                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                 No. 99-4756
ANGEL FUENTES, a/k/a Shorty, a/k/a
Luis A. Cortes,
                Defendant-Appellant.
                                       
            Appeal from the United States District Court
     for the Southern District of West Virginia, at Charleston.
             Charles H. Haden II, Chief District Judge.
                            (CR-99-12)

                  Submitted: December 11, 2001

                      Decided: January 18, 2002

 Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.



Affirmed in part, vacated in part, and remanded by unpublished per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


                             COUNSEL

Carl J. Roncaglione, Jr., Charleston, West Virginia, for Appellant.
Rebecca A. Betts, United States Attorney, Monica K. Schwartz,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
2                     UNITED STATES v. FUENTES
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Angel Fuentes pled guilty to conspiracy to distribute and possess
with intent to distribute cocaine base (crack), cocaine, and marijuana,
in violation of 21 U.S.C. § 846 (1994). He was sentenced as a career
offender to a term of 292 months imprisonment. Fuentes appeals his
sentence, arguing that the district court erred in sentencing him as a
career offender and that his sentence violates the rule set out in
Apprendi v. New Jersey, 530 U.S. 466 (2000). We find that the dis-
trict court correctly sentenced Fuentes as a career offender. Conse-
quently, we deny Fuentes’ motion to modify the record or,
alternatively, to hold the appeal in abeyance and remand for further
proceedings on that issue. However, we agree that the 292-month sen-
tence cannot stand under Apprendi. We grant Fuentes’ two motions
for leave to file supplemental briefs raising Apprendi. We vacate the
sentence and remand for resentencing on that basis.

   A defendant is a career offender if he was at least eighteen when
he committed the instant offense, the instant offense is a crime of vio-
lence or a controlled substance offense, and the defendant has at least
two prior felony convictions for either a crime of violence or a con-
trolled substance offense. U.S. Sentencing Guidelines Manual § 4B1.1
(2000). Fuentes had two prior adult felony convictions for controlled
substance offenses. Both offenses occurred in New York in March
1989, and Fuentes was sentenced to concurrent terms for both
offenses on November 6, 1989. He received an indeterminate sen-
tence of one to three years for Criminal Sale of a Controlled Sub-
stance in the Third Degree, and an indeterminate sentence of three
years to life for Criminal Sale of a Controlled Substance in the Sec-
ond Degree. Fuentes went through a shock incarceration program and
was paroled in June 1990. Although Fuentes initially informed the
probation officer that he had been born in 1969, at sentencing he
asserted that he had been born in 1972. The probation officer was
                       UNITED STATES v. FUENTES                          3
unable to confirm his birth either in Puerto Rico or the Dominican
Republic. The district court determined that Fuentes had used two dif-
ferent birth dates at different times but that, based on available infor-
mation, Fuentes was over eighteen when he committed the prior
offenses and qualified as a career offender.

   On appeal, Fuentes first argues that the probation officer and the
district court ignored New York State Parole Division documents
which stated that his birth date was May 24, 1972, and thus ignored
the fact that he was a juvenile at the time he committed the prior
offenses. However, even if Fuentes was under eighteen at the time he
committed the prior offenses, he would meet the definition of a career
offender if he received adult sentences for the prior convictions.
Application Note 1 to USSG § 4B1.2 defines a "prior felony convic-
tion" as "a prior adult federal or state conviction for an offense pun-
ishable by death or imprisonment for a term exceeding one year,
regardless of . . . the actual sentence imposed." Further, Application
Note 1 states that "[a] conviction for an offense committed before age
eighteen is an adult conviction if it is classified as an adult conviction
under the laws of the jurisdiction in which the defendant was con-
victed . . . ." Neither of the predicate offenses was identified as a juve-
nile conviction by New York authorities.

   Fuentes argues (1) that he did not receive an adult sentence of more
than one year and one month for either prior offense, relying on
United States v. English, No. 96-4246 (4th Cir. Mar. 9, 1999) (unpub-
lished), and (2) that his prior offenses were related cases because they
were consolidated for sentencing. However, in English, the defen-
dant’s sentence of imprisonment was entirely suspended, leaving no
"sentence of imprisonment." See USSG § 4A1.2(b)(2). Under Appli-
cation Note 7 to § 4A1.2, the conviction was thus uncountable as an
adult conviction for career offender purposes. By contrast, no portion
of either of Fuentes’ sentences was suspended. Therefore, under
USSG § 4A1.2(b)(2), the sentence of imprisonment in each of Fuen-
tes’ prior cases was the maximum sentence imposed—three years for
the first offense and life for the second offense. The prior sentences
were not related because they were separated by an intervening arrest.
See USSG § 4A1.2, cmt. n.3.
4                       UNITED STATES v. FUENTES
   Fuentes claims that his March 16, 1989, drug offense cannot serve
as a predicate offense under § 4B1.1 because, as a Class B felony, it
was eligible for Youthful Offender treatment under New York law.
Although Fuentes was not sentenced as a Youthful Offender for either
prior drug offense, he states that his first, eligible offense was "over-
shadowed" by the second drug offense, a Class A-II felony which was
ineligible for Youthful Offender treatment.* However, because Fuen-
tes received adult sentences for both convictions, the fact that he may
have been eligible for youthful offender treatment for one of the
offenses is not relevant.

   Finally, Fuentes claims that the New York Youthful Offender stat-
ute is unconstitutional, and that to sentence him as a career offender
because he was not given youthful offender treatment under such a
statute would be a denial of due process and equal protection. He
relies principally on People v. Drummond, 359 N.E.2d 663 (N.Y.
1976), which held the New York Youthful Offender statute unconsti-
tutional because, at the time, a defendant was excluded from youthful
offender treatment if he had been charged with certain crimes. The
statute has since been amended, and the exclusion is now keyed to the
crime of conviction. See N.Y. Crim. Proc. § 720.10(2)(a). Therefore,
Fuentes’ due process argument fails.

   While Fuentes’ appeal was pending, the Supreme Court held that
any fact, other than a prior conviction, "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 Apprendi was decided while Fuentes’ case was on

  *The New York Youthful Offender Statute, N.Y. Crim. Proc. § 720.10
(McKinney 1995) (youthful offender procedure), currently provides (in
pertinent part) that any person charged with committing a crime between
age sixteen and nineteen is eligible for youthful offender treatment unless
he has been convicted of a class A-I or A-II felony, or he has previously
been convicted and sentenced for a felony. Under N.Y. Crim. Proc.
§ 720.20(2) (McKinney 1995) (youthful offender determination), when
an eligible youth is convicted of two crimes set out in separate charging
instruments, "the court must not find him a youthful offender with
respect to any such conviction . . . unless it finds him a youthful offender
with respect to all such convictions."
                       UNITED STATES v. FUENTES                         5
direct review, we apply the rule of Apprendi to his appeal. See Griffith
v. Kentucky, 479 U.S. 314, 328 (1987). Because Fuentes did not raise
an Apprendi-type argument in the district court, this Court may
review only for plain error. Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731-32 (1993) (stating standard).

   Fuentes’ guilty plea is not affected by Apprendi. See United States
v. Dinnall, 269 F.3d 418, 423 n.3 (4th Cir. 2001) (validity of guilty
plea to drug offense involving an unspecified quantity of drugs is not
called into question when defendant receives a sentence in excess of
the sentence authorized under § 841(b)(1)(C)); United States v. Prom-
ise, 255 F.3d 150, 160 (4th Cir. 2001) (en banc) (conviction for
unspecified quantity of drugs is not error), petition for cert. filed,
Sept. 20, 2001 (No. 01-6398). Fuentes’ five-year term of supervised
release does not violate the rule in Apprendi because this court has
held that the three-year statutory cap in 18 U.S.C.A. § 3583(b) (West
2000), does not apply to § 841(b)(1)(C). United States v. Pratt, 239
F.3d 640, 647 (4th Cir. 2001).

   However, Fuentes’ sentence of 292 months imprisonment exceeded
the applicable statutory maximum penalty for the crime of which he
was convicted. Because drug quantity was not charged in the indict-
ment, Fuentes was subject to a statutory maximum sentence of twenty
years imprisonment under 21 U.S.C.A. § 841(b)(1)(C), for his convic-
tion. Promise, 255 F.3d at 152 (applying Apprendi to drug offenses
in §§ 841 and 846, and holding that drug quantity "must be treated as
[an] element[ ] of an aggravated drug trafficking offense" under 21
U.S.C. § 841(b)(1)(A) or (b)(1)(B), not merely a sentencing factor).
Fuentes’ sentence of 292 months imprisonment for his conviction was
thus plainly erroneous. Id. at 156-57, 160. The total maximum sen-
tence to which Fuentes was exposed was twenty years because he was
convicted of a single count and the government did not seek an
enhanced sentence based on his prior felony drug convictions pursu-
ant to 21 U.S.C. § 851 (1994). The error thus affected his substantial
rights. United States v. Cotton, 261 F.3d 397, 406-07 (4th Cir. 2001)
(holding that sentence exceeding maximum authorized by
§ 841(b)(1)(C) for offense involving unspecified drug quantity is
plain error affecting substantial rights and is jurisdictional in nature),
cert. granted, 2002 WL 10623, 70 U.S.L.W. 3348 (U.S. Jan. 4, 2002)
(No. 01-687). Fuentes was charged with conspiracy to distribute and
6                      UNITED STATES v. FUENTES
possess an unspecified quantity of crack and other drugs with intent
to distribute, see 21 U.S.C.A. § 841(b)(1)(C), but he "received a sen-
tence for a crime—an aggravated drug trafficking offense under sec-
tion 841(b)(1)(A)—with which [he was] neither charged nor
convicted." Cotton, 261 F.3d at 404. In Cotton, we concluded that an
error of this nature is "fundamental," and "seriously affect[s] the fair-
ness, integrity or public reputation of judicial proceedings," and that,
consequently, we are "at liberty to correct it." Cotton, 261 F.3d at 405
(internal quotations and citations omitted). We explicitly rejected the
government’s argument that overwhelming evidence of drug quantity
can excuse the error. Id. at 407. We therefore exercise our discretion
to notice the error, vacate Fuentes’ sentence, and remand for resen-
tencing consistent with Apprendi and Promise. See USSG § 5G1.1(a).

   We therefore affirm the sentence in part, but vacate the judgment
and remand for resentencing in accordance with Apprendi. We deny
Fuentes’ motion to modify the record, hold the appeal in abeyance,
or remand the case to allow him to present new evidence concerning
his birth date. We grant his motions to file supplemental briefs. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

                         AFFIRMED IN PART, VACATED IN PART,
                                             AND REMANDED
