UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4641
TYRON LEIGH,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-98-219)
Submitted: October 31, 2000
Decided: November 30, 2001
Before WILKINS, MOTZ, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Tony E. Rollman, Asheville, North Carolina, for Appellant. Brian Lee
Whisler, OFFICE OF THE UNITED STATES ATTORNEY, Char-
lotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. LEIGH
OPINION
PER CURIAM:
Tyron Leigh appeals the 262-month sentence imposed following
his guilty plea to conspiracy to possess with intent to distribute and
to distribute cocaine, in violation of 21 U.S.C.A. § 846 (West Supp.
2001). Leigh’s attorney has filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967). Counsel states there are no meri-
torious issues for appeal, but contends on Leigh’s behalf that Leigh
received ineffective assistance of counsel. Leigh was informed of his
right to file a pro se supplemental brief, but has not done so.
Claims of ineffective assistance of counsel are generally not cogni-
zable on direct appeal. United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997). To allow for adequate development of the record, claims
of ineffective assistance of counsel must ordinarily be pursued in a 28
U.S.C.A. § 2255 (West Supp. 2001) motion. United States v. Hoyle,
33 F.3d 415, 418 (4th Cir. 1994). An exception to this general rule
exists when the record conclusively establishes ineffective assistance
of counsel. King, 119 F.3d at 295. A review of the record does not
conclusively establish ineffective assistance of counsel, and Leigh’s
ineffective assistance claims are therefore not cognizable in this direct
appeal.
In accordance with Anders, we have reviewed the entire record and
determined a meritorious issue for appeal exists regarding Leigh’s
sentence. After Leigh filed this appeal, the United States Supreme
Court issued its decision in Apprendi v. New Jersey, 530 U.S. 466
(2000). Under Apprendi, "[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 apply the rule of
Apprendi to Leigh’s appeal because Apprendi was decided while this
case was on direct review. See Griffith v. Kentucky, 479 U.S. 314,
322-23 (1987).
We applied Apprendi in the context of the drug statutes in United
States v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc), petition for
cert. filed, Sept. 20, 2001 (No. 01-6398). In Promise, we held that
UNITED STATES v. LEIGH 3
drug quantity "must be treated as [an] element 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. Accord-
ingly, under 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 quan-
tity has been alleged in the indictment or submitted to the jury, the
maximum penalty 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 under 21 U.S.C.
§ 841(b)(1)(C). See Promise, 255 F.3d at 156-57. Under Promise,
when a defendant is indicted and convicted of a drug crime involving
an unquantified quantity of drugs, the conviction is for a violation of
§ 841(b)(1)(C), and a sentence that exceeds the statutory maximum of
that subsection is erroneous. See Promise, 255 F.3d at 160. We have
since applied Promise to a defendant who pled guilty. See United
States v. Dinnall, ___ F.3d ___, 2001 WL 1229174 (4th Cir. Oct. 15,
2001) (No. 99-4936).
Leigh’s plea agreement waived his right to appeal from errors in
the sentence imposed against him. We have held, however, that "a
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 when penalty
imposed exceeded sentencing court’s statutory authority). Here, Leigh
was properly convicted for a violation of 21 U.S.C. § 846 but
received a sentence in excess of the authorized statutory maximum.
Thus, we may review Leigh’s sentence despite the waiver of appellate
rights in his plea agreement.
Because Leigh did not raise this objection before the district court,
we review 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
4 UNITED STATES v. LEIGH
substantial rights." United States v. Hastings, 134 F.3d 235, 239 (4th
Cir. 1998) (citing Olano, 507 U.S. at 732). We concluded in Promise
that a defendant who was sentenced in excess of the statutory maxi-
mum of the crime for which he was indicted and convicted estab-
lished plain error that affected his substantial rights. See Promise, 255
F.3d at 160-61. In addition, such error seriously affects the fairness
and integrity of the judicial process by depriving the claimant of the
constitutional right to answer for only those offenses presented to the
grand jury. United States v. Cotton, 261 F.3d 397, 404-05 (4th Cir.
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 Dinnall, 2001 WL 1229174, at *4;
Cotton, 261 F.3d at 404-05. We must notice such error and correct it
accordingly. See Dinnall, 2001 WL 1229174, at *4; Cotton, 261 F.3d
at 406.
Thus, we find Leigh’s 262-month sentence exceeded the statutory
maximum sentence authorized by 21 U.S.C. § 841(b)(1)(C) and is
plainly erroneous. We therefore vacate Leigh’s sentence and remand
for the district court to impose a new sentence not to exceed 240
months. We deny Leigh’s counsel’s motion to withdraw.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED