UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4076

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DARRYLE EDWARD ROBERTSON, a/k/a Tiger,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:01-cr-00304-JFM)

Submitted: October 24, 2007 Decided: November 19, 2007

Before WILKINSON, MICHAEL, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Donald E. Kaplan, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, John F. Purcell, Jr., Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Darryle Robertson appeals his conviction and 360-month

sentence pursuant to a guilty plea to one count of conspiracy to

distribute and possess with intent to distribute fifty grams of

more of cocaine base, five or more kilograms of cocaine, and one

kilogram or more of heroin, in violation of

(2000).

On appeal, Robertson argues that his guilty plea was involuntary.

Finding no reversible error, we affirm.

Because Robertson did not move in the district court to

withdraw his guilty plea, his challenge to the adequacy of the Fed.

R. Crim. P. 11 hearing is reviewed for plain error. United

States v. Martinez,

(4th Cir. 2002) (holding that

“plain error analysis is the proper standard for review of

forfeited error in the Rule 11 context”). This analysis requires

the court to determine whether there was error, whether the error

was plain, and whether it affected the defendant’s substantial

rights.

. If a defendant establishes these

requirements, the court’s “discretion is appropriately exercised

only when failure to do so would result in a miscarriage of

justice, such as when the defendant is actually innocent or the

error seriously affects the fairness, integrity or public

reputation of judicial proceedings.” United States v. Hughes,

(4th Cir. 2005) (internal quotation marks and

citation omitted).

- 2 - On appeal, Robertson argues that his guilty plea was

neither knowing nor voluntary, because the trial count “did not

find a factual basis for [Robertson’s] stipulation to an offense

level of 43,” as required by Rule 11(b)(3) and Apprendi v. United

States,

(2000). In essence, Robertson contends

that because he was sentenced pursuant to U.S. Sentencing

Guidelines Manual, § 2A1.1 (2002), cross-referenced from USSG

§ 2D1.1(d)(1), he faced an increased potential penalty--death--

rather than the life sentence he could have faced if not for the

judge’s decision to apply USSG § 2A1.1. However, a court may only

impose a death sentence under USSG § 2A1.1 if the underlying

conviction is for violation of

(e) (2000). USSG

§ 2A1.1 cmt. n.2. Robertson was not convicted of violating

§ 848(e).

Moreover, Apprendi does not reach a judge’s determination

as to facts impacting the determination of a sentence, provided the

resulting sentence is within the statutory maximum authorized by

the elements charged in the indictment. United States v. Promise,

, 156 n.5 (4th Cir. 2001); see also United States v.

Kinter,

(4th Cir. 2000) (general sentencing

enhancements under sentencing guidelines do not violate Apprendi

when sentence is within maximum prescribed in United States Code).

The statutory maximum for violation of § 846 is life imprisonment.

Robertson was sentenced within the statutory maximum, and

- 3 - therefore, the district court’s reliance on § 2A1.1 does not give

rise to an Apprendi error.

The district court complied with the requirements of Rule

11 when it accepted Robertson’s guilty plea. The court ensured

Robertson was competent to take a plea by asking him questions

regarding his age, education, and background and inquiring whether

he was under the effect of drugs or alcohol. The court asked

whether anyone had threatened or forced Robertson to plead guilty,

to which Robertson responded no. The court ensured Robertson had

enough time to speak to his attorney and was satisfied with his

attorney. The court informed Robertson of the constitutional

rights relating to trial he was relinquishing and Robertson stated

he waived those rights.

The court informed Robertson of the nature of the charge

and the elements the Government would have to prove, the minimum

and maximum penalty, and the effect of supervised release. The

court explained relevant conduct, that Robertson could be held

responsible for acts of co-conspirators, and that such conduct

could be used to enhance his sentence.

The court also went over the plea agreement, specifically

noting that it contained a stipulated total offense level of 41, an

agreed upon sentence of 360 months’ imprisonment, and that

Robertson waived his right to appeal his sentence and to

collaterally attack his conviction and sentence. The court

- 4 - informed Robertson that, pursuant to Rule 11(e)(1)(c), if it did

not impose the sentence contained in the agreement, Robertson would

have the right to withdraw his guilty plea. Robertson agreed to

the stipulation of facts contained in the plea agreement. The

court found Robertson was fully competent and capable of entering

an informed plea and that his plea was knowing and voluntary.

Therefore, the district court’s acceptance of Robertson’s guilty

plea was not plain error.

Accordingly, we affirm Robertson’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

- 5 -