                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 00-4523
VICTOR CORTES-PONCE,
              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: November 9, 2001

                      Decided: December 18, 2001

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



Affirmed in part, vacated in part, and remanded by unpublished per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


                             COUNSEL

John Delgado, Kathrine H. Hudgins, Columbia, South Carolina, for
Appellant. Scott N. Schools, United States Attorney, Jane B. Taylor,
Assistant United States Attorney, Ann Agnew Cupp, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
2                   UNITED STATES v. CORTES-PONCE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Victor Cortes-Ponce appeals his conviction and 120-month sen-
tence imposed after he pled guilty to conspiracy to distribute and pos-
sess with intent to distribute marijuana, in violation of 21 U.S.C.A.
§ 846 (West 1999). Relying on Apprendi v. New Jersey, 530 U.S. 466,
490 (2000) (holding 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"), Cortes-Ponce asserts that the district court did
not have jurisdiction to accept his guilty plea, the court constructively
amended the indictment by holding him accountable for a drug
amount not charged in the indictment, and his sentence exceeded the
statutory maximum. We affirm in part, vacate in part, and remand for
resentencing. See United States v. Promise, 255 F.3d 150, 154 (4th
Cir. 2001) (en banc) (discussing plain error standard of review), peti-
tion for cert. filed, Sept. 20, 2001 (No. 01-6398).

   Cortes-Ponce argues that the indictment is defective because it
failed to charge the quantity of marijuana as an element of the
offense, thereby depriving the district court of jurisdiction to accept
his guilty plea. We find that the indictment properly charged the
offense for which Cortes-Ponce was convicted. United States v. Din-
nall, ___ F.3d ___, ___, 2001 WL 1229174, at *4 (4th Cir. Oct. 15,
2001) (No. 99-4936) (holding that guilty plea to drug trafficking
offense involving unspecified quantity of drugs not called into ques-
tion when defendant received sentence in excess of twenty-year statu-
tory maximum authorized by 21 U.S.C.A. § 841(b)(1)(C) (West
1999)); Promise, 255 F.3d at 160 (finding indictment sufficient where
it charged defendant with conspiracy to possess with intent to distrib-
ute "a quantity of cocaine and cocaine base"). We also find that there
was no constructive amendment to the indictment. United States v.
Cotton, 261 F.3d 397, 405 (4th Cir. 2001) (stating that sentencing
                   UNITED STATES v. CORTES-PONCE                      3
defendant to aggravated drug trafficking offense "did not technically
result in a constructive amendment to the indictment as the court did
not broaden the possible bases for conviction beyond those presented
by the grand jury"), petition for cert. filed, Oct. 31, 2001.

   Cortes-Ponce also asserts that his sentence is invalid after
Apprendi. In applying Apprendi to drug offenses in §§ 846 and 841,
we recently 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 (footnotes omitted). Here, drug
quantity was not charged in the indictment. We therefore find that
there was error and that the error was plain. Id. at 156-57, 160.
Because Cortes-Ponce’s 120-month sentence exceeded the five-year
statutory maximum for offenses involving less than fifty kilograms of
marijuana under 21 U.S.C.A. § 841(b)(1)(D), we find that the error
affected Cortes-Ponce’s substantial rights. Cotton, 261 F.3d at 405;
Promise, 255 F.3d at 160.

   Having concluded that plain error affected Cortes-Ponce’s substan-
tial rights, we exercise our discretion to notice the error. Cotton, 261
F.3d at 404-05. The indictment charged Cortes-Ponce with conspiring
to distribute an unspecified quantity of marijuana, see 21 U.S.C.A.
§ 841(b)(1)(D), but he "received a sentence for a crime—an aggra-
vated drug trafficking offense under section 841(b)(1)(A)—with
which [he was] neither charged nor convicted." Cotton, 261 F.3d at
404; see Dinnall, ___ F.3d at ___, 2001 WL 1229174, at *4.

   Accordingly, we vacate Cortes-Ponce’s 120-month sentence and
remand for resentencing with instructions to sentence Cortes-Ponce to
a term of imprisonment not to exceed the five-year statutory maxi-
mum in § 841(b)(1)(D). We affirm the judgment in all other respects.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

    AFFIRMED IN PART, VACATED IN PART, AND REMANDED
