UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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). 
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, followed 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 imprisonment, 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 maximum applicable to an underlying conviction for an unspecified drug

amount. We affirm. 

Under 18 U.S.C. § 3583(e)(3) (2000), a defendant whose supervised 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. 

2 UNITED STATES v. GREEN
Because Green failed to raise an Apprendi claim in his original sentencing 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 substantial 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 overwhelming 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 argument would not aid the decisional process.

AFFIRMED

UNITED STATES v. GREEN 3