                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 99-4587
KENDELL WHITFIELD,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
     for the Eastern District of North Carolina, at Wilmington.
                James C. Fox, Senior District Judge.
                           (CR-99-27-FO)

                      Argued: January 26, 2001

                      Decided: October 16, 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.



Vacated and remanded by unpublished per curiam opinion.


                             COUNSEL

ARGUED: Geoffrey Wuensch Hosford, HOSFORD & HOSFORD,
Wilmington, North Carolina, for Appellant. Anne Margaret Hayes,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee. ON BRIEF: Janice McKenzie Cole, United States Attorney,
Kenneth F. Whitted, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
2                     UNITED STATES v. WHITFIELD
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   Kendell Whitfield appeals from the sentence imposed by the dis-
trict court after he pleaded guilty to conspiracy to possess cocaine
base with the intent to distribute. For reasons stated below, we vacate
his sentence and remand to the district court for a new sentence not
to exceed 240 months.

                                    I.

   Whitfield waived indictment by grand jury and was charged with
a criminal information alleging that he engaged in a conspiracy to dis-
tribute cocaine base and to possess cocaine base with the intent to dis-
tribute in violation of 21 U.S.C. § 846. The criminal information
against Whitfield did not allege that he conspired to distribute or to
possess with the intent to distribute any particular quantity of cocaine
base.

   Whitfield agreed to cooperate with the ongoing investigation and
to testify for the prosecution. Whitfield signed a plea agreement with
the prosecution which specified that he would plead guilty to conspir-
acy to distribute cocaine base in violation of 21 U.S.C. § 846 and
listed the elements of that crime without mentioning any specific
amount of cocaine base.* The plea agreement specified that the

   *We note some confusion in the record as to the specific crime to
which Whitfield pleaded guilty. The criminal information against Whit-
field alleged both a conspiracy to distribute cocaine base and a conspir-
acy to possess cocaine base with the intent to distribute. The plea
agreement Whitfield signed required him to plead guilty to conspiracy to
distribute cocaine base. The district court mentioned both crimes in its
colloquy to Whitfield at the Rule 11 hearing in which the court accepted
his guilty plea, but listed only the elements of conspiracy to distribute.
                       UNITED STATES v. WHITFIELD                          3
defendant would face a maximum penalty of "not less than 10 years
nor more than life." Whitfield also agreed, pursuant to the plea agree-
ment, to waive his rights to appeal "whatever sentence is imposed,
including any issues that related to the establishment of the Guideline
range" and to waive collateral review of the sentence.

   In accordance with the plea agreement, Whitfield pleaded guilty on
April 5, 1999. Before accepting Whitfield’s guilty plea, the district
court specified the elements that the prosecution would have to prove
if Whitfield did not plead guilty. At no point did the district court
mention a specific quantity of drugs or indicate that the government
would have to prove a specific quantity of drugs.

   At the sentencing hearing conducted August 2, 1999, the district
court accepted the conclusion of the probation officer in the presen-
tence report that over 3.8 kilograms of cocaine base and 10 kilograms
of powder cocaine were attributable to Whitfield’s criminal activity.
The district court also accepted the probation officer’s recommenda-
tions that Whitfield’s sentence be enhanced under the sentencing
guidelines for his role as a leader in the conspiracy and for the
involvement of minors in his drug operation. The defense objected to
the enhancements for Whitfield’s role in the conspiracy and for the
use of minors, but not to the calculation of drug amount. After allow-
ing a downward adjustment for Whitfield’s acceptance of responsibil-
ity, the district court sentenced Whitfield to 300 months plus 5 years
of supervised release.

  Whitfield filed his notice of appeal on August 12, 1999. On a
motion of the prosecution to reduce Whitfield’s sentence in light of

The written judgment of the district court, however, is conclusive and
indicates that Whitfield pleaded guilty to conspiracy to possess cocaine
base with the intent to distribute. Neither party makes an issue of this dis-
crepancy. Since it is clear that Whitfield pleaded guilty to only one count
and since both crimes constitute a violation of 21 U.S.C. 841(a)(1) sub-
ject to the same penalty, depending on the drug quantity involved, we
find that this confusion is of no significance and treat the written judg-
ment of the district court as conclusive. Accordingly, our opinion refers
to Whitfield’s plea of guilty to the crime of conspiracy to possess cocaine
base with the intent to distribute.
4                    UNITED STATES v. WHITFIELD
his continued cooperation with the ongoing drug investigation, the
district court subsequently amended its judgment against Whitfield on
December 11, 2000, and reduced the sentence imposed to 283 months
plus 5 years of supervised release.

