UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4634

TOM REED, a/k/a Thomas Wayne

Reed,

Defendant-Appellant. 

Appeal from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., District Judge.

(CR-99-30-5-3)

Submitted: November 26, 2001

Decided: December 10, 2001

Before WIDENER and GREGORY, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Robert Allen Ratliff, Cincinnati, Ohio, for Appellant. Melvin W.

Kahle, United States Attorney, Sam G. Nazzaro, Assistant United

States Attorney, Paul T. Camilletti, Assistant United States Attorney,

Wheeling, West Virginia, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Thomas Reed appeals his conviction, pursuant to a guilty plea, of

conspiracy to possess with intent to distribute and to distribute

cocaine base, in violation of 21 U.S.C.A. § 846 (West 1999). Reed

was sentenced to twenty years imprisonment, to be followed by five

years supervised release. 

On appeal, Reed challenges the validity of his conviction in light

of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S.

466 (2000). He asserts that his indictment was invalid because it did

not identify drug quantity as an element of the offense; that his guilty

plea was invalid because he was unaware that drug quantity would

have to be proved to the jury beyond a reasonable doubt; and that the

district court did not adequately inform him of the nature of the

charge against him, as required in Fed. R. Crim. P. 11(c)(1), because

the court did not identify drug quantity as an element of the offense.*

Reed was indicted for conspiracy, in violation of § 846, to possess

with intent to distribute and to distribute cocaine base, as prohibited

by 21 U.S.C.A. § 841(a)(1) (West 1999 & Supp. 2001). Section 846

provides that one guilty of conspiracy to commit a drug offense is

subject to the same penalties as those applicable for the underlying

offense. Section 841(b)(1) defines the applicable penalties for violation of § 841(a)(1) in terms of the quantity of drugs involved. This

court held in United States v. Promise, 255 F.3d 150, 156 (4th Cir.

*The Government urges that we dismiss Reed’s appeal because Reed

waived his right to challenge his sentence on appeal. We conclude that

the waiver did not include Reed’s right to challenge the validity of the

conviction itself. See United States v. Brown, 232 F.3d 399, 403-06 (4th

Cir. 2000) (holding that plain language of waiver provision controls its

extent). 

2 UNITED STATES v. REED
2001), that § 841(b)(1)(C) is applicable when an identifiable but

unspecified drug quantity has been charged in the indictment. The

maximum sentence authorized under § 841(b)(1)(C) is twenty years.

As Reed received a twenty-year sentence, the absence of a specific

quantity in the indictment does not constitute error. See Promise, 255

F.3d at 260 (holding the error was not in Promise’s indictment or conviction, but in his thirty-year sentence); United States v. Dinnall, ___

F.3d ___, 2001 WL 1229174, *4, n.3 (4th Cir. Oct. 15, 2001) (holding

error of thirty-year sentence does not arise from indictment or guilty

plea, but from sentence beyond the statutory maximum for crime

indicted for and pled guilty to). Therefore, we reject Reed’s attacks

on his indictment and plea. 

Reed also alleges that § 841 is unconstitutional as written, since it

purports to remove from the jury the right to increase a sentence

beyond the statutory maximum. We have recently rejected this argument. United States v. McAllister, ___ F.3d ___, 2001 WL 1387341,

at *2 (4th Cir. Nov. 8, 2001). Therefore, Reed is entitled to no relief

on this claim. 

We affirm Reed’s conviction and 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. REED 3