UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4908
HAROLD EDWARD KELLY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-99-99)
Submitted: November 9, 2000
Decided: June 29, 2001
Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Acting Federal Public Defender, George H.
Lancaster, Jr., Assistant Federal Public Defender, Charleston, West
Virginia, for Appellant. Rebecca A. Betts, United States Attorney,
John H. Tinney, Jr., Assistant United States Attorney, Charleston,
West Virginia, for Appellee.
2 UNITED STATES v. KELLY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Harold Edward Kelly appeals from his sentence imposed pursuant
to his guilty plea to possession with intent to distribute crack cocaine.
Kelly contends that his supervised release term of five years exceeded
the maximum statutory term for his offense. We affirm.
Kelly bases his argument on the Supreme Court’s recent decision
in Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the
Supreme Court held that, other than a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory max-
imum must be submitted to a jury and proved beyond a reasonable
doubt. Kelly argues that, under Apprendi, because the drug amount
was not charged in the indictment, he could only be sentenced under
the penalties described in 21 U.S.C.A. § 841(b)(1)(C) (West Supp.
2000) (providing penalties for offenses involving less than five grams
of crack cocaine: twenty-year maximum imprisonment term and a
minimum of three years supervised release). Kelly’s imprisonment
term was under the maximum prescribed by § 841(b)(1)(C). How-
ever, Kelly contends that his supervised release term of five years
exceeded the statutory maximum supervised release term of three
years.
Kelly has misread § 841(b)(1)(C), which clearly provides for a
minimum supervised release term of three years, not a maximum.
Since Kelly’s five-year supervised release term does not exceed the
statutory range allowable regardless of drug quantity, Apprendi is
inapplicable. The identical claims were raised and rejected by United
States v. Pratt, 239 F.3d 640, 648 (4th Cir. 2001), the holding of
which requires affirmance in this case.
Accordingly, we affirm Kelly’s sentence. We dispense with oral
argument, because the facts and legal contentions are adequately pre-
UNITED STATES v. KELLY 3
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED