                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                No. 01-4186
CLEO GRAHAM, a/k/a Derwick
LaVelle Graham, a/k/a Shawn,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
      for the Western District of North Carolina, at Charlotte.
              Graham C. Mullen, Chief District Judge.
                (CR-96-44-MU, CA-98-419-3-MU)

                         Argued: June 5, 2003

                      Decided: September 15, 2003

Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                              COUNSEL

ARGUED: Randolph Marshall Lee, Charlotte, North Carolina, for
Appellant. David Alan Brown, Chief, Criminal Division, Charlotte,
North Carolina, for Appellee. ON BRIEF: Robert J. Conrad, Jr.,
United States Attorney, C. Nicks Williams, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
2                     UNITED STATES v. GRAHAM
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Cleo Graham pleaded guilty to a single drug conspiracy charge.
Upon motion by the government, the district court departed down-
ward and imposed a sentence of 120 months. Graham appeals, argu-
ing primarily that, because of an Apprendi error, the district court
misperceived its authority to impose a sentence of less than ten years.
We conclude that if an error occurred, it is not an error that warrants
correction under plain error review, and we therefore affirm Graham’s
sentence.

                                  I.

   In February 1996, a traffic stop led to the discovery of a hidden
compartment containing a significant quantity of cash and narcotics.
The driver and passenger of the car thereafter agreed to cooperate
with law enforcement authorities. Their cooperation eventually lead
to Graham’s arrest in connection with a large scale drug-distribution
scheme. Graham and other co-defendants were charged with conspir-
acy to possess with intent to distribute cocaine and crack cocaine. The
indictment did not include an allegation of drug quantity.

   In January 1997, Graham pleaded guilty to the conspiracy charge
under a written plea agreement. The agreement stated that if Graham
provided to the government information and assistance that it deemed
to be substantial,

    the government may make a motion pursuant to U.S.S.G.
    § 5K1.1 for the imposition of a sentence below the applica-
    ble Sentencing Guidelines. The United States also may,
    within its sole discretion, move the Court pursuant to 18
    U.S.C. § 3553(e) to impose a sentence below any applicable
    statutory mandatory minimum.
                      UNITED STATES v. GRAHAM                        3
J.A. 29. The plea agreement stated that Graham faced a maximum
sentence of life imprisonment, but neither the plea agreement nor the
district court during the Rule 11 hearing mentioned a mandatory mini-
mum sentence.

   The pre-sentence report recommended that Graham be held
accountable for the distribution of more than 4 kilograms of crack
cocaine. Graham objected to that recommendation, arguing that he
should be held accountable only for the 481.9 grams of crack cocaine
involved in two transactions in which Graham admitted participating.

   At the October 1997 sentencing hearing, the district court overruled
Graham’s objection to the drug-quantity calculation but accepted Gra-
ham’s argument that a two-level firearms enhancement sought by the
government was not warranted. The court assigned to Graham a total
offense level of 35, which, with Graham’s category V criminal his-
tory, resulted in a sentencing range of 324-405 months. Granting the
government’s substantial-assistance motion, the court then departed
downward to an offense level of 27, which resulted in a sentencing
range of 120-150 months. The court imposed a 120-month sentence,
the statutorily mandated minimum sentence for a case involving at
least 50 grams of crack cocaine. See 21 U.S.C.A. § 841(b)(1)(A)
(West 1999 & Supp. 2003). The district court made it clear, however,
that it believed the ten-year sentence was too high and that it would
have imposed a lower sentence had the government’s substantial-
assistance motion been pursuant to 18 U.S.C.A. 3553(e) rather than
U.S.S.G. § 5K1.1. See 18 U.S.C.A. § 3553(e) (West Supp. 2003)
("Upon motion of the Government, the court shall have the authority
to impose a sentence below a level established by statute as a mini-
mum sentence so as to reflect a defendant’s substantial assistance in
the investigation or prosecution of another person who has committed
an offense. . . ."); Melendez v. United States, 518 U.S. 120, 124
(1996) (concluding that a substantial-assistance motion filed pursuant
to U.S.S.G. § 5K1.1 alone does not authorize the district court to
impose a sentence less than the statutory minimum sentence; under 18
U.S.C.A. § 3553(e), the government must specifically seek a depar-
ture below a statutory minimum sentence). No appeal was taken.

  Graham thereafter filed a motion pursuant to 28 U.S.C.A. § 2255,
which the district court summarily denied. Graham appealed to this
4                      UNITED STATES v. GRAHAM
court. We vacated the district court’s order and directed the court to
permit Graham to amend his section 2255 motion to include a claim
that his attorney was ineffective for failing to note an appeal after
Graham was sentenced. In 2001, the district court granted Graham’s
section 2255 motion and vacated and then reimposed Graham’s sen-
tence, thus allowing Graham the opportunity to pursue the direct
appeal that is now before this court.

                                   II.

   When Graham was sentenced, case law from this circuit did not
require drug quantity to be alleged in an indictment or proven to the
jury in order for a defendant to receive one of the quantity-dependent
enhanced sentences set forth in section 841(b). See, e.g., United States
v. Dorlouis, 107 F.3d 248, 252 (4th Cir. 1997). But between Gra-
ham’s 1997 sentencing and this direct appeal, of course, the legal
landscape was significantly altered by the Supreme Court’s decision
in Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the
Supreme Court held 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." Id. at 490. This circuit applied the Apprendi
analysis to section 841 drug prosecutions, concluding that drug quan-
tity must be alleged in the indictment and proved to the jury beyond
a reasonable doubt in order to subject a defendant to a sentence longer
than the maximum sentence set forth in the section 841(b)(1)(C),
which governs cases involving an indeterminate quantity of schedule
I and schedule II controlled substances.1 See United States v. Promise,
255 F.3d 150, 156-57 (4th Cir. 2001) (en banc) ("Apprendi dictates
that in order to authorize the imposition of a sentence exceeding the
maximum allowable without a jury finding of a specific threshold
drug quantity, the specific threshold 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." (foot-
note omitted)). Because section 841(b)(1)(C) does not include a man-
datory minimum sentence (unless the use of the controlled substances
    1
   For cases involving less than 50 kilograms of marijuana and an indict-
ment that is silent as to quantity, section 841(b)(1)(D) is the applicable
"default" provision.
                        UNITED STATES v. GRAHAM                            5
leads to death or serious bodily injury), our post-Apprendi cases have
made it clear that if drug quantity is not alleged in the indictment, the
defendant is not subject to a mandatory minimum sentence. See
United States v. Martinez, 277 F.3d 517, 529, 530 (4th Cir. 2002)
("Although Count One alleged that Martinez was charged with con-
spiracy to violate § 841(b)(1)(A), it contained no allegation of drug
quantity. It therefore charged a conspiracy to violate § 841(b)(1)(C).
. . . For conspiring under § 846 to violate § 841(b)(1)(C), we now
know, in light of . . . Apprendi . . . that Martinez faced no mandatory
minimum sentence and that he faced a maximum potential sentence
of twenty years’ imprisonment.").

   This background sets the stage for the issue now before us. Graham
contends that because his indictment did not allege drug quantity, no
mandatory minimum sentence was applicable to him. Thus, the dis-
trict court in fact had authority to depart below 120 months, even in
the absence of a section 3553(e) motion from the government. Gra-
ham contends that we must vacate his sentence and remand, so that
the district court can reconsider the downward departure motion free
from the constraints of an inapplicable statutory mandatory minimum
sentence. See, e.g., United States v. Shaw, 313 F.3d 219, 222 (4th Cir.
2002) ("We are not permitted to review a district court’s refusal to
depart downward . . . unless the district court was under the mistaken
impression that it lacked the authority to depart." (internal quotation
omitted)).

   The government, however, contends that the Supreme Court’s deci-
sion in Harris v. United States, 536 U.S. 545 (2002), forecloses the
argument made by Graham.2 In Harris, the defendant was charged
  2
    At oral argument, the government abandoned the position it articu-
lated in its appellate brief, conceded error with regard to the applicability
of the mandatory minimum sentence, and agreed with Graham that a
remand for re-sentencing was warranted. The government’s eleventh-
hour change of heart does not affect our jurisdiction over this appeal or
our responsibility to independently consider the merits of the issue that
is properly before us. See United States v. Brainer, 691 F.2d 691, 693
(4th Cir. 1982) ("[W]e think it clear that the government’s subsequent
change of position neither mooted the case nor otherwise transformed it
into something less than a case or controversy. To be sure, the arguments
6                       UNITED STATES v. GRAHAM
with violating 18 U.S.C.A. § 924(c)(1)(A), which mandates additional
imprisonment for use of a firearm during or in relation to a crime of
violence or a drug trafficking crime. The statute establishes succes-
sively higher mandatory minimum sentences depending on the nature
of the use of the gun—five years if the gun was merely used, carried,
or possessed in furtherance of the base crime, seven years if the gun
was brandished, and ten years if the gun was discharged. See 18
U.S.C.A. § 924(c)(1)(A) (West 2000). The question before the Harris
court was whether Apprendi applied to require the jury to make the
factual findings as to whether the gun was brandished or discharged.
A plurality of the Supreme Court concluded that whether the gun was
brandished or discharged are sentencing factors that may constitution-
ally be made by the court rather than the jury. The plurality explained
that Apprendi applies to facts that increased the sentence beyond the
statutory maximum, but not to facts that merely increase the manda-
tory minimum sentence. See Harris, 535 U.S. at 567-68.

