sutton’s role in the trans-
action was that of a facilitator, or "go-between," who is not entitled
to an adjustment as a minor participant. See United States v. Glasco,
917 F.2d 797, 800 (4th Cir. 1990). Moreover, Sutton filled an essen-

    *U.S. Sentencing Guidelines Manual (1998).
                       UNITED STATES v. SUTTON                        3
tial role in the sale of over two hundred pounds of marijuana, hardly
an amount that can be characterized as "small." See United States v.
Withers, 100 F.3d 1142, 1147 (4th Cir. 1996).

   Sutton next contends that the district court erred in denying a
downward adjustment because his criminal history category of IV
overstated the seriousness of his prior criminal activity. The district
court found that Sutton’s multiple convictions for driving while intox-
icated were serious offenses and that his criminal history was not
overstated, and declined to adjust his offense level. Because the
record indicates that the district court understood its authority to
depart downward, but determined that such a departure was not war-
ranted, this exercise of discretion by the sentencing judge is not
reviewable on appeal. See United States v. Hall, 977 F.2d 861, 866
(4th Cir. 1992).

   Sutton also argues that the district court denied him due process
and abused its discretion in refusing to recommend that the Bureau of
Prisons place Sutton into a drug treatment program. The district court
declined to recommend Sutton for a treatment program, but recom-
mended that he be evaluated for alcohol abuse. Our review of the
record convinces us that the district court complied with its duty to
consider medical care or other correctional treatment when determin-
ing an appropriate sentence, see 18 U.S.C.A. § 3553(a)(2)(D) (West
2000), and did not abuse its discretion in declining to recommend
drug treatment.

   In his supplemental brief, Sutton argues that his sentence to sixty-
three months imprisonment violates Apprendi. Sutton did not raise an
Apprendi argument in the district court, and thus our review is for
plain error. To find plain error, Sutton "must demonstrate that an error
occurred, that the error was plain, and that the error affected his sub-
stantial rights." United States v. Promise, 255 F.3d 150, 154 (4th Cir.)
(en banc), petition for cert. filed, (U.S. Sep. 20, 2001) (No. 01-6398)
(citing United States v. Olano, 507 U.S. 725, 732 (1993)).

   In applying Apprendi to § 841, we held that "the specific threshold
[drug] quantity must be treated as an element of an aggravated drug
trafficking offense, i.e., charged in the indictment and proved to the
jury beyond a reasonable doubt." Promise, 255 F.3d at 156-57 (foot-
4                      UNITED STATES v. SUTTON
notes omitted). Because drug quantity was not charged in the indict-
ment or submitted to the jury, we found that there was error that was
plain. Id. at 157-60. Because the defendant’s 360 month sentence
exceeded the twenty-year statutory maximum in § 841(b)(1)(C) for
convictions involving an unspecified amount of drugs, we also found
that the error in the sentence affected the defendant’s substantial
rights. Id.

   In United States v. Cotton, 261 F.3d 397 (4th Cir. 2001), cert.
granted, 2002 WL 10623, 70 U.S.L.W. 3348 (U.S. Jan. 4, 2002) (No.
01-687), a panel of the Court addressed the question left open in
Promise: whether the Court should exercise its discretion to notice the
error when the indictment failed to charge a specific threshold drug
quantity and the defendants were sentenced to more than the statutory
maximum in § 841(b)(1)(C). Cotton, 261 F.3d at 403-04. The Court
defined the nature of the error as a defect in the indictment:

     [B]ecause an indictment setting forth all the essential ele-
     ments of an offense is both mandatory and jurisdictional,
     and a "defendant cannot be ‘held to answer’ for any offense
     not charged in an indictment returned by a grand jury," a
     court is without "jurisdiction to . . . impose a sentence for
     an offense not charged in the indictment."

Id. at 404-05 (internal quotation marks and citations omitted). The
Court held that it should exercise its discretion to notice the error
because it seriously affects the fairness, integrity, or public reputation
of judicial proceedings to sentence the defendants "for a crime—an
aggravated drug trafficking offense under section 841(b)(1)(A)-—
with which they were neither charged nor convicted." Id. at 404, 406.
Thus, the Court vacated the defendants’ sentences in excess of the
statutory maximum in § 841(b)(1)(C) and remanded for resentencing.
Id. at 407.

   We recently considered the application of Apprendi and its progeny
in the context of a guilty plea in United States v. Dinnall, 269 F.3d
418 (4th Cir. 2001). We first established that a guilty plea does not
obviate an Apprendi error in a defendant’s sentence when drug quan-
tity is not specified in the indictment, and that the analytical frame-
work of Promise applies to guilty pleas. Id. at 423 n.3. Applying
                       UNITED STATES v. SUTTON                       5
Promise and Cotton, we affirmed Dinnall’s conviction but determined
that his thirty year sentence was beyond the sentencing jurisdiction of
the district court and remanded for resentencing within the twenty
year statutory maximum of § 841(b)(1)(C). Id. at 423-24.

   Turning to this case, we conclude that Sutton’s sentence on the
drug conspiracy count is erroneous. Because a specific threshold drug
quantity was not charged in the indictment to which Sutton pled
guilty, the maximum sentence to which Sutton was subject was five
years. See 21 U.S.C.A. § 841(b)(1)(D) (providing for maximum sen-
tence of five years for violations of § 841 involving less than fifty
kilograms of marijuana). Because Sutton’s sixty-three month sentence
exceeded this statutory maximum, Sutton has demonstrated plain
error that affected his substantial rights. Dinnall, 269 F.3d at 423;
Cotton, 261 F.3d at 403. Under Cotton, this error is jurisdictional and
requires corrective action. Dinnall, 269 F.3d at 423-24; Cotton, 261
F.3d at 406. Sutton’s assertion that the offense level calculations at
resentencing should be based upon a maximum quantity of fifty kilo-
grams of marijuana, rather than the 104 kilograms attributed to Sutton
in the presentence report, is foreclosed by this court’s decision in
United States v. Kinter, 235 F.3d 192 (4th Cir. 2000), cert. denied,
121 S. Ct. 1393 (2001). Thus we vacate Sutton’s sentence and remand
for resentencing with instructions to sentence him based upon a statu-
tory maximum of five years.

   In accordance with Anders, we have reviewed the entire record in
this case and have found no other meritorious issues for appeal.
Accordingly, we affirm Sutton’s conviction, but vacate the sentence
and remand for resentencing in accordance with this opinion.

                                   AFFIRMED IN PART, VACATED
                                      IN PART, AND REMANDED
