                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 99-4294
COLE LEVAN COLEMAN,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
                William L. Osteen, District Judge.
                            (CR-98-139)

                  Submitted: September 25, 2001

                      Decided: October 16, 2001

      Before WIDENER, MOTZ, and KING, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Michael W. Patrick, HAYWOOD, DENNY & MILLER, L.L.P., Dur-
ham, North Carolina, for Appellant. Walter C. Holton, Jr., United
States Attorney, Michael F. Joseph, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. COLEMAN
                               OPINION

PER CURIAM:

   Cole Levan Coleman appeals his criminal conviction and sentence
for conspiracy to possess with intent to distribute cocaine base in vio-
lation of 21 U.S.C. §§ 841, 846 (West Supp. 2001). We affirm.

   Coleman first contends that the district court erred in admitting tes-
timony regarding an alleged attack on an individual identified as "E,"
asserting that it was "other acts" evidence admitted in violation of
Fed. R. Evid. 404(b). A district court’s evidentiary rulings are
reviewed for an abuse of discretion. United States v. Aramony, 88
F.3d 1369, 1377 (4th Cir. 1996). Rule 404(b) decisions are not
reversed unless they are "arbitrary and irrational." United States v.
Powers, 59 F.3d 1460, 1464-65 (4th Cir. 1995).

   Rule 404(b) applies only to acts extrinsic to the crime charged.
Where testimony is admitted as to acts intrinsic to the crime charged,
and is not admitted solely to demonstrate bad character, it is admissi-
ble. United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996). Acts are
intrinsic when they are "inextricably intertwined or both acts are part
of a single criminal episode or the other acts were necessary pre-
liminaries to the crime charged." Id. (quoting United States v. Lam-
bert, 995 F.2d 1006, 1007 (10th Cir. 1993)). In addition, evidence of
uncharged conduct is not other acts evidence if it "arose out of the
same . . . series of transactions as the charged offense, . . . or if it is
necessary to complete the story of the crime [on] trial." United States
v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994) (alterations in original)
(citations omitted).

   Applying these standards, we find that the Government has pre-
sented a strong case that evidence of the attack on "E," who had failed
to pay a drug-related debt, was intrinsic to the conspiracy. However,
even were this evidence extrinsic and admitted in violation of Rule
404(b), we find that the judgment was not substantially swayed by
this evidence and that any error was therefore harmless. See United
States v. Ince, 21 F.3d 576, 583 (4th Cir. 1994) (providing standard).
                      UNITED STATES v. COLEMAN                         3
   Coleman’s attorney next asserts that the district court erred in
denying his motion for a new trial based upon the testimony of a sub-
sequently discovered witness. A district court should grant a motion
for a new trial based on newly discovered evidence only if: (1) the
evidence is newly discovered; (2) the court may infer diligence on the
part of the movant discovering the evidence from the facts alleged;
(3) the evidence relied upon is not merely cumulative or impeaching;
(4) the evidence is material to the issues involved; and (5) the evi