                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4013


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WAYNE LAMPKIN, a/k/a Alvin Smiley,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:11-cr-00003-JFM-23)


Submitted:   March 20, 2014                 Decided:   March 26, 2014


Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Marc Gregory Hall, LAW OFFICE OF MARC G. HALL, P.C., Rockville,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, Ayn B. Ducao, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            After a jury trial, Wayne Lampkin was convicted of

conspiracy to possess with intent to distribute at least one

kilogram of heroin.            See 21 U.S.C. § 846 (2012).               The district

court vacated that part of the jury’s finding that Lampkin was

responsible for one kilogram of heroin and determined that it

was   reasonably        foreseeable        to     Lampkin     that    the     conspiracy

involved at least 100 grams but less than 400 grams of heroin.

Lampkin was originally sentenced to 120 months’ imprisonment,

the statutory minimum sentence after the Government filed notice

under 21 U.S.C. § 851 (2012) that it was going to seek enhanced

penalties       based    on     a    prior       felony      conviction.         Lampkin

successfully      had    the    predicate          conviction    vacated      by    state

court.      His appeal was sent back to the district court for

resentencing due to the fact that he no longer had a predicate

conviction that made him eligible for the increased statutory

sentence.        On   remand,       the    court    sentenced     Lampkin      to   sixty

months’     imprisonment        and       four      years’     supervised      release.

Lampkin appeals, raising several issues.                    We affirm.

            Lampkin       argues          that     the     district      court      erred

permitting evidence of a prior drug conviction.                             We review a

district court’s determination of the admissibility of evidence

under Rule 404(b) for abuse of discretion.                           United States v.

Queen,    132    F.3d    991,       995    (4th     Cir.    1997).       An   abuse   of

                                             2
discretion occurs only when “the trial court acted arbitrarily

or   irrationally    in    admitting   evidence.”         United     States   v.

Williams, 445 F.3d 724, 732 (4th Cir. 2006) (internal quotation

marks omitted).      We agree with the Government that there is no

record Lampkin ever objected to the Government’s motion to admit

the evidence.       Thus, review is for plain error.             To establish

plain error, a defendant has the burden of showing:                (1) that an

error was made; (2) that the error was plain; and (3) that the

error   affected     his   substantial     rights.        United     States   v.

Carthorne, 726 F.3d 503, 510 (4th Cir. 2013), cert. denied, __

U.S. __, 2014 WL 684378 (2014).

            After reviewing the record, we conclude that there was

no plain error.      The evidence was relevant toward the issue of

Lampkin’s   knowledge      and   intent.    We    also    conclude    that    the

probative    value    of    the    evidence      was     not   outweighed     by

substantial prejudice.

            Lampkin also argues that there were so many errors

with the transcripts of the monitored telephone calls that the

jury should not have been able to use the transcripts while

listening to the telephone calls.             A district court’s decision

to allow the jury to use transcripts while listening to tape

recorded telephone calls is reviewed for abuse of discretion.

United States v. Brandon, 363 F.3d 341, 343-44 (4th Cir. 2004).

We have reviewed the record and conclude there was no abuse of

                                       3
discretion.      The district court gave a limiting instruction to

the jury.      We also note that there was support for the accuracy

of the transcripts.              See United States v. Collazo, 732 F.2d

1200, 1203-04 (4th Cir. 1984).

            Lampkin      also     argues      that    the     district     court    erred

allowing a law enforcement investigator to give expert testimony

regarding     the     meaning    of     certain     coded     language     used    by   the

defendant      and     others     that     were      captured      on    the      recorded

telephone      calls.      We     review      a    district     court’s     evidentiary

decisions for abuse of discretion.                     United States v. Johnson,

617 F.3d 286, 292 (4th Cir. 2010).                          Evidentiary rulings are

subject   to    harmless        error    review,      and,    in   order    to     find   a

district court’s error harmless, we “need only be able to say

with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error.”                    Id.

            After       reviewing       the       record,    including      the     expert

testimony, we conclude that the district court did not abuse its

discretion.

            Also,        Lampkin        claims        that     the      evidence        was

insufficient to establish that he knowing and voluntarily joined

a drug conspiracy.             We review de novo the sufficiency of the

evidence supporting a conviction.                   United States v. McLean, 715

F.3d   129,     137     (4th    Cir.     2013).        In     assessing     evidentiary

                                              4
sufficiency, we must determine whether, viewing the evidence in

the light most favorable to the government and accepting the

factfinder’s          determinations       of    credibility,           the     verdict     is

supported by substantial evidence — that is, “evidence that a

reasonable         finder    of     fact    could     accept          as     adequate     and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.”               United States v. King, 628 F.3d 693, 700

(4th     Cir.      2011)    (internal       quotation          marks       omitted).       “A

defendant bringing a sufficiency challenge must overcome a heavy

burden, and reversal for insufficiency must be confined to cases

where the prosecution’s failure is clear.”                             United States v.

Engle, 676 F.3d 405, 419 (4th Cir.), cert. denied, 133 S. Ct.

179 (2012) (internal quotation marks and citations omitted).

              To    prove    a     conspiracy      under   21     U.S.C.      §   846,    the

Government must establish:                 “(1) an agreement between two or

more persons to engage in conduct that violates a federal drug

law,    (2)     the    defendant’s        knowledge       of    the     conspiracy,       and

(3) the defendant’s voluntary participation in the conspiracy.”

United States          v.   Strickland,      245    F.3d    368,       384-85     (4th    Cir.

2001).    The underlying drug law at issue, 21 U.S.C. § 841(a)(1),

makes    it     unlawful      to    “possess       with    intent       to    manufacture,

distribute, or dispense a controlled substance.”

              We    conclude       that    there    was    sufficient         evidence     to

support the conviction.               The record shows that Lampkin bought

                                             5
heroin from a dealer, that he used coded language and vague

conversation to arrange for drug transactions, that he attempted

to arrange for at least one other to purchase drugs and that he

knew   that    others      were    involved       and    that    such    conduct    was

illegal.

            Lampkin also takes issue with the jury instruction.

He claims that the district court erred by denying his request

for a buyer-seller instruction.                 “The decision to give or not to

give a jury instruction is reviewed for an abuse of discretion.”

United States v. Hurwitz, 459 F.3d 463, 474 (4th Cir. 2006)

(internal quotation marks omitted).                    Furthermore, we “review a

jury instruction to determine whether, taken as a whole, the

instruction fairly states the controlling law.”                         Id. (internal

quotation marks omitted).                We conclude that there was no error

because there was evidence that the relationship between Lampkin

and his supplier went beyond a mere drug transaction.                           United

States v. Mills, 995 F.2d 480, 485 (4th Cir. 1993).

            Regarding      the     jury    instruction,        Lampkin    argues   that

the district court did not instruct the jury that in order to

find him guilty, it must be found beyond a reasonable doubt that

he had knowledge of the conspiracy’s existence.                     Lampkin did not

object   and    review      is     for    plain    error.        United    States    v.

Robinson,     627   F.3d    941,    953-54      (4th    Cir.    2010)    (to   preserve

issue, defendant must object prior to jury deliberations).

                                            6
            We     have    reviewed    the          jury    instructions        in     their

entirety     and    conclude    that    the         district      court     sufficiently

instructed the jury that it had to find beyond a reasonable

doubt that Lampkin participated in the conspiracy with knowledge

of its unlawful purpose and of at least some of its objectives.

Thus, there was no plain error.

            Lampkin raises two issues regarding sentencing.                               He

contends that the district court erred concluding that it was

reasonably foreseeable to him that the conspiracy involved at

least 100 grams of heroin but less than 400 grams.                                   He also

claims that the court erred increasing his offense level by one

under    USSG    § 2D1.2     because   part          of    the   conspiracy      occurred

within 1000 feet of a school.

            “[T]he        government    must          prove      the     drug    quantity

attributable to a particular defendant by a preponderance of the

evidence.”       United States v. Bell, 667 F.3d 431, 441 (4th Cir.

2011).     In terms specific to a § 846 conspiracy conviction, the

drug    quantity     attributable      to       a    defendant      is    the    quantity

involved in the conspiracy that was reasonably foreseeable to

the    defendant.         See   USSG   §    1B1.3(a)(1);           United       States    v.

Randall, 171 F.3d 195, 210 (4th Cir. 1999).                              We review the

district     court’s       calculation          of        the    quantity       of     drugs

attributable to a defendant for sentencing purposes for clear

error.     United States v. Crawford, 734 F.3d 339, 342 (4th Cir.

                                            7
2013), cert. denied, __ U.S. __, 2014 WL 414225 (2014); see also

United    States v.          Perez,          609    F.3d      609,       612    (4th    Cir.      2010).

Under    this        standard,         we     will       reverse         the     district       court’s

finding       only     if    we        are    “left       with       the       definite     and       firm

conviction that a mistake has been committed.”                                         Crawford, 734

F.3d at 342 (internal quotation marks and citation omitted).

               We     conclude           that        the       Government          showed         by     a

preponderance of the evidence that it was reasonably foreseeable

to Lampkin that the conspiracy involved 100 grams or more of

heroin.

               Under USSG § 2D1.2(a)(2), if a person is convicted of

21 U.S.C. § 860, one level is added to the base offense level

determined under USSG § 2D1.1.                       The guideline “applies only in a

case     in    which        the    defendant             is    convicted         of     a   statutory

violation of drug trafficking in a protected location . . .”

Id.,    (cmt.       n.1).         We    note       that       the    district      court        did    not

instruct      the     jury        on    the        elements         of   § 860.         Section        860

requires enhanced penalties for anyone who violates 21 U.S.C.

§ 841 and possesses with intent to distribute narcotics within

1000 feet of a school.                  The defendant is subjected to twice the

maximum sentence authorized by § 841(b) and twice any term of

supervised      release.               The     statute         also      authorizes         a   minimum

sentence      of     one     year       unless       a     greater         minimum      sentence       is

authorized by § 841(b).                  However, the one level enhancement does

                                                     8
not apply if the jury was never asked to find whether beyond a

reasonable doubt, part of the conspiracy occurred within 1000

feet of a school.          See United States v. Martinez, 430 F.3d 317,

340-41 (6th Cir. 2005).                Section 860 is a distinct offense that

needs to be submitted to a jury.                     See United States v. Parker,

30 F.3d 542, 553 (4th Cir. 1994); United States v. Osborne, 673

F.3d 508, 511-13 (6th Cir.) (collecting cases), cert. denied,

133 S. Ct. 205 (2012).                  There is no indication that Lampkin

objected to the court’s failure to instruct the jury on the

elements of § 860.          Thus, review is for plain error.                     See United

States v. Robinson, 627 F.3d 941, 953-54 (4th Cir. 2010).

              Even    if   there        was    error,       we   find    that     Lampkin’s

substantial rights were not affected because at resentencing he

received the statutory minimum five year sentence, which was

below   the    Guidelines         and    the       agreed    upon      minimum    statutory

sentence.

              Accordingly,        we    affirm      the     conviction     and    sentence.

We   dispense    with      oral    argument         because      the    facts    and   legal

contentions     are    adequately         presented         in   the    materials      before

this court and argument would not aid the decisional process.



                                                                                   AFFIRMED




                                               9
