                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                No. 01-4657
DEAN JULIUS WALSH, a/k/a Hippo,
a/k/a Dean Julious Walsh,
                Defendant-Appellant.
                                       
           Appeal from the United States District Court
     for the Western District of North Carolina, at Statesville.
              Richard L. Voorhees, District Judge.
                          (CR-98-123-V)

                  Submitted: December 21, 2001

                      Decided: May 14, 2002

     Before WILKINS, TRAXLER, and KING, Circuit Judges.



Vacated and remanded by unpublished per curiam opinion.


                            COUNSEL

Thomas M. Dawson, Leavenworth, Kansas; Lyle J. Yurko, Graham
T. Stiles, YURKO & OWENS, P.A., Charlotte, North Carolina, for
Appellant. Ronald J. Conrad, Jr., United States Attorney, Gretchen C.
F. Shappert, Assistant United States Attorney, Charlotte, North Caro-
lina, for Appellee.
2                      UNITED STATES v. WALSH
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

  Dean Julius Walsh appeals the 120-month sentence imposed fol-
lowing his guilty plea to a one-count indictment charging him with
conspiracy to possess with intent to distribute cocaine, cocaine base,
and marijuana in violation of 21 U.S.C.A. §§ 841(a)(1), 846 (West
1999 & Supp. 2001).1 For the reasons discussed below, we vacate
Walsh’s sentence and remand to the district court for imposition of a
new sentence not to exceed sixty months.

   Walsh pleaded guilty to his role in a large-scale marijuana and
cocaine distribution conspiracy centered in Wilkes County, North
Carolina. The indictment, which included Walsh’s co-conspirators,
did not specify a quantity of controlled substances. As the Govern-
ment correctly notes, Walsh’s plea agreement provided that Walsh
waived his right to appeal his conviction and sentence. After an
amended criminal judgment was entered to enable Walsh to note a
timely appeal, he appealed to this Court.

  In this appeal, Walsh contends that the district court erred in
imposing sentence because the quantity of marijuana employed to cal-
culate his sentence was not treated as an element of the offense.
Under the Supreme Court’s decision in Apprendi v. New Jersey, 530
U.S. 466 (2000), drug quantity must be treated as an element of an
aggravated drug trafficking offense and be alleged in the indictment
and submitted to the jury to allow a charge and conviction under 21
U.S.C. § 841(b)(1)(A), § 841(b)(1)(B), or in the case of marijuana,
    1
    Although the district court’s judgment states that Walsh was con-
victed of conspiracy to possess with intent to distribute quantities of
cocaine and cocaine base, Walsh’s plea agreement, presentence report,
and factual basis all demonstrate that Walsh was involved only with dis-
tribution of marijuana.
                       UNITED STATES v. WALSH                          3
§ 841(b)(1)(C). United States v. Promise, 255 F.3d 150, 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 Walsh for his marijuana offense is sixty
months under § 841(b)(1)(D). See id. at 156-57.

   The Government urges this court to enforce the waiver provision
contained in Walsh’s plea agreement. However, a waiver of appellate
rights does not bar review of a sentence imposed in excess of the stat-
utory maximum. United States v. Brown, 232 399, 403 (4th Cir.
2000). Because neither the indictment nor the plea agreement made
a specific allegation or finding regarding drug quantity, the district
court exceeded the sixty-month statutory maximum provided in
§ 841(b)(1)(D) by imposing a sentence of 120 months. Accordingly,
we find that Walsh’s waiver of appellate review does not prevent this
court from noticing the error.

   In light of the foregoing, Walsh’s sentence is plain error that this
Court will notice and correct. See United States v. Olano, 507 U.S.
725, 731-32 (1993). Walsh’s sentence is hereby vacated and this
cause remanded to the district court for imposition of a sentence not
to exceed the statutory maximum set out in 21 U.S.C. § 841(b)(1)(D).2
The Government’s motion to strike Walsh’s brief is denied. We dis-
pense 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.

                                        VACATED AND REMANDED
  2
   In light of this holding, we decline to consider the merits of Walsh’s
claim of ineffective assistance of counsel in this direct appeal. United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
