                  IN THE UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT



                                       No. 00-40894
                                     Summary Calendar



UNITED STATES OF AMERICA,
                                                            Plaintiff-Appellee,
                                             versus

TOMMY BROWN,

                                                            Defendant-Appellant.

                   _________________________________________
                     Appeal from the United States District Court
                          for the Eastern District of Texas
                              USDC No. 1:00-CR-24-1
                   ________________________________________
                                   May 24, 2001
Before POLITZ, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

PER CURIAM:*

       Tommy Brown appeals his guilty-plea conviction and sentence for one count
of possession of cocaine base with intent to distribute, in violation of 21 U.S.C. §

841(a)(1).




       *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
          Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), he maintains that his
guilty plea was involuntary because his indictment did not specify the quantity of

cocaine base involved in the offense and because the district court failed to

admonish him appropriately respecting quantity. Brown’s written plea agreement
contained a provision by which he waived his right to appeal anything other than

Sentencing Guidelines determinations. We may not accord this waiver full

effectiveness because the district court failed to address Brown in open court about

his essential understanding of the waiver-of-appeal provision.1
          Brown’s reliance on Apprendi is not persuasive herein. It is correct that
when the Government seeks enhanced penalties based on the amount of drugs
attributable to a defendant, Apprendi requires that the quantity be charged in the

indictment.2 Apprendi, however, requires the reversal of a conviction only in those
cases where a sentence exceeds the statutory maximum.3 Because the charged

statute, 21 U.S.C. § 841(b)(1)(C), sets the statutory maximum prison term at 20
years for a Schedule II controlled substance such as cocaine base, and because
Brown was sentenced to 140 months in prison, there is no Apprendi error herein.

          However, because the elements found by the jury satisfied only a conviction

under § 841(b)(1)(C), a Class C felony, Brown’s term of supervised release may not



          1
           FED. R. CRIM. P. 11(c)(6); United States v. Robinson, 187 F.3d 516, 518 & n.2 (5th Cir.
2000).
          2
           United States v. Doggett, 230 F.3d 160 (5th Cir. 2000), cert. denied, 121 S. Ct. 1152
(2001).
          3
           United States v. Salazar-Flores, 238 F.3d 672, 673 (5th Cir. 2001) (citation omitted).
                                                   2
exceed three years.4 We may correct certain errors under plain error review.5
Accordingly, Brown’s supervised release term of five years is hereby MODIFIED

to the statutorily mandated three-year term.

       To the extent that Brown contends that an Apprendi error rendered his guilty
plea involuntary, that claim is meritless. Brown pleaded guilty after being informed

of a higher potential maximum term, i.e., life imprisonment.

       For the first time on appeal, Brown maintains that the district court erred in

entering an “upward departure” in his case. The record does not support this claim.
The court did not enter an upward departure. Brown’s brief reflects that he is
complaining that the district court calculated his base offense level improperly by
considering conduct from a second, dismissed indictment count. This claim is

reviewable for plain error only.6 Brown has not shown plain error. He does not
dispute that the district court was fully authorized to consider the conduct charged in

the dismissed count as “relevant conduct” for sentencing purposes.7
       As MODIFIED, the conviction and sentence are AFFIRMED.




       4
        Doggett, 230 F.3d at 165 n.2 (citing 18 U.S.C. § 3583(b)(2); United States v. Kelly, 974
F.2d 22, 24-25 (5th Cir. 1992)).
       5
        United States v. Meshack, 225 F.3d 556, 578 (5th Cir. 2000), cert. denied sub nom.,
Parker v. United States, 121 S. Ct. 834 (2001).
       6
        United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc).
       7
        United States v. Vital, 68 F.3d 114, 119 (5th Cir. 1995).
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