UNITED STATES of America, Plaintiff-Appellee, v. Gary DAVIS, a/k/a Papa, a/k/a Gary Thomas, a/k/a Andre Thomas, Defendant-Appellant, 37 F. App'x 607

OPINION PER CURIAM. Gary Davis was convicted after a guilty plea to conspiracy to possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C.A. §§ 841(a)(1), 846 (West 1999). Davis argues his sentence of 328 months imprisonment violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We affirm Davis’ conviction and sentence. Because Davis failed to raise an Apprendi claim in the district court, our review is for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

In order to demonstrate plain error, Davis 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. If Davis 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.’ ” Olano, 507 U.S. at 732 (alteration in original) (quoting United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)).

Davis’ indictment did not allege a threshold drug quantity; therefore, he could only be properly sentenced to 240 months imprisonment. 21 U.S.C.A. § 841(b)(1)(C) (West 1999 & Supp.2001). We find Davis’ sentence of 328 months imprisonment is error, and the error was plain. We need not decide, however, whether the error affected Davis’ substantial rights. Where the evidence is overwhelming and essentially uncontroverted as to the error, we will decline to correct it. See United States v. Cotton, — U.S. -, 122 S.Ct. 1781, — L.Ed.2d - (2002).

We have reviewed the record and conclude the evidence of drug quantity, as derived from the stipulation in Davis’ plea agreement, was overwhelming and essentially uncontroverted. Accordingly, because the drug quantity attributable to Davis was sufficient to invoke the enhanced sentencing provisions of § 841(b)(1)(A), we decline to correct his sentence. We affirm Davis’ 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 judicial process. AFFIRMED.