                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 98-4769
WILLIAM JACKIE PEARSON,
               Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Western District of North Carolina, at Shelby.
                Lacy H. Thornburg, District Judge.
                            (CR-98-15)

                      Submitted: June 27, 2002

                       Decided: July 26, 2002

  Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Robert J. Conrad, Jr., United States Attorney, D. Scott
Broyles, Assistant United States Attorney, Charlotte, North Carolina,
for Appellee.
2                      UNITED STATES v. PEARSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   William Jackie Pearson was convicted after pleading guilty to pos-
session with intent to distribute cocaine base, in violation of 21
U.S.C.A. § 841(a)(1) (West 1999). He now argues that his sentence
of 264 months in prison violates Apprendi v. New Jersey, 530 U.S.
466 (2000). We affirm Pearson’s conviction and sentence.

   Because Pearson did not raise his Apprendi claim in the district
court, our review is for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). In order to demonstrate
plain error, a defendant must show that an error occurred, that it was
plain, and that the error affected his substantial rights. Id. at 732. If
he can satisfy these requirements, we should not exercise our discre-
tion to correct the error "unless the error seriously affect[s] the fair-
ness, integrity or public reputation of judicial proceedings." Id.
(internal quotation marks omitted).

  Pearson’s indictment did not charge a specific amount of drugs.
Under Apprendi, he therefore was subject to a sentence of only 240
months in prison, and his 264-month sentence constituted plain error.
See United States v. Cotton, 122 S. Ct. 1781, 1785 (2002).

   We need not decide, however, whether the 264-month sentence
affected Pearson’s substantial rights. Pearson stipulated in his plea
agreement and at his Fed. R. Crim. P. 11 hearing that he was respon-
sible for at least 500 grams and not more than 1.5 kilograms of crack
cocaine. Further, Pearson did not object to the factual basis of the
plea, which stated that he was responsible for the stipulated amount
of crack. The evidence that Pearson was accountable for at least 500
grams but less than 1.5 kilograms of crack was thus overwhelming
and uncontroverted and, in accordance with Cotton, we decline to
exercise our discretion to correct the Apprendi error. See Cotton, 122
S. Ct. at 1785-86.
                      UNITED STATES v. PEARSON                      3
   We affirm Pearson’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. The motion to dismiss the appeal is denied
as moot.

                                                         AFFIRMED
