                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4885


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ERIC BERNARD DIXON, a/k/a Fat Cat,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Patrick Michael Duffy, Senior
District Judge. (2:10-cr-00649-PMD-1)


Argued:   March 22, 2012                      Decided:   June 5, 2012


Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, TRAXLER,
Chief Judge, and HAMILTON, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: James Thomas McBratney, III, MCBRATNEY LAW FIRM, PA,
Florence, South Carolina, for Appellant.        Jeffrey Mikell
Johnson, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.   ON BRIEF: William N. Nettles, United
States Attorney, Matthew J. Modica, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Eric Bernard Dixon was convicted of one count of conspiracy

to possess with intent to distribute cocaine and cocaine base,

eight counts of possession with intent to distribute cocaine and

cocaine       base,    and    one    count    of    possession    of    a   firearm   in

furtherance of a drug trafficking crime.                       Dixon now challenges

the denial of his motion for a mistrial and raises a conflict of

interest       claim    for    the    first       time   on   appeal.       Finding   no

reversible error, we affirm.



                                             I.

                                             A.

       In May of 2009, Lieutenant Phillip Ardis of the Clarendon

County    Sheriff’s       Office     began    an     investigation      into   possible

narcotics activity.           Ardis enlisted the help of Melvin Lawson, a

confidential informant, and Agent Janell McMillan, a member of

the    South    Carolina      State    Law    Enforcement       Division     who   would

serve    as    an     undercover     officer.         Through    conversations     with

Lawson, Ardis determined that Dixon and Randy Gibson would be

targets of the investigation.                      Subsequently, seven drug buys

were     orchestrated,        in     which    Gibson      purchased     cocaine     base

(“crack”) from Dixon at McMillan’s request and with her money.

       In the first transaction on June 17, 2009, Lawson called

Gibson and expressed interest in purchasing one ounce of crack.

                                              2
Thereafter,      McMillan         and    Lawson       picked    up    Gibson,       drove    to

Dixon’s club, Fat Cats (the “club”), and parked their vehicle in

the parking lot.            Gibson then entered the club with $1,200 in

cash   provided       by    McMillan      and       purchased      $410   worth     of    crack

weighing 14.31 grams, which was all that was available for sale

that day.      The next three transactions similarly involved Lawson

initiating contact with Gibson; McMillan and Lawson picking up

Gibson;    the      three    of    them    driving       to     the   club;     and      Gibson

entering the club to purchase crack.                      In the second transaction

on June 18, 2009,           Dixon was not at the club when they arrived.

Once Dixon arrived, however, Gibson followed Dixon into the club

and purchased 17.31 grams of crack.                     In the third transaction on

June 24, 2009, Gibson purchased 3.31 grams of crack for $200.

In the fourth transaction on August 6, 2009, Gibson purchased 27

grams of crack for $1200.

       Following the fourth transaction, McMillan was able to deal

with    Gibson      directly      without       relying       on    Lawson     to   initiate

communication or participate in the transaction.                               In the fifth

transaction      on    August      28,    2009,       Gibson       initiated    contact      by

calling McMillan, and McMillan expressed interest in purchasing

one    ounce   of     crack.        McMillan         later     picked     up   Gibson,      who

explained that Dixon would be at the club when they arrived.

While driving to the club, McMillan observed Gibson call Dixon.



                                                3
Upon arriving at the club, Gibson entered the club and returned

with 18.7 grams of crack purchased for $800.

       After the fifth transaction, McMillan was unable to reach

Gibson by phone.        Therefore, she drove to an area where she knew

Gibson could be located, and she eventually found him.                            McMillan

and Gibson then drove to the club where Gibson entered the club

and purchased 20.7 grams of crack for $1,000.                            In the seventh

and    final     transaction    on    September         3,    2009,      Gibson    called

McMillan,       they   discussed     purchasing     two      ounces        of   crack   for

$1,950, and they subsequently drove to the club, where Gibson

purchased 34.87 grams of crack.                While McMillan never purchased

drugs    directly      from   Dixon   in    any    of     the      seven    orchestrated

transactions, she provided “buy money” to Gibson and observed

Gibson reenter her vehicle with drugs in hand.

       Later the same day of the final transaction, the Clarendon

County Sheriff’s Office executed a warrant for the club, where

they    found    and   arrested    Dixon.         Dixon      was    in     possession    of

$3,685.00 in currency, which included some of the marked “buy

money” used by McMillan in the prior drug transactions.                            Within

the club, law enforcement officers also located 19.22 grams of

cocaine, drug paraphernalia, two firearms, and ammunition.                               A

third firearm was located under the driver’s seat of Dixon’s

vehicle parked outside of the club.



                                           4
       Dixon was indicted on one count of conspiracy to possess

with intent to distribute cocaine and cocaine base, in violation

of 21 U.S.C. §§ 841(a)(1), 846; eight counts of possession with

intent to distribute cocaine and cocaine base, in violation of

21 U.S.C. § 841(a)(1); and one count of possession of a firearm

in furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1).            He pled not guilty, and a trial ensued. 1

                                             B.

           Dixon was initially represented by Robert Haley of the

Charleston County Federal Public Defender’s Office.                     For reasons

that       are   not   clear    from   the       record,    the   presiding   federal

magistrate judge relieved Haley as counsel prior to trial, and a

new attorney from the Criminal Justice Act panel was appointed

to represent Dixon.

            On the first day of trial, McMillan testified in court

that Lawson, during an interview with law enforcement prior to

the drug transactions, stated that Gibson was a person who could

purchase drugs directly from Dixon.                        The district court also

permitted the government to introduce into evidence recordings

of the drug transactions.              These recordings included phone calls

setting up the transactions and conversations between McMillan,


       1
       Gibson was also charged in the same indictment as a co-
defendant; however, he pled guilty pursuant to a plea agreement.



                                             5
Gibson,    and    Lawson    while     driving        to   and     from    the       club    to

purchase    crack.         Relevant    to      this       case    on     appeal,       these

recordings also included statements made by Lawson.                            During the

direct examination of McMillan, the recordings were played in

open court, and McMillan provided narration.

      During     McMillan’s      testimony      about     the     first      transaction,

the court and counsel for the parties became aware that Lawson

had indicated that he would not testify despite being under a

government subpoena to do so. 2            The district court appointed Mary

Gordon Baker to represent Lawson.               Like Dixon’s initial attorney

Haley, Baker was also employed by the Charleston County Federal

Public     Defender’s      Office.      Upon         learning      that       Lawson       was

refusing to testify, counsel for Dixon moved for a mistrial on

the   ground     that   the      admission      into      evidence       of    statements

attributed to Lawson violated Dixon’s rights under the Sixth

Amendment’s Confrontation Clause.                 The district court did not

rule on the motion at that time based on the possibility that

Lawson might later in fact testify.

      Subsequently,         McMillan        testified            about        the      other

transactions      involving       Lawson       and     narrated        the     associated

recordings,      subject    to    Dixon’s      preserved         objection.          Lawson

      2
       Lawson’s refusal to testify was based on threats to his
family and his own poor health.    The government was in no way
complicit in Lawson’s unavailability.



                                           6
never testified at trial.           Therefore, at the close of evidence,

Dixon renewed his motion for a mistrial.                          However, the court

denied the motion, focusing on the fact that Lawson’s statements

were admissible not for the truth of the matters asserted but,

rather,   to    put     the   co-conspirator’s        statements         into    context.

      The jury found Dixon guilty on all counts, and the court

imposed a within-guidelines sentence of 138 months, consisting

of 78 months for each of the nine drug counts, to be served

concurrently,     and     a    minimum    60-month         term    for    the     firearm

offense, to be served consecutively.                This appeal followed.



                                         II.

      Dixon     first     argues   that       the    appointment         of     Baker    to

represent Lawson created a conflict of interest because Baker

and   Dixon’s    former       counsel    Haley      both    worked       for    the     same

federal public defender’s office.               Because this claim was raised

for the first time on appeal, we review for plain error.                                 See

Fed. R. Crim. P. 52(b); United States v. Offill, 666 F.3d 168,

174 (4th Cir. 2011).           “[T]he burden is on the defendant in the

plain error context.”          In re Gates, 600 F.3d 333, 340 (4th Cir.

2010).    To satisfy this burden, Dixon must establish (1) there

was error; (2) the error was plain; (3) the error affected his

substantial rights; and (4) the error seriously affected the



                                          7
fairness, integrity, or public reputation of the trial.                                 United

States v. Olano, 507 U.S. 725, 732 (1993).

       An error is plain if it is clear or obvious under current

law.     See id. at 734.             “This standard is satisfied when the

settled law of the Supreme Court or this circuit establishes

that an error has occurred.”                 United States v. Neal, 101 F.3d

993, 998 (4th Cir. 1996) (internal quotation marks omitted).                                  In

most   cases,    a   plain      error     affects       substantial          rights    if     the

error was prejudicial.             See Olano, 507 U.S. at 734.                  An error is

prejudicial      under    the    plain-error           standard        when    there     is    “a

reasonable      probability        that,   but        for   the    error       claimed,       the

result of the proceeding would have been different.”                                    United

States v. Dominguez Benitez, 542 U.S. 74, 82 (2004) (alteration

and internal quotation marks omitted).

       Dixon    frames   his     argument        in    terms      of    certain      rules    of

professional      conduct,         and    the    government            cites    to     others.

Without   weighing       in   on    the    applicability           or    significance          of

those rules, we conclude that there was no plain error.                                Even if

appointing Baker to represent Lawson was an error, and even if

that    error    was     plain,      Dixon       still      fails       to     establish       a

reasonable      probability        that    the    proceedings           would     have      been

different if an attorney other than Baker had been appointed to

represent Lawson.



                                             8
       Dixon attempts to show prejudice by focusing on Baker’s

advocacy skills in preventing Lawson from testifying.                                  Dixon

fails to explain, however, why there is a reasonable probability

that a lawyer from an organization other than the Charleston

County     Federal     Public       Defender’s        Office    would     have    provided

materially different advice and advocacy.

       In any event, even if Lawson, through the representation of

a different lawyer, had been compelled to testify, and even if

he   had     chosen    not     to    exercise        his    right      under    the    Fifth

Amendment      to     remain    silent,        there       is   still     no    reasonable

probability     that     the    result       would     have     been     different.        In

attempting to persuade the court of a likelihood that the result

would have been different, Dixon suggests in his opening brief

that   the    evidence       “cannot      be       considered    overwhelming.”            We

simply disagree with this contention.

       In this case, in addition to Gibson’s testimony, McMillan

testified      in     detail    about        her     involvement         in    seven    drug

purchases from Dixon; Rudy Tisdale, a member of the Clarendon

County     Sheriff’s     Office,       who     was     involved     in    executing       the

search warrant for the club, testified about drug paraphernalia

found in the club; Harold Morris, a member of the Clarendon

County     Sheriff’s     Office      at   the      time    of   executing      the     search

warrant for the club, testified about finding a large wad of

cash in Dixon’s pocket; and Quincy Jackson, a former drug dealer

                                               9
assisting the government pursuant to a plea agreement, testified

that he witnessed his former clients frequently entering Dixon’s

apartment      with   money    in   hand        and    leaving          with       no     money.

Additionally, Dixon has already stipulated to the fact that the

substances      received      by    McMillan          in        each     of        the    seven

transactions were determined to be crack.                        Because Dixon cannot

show    prejudice     from    the   appointment            of    Baker        to    represent

Lawson, he cannot satisfy the plain-error standard.



                                         III.

       Dixon   also   challenges     the        denial      of     his    motion          for   a

mistrial, arguing that the admission of testimony attributed to

Lawson violated his rights under the Sixth Amendment due to his

inability to confront Lawson about that testimony.                                 “We review

alleged      Confrontation     Clause     violations             under     the       de     novo

standard of review.”          United States v. Lighty, 616 F.3d 321, 376

(4th Cir. 2010).       However, we review the denial of a motion for

a mistrial under an abuse-of-discretion standard.                                  See United

States v. Wallace, 515 F.3d 327, 330 (4th Cir. 2008).

       The   Confrontation      Clause    of     the       Sixth       Amendment         affords

Dixon the right “to be confronted with the witnesses against

him.”     U.S. Const. amend. VI.          The Supreme Court has interpreted

this clause to bar the introduction of out-of-court testimonial

statements unless the declarant is unavailable and the defendant

                                          10
has had a prior opportunity to cross-examine the declarant.                                See

Crawford v. Washington, 541 U.S. 36, 68 (2004).                                  Inherent in

this rule are two limitations.                       First, the statements at issue

must be testimonial in nature.                        See Davis v. Washington, 547

U.S. 813, 821 (2006).               Second, the statements at issue must be

hearsay.      See Crawford, 541 U.S. at 60 n.9 (“The Clause . . .

does    not   bar   the    use      of    testimonial          statements       for   purposes

other than establishing the truth of the matter asserted.”).

       Dixon’s mistrial motion focused on two parts of McMillan’s

testimony: (1) Lawson’s statement made during an interview with

law    enforcement     that      Gibson        was    a   person      who   could     purchase

crack from Dixon, and (2) Lawson’s statements heard by the jury

on     the    recordings       of        the    drug      transactions          and   through

McMillan’s narration of the recordings.                         We address this latter

testimony first.

                                                A.

       With regard to Lawson’s statements on the recordings and

McMillan’s      narration        of      the    recordings,           the   district      court

concluded      that    they         were       not     hearsay        because     they    were

admissible not for the truth of the matters asserted, but rather

to provide context to the conversations between Lawson, Gibson,

and    McMillan.          We   have        previously          held    that     out-of-court

statements       may      be        admissible            to     provide        context      to

conversations.         See United States v. Wills, 346 F.3d 476, 490

                                                11
(4th Cir. 2003).           The decision to admit the evidence was also

supported by United States v. Hendricks, 395 F.3d 173 (3d Cir.

2005).        In     Hendricks,         the    Third      Circuit       considered       the

admissibility        of    face-to-face            conversations    between        several

defendants and a confidential informant who was wearing a taping

device at the time but was later unavailable to testify.                                 That

court    found      that    the    admission         of   statements      made     by     the

confidential informant did not violate the Confrontation Clause

because the statements “put the statements of the other parties

to    the     conversations         into       perspective      and          ma[d]e      them

intelligible to the jury.”               Id. at 184 (internal quotation marks

omitted).

      We find the Third Circuit’s reasoning compelling.                            In this

case, not only did the district court indicate that it would

limit Lawson’s out-of-court testimony to the specific purpose of

providing context, but it also gave a limiting instruction to

the   jury.        See    J.A.    101   (“[Hendricks]       held    .    .    .   that    the

statements [of a confidential informant] can be entered to put

the co-conspirators’ nontestimonial statements in context, but

not for the truth of the matter.                    And I’m going to allow it for

those same purposes.”); J.A. 448 (“Any words of the confidential

informant, Melvin Lawson, were admitted for the sole and limited

purpose of providing context to both the undercover agent’s and

Randy Gibson’s testimony.”); see also United States v. Powers,

                                              12
59 F.3d 1460, 1468 (4th Cir. 1995) (noting that “cautionary or

limiting instructions generally obviate . . . prejudice”).

      Rather      than        disputing          the     purpose       for    which    these

statements were admitted, Dixon argues that the statements were

testimonial.            Whether       the        statements      were     testimonial       is

immaterial, however, because even if they were testimonial, the

Confrontation Clause does not bar their admission “for purposes

other     than   establishing         the        truth    of    the    matter    asserted.”

Crawford, 541 U.S. at 60 n.9; see also Hendricks, 395 F.3d at

183   (“[E]ven     if    we    were    to        hold    that   [the    CI’s]    statements

within the conversations are themselves testimonial, . . . such

an outcome would not preclude the United States from introducing

[the CI’s] statements for a purpose other than establishing the

truth of the matters contained therein.”). 3                       Accordingly, because

this testimony was not admitted for the truth of the matters

asserted, it was not hearsay and its admission did not violate

the Confrontation Clause.                   The district court, therefore, did

not   abuse      its    discretion          in    denying       Dixon’s      motion   for    a

mistrial with regard to this testimony.




      3
       Because we find that the statements at issue were not
admitted for the truth of the matters asserted, we do not
address whether they were testimonial.



                                                 13
                                              B.

      We turn finally to Lawson’s statement that Gibson could

purchase drugs from Dixon.                  Assuming, but without deciding, that

the   admission          of     this   statement    violated      the    Confrontation

Clause, we find that the error was harmless.                           See Delaware v.

Van Arsdall, 475 U.S. 673, 684 (1986) (“Confrontation Clause

errors[ are] subject to . . . harmless-error analysis.”).                            “When

reviewing the erroneous admission of [evidence], the appellate

court . . . simply reviews the remainder of the evidence against

the     defendant         to    determine      whether     the    admission     of    the

[evidence] was harmless beyond a reasonable doubt.”                         Arizona v.

Fulminante, 499 U.S. 279, 310 (1991).                         Factors to consider in

determining whether the error was harmless include “the presence

. . . of evidence corroborating . . . the testimony” and “the

overall strength of the prosecution’s case.”                        Van Arsdall, 475

U.S. at 684.

      In    this        case,    the   assertion    that      Gibson    could   purchase

crack      from     Dixon       was    corroborated      by    significant      evidence

proving that Gibson could in fact purchase crack from Dixon.

Moreover,         the    evidence      of    Dixon’s     guilt    was    overwhelming.

Therefore, even if the district court erred in admitting the

statement at issue, which we assume without deciding, we find

any error to be harmless.



                                              14
                          IV.

For the foregoing reasons, we affirm Dixon’s convictions.



                                                    AFFIRMED




                          15