                                  II.

   Since Whitfield filed this appeal, the United States Supreme Court
issued its decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
The Apprendi Court created a new rule mandating 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 reasonable doubt." Apprendi, 530 U.S.
at 490. We must apply the rule of Apprendi to Whitfield’s appeal
because Apprendi was decided while this case was on direct review.
See Griffith v. Kentucky, 479 U.S. 314, 322-23 (1987).

   This court subsequently applied Apprendi in the context of the drug
statutes in United States v. Promise, 255 F.3d 150 (4th Cir. 2001). In
Promise this court held that drug quantity "must be treated as [an] ele-
ment of an aggravated drug trafficking offense" under 21 U.S.C.
§ 841(b)(1)(A) or (b)(1)(B) and not merely as a sentencing factor.
Promise, 255 F.3d at 152. Accordingly, under the rule of Apprendi,
a specific drug quantity must be alleged in the indictment against a
defendant and submitted to the jury to allow a charge and conviction
for violation of an aggravated drug offense under 21 U.S.C.
§ 841(b)(1)(A) or (b)(1)(B). If no specific drug quantity has been
alleged in the indictment or submitted to the jury, the maximum pen-
alty that may be imposed for conviction of conspiracy to possess with
intent to distribute an unquantified amount of cocaine is no more than
240 months’ imprisonment, as provided by the fallback provision of
the drug statute, 21 U.S.C. § 841(b)(1)(C). See Promise, 255 F.3d at
156-157. Promise concluded that, where a defendant is indicted and
convicted of a drug crime involving an unquantified quantity of
drugs, the conviction is for a violation of 21 U.S.C. § 841(b)(1)(C),
and a sentence that exceeds the statutory maximum of that subsection
is erroneous. See Promise, 255 F.3d at 160.

   Whitfield’s plea agreement waived his right to appeal from errors
in the sentence imposed against him. We have held, however, that "a
                       UNITED STATES v. WHITFIELD                          5
defendant who waives his right to appeal does not subject himself to
being sentenced entirely at the whim of the district court. For exam-
ple, a defendant could not be said to have waived his right to appellate
review of a sentence imposed in excess of the maximum penalty pro-
vided by statute . . . ." United States v. Marin, 961 F.2d 493, 496 (4th
Cir. 1992). See also United States v. Broughton-Jones, 71 F.3d 1143,
1147 (4th Cir. 1995) (allowing appeal despite waiver where penalty
imposed exceeded sentencing court’s statutory authority). Here, Whit-
field was properly convicted for a violation of 21 U.S.C.
§ 841(b)(1)(C) and received a sentence in excess of the statutory max-
imum authorized by that subsection. Thus, we may review Whit-
field’s sentence despite the waiver of appellate rights in his plea
agreement.

    Because Whitfield did not raise this objection before the district
court, we review only for plain 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). This
court held in Promise that a defendant who has been sentenced in
excess of the statutory maximum of the crime for which he was
indicted and convicted has established plain error that affects his sub-
stantial rights. See Promise, 255 F.3d at 160-161. Even when a defen-
dant satisfies these standards, however, "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.’" Hastings, 134 F.3d at 239 (citing
Olano, 507 U.S. at 732) (alterations in original). We have subse-
quently clarified that such error recognized in Promise does seriously
affect the fairness and integrity of the judicial process by depriving
the claimant of the "constitutional rights to ‘answer’ only those
crimes presented to the grand jury." United States v. Cotton, No. 99-
4162, 2001 WL 901259, *5, ___ F.3d ___ (4th Cir. Aug. 10, 2001).
By failing to present the quantity element of 21 U.S.C. § 841 to the
grand jury, but then using this evidence to impose a sentence in
excess of the statutory maximum for the indicted crime, the district
court exceeded its jurisdiction. See Cotton, 2001 WL 901259, at *5.
This court must notice such error and correct it accordingly. See Cot-
6                     UNITED STATES v. WHITFIELD
ton, 2001 WL 901259, at *6 (confirming United States v. Tran, 234
F.3d 798, 809 (2d Cir. 2000)).

   We find that the 283 month sentence imposed against Whitfield
exceeded the statutory maximum sentence authorized by 21 U.S.C.
§ 841(b)(1)(C) and is plainly erroneous. Thus, we vacate Whitfield’s
sentence and remand for a new sentence not to exceed 240 months.

    Accordingly, the judgment of the district court is

                                       VACATED AND REMANDED.
