UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 00-4869
JOE BENNETT SMITH, III,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
         for the Western District of Virginia, at Roanoke.
              Samuel G. Wilson, Chief District Judge.
                           (CR-99-10)

                  Submitted: November 28, 2001

                      Decided: January 29, 2002

        Before WILKINS and MOTZ, Circuit Judges, and
               HAMILTON, Senior Circuit Judge.



Vacated and remanded by unpublished per curiam opinion.


                             COUNSEL

Robert F. Rider, RIDER, THOMAS, CLEAVELAND, FERRIS &
EAKIN, Roanoke, Virginia, for Appellant. Robert F. Crouch, Jr.,
United States Attorney, Joseph W. H. Mott, Assistant United States
Attorney, Roanoke, Virginia, for Appellee.
2                       UNITED STATES v. SMITH
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Joe Bennett Smith, III, appeals his 200-month sentence imposed
following his guilty plea to a one-count indictment charging him with
conspiracy to manufacture and distribute marijuana in violation of 21
U.S.C.A. §§ 841(a)(1), 846 (West 1999 & Supp. 2001). For the rea-
sons discussed below, we vacate Smith’s sentence and remand to the
district court for imposition of a new sentence not to exceed 120
months.

   The indictment to which Smith pleaded guilty did not specify a
drug quantity, and his plea agreement noted the parties did not agree
as to the amount of drugs attributable to him. The agreement also pro-
vided that Smith waived his right to appeal any sentence within the
statutory maximum and his right to challenge his sentence in any col-
lateral attack. Smith also stipulated there was sufficient factual basis
to support the factual allegations contained in the indictment, which
did not specify drug quantity. After an amended criminal judgment
was re-entered to enable Smith to note a timely appeal, he appealed
to this Court. We placed the appeal in abeyance for United States v.
Whitfield, No. 99-4587, 

(4th Cir. Oct. 16, 2001)
(unpublished).

   The Government concedes in its brief that if Smith’s claim based
upon Apprendi v. New Jersey, 

(2000), is not waived or
forfeited, plain error exists "because the 200 month sentence imposed
exceeds the 120 month statutory maximum" and that such error "af-
fected [Smith’s] substantial rights." We agree. We also conclude,
however, that this Court should notice the error.

  Under Apprendi, drug quantity must be treated as an element of an
aggravated drug trafficking offense that must be alleged in the indict-
ment against a defendant and submitted to the jury to allow a charge
                        UNITED STATES v. SMITH                          3
and conviction under § 841(b)(1)(A) or (b)(1)(B). United States v.
Promise, 

, 152 (4th Cir. 2001) (en banc). Because no
specific drug quantity was charged in the indictment or submitted to
a jury, the maximum term of imprisonment that may be imposed upon
Smith for his marijuana offense is 120 months under § 841(b)(1)(D).*
See 

have also concluded that the validity of a guilty plea is not
affected by Apprendi because Apprendi error is a jurisdictional error
as to sentencing imposed by the district court, not error in indictment
or conviction. United States v. Dinnall, 

, ___, 

, at *4 n.3 (4th Cir. 2001); 

. The dis-
trict court’s imposition of a sentence in excess of the statutory maxi-
mum when quantity is not charged, however, is plain error that affects
the defendant’s substantial rights. Dinnall, 

, at *3-
*4; 

, 160. In addition, such error is juris-
dictional and seriously affects the fairness, integrity, or public reputa-
tion of judicial proceedings such that we should exercise our
discretion to notice the error. United States v. Cotton, 

,
405-06 (4th Cir. 2001), cert. granted, 

, 

(U.S. Jan. 4, 2002) (No. 01-687).

   For these reasons, we conclude Smith’s 200-month sentence
exceeds the 120-month statutory maximum of 21 U.S.C.
§ 841(b)(1)(D) and is plain error we should notice and correct. We
therefore vacate Smith’s sentence and remand to the district court for
re-sentencing and imposition of a sentence of up to 120 months. We
dispense with oral argument because the facts and the parties’ legal
contentions are adequately presented in the materials before the Court
and argument would not aid the decisional process.

                                         VACATED AND REMANDED

  *We agree with the Government that the sentencing court did not err
in concluding Smith had a prior felony drug conviction for sentencing
purposes.