United States of America v.  Tommy Carnel General

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4091 
TOMMY CARNEL GENERAL,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-99-68-H)
Submitted: November 9, 2001
Decided: July 23, 2002
Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
R. Clarke Speaks, Wilmington, North Carolina, for Appellant. John
Stuart Bruce, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION
PER CURIAM:
Tommy Carnel General pled guilty under a plea agreement to con-
spiracy to distribute and possession with intent to distribute cocaine
base (crack), cocaine powder, heroin and marijuana in violation of 21
U.S.C.A. §§ 841(a), 846 (West 1999), and use or carrying of a firearm
during and in relation to a drug-trafficking crime in violation of 18
U.S.C.A. § 924(c)(1), (2) (West 2000). General was sentenced to 400
months in prison for the drug offense and sixty months in prison for
the firearm offense, to run consecutively. He appeals his sentence and
the district court’s denial of his motion to withdraw his guilty plea.
We affirm.
We review the denial of a motion to withdraw a guilty plea for
abuse of discretion. United States v. Ubakanma, 215 F.3d 421, 424
(4th Cir. 2000). General must present a "fair and just" reason for with-
drawing his guilty plea. Fed. R. Crim. P. 32(e); United States v.
Moore, 931 F.2d 245, 248 (4th Cir. 1991). An evidentiary hearing is
not required unless a defendant has presented a fair and just reason.
Id. Based on the factors set forth in Moore, we find the district court
did not abuse its discretion in denying the motion to withdraw his
guilty plea.
General argues his 400-month sentence for the drug offense was
improper under Apprendi v. New Jersey, 530 U.S. 466 (2000),
because he was sentenced over the twenty-year statutory maximum in
21 U.S.C.A. § 841(b)(1)(C). The indictment to which he pled guilty
did not charge a specific drug quantity. At sentencing, the district
court determined General was responsible for the distribution of more
than 6000 grams of heroin and more than fourteen kilograms of crack
cocaine and sentenced him to a 400-month term on this count.
Because General failed to raise an Apprendi claim in the district
court, we review for plain error. See United States v. Olano, 507 U.S.
725, 731-32 (1993). In order to demonstrate plain error, General must
show that an error occurred, that the error was plain, and that the error
affected his substantial rights. Id. at 732. Even if General can satisfy
these requirements, we do not exercise our discretion to notice the
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error unless the error seriously affects the fairness, integrity or public
reputation of judicial proceedings. Id. General’s indictment did not
allege a threshold drug quantity; therefore, he could only be properly
sentenced to 240 months in prison. 21 U.S.C.A. § 841(b)(1)(C). We
find General’s sentence of 400 months imprisonment is error, and the
error is plain. We need not decide, however, whether the error
affected General’s substantial rights. Where the evidence is over-
whelming and essentially uncontroverted, we will decline to correct
even plain error. See United States v. Cotton, 122 S. Ct. 1781, 1786
(2002). We have reviewed the record and conclude the evidence of
drug quantity was overwhelming and essentially uncontroverted.
Accordingly, because the drug quantity attributable to General was
sufficient to invoke the enhanced sentencing provisions, we decline
to alter his sentence.
We therefore affirm General’s conviction and sentence. We dis-
pense 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
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