United States v. Green ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4517
CLINTON GREEN, a/k/a Blue,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, District Judge.
(CR-95-97)
Submitted: February 27, 2003
Decided: March 14, 2003
Before MOTZ and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Herbert L. Hively, II, Hurricane, West Virginia, for Appellant. Kasey
Warner, United States Attorney, Monica K. Schwartz, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. GREEN
OPINION
PER CURIAM:
Clinton Green was convicted by a jury in 1995 of possession with
intent to distribute cocaine base. He was originally sentenced to 168
months imprisonment, followed by five years of supervised release.
Green’s sentence was later reduced, pursuant to Fed. R. Crim. P.
35(b), to 84 months imprisonment, with credit for time served, fol-
lowed by five years of supervised release.
Green completed his sentence and began his term of supervised
release in July 2000. On October 6, 2000, the district court revoked
Green’s supervised release and sentenced him to ten months impris-
onment, followed by twenty-six months of supervised release. Green
served the ten-month term and again began a term of supervised
release.
In March 2002, a second petition was filed to revoke Green’s
supervised release, alleging a Grade A violation. The district court
revoked Green’s supervised release and sentenced him to fifty months
imprisonment. On appeal, Green argues that, under Apprendi v. New
Jersey, 530 U.S. 466 (2000), the district court lacked jurisdiction to
sentence him to a term of incarceration greater than the statutory max-
imum applicable to an underlying conviction for an unspecified drug
amount. We affirm.
Under 18 U.S.C. § 3583(e)(3) (2000), a defendant whose super-
vised release term is revoked is subject to a maximum of five years
in prison if his underlying offense was a Class A felony; a maximum
of three years for a Class B felony; and a maximum of two years for
a Class C felony. With regard to Green’s underlying conviction, if the
specific drug quantity necessary for an increased sentence under 21
U.S.C. § 841(b) (2000) was not sufficiently set forth, he was subject
only to a maximum of twenty years under § 841(b)(1)(C). See United
States v. Promise, 255 F.3d 150, 156-57 (4th Cir. 2001), cert. denied,
___ U.S. ___, 70 U.S.L.W. 3724 (U.S. May 28, 2002). An offense
with a twenty-year maximum is classified as a Class C felony, 18
U.S.C. § 3559(a)(3) (2000), and thus, upon revocation of supervised
release, the maximum sentence of two years would be applicable.
UNITED STATES v. GREEN 3
Because Green failed to raise an Apprendi claim in his original sen-
tencing proceedings, 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, Green must show that an error
occurred, that the error was plain, and that the error affected his sub-
stantial rights. Olano, 507 U.S. at 732. Even if Green can satisfy these
requirements, we should not exercise our discretion to correct the
error "unless the error ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’" Id. (quoting United States
v. Young, 470 U.S. 1 (1985)).
Green’s indictment did not allege that he possessed any particular
amount of drugs. Therefore, he was only subject to a twenty-year
maximum sentence for the underlying conviction and a two-year
maximum sentence for revocation of supervised release. See United
States v. Carrington, 301 F.3d 204, 209-10 (4th Cir. 2002); see also
21 U.S.C. § 841(b)(1)(C); 18 U.S.C. §§ 3559(a)(3), 3583(e)(3).
Thus, we find that Green’s fifty-month sentence was error and that
the error was plain. We need not decide, however, whether the error
affected Green’s substantial rights. Where the evidence is overwhelm-
ing and essentially uncontroverted as to the error, we will decline to
correct it. United States v. Cotton, 535 U.S. 625 (2002). We have
reviewed the record and conclude that the evidence of drug quantity,
as presented at Green’s trial, was overwhelming and essentially
uncontroverted. Accordingly, because the drug quantity attributable to
Green was sufficient to invoke the enhanced sentencing provisions of
21 U.S.C. § 841(b)(1)(B), we decline to correct his sentence.
Although we grant Green’s motion to file a supplemental brief and
have considered his arguments therein, we affirm his sentence. We
dispense with oral argument, because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED