UNITED STATES of America, Plaintiff-Appellee, v. William Jackie PEARSON, Defendant-Appellant, 41 F. App'x 687

OPINION PER CURIAM. William Jackie Pearson was convicted after pleading guilty to possession with intent to distribute cocaine base, in violation of 21 U.S.C.A. § 841(a)(1) (West 1999). He now argues that his sentence of 264 months in prison violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We affirm Pearson’s conviction and sentence. Because Pearson did not raise his 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, a defendant must show that an error occurred, that it was plain, and that the error affected his substantial rights. Id. at 732, 113 S.Ct. 1770. If he can satisfy these requirements, we should not exercise our discretion to correct the error “unless the error seriously affectfs] the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks omitted). Pearson’s indictment did not charge a specific amount of drugs.

Under Apprendi, he therefore was subject to a sentence of only 240. months in prison, and his 264-month sentence constituted plain error. See United States v. Cotton, — U.S. -, -, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002). We need not decide, however, whether the 264 month sentence affected Pearson’s substantial rights. Pearson stipulated in his plea agreement and at his Fed.R.Crim.P. 11 hearing that he was responsible for at least 500 grams and not more than 1.5 kilograms of crack cocaine.

Further, Pearson did not object to the factual basis of the plea, which stated that he was responsible for the stipulated amount of crack. The evidence that Pearson was accountable for at least 500 grams but less than 1.5 kilograms of crack was thus overwhelming and uncontroverted and, in accordance with Cotton, we decline to exercise our discretion to correct the Apprendi error. See Cotton, — U.S. at ---, 122 S.Ct. at 1785-86. We affirm Pearson’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. The motion to dismiss the appeal is denied as moot. AFFIRMED.