                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 99-4936
WIDNEY TREVOR DINNALL,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
          for the District of South Carolina, at Columbia.
                  Dennis W. Shedd, District Judge.
                             (CR-98-946)

                      Argued: January 26, 2001

                      Decided: October 15, 2001

  Before WILKINSON, Chief Judge, WIDENER, Circuit Judge,
 and Raymond A. JACKSON, United States District Judge for the
       Eastern District of Virginia, sitting by designation.



Affirmed in part, vacated in part, and remanded by published opinion.
Judge Widener wrote the opinion, in which Chief Judge Wilkinson
and Judge Jackson concurred.


                             COUNSEL

ARGUED: Kathrine Haggard Hudgins, Columbia, South Carolina,
for Appellant. Beth Drake, Assistant United States Attorney, Colum-
bia, South Carolina, for Appellee. ON BRIEF: John Delgado,
Columbia, South Carolina, for Appellant. J. Rene Josey, United States
Attorney, Columbia, South Carolina, for Appellee.
2                          UNITED STATES v. DINNALL
                                  OPINION

WIDENER, Circuit Judge:

   Widney Trevor Dinnall appeals from the sentence imposed by the
district court after he pleaded guilty to the charge of conspiracy to
possess cocaine base with the intent to distribute. For the reasons
stated below, we affirm his conviction but vacate the sentence
imposed against him and remand for a new sentence not to exceed 20
years.

                                       I.

   On December 16, 1998, a federal grand jury issued a superceding
six-count indictment against Dinnall for various drug crimes involv-
ing the possession and distribution of cocaine base. The indictment
makes no allegation as to the quantity of cocaine base involved in the
crimes. Pursuant to a plea agreement with the prosecution, Dinnall
pleaded guilty to Count 1 of the indictment. Count 1 alleges a crimi-
nal conspiracy, proscribed by 21 U.S.C. § 846, to possess cocaine
base with the intent to distribute in violation of 21 U.S.C. § 841(a)(1).1
In the final, amended plea agreement, Dinnall also confessed that his
considerable assets, including over $504,000.00 in various bank
accounts and several properties in Florida, were derived from drug
proceeds and agreed not to protest their forfeiture. In return, the pros-
ecution agreed to dismiss the remaining five counts in the indictment
against Dinnall, to make a motion for a downward departure from the
    1
     Count one of the superceding indictment charged as follows:
        That beginning on or about a date unknown to the Grand Jury
        but from at least early 1993 up to and including October 29,
        1998, in the District of South Carolina and elsewhere, the defen-
        dant, WIDNEY TREVOR DINNALL, did knowingly, intention-
        ally, and unlawfully combine, conspire, confederate and agree
        and have tacit understanding with persons, both known and
        unknown to the Grand Jury, to possess with intent to distribute
        cocaine base (commonly known as crack cocaine), a Schedule II
        controlled substance, in violation of Title 21, United States
        Code, Section 841(a)(1);
        All in violation of Title 21, United States Code, Section 846.
                      UNITED STATES v. DINNALL                        3
sentencing guidelines and to take no position as to whether Dinnall’s
sentence should be enhanced under the sentencing guidelines for his
role as a leader of the conspiracy.

   In keeping with the agreement, the prosecution moved to dismiss
Counts 2-6 of the superceding indictment; the court granted this
motion. The prosecution subsequently voided the plea agreement on
November 2, 1999, however, on the ground that Dinnall sold assets
subject to forfeiture, in violation of the agreement. The district court
later made a finding to that effect and awarded substitute assets to the
prosecution. Because the prosecution voided the plea agreement, it
made no motion at the sentencing hearing in favor of a downward
departure from the sentencing guidelines and argued in favor of an
enhancement in Dinnall’s sentence for his role as a leader of the crim-
inal conspiracy.

   The district court held a sentencing hearing on December 13, 1999.
The presentence report submitted to the court indicated that a confi-
dential source working with South Carolina law enforcement agencies
made five purchases of cocaine from Dinnall which were tested by
the police and found to include 108 grams of cocaine base and 20
grams of powder cocaine. Execution of search warrants discovered
electronic scales and additional cocaine base amounting to approxi-
mately 22 grams. The presentence report indicated that police
obtained additional information from several individuals who had
purchased or sold significant quantities of cocaine to Dinnall. The
police also discovered significant bank accounts and properties which
they concluded were "unexplained wealth, presumably proceeds from
illegal drug transactions." The district court heard oral testimony cor-
roborating the presentence report and accepted the report’s conclusion
that Dinnall’s criminal activity involved at least 1.5 kilograms of
cocaine base.

   Based on that finding, the district court set a base offense level of
38 under the sentencing guidelines. The district court then applied a
2 level enhancement for Dinnall’s role as a leader of a distribution
scheme. Dinnall and his counsel objected to the enhancement for Din-
nall’s supervisory role and to the amount of drugs attributed to him
by the district court. The district court sentenced Dinnall to 30 years’
confinement followed by 5 years of supervised release.
4                      UNITED STATES v. DINNALL
   Dinnall appealed on December 15, 1999. Dinnall’s attorney filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967), indicat-
ing that he had reviewed the record and found no issues worthy of
appeal. Dinnall filed a pro se brief challenging the form and substance
of the grand jury indictment against him, the subject matter jurisdic-
tion of the district court, the constitutionality of the federal drug stat-
utes, the adequacy of the assistance provided by his counsel, and
other district court holdings. While Dinnall’s pro se appeal was pend-
ing, Dinnall submitted a motion to stay forfeiture proceedings pend-
ing against him in two separate district courts. A motions panel of this
court denied the motion but directed the parties to submit supplemen-
tal briefs on the validity of Dinnall’s sentence in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000), which the Supreme Court had
decided after Dinnall filed his appeal.

                                    II.

   Dinnall contends that the sentence imposed by the district court is
invalid under Apprendi. See Apprendi, 530 U.S. at 466. In that case,
Apprendi pleaded guilty to several firearms and weapons offenses.
The indictment to which Apprendi pleaded guilty did not allege a vio-
lation of New Jersey’s hate crime statute. Nonetheless, at Apprendi’s
sentencing, the judge concluded, based on a preponderance of the evi-
dence, that one of the firearms offenses to which Apprendi pleaded
guilty was carried out with a biased purpose in violation of the hate
crime statute. Because of this finding, the judge imposed a sentence
that exceeded the statutory maximum sentences for the crimes alleged
in the indictment to which Apprendi pleaded guilty. Rejecting New
Jersey’s argument that the hate crime statute was merely a sentencing
factor and not a second crime with distinct elements, 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 reason-
able doubt." Apprendi, 530 U.S. at 490.

   Count 1 of the indictment against Dinnall alleges a violation of 21
U.S.C. § 846 which states that a person who conspires to commit a
drug offense is subject to the same penalties imposed for the drug
offense which the person conspired to commit. The indictment against
Dinnall alleges that he conspired to violate 21 U.S.C. § 841(a)(1),
                       UNITED STATES v. DINNALL                         5
which proscribes, among other conduct, the possession of a controlled
substance, cocaine base in Dinnall’s case, with the intent to distribute.
Subsection (b)(1) of the statute restricts the various penalties that may
be imposed for a violation of 21 U.S.C. § 841(a)(1) based on the
quantity of drugs involved in the criminal activity. See 21 U.S.C.
§ 841(b)(1). For aggravated drug offenses involving a threshold drug
quantity of 5 grams or more of cocaine base, the statute provides a
penalty range of 5 to 40 years.2 See 21 U.S.C. § 841((b)(1)(B). For
aggravated drug offenses meeting a higher threshold drug quantity of
more than 50 grams of cocaine base, the penalty ranges from 10 years
to life. See 21 U.S.C. § 841(b)(1)(A). Dinnall argues that the statute
contains a fallback provision, 21 U.S.C. § 841(b)(1)(C), which
imposes a penalty "of not more than 20 years" even if no specific
threshold drug quantity has been charged or proven.

   Because the indictment to which Dinnall pleaded guilty does not
specify that he conspired to possess a particular threshold drug quan-
tity, he argues that it alleges a conspiracy to violate 21 U.S.C.
§ 841(b)(1)(C) which allows a maximum sentence of only 20 years.
Dinnall was sentenced to 30 years. This sentence violates the rule of
Apprendi, Dinnall argues, because threshold drug quantity is a fact
that "increases the penalty for a crime beyond the prescribed statutory
maximum" of 21 U.S.C. § 841(b)(1)(C). Apprendi, 530 U.S. at 490.
Accordingly, he contends, a threshold drug quantity allowing a higher
sentence under 21 U.S.C. § 841(b)(1)(A) or (b)(1)(B) must be alleged
in the indictment against him and either proven to a jury beyond a
reasonable doubt or conceded by his guilty plea. Apprendi, 530 U.S.
at 490.

  After we heard oral argument in Dinnall’s appeal, the en banc court
  2
   We adopt the terminology employed by United States v. Promise, 255
F.3d 150, 152 (4th Cir. 2001), in discussing these statutes. Promise
defined "specific threshold drug quantities" as "those quantities of drugs
set forth in 21 U.S.C. § 841(b)(1)(A), (b)(1)(B), a finding of which sub-
jects a defendant to a sentence of ten years to life imprisonment
(§ 841(b)(1)(A)) or five to 40 years imprisonment (§ 841(b)(1)(B))."
Promise, 255 F.3d at 152. Promise defined an "aggravated drug offense"
as "one that involves a specific threshold drug quantity." Promise, 255
F.3d at 152.
6                       UNITED STATES v. DINNALL
interpreted the holding of Apprendi in the context of the drug statutes.
In United States v. Promise, 255 F.3d 150 (4th Cir. 2001), this court
held that drug quantity "must be treated as [an] element of an aggra-
vated drug trafficking offense" under 21 U.S.C. § 841(b)(1)(A) or
(b)(1)(B) and not merely a sentencing factor. Promise, 255 F.3d at
152. In Promise, as here, a defendant was sentenced to 30 years based
on the trial court’s finding, by a preponderance of the evidence, that
the defendant should be held accountable for more than 1.5 kilograms
of cocaine base even though the indictment did not allege a specific
drug quantity. In Promise this court concluded that 21 U.S.C.
§ 841(b)(1)(C) is a fallback provision applicable when a specific drug
quantity has not been alleged in the indictment. The Promise court
held that the 30 years imposed by the district court exceeded the statu-
tory maximum sentence of the crime for which the defendant was
convicted and constituted an error in sentencing. Accordingly, under
the rule established by Promise on nearly identical facts, Dinnall has
identified error in his sentencing proceeding.3

  Because Dinnall failed to raise this issue before the district court,
however, we review the sentence imposed against him only for plain
    3
    In fact, the only distinction between the cases is that Promise was
convicted by a jury and Dinnall was convicted after he pleaded guilty.
We find no substance to this distinction. We need look no further than
Apprendi itself for an application of the rule of that case to a defendant
who has pleaded guilty to the charge in the indictment but was nonethe-
less sentenced for another crime based on elements not alleged in the
indictment against him. Apprendi, 530 U.S. at 470. Although the general
rule is that a guilty plea waives nonjurisdictional error in the indictment,
see United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993), the error
identified by Promise is not an error in the form of the indictment or in
the conviction but a jurisdictional error as to sentencing as imposed by
the district court. See Promise, 255 F.3d at 160; United States v. Cotton,
No. 99-4162, slip op. at 9, ___ F.3d ___ (4th Cir. Aug. 10, 2001). Din-
nall was properly indicted for conspiracy to posses an unidentified quan-
tity of cocaine base with the intent to distribute in violation of 21 U.S.C.
§ 846 and 21 U.S.C. § 841(b)(1)(C). The error in this case does not arise
from the indictment or from Dinnall’s guilty plea; rather, it arises from
the district court’s judgment imposing a sentence beyond the statutory
maximum of the crime for which Dinnall was indicted and to which he
pleaded guilty.
                       UNITED STATES v. DINNALL                        7
      4
error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.
725, 731-32 (1993). We may notice an error not preserved by a timely
objection only if the defendant establishes "that error occurred, that
the error was plain, and that the error affected his substantial rights."
United States v. Hastings, 134 F.3d 235, 239 (4th Cir. 1998) (citing
Olano, 507 U.S. at 732). Even when a defendant satisfies these stan-
dards, "correction of the error remains within our sound discretion,
which we ‘should not exercise . . . unless the error "seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings."’"
United States v. Hastings, 134 F.3d at 239 (citing Olano, 507 U.S. at
732) (alterations in original). Again, Promise controls our resolution
of this issue. After recognizing that imposition of a sentence beyond
the statutory maximum for 21 U.S.C. § 841(b)(1)(C) was error where
a threshold drug quantity was neither alleged in the indictment nor
submitted to the jury, the Promise court concluded that, based on
Apprendi and the unanimous application of Apprendi to the drug stat-
ute by other circuit courts, the error was plain. See Promise, 255 F.3d
at 160. The Promise court also concluded that a defendant who is sen-
tenced beyond the statutory maximum of the crime for which he was
indicted and convicted has established that such error affects his sub-
stantial rights. See Promise, 255 F.3d at 160-161.

   Assuming a defendant establishes plain error that affects his sub-
stantial rights, the authority to notice the error ultimately remains in
our discretion. See United States v. Hastings, 134 F.3d at 239. No
majority of the Promise court reached agreement as to whether we
should exercise our discretion to notice plain error in this circum-
stance. This open question has been resolved by a recent decision of
this court in United States v. Cotton, No. 99-4162, slip op. at 12, ___
F.3d ___ (4th Cir. Aug. 10, 2001). In Cotton, several defendants were
indicted for and convicted of conspiracy to distribute and possession
with intent to distribute cocaine base and another controlled sub-
stance. The indictment against the defendants did not allege a specific
drug quantity and the issue of drug quantity was not submitted to the
jury. At sentencing, the district court found, based on a preponderance
  4
   Although Dinnall objected to the amount of drugs the district court
calculated was attributable to him, he did not raise an Apprendi-type
objection on the grounds that the drug quantity was not alleged in the
indictment.
8                      UNITED STATES v. DINNALL
of the evidence that over 1.5 kilograms of cocaine base was attribut-
able to each of the defendants for their participation in the conspiracy.
Based on that finding, the district court imposed sentences upon sev-
eral of the defendants that exceeded the maximum sentence autho-
rized by 21 U.S.C. § 841(b)(1)(C) for a violation involving an
unspecified drug quantity. Citing Promise, we confirmed that such a
sentence was plain error and that it affected substantial rights. See
Cotton, slip op. at 12.

   We went on to conclude that such an error is jurisdictional in
nature. The district court lacked jurisdiction to sentence the defen-
dants for a crime for which they were neither indicted nor convicted.
The Cotton court concluded that "sentencing a defendant for an
unindicted crime . . . seriously affects the fairness, integrity or public
reputation of judicial proceedings," and warrants exercise of our dis-
cretion to notice the error. Cotton, slip op. at 12. The Cotton court
reasoned that the district court exceeded its jurisdiction, as well as
impaired the defendant’s constitutional rights, by establishing an ele-
ment of the crime, not included in the grand jury indictment, and then
using this element to increase the sentence beyond the statutory maxi-
mum. See Cotton, slip op. at 13. Where the plain error at issue is
jurisdictional, as here, the quantum of evidence allegedly supporting
indictment or conviction of an aggravated drug offense based on a
threshold drug quantity is irrelevant to the exercise of our discretion
to notice such error. See Cotton, slip op. at 13. Thus, we vacate Din-
nall’s sentence and remand for re-sentencing with instructions to sen-
tence him to a term of imprisonment not to exceed 20 years.

                                   III.

   We have also considered the arguments made by Dinnall in his pro
se brief and are of opinion they are without merit.

   While the judgment of conviction is affirmed, the sentence is
vacated and the case remanded for resentencing in accordance with
this opinion.

     CONVICTION AFFIRMED, SENTENCING VACATED AND
CASE REMANDED WITH INSTRUCTIONS FOR RESENTENCING
