UNITED STATES of America, Plaintiff-Appellee, v. Tommy Carnel GENERAL, Defendant-Appellant, 40 F. App'x 859

OPINION PER CURIAM. Tommy Carnel General pled guilty under a plea agreement to conspiracy 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 ran 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 withdrawing his guilty plea. Fed. R.Crim.P. 32(e); United States v. Moore, 931 F.2d 245, 248 (4th Cir.1991). An evi-dentiary 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 drag offense was improper under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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 drag 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, 113 S.Ct. 1770, 123 L.Ed.2d 508 (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 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 overwhelming and essentially uncontroverted, we will decline to correct even plain error. See United States v. Cotton, — U.S. -, -, 122 S.Ct. 1781, 1786, 152 L.Ed.2d 860, - (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 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.