                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellee,
                 v.                               No. 00-4632
LEONARD A. BANKS,
             Defendant-Appellant.
                                        
UNITED STATES OF AMERICA,               
                 Plaintiff-Appellant,
                 v.                               No. 00-4695
LEONARD A. BANKS,
              Defendant-Appellee.
                                        
           Appeals from the United States District Court
         for the Eastern District of Virginia, at Richmond.
            Richard L. Williams, Senior District Judge.
                            (CA-00-42)

                      Argued: December 3, 2001

                      Decided: February 28, 2002

    Before WIDENER, MICHAEL, and KING, Circuit Judges.



Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
2                      UNITED STATES v. BANKS
                             COUNSEL

ARGUED: Regina Lynn Carpenter, MCLAUGHLIN & CURRY,
Fairmont, West Virginia, for Appellant. Robert E. Trono, Assistant
United States Attorney, Richmond, Virginia, for Appellee. ON
BRIEF: Gerald G. Ashdown, WEST VIRGINIA UNIVERSITY
COLLEGE OF LAW, Morgantown, West Virginia, for Appellant.
Helen F. Fahey, United States Attorney, Richmond, Virginia, for
Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Leonard Banks was convicted of possession with intent to distrib-
ute a controlled substance, crack cocaine, in violation of 21 U.S.C.
§ 841(b). Banks appeals his conviction, arguing that the district court
erred by admitting certain rental car records and evidence of prior
drug dealing. The government cross-appeals, arguing that the district
court committed a sentencing error when it relied on Apprendi v. New
Jersey, 530 U.S. 466 (2000), in refusing to consider relevant conduct
in calculating the drug quantity attributable to Banks. For the follow-
ing reasons, we affirm Banks’s conviction, vacate his sentence, and
remand to the district court for resentencing.

                                  I.

   On the morning of December 17, 1999, police in Farmville, Vir-
ginia, arrested Anthony Gilmore for marijuana possession. Gilmore
agreed to assist the police in catching other individuals involved in
drug dealing. Later that morning, using a special telephone line at the
Farmville Police Department, Gilmore paged a man known as
"Tandy" from whom Gilmore had recently bought drugs. Tandy, later
                       UNITED STATES v. BANKS                        3
identified as defendant Banks, called Gilmore at the Farmville Police
Department’s special number, and their conversation was recorded.
Banks agreed to sell Gilmore a quantity of crack cocaine, and the two
arranged to meet later that day at the Farmville Coastal Mart. At
about 1:00 p.m. Banks and Michelle Wilson, a co-defendant, drove
into the Coastal Mart parking lot, where they were arrested by police.
Banks was driving a Buick rented the previous night at Dulles Air-
port, and he was carrying $850 in cash and a pager containing the
Farmville Police Department phone number. Wilson turned over to
the police about 28 grams of crack cocaine that were hidden on her
person.

   Banks and Wilson were indicted for possession with intent to dis-
tribute a controlled substance. Wilson pled guilty, and Banks went to
trial. In his defense at trial Banks emphasized that Wilson had pos-
sessed the drugs and argued that he was simply an innocent and igno-
rant bystander to any drug transaction that was about to take place.
The government introduced testimony by Wilson that she and Banks
had previously rented cars at Dulles Airport and then stopped at a cer-
tain apartment to buy crack cocaine. The government also introduced
Banks’s past car rental records. The court admitted all of this evi-
dence over Banks’s objection that it was bad character or propensity
evidence, which was prejudicial and not probative of the current
charges. The jury returned a guilty verdict.

   At sentencing the district court determined the amount of crack
cocaine attributable to Banks in order to arrive at the applicable sen-
tence range. U.S. Sentencing Guidelines Manual §§ 2D1.1(a)(3), (c).
Under the Guidelines a defendant’s sentence range is determined not
only according to the conduct of the offense of conviction, but also
from "relevant conduct" that was "part of the same course of conduct
or common scheme or plan as the offense of conviction." U.S. Sen-
tencing Guidelines Manual § 1B1.3(a)(2). At sentencing the govern-
ment proffered evidence that in addition to the 28 grams found on
Wilson at the time of arrest, Banks had obtained 28 grams of crack
cocaine on two previous occasions during the fall of 1999. The gov-
ernment argued that these three incidents of possession of 28 grams
were part of the same course of conduct or a common scheme, which
meant that 84 grams of crack cocaine were attributable to Banks.
Acceptance of the government’s position would have resulted in an
4                       UNITED STATES v. BANKS
offense level of 32 and a Guidelines range of 135 to 168 months’
imprisonment. The district court, relying on Apprendi v. New Jersey,
530 U.S. 466 (2000), refused to consider the prior conduct and attri-
buted only 28 grams of crack cocaine to Banks. This resulted in an
offense level of 28 and a Guidelines range of 87 to 108 months’
imprisonment. The district court then sentenced Banks to 87 months’
imprisonment. Banks appeals his conviction, and the government
cross-appeals the sentence.

                                   II.

   Banks claims that the district court erred in admitting evidence of
prior car rentals and Wilson’s testimony regarding past drug pur-
chases. Banks argues that this evidence was not relevant to the
charged offense but was impermissible bad character or propensity
evidence. See Fed. R. Evid. 401, 404. We review the district court’s
evidentiary rulings for abuse of discretion. United States v. Sanchez,
118 F.3d 192, 195 (4th Cir. 1997).

    Under Fed. R. Evid. 404(b), "[e]vidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order
to show action in conformity therewith." The rule also provides that
such evidence may be "admissible for other purposes, such as proof
of motive . . . knowledge . . . or absence of mistake or accident." To
determine whether evidence is admissible under Rule 404(b), we must
consider whether the evidence is relevant to the charged offense
rather than simply to the general character of the defendant, whether
it is probative and reliable, and whether its probative value is substan-
tially outweighed by its prejudicial impact. United States v. Queen,
132 F.3d 991, 997 (4th Cir. 1997).

   At trial Banks argued that there was no proof that he knew Wilson
possessed the 28 grams of crack cocaine and that he was an innocent
bystander to any drug transaction. In the face of this argument, Wil-
son’s testimony that she and Banks had previously rented cars at Dul-
les Airport and then driven to a certain location to buy crack cocaine
was both relevant and probative. Banks’s claim that he was ignorant
of Wilson’s drug possession and the impending drug transaction is
less plausible in light of evidence that Banks and Wilson had previ-
ously been involved in similar activity on prior occasions. Cf. United
                       UNITED STATES v. BANKS                        5
States v. Van Metre, 150 F.3d 339, 350-51 (4th Cir. 1998). Records
of prior car rentals by Banks were also relevant to Banks’s knowledge
and intent, as these records served to buttress Wilson’s testimony.

   As to reliability, defense counsel stipulated to the authenticity of
the car rental records. Nor was Wilson’s testimony so unreliable as
to be inadmissible. Defense counsel had the opportunity to cross-
examine Wilson, and the jury was able to consider the impact of her
plea agreement on the truthfulness of her testimony. Finally, the prej-
udicial effect of the evidence of past drug dealing does not substan-
tially outweigh the probative value of that evidence in this particular
case. The evidence of past drug dealing is not cumulative of other evi-
dence, but it is the only evidence that directly undermines Banks’s
contention that he was unaware of Wilson’s possession of the drugs.
Moreover, the past drug dealing described by Wilson is quite similar
to the charged conduct here, which reinforces the probative value of
the contested evidence. See Queen, 132 F.3d at 996. While the con-
tested evidence was prejudicial, it was prejudicial because it was pro-
bative. In any case, this evidence was tempered somewhat by the
district court’s instruction to the jury that Banks "is not charged on
anything except what is in the indictment" and that the evidence of
past drug dealing "is just background information."

   In sum, the district court did not abuse its discretion in admitting
Wilson’s testimony of prior drug dealing and evidence of past car
rentals. We therefore affirm Banks’s conviction.

                                 III.

   On cross-appeal the government argues that the district court erred
in refusing to consider evidence of additional drug possession to
determine, for sentencing purposes, the drug quantity attributable to
Banks. Without reaching the question of whether these previous inci-
dents of drug possession were relevant conduct, the district court held
that it could not consider evidence not submitted to the jury and
proven beyond a reasonable doubt. The court relied on Apprendi v.
New Jersey, 530 U.S. 466 (2000), which was decided on June 26,
2000, just prior to Banks’s sentencing on August 28, 2000.
6                      UNITED STATES v. BANKS
   Since the district court’s decision, our court has had the occasion
to apply Apprendi. We have explained that under Apprendi "the maxi-
mum penalty that may be imposed upon a defendant is the maximum
penalty allowed by statute upon proof of only those facts alleged in
the indictment and found by the jury beyond a reasonable doubt. Once
this maximum penalty is established, a fact (sentencing factor) that
may increase the actual sentence imposed within that maximum is not
subject to the same requirements." United States v. Promise, 255 F.3d
150, 156 n.5 (4th Cir. 2001) (en banc) (emphasis omitted). Because
the indictment in this case did not allege a drug quantity, the maxi-
mum penalty allowed by statute was twenty years’ imprisonment. 21
U.S.C. § 841(b)(1)(C). The district court considered only the 28
grams involved in the arrest, and thus arrived at an offense level of
28 and a Guidelines range of 87 to 108 months’ imprisonment. U.S.
Sentencing Guidelines Manual § 2D1.1(c)(6). Had the court also con-
sidered and credited the evidence of Banks’s possession of an addi-
tional 56 grams of crack cocaine, it would have arrived at an offense
level of 32 and a Guidelines range of 135 to 168 months’ imprison-
ment. U.S. Sentencing Guidelines Manual § 2D1.1(c)(4). Even
accepting the government’s evidence, the maximum sentence under
the Guidelines would be 14 years (168 months). Because this sen-
tence would not exceed the maximum twenty-year penalty for a con-
viction under § 841(b)(1)(C) for an unspecified quantity of crack
cocaine, the rule in Apprendi is not implicated. The additional drug
quantity would simply be a "fact (sentencing factor) that may increase
the actual sentence imposed within [the statutory] maximum." Prom-
ise, 255 F.3d at 156 n.5. Thus, the district court erred in concluding
that Apprendi prevented the consideration of the additional evidence
in this case.

   Accordingly, we vacate Banks’s sentence and remand to the district
court for resentencing. We note that while Apprendi presents no
obstacle to the district court’s consideration of the government’s evi-
dence of other drug possession, the district court must of course deter-
mine whether the government has established the drug amounts by a
preponderance of the evidence and whether such conduct is relevant
to the offense of conviction. See United States v. Cook, 76 F.3d 596,
604-05 (4th Cir. 1996); U.S. Sentencing Guidelines Manual
§ 1B1.3(a)(2).
                    UNITED STATES v. BANKS                  7
                             IV.

  We affirm Banks’s conviction, but we vacate his sentence and
remand for resentencing in accordance with this opinion.

                     AFFIRMED IN PART, VACATED IN PART,
                                         AND REMANDED
