                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 99-4348
RAWLE ANTHONY COLE, a/k/a Danny,
            Defendant-Appellant.
                                       
        On Remand from the United States Supreme Court.
                     (S. Ct. No. 00-6520)

                  Submitted: November 30, 2001

                      Decided: December 18, 2001

      Before WIDENER and MICHAEL, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Affirmed in part, vacated in part, and remanded by unpublished per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


                             COUNSEL

William N. Nettles, Columbia, South Carolina, for Appellant. Scott
N. Schools, United States Attorney, Marshall Prince, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                       UNITED STATES v. COLE
                              OPINION

PER CURIAM:

   Rawle Anthony Cole appealed from his jury conviction and result-
ing life sentence plus sixty-month consecutive sentence for conspir-
acy to distribute and possess with intent to distribute crack cocaine,
in violation of 21 U.S.C.A. §§ 841, 846(a)(1) (West Supp. 2001) and
carrying a firearm in relation to a drug-trafficking offense, in viola-
tion of 18 U.S.C.A. § 924(c), (o) (West Supp. 2001). The Supreme
Court vacated our previous opinion affirming Cole’s conviction and
sentence and remanded for reconsideration under Apprendi v. New
Jersey, 530 U.S. 466 (2000). We now affirm in part, vacate in part,
and remand for re-sentencing.

   Cole assigned error to the district court’s refusal to give a multiple
conspiracies instruction to the jury, arguing that the evidence did not
establish a single overall conspiracy. We find that the district court
did not err by denying the request that the jury be instructed on multi-
ple conspiracies. See United States v. Kennedy, 32 F.3d 876, 884 (4th
Cir. 1994); United States v. Crockett, 813 F.2d 1310, 1316-17 (4th
Cir. 1987).

   We do find plain error, however, in regard to Cole’s sentence,
vacate his sentence, and remand to the district court for re-sentencing.
In his supplemental brief filed after remand, Cole contends that his
sentence was imposed in violation of Apprendi’s requirement that
"[o]ther 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."
Apprendi, 530 U.S. at 490. Because Cole did not raise this challenge
to his sentence before the district court, he may only do so on appeal
if he can demonstrate plain error. United States v. Angle, 254 F.3d
514, 517 (4th Cir.) (citing Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731-32 (1993)), cert. denied, 70 U.S.L.W. 3244
(U.S. Oct. 1, 2001) (No. 01-5838). Consequently, in order to prevail
on appeal, Cole must demonstrate that: (1) his indictment does not
include the specific threshold drug quantities necessary for conviction
under the aggravated drug trafficking offenses in 21 U.S.C.A.
§§ 841(b)(a)(A), (B) (West 2001); (2) his resulting sentence was in
                        UNITED STATES v. COLE                         3
excess of the statutory maximum otherwise available under
§ 841(b)(1)(C); (3) sentencing in this manner affected his substantial
rights; and (4) this court should notice that error. United States v.
Promise, 255 F.3d 150, 156-57, 160, 161 (4th Cir. 2001), petition for
cert. filed, Sept. 20, 2001 (No. 01-6398). We note that drug quantity
was not charged in the indictment or presented to the jury.

   Applying the plain error analysis to Cole, we find his sentence
must be vacated in light of Apprendi. Pursuant to 21 U.S.C.A.
§ 841(b)(1)(C), Cole was exposed to a total statutory maximum
prison term of twenty years. Angle, 254 F.3d at 518-19. Because the
imposed life sentence exceeds the applicable statutory maximum of
twenty years, the error is plain. Promise, 255 F.3d at 156-57. With
respect to the third prong of the plain error inquiry, we have found
that a sentence in excess of the authorized statutory maximum to
which a defendant would not otherwise be subject affects his substan-
tial rights. Id. Finally, we recently determined that when the sentence
imposed is defective due to a fatal error in the indictment, as is the
case here, this court should notice the error. United States v. Cotton,
261 F.3d 397, 403-04 (4th Cir. 2001), petition for cert. filed, Oct. 31,
2001 (No. 01-687).

   We therefore vacate Cole’s sentence and remand for re-sentencing
to a sentence not to exceed twenty years on the conspiracy count. We
deny Cole’s motion to file a supplemental pro se brief. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

                         AFFIRMED IN PART, VACATED IN PART,
                                             AND REMANDED
