                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4076



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DARRYLE EDWARD ROBERTSON, a/k/a Tiger,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, District Judge.
(1:01-cr-00304-JFM)


Submitted:   October 24, 2007            Decided:   November 19, 2007


Before WILKINSON, MICHAEL, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Donald E. Kaplan, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, John F. Purcell, Jr., Assistant
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Darryle Robertson appeals his conviction and 360-month

sentence pursuant to a guilty plea to one count of conspiracy to

distribute and possess with intent to distribute fifty grams of

more of cocaine base, five or more kilograms of cocaine, and one

kilogram or more of heroin, in violation of 21 U.S.C. § 846 (2000).

On appeal, Robertson argues that his guilty plea was involuntary.

Finding no reversible error, we affirm.

               Because Robertson did not move in the district court to

withdraw his guilty plea, his challenge to the adequacy of the Fed.

R. Crim. P. 11 hearing is reviewed for plain error.                            United

States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (holding that

“plain    error       analysis   is   the     proper    standard    for   review   of

forfeited error in the Rule 11 context”).                 This analysis requires

the court to determine whether there was error, whether the error

was plain, and whether it affected the defendant’s substantial

rights.         Id.    at     524.     If     a    defendant     establishes    these

requirements, the court’s “discretion is appropriately exercised

only when failure to do so would result in a miscarriage of

justice, such as when the defendant is actually innocent or the

error     seriously      affects      the     fairness,       integrity   or   public

reputation of judicial proceedings.”                 United States v. Hughes, 401

F.3d    540,    555    (4th    Cir.   2005)       (internal   quotation   marks    and

citation omitted).


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            On appeal, Robertson argues that his guilty plea was

neither knowing nor voluntary, because the trial count “did not

find a factual basis for [Robertson’s] stipulation to an offense

level of 43,” as required by Rule 11(b)(3) and Apprendi v. United

States, 530 U.S. 466, 497 (2000).           In essence, Robertson contends

that   because     he   was    sentenced    pursuant   to   U.S.   Sentencing

Guidelines Manual, § 2A1.1 (2002), cross-referenced from USSG

§ 2D1.1(d)(1), he faced an increased potential penalty--death--

rather than the life sentence he could have faced if not for the

judge’s decision to apply USSG § 2A1.1.            However, a court may only

impose a death sentence under USSG § 2A1.1 if the underlying

conviction is for violation of 21 U.S.C. § 848(e) (2000).                 USSG

§ 2A1.1 cmt. n.2.             Robertson was not convicted of violating

§ 848(e).

            Moreover, Apprendi does not reach a judge’s determination

as to facts impacting the determination of a sentence, provided the

resulting sentence is within the statutory maximum authorized by

the elements charged in the indictment.            United States v. Promise,

255 F.3d 150, 156 n.5 (4th Cir. 2001); see also United States v.

Kinter, 235 F.3d 192, 202 (4th Cir. 2000) (general sentencing

enhancements under sentencing guidelines do not violate Apprendi

when sentence is within maximum prescribed in United States Code).

The statutory maximum for violation of § 846 is life imprisonment.

Robertson    was    sentenced      within    the   statutory   maximum,    and


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therefore, the district court’s reliance on § 2A1.1 does not give

rise to an Apprendi error.

            The district court complied with the requirements of Rule

11 when it accepted Robertson’s guilty plea.                  The court ensured

Robertson was competent to take a plea by asking him questions

regarding his age, education, and background and inquiring whether

he was under the effect of drugs or alcohol.                   The court asked

whether anyone had threatened or forced Robertson to plead guilty,

to which Robertson responded no.             The court ensured Robertson had

enough time to speak to his attorney and was satisfied with his

attorney.       The court informed Robertson of the constitutional

rights relating to trial he was relinquishing and Robertson stated

he waived those rights.

            The court informed Robertson of the nature of the charge

and the elements the Government would have to prove, the minimum

and maximum penalty, and the effect of supervised release.                      The

court explained relevant conduct, that Robertson could be held

responsible for acts of co-conspirators, and that such conduct

could be used to enhance his sentence.

            The court also went over the plea agreement, specifically

noting that it contained a stipulated total offense level of 41, an

agreed   upon    sentence   of    360    months’       imprisonment,     and    that

Robertson    waived   his   right       to    appeal    his   sentence    and    to

collaterally     attack   his    conviction      and    sentence.      The     court


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informed Robertson that, pursuant to Rule 11(e)(1)(c), if it did

not impose the sentence contained in the agreement, Robertson would

have the right to withdraw his guilty plea.       Robertson agreed to

the stipulation of facts contained in the plea agreement.           The

court found Robertson was fully competent and capable of entering

an informed plea and that his plea was knowing and voluntary.

Therefore, the district court’s acceptance of Robertson’s guilty

plea was not plain error.

            Accordingly,   we   affirm   Robertson’s   conviction   and

sentence.    We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.


                                                              AFFIRMED




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