                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-5192


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DEMETRIUS DARRELL WHITEHEAD,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:10-cr-00213-F-1)


Submitted:   May 20, 2013                     Decided:   May 30, 2013


Before MOTZ, SHEDD, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Joshua L. Rogers, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Demetrius Darrell Whitehead pled guilty, pursuant to a

written plea agreement, to possession with intent to distribute

five   grams    or   more       of    crack   cocaine,       21    U.S.C.     §    841(a)(1)

(2006) (Count One); possession of a firearm in furtherance of a

drug trafficking offense, 18 U.S.C. § 924(c)(1)(A) (2006) (Count

Five); and being a felon in possession of a firearm, 18 U.S.C.

§ 922(g) (2006) (Count Six).                  The plea agreement provided that

the Government promised that it would “make known to the Court

at sentencing the full extent of the Defendant’s cooperation,

but the United States is not promising to move for a departure

or   sentence    reduction.”             However,     at     Whitehead’s          sentencing

hearing, when the district court asked the Government, “Did the

government      promise     to       make    known    this    man’s       assistance,      if

any?,”    the Government replied (mistakenly), “No, Your Honor.”

Whitehead’s      counsel        did    not    object,        nor    did      he    note   any

objections to the presentence report, which was adopted by the

court.

           Based     on     a    total      offense   level        of   29   and    criminal

history category of VI, Whitehead’s advisory sentencing range

for Count One was 151-188 months; for Count Five, 60 months; and

for Count Six, 120 months.                  The court imposed 188 months as to

Count One, and 120 months as to Count Six, to run concurrently.

The 60-month sentence imposed on Count Five was ordered to run

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consecutively, for a total term of 248 months.                         The court also

imposed a five-year term of supervised release on Counts One and

Five, and three years on Count Six, all to run concurrently.

            At    the    conclusion       of    the    court’s       pronouncement         of

sentence, the Government’s attorney added:                       “Your Honor, just

for clarification of the record, the Government would like to

note that Mr. Whitehead was debriefed.                      The information has not

resulted in any federal indictments.                  He did provide information

with regard to [a cold case murder investigation].                          He may be a

witness   in     that    case.      The    witness       list    has    not       yet    been

confirmed.”      Whitehead noted a timely appeal.

            Whitehead argues, first, that the Government breached

the plea agreement when it failed to advise the court of the

“full extent” of his cooperation with law enforcement.                             Because

he did not object below, our review is for plain error.                                   See

United States v. Olano, 507 U.S. 725, 732 (1993).                           We find that

there was no error, let alone plain error.                           Although, as the

Government     concedes,     it    failed       to    advise     the    court      at     the

beginning of the sentencing hearing about its obligation under

the plea agreement, Whitehead’s cooperation was known to the

court.    First, the Government corrected its error, albeit after

sentence had been pronounced, but the court still could have

reduced     Whitehead’s     sentence       at     that       time,     if    it    was     so

inclined.        Also,    the     court    was       well    aware     of    Whitehead’s

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cooperation, as it was discussed at length during his attorney’s

argument for a continuance.                 Moreover, Whitehead’s four prior

motions    for    continuance        all    detailed       his    cooperation     in     the

murder investigation.           And, in any event, Whitehead cannot show

that his substantial rights were affected because, given the

district    court’s      denial      of    his   motion     for    a   continuance,      he

cannot    show    that    his   sentence         would    have    been    less   had     the

Government’s      timing    been       different.           See    United      States     v.

Hooten,     942    F.2d    878,      883     (5th      Cir.      1991)    (noting       that

government’s      failure       to    inform       a     sentencing      court   of     the

defendant’s assistance does not constitute reversible error if

the court is generally aware of the defendant’s cooperation and

the extent thereof).

            Next, Whitehead argues that the district court erred

in sentencing him to five years of supervised release because,

under the Fair Sentencing Act, his maximum term is three years.

According    to    Whitehead,         because      his     offense       now   carries    a

maximum sentence of twenty years, it is classified as a Class C

felony under 18 U.S.C. § 3559(a)(3) (2006).                            Under 18 U.S.C.

§ 3583(b)(2) (2006), a Class C felony carries no more than a

three-year term of supervised release.                    Whitehead is incorrect.

            Section 3583(b) is prefaced with the phrase, “[e]xcept

as otherwise provided.”              Section 841(b)(1)(C) clearly provides

that: “Notwithstanding section 3583 of Title 18, any sentence

                                             4
imposing a term of imprisonment under this paragraph shall, in

the   absence    of    such   a     prior       conviction,      impose   a   term   of

supervised release of at least 3 years in addition to such term

of imprisonment.”       Therefore, three years is the minimum term of

supervised release and Whitehead’s reliance on 18 U.S.C. § 3583

simply ignores the above language in § 841(b)(1)(C).

           Accordingly,        we    affirm        Whitehead’s      sentence.        We

dispense   with       oral    argument      because        the    facts   and   legal

contentions     are   adequately      presented       in    the    materials    before

this court and argument would not aid the decisional process.



                                                                              AFFIRMED




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