   In our view, looking to Harris for guidance in this case does not
provide an entirely satisfactory answer. As noted above, our post-
Apprendi cases have established that there is no mandatory minimum
sentence applicable in section 841 cases where no drug quantity is
alleged in the indictment. See Martinez, 277 F.3d at 530. This conclu-
sion follows from our view that an indictment that does not include
drug quantity alleges a violation of and permits sentencing for only
a non-aggravated drug offense.3 See United States v. Promise, 255

of counsel are no longer mutually adverse; the government now concedes
the correctness of defendant’s view of the law and unites in his request
that the judgment against him be reversed. But the Supreme Court has
said that no confession of error by the government respecting a criminal
conviction shall relieve this Court of the performance of the judicial
function to examine independently the errors confessed." (internal quota-
tions marks and alteration omitted)); United States v. Wilson, 169 F.3d
418, 427 (7th Cir. 1999) ("Notwithstanding the government’s agreement
with Mr. Wilson, we must evaluate independently Mr. Wilson’s claim.").
   3
     It is worth emphasizing that it is always error for a district court to
impose a sentence exceeding the maximum sentence provided in the stat-
ute for an indeterminate quantity of the drug in question if drug quantity
is not alleged in the indictment and submitted to the jury, see Promise,
                        UNITED STATES v. GRAHAM                            7
F.3d at 156-57; see also United States v. Cannady, 283 F.3d 641, 647
(4th Cir. 2002) ("The indictment in this case did not allege the quan-
tity of drugs involved. Thus, under Apprendi and Promise, Cannady
could be convicted and sentenced only for a conspiracy to violate
§ 841(b)(1)(C)."). Since the non-aggravated drug offenses do not
carry mandatory minimum sentences, it is at least arguable that
Harris is not even applicable to the case at bar.

   It may well be, however, that Harris has worked a change in our
post-Apprendi case law with regard to the applicability of a manda-
tory minimum sentence when no drug quantity is alleged in the indict-
ment. But we need not decide the extent to which Harris applies to
section 841 cases or the extent to which Harris undermines the cases
from this circuit stating that there is no mandatory minimum sentence
in drug cases where no quantity is alleged in the indictment. Because
Graham did not argue below that the mandatory minimum sentence
was not applicable to him, we consider the issue under the plain-error
standard. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.
725, 731-32 (1993). Assuming that an error in fact occurred, we do
not believe that the circumstances of this case warrant the exercise of
our discretion to correct the error. See, e.g., United States v. Carr, 303
F.3d 539, 543 (4th Cir. 2002) ("[A]n appellate court may correct an
error not brought to the attention of the trial court if (1) there is an
error (2) that is plain and (3) that affects substantial rights. If all three
of these conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceed-
ings." (internal quotation marks and alteration omitted)), cert. denied,
123 S. Ct. 929 (2003).

  As previously mentioned, counsel for Graham conceded that Gra-
ham was responsible for more than 480 grams of crack cocaine, a

255 F.3d at 156-57, although the error may not always be corrected on
appeal, see United States v. Mackins, 315 F.3d 399, 408-09 (4th Cir.
2003) (refusing to correct excessive sentence under plain error review as
to defendants who did not properly raise Apprendi issue at trial, but
remanding for re-sentencing as to defendant who properly raised the
issue at trial).
8                      UNITED STATES v. GRAHAM
quantity sufficient to trigger the enhanced sentences set forth in sec-
tion 841(b)(1)(A), including the ten-year mandatory minimum. If
there had been no substantial-assistance motion in this case and the
district court had sentenced Graham within the Guidelines range of
324 to 405 months, Graham’s concession would have provided a suf-
ficient reason for this court to decline to exercise its discretion to cor-
rect the sentencing error. See, e.g., United States v. Soltero-Corona,
258 F.3d 858, 860 (8th Cir. 2001) ("[G]iven the defendant’s admis-
sion [at sentencing] of drug quantity, any Apprendi error did not seri-
ously affect his sentencing proceeding’s fairness, integrity, or public
reputation."). Of course, the actual circumstances of this case are dif-
ferent, given that the government did file a motion seeking a down-
ward departure because of the assistance provided by Graham, and
the error claimed on appeal is not so much the absolute sentence
imposed by the district court, but instead the court’s arguably mis-
taken belief that it was required to impose a ten-year sentence. Never-
theless, we believe that, in light of the concession as to drug quantity,
any error in this case does not warrant correction under plain error
review.

   In United States v. Shaw, 313 F.3d 219 (4th Cir. 2003), we were
presented with a somewhat similar Apprendi problem. In Shaw, the
district court determined that the defendant’s Guidelines sentencing
range was 360 months, and the court departed downward to 240
months on the government’s substantial-assistance motion. On
appeal, the defendant argued that because no drug quantity was
alleged in his indictment, his maximum sentence was actually 240
months, and 240 months should have been the starting point, not the
ending point, for the downward departure. The defendant argued, in
essence, that the Apprendi error deprived him of the benefit of the
substantial assistance he provided. We rejected this argument because
the defendant had pleaded guilty to a quantity that exposed him to a
life sentence:

     [H]ad the district court imposed a sentence of 360 months
     (or greater) under these circumstances, we would not have
     exercised our discretion to notice and correct the error. And,
     because we would not have corrected the imposition of a
     360-month sentence in this context, we certainly cannot say
     that the district court committed plain error requiring correc-
                       UNITED STATES v. GRAHAM                          9
     tion in merely using 360 months as the starting point for
     Shaw’s substantial assistance downward departure.

313 F.3d at 225.

   If the error in Shaw did not warrant correction, then we cannot say
that the error in this case warrants correction. Unlike the defendant in
Shaw, Graham in fact received a real benefit from the assistance he
provided to the government—a reduction in his sentence from the
324-405 month Guideline range to 120 months. More importantly,
Graham conceded responsibility for a quantity of drugs that, at the
time he pleaded guilty and was sentenced, exposed him to a ten-year
minimum sentence and a maximum sentence of life imprisonment. It
is only through a string of unlikely occurrences that Graham is in a
position to argue on direct appeal that, by virtue of a Supreme Court
case decided three years after he pleaded guilty, the mandatory mini-
mum sentence in fact does not apply to him. Given that Graham has
conceded to a drug quantity that in 1997 subjected him to a sentence
of ten years to life and that today would also subject him (assuming
a properly drawn indictment) to the very same sentence, we simply
cannot conclude that any error that might have occurred seriously
affects the fairness, integrity, or public reputation of judicial proceed-
ings. Cf. United States v. Cotton, 535 U.S. 625, 634 (2002) ("The real
threat . . . to the fairness, integrity, and public reputation of judicial
proceedings would be if respondents, despite the overwhelming and
uncontroverted evidence that they were involved in a vast drug con-
spiracy, were to receive a sentence prescribed for those committing
less substantial drug offenses because of an error that was never
objected to at trial."). Accordingly, we decline to exercise our discre-
tion to correct the sentencing error.

                                   III.

   Graham also contends that the government breached its obligations
under the plea agreement and that the case should therefore be
remanded and the government directed to specifically perform the
agreement. In essence, Graham argues that because the plea agree-
ment did not mention a statutory mandatory minimum sentence, there
in fact was no applicable mandatory minimum, and the government
10                    UNITED STATES v. GRAHAM
breached the plea agreement by failing to correct the district court’s
belief that it was required to impose a ten-year sentence. We disagree.

   Although the plea agreement did not mention that Graham was
subject to a minimum sentence, the agreement did state that the maxi-
mum sentence Graham faced was life imprisonment, a sentence that
was available to Graham only under section 841(b)(1)(A), which also
includes the ten-year minimum sentence. See 21 U.S.C.A.
§ 841(b)(1)(A). The agreement’s reference to a life sentence thus
should have put Graham on notice of the mandatory minimum sen-
tence. And contrary to Graham’s argument, the failure to note the
existence of a mandatory minimum sentence does not amount to an
agreement by the government that in fact no minimum sentence is
applicable. But more importantly, the plea agreement’s failure to
mention a statutory minimum sentence cannot somehow render inap-
plicable an otherwise applicable statutory minimum sentence. At best,
the plea agreement’s failure to explicitly set forth all of the conse-
quences of Graham’s guilty plea might provide fodder for an argu-
ment that Graham’s plea was not knowingly entered into, but Graham
does not make such an argument on appeal.4

   Under the plea agreement, the government specifically did not obli-
gate itself to file a section 3553(e) motion, which would have autho-
rized the district court to impose a sentence below any applicable
statutory minimum, but instead reserved to itself full discretion to
determine whether to seek such a departure. Regardless of how he
casts the arguments, Graham is in effect trying to hold the govern-
ment to a promise it never made. We therefore reject Graham’s argu-
ment that the government breached the plea agreement. See, e.g.,
United States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997) ("The
interpretation of plea agreements is guided by contract law, and par-
ties to the agreement should receive the benefit of their bargain.").
And because we have concluded that the government did not breach
its obligations under the plea agreement, Graham’s claim that his
attorney was ineffective for failing to object to the abrogation of the
plea agreement necessarily fails.
  4
   Nor does Graham challenge the adequacy of the Rule 11 hearing
based on the district court’s failure to advise Graham that a mandatory
minimum sentence was applicable.
                     UNITED STATES v. GRAHAM                    11
                               IV.

  Accordingly, for the foregoing reasons, we hereby affirm Graham’s
sentence.

                                                       AFFIRMED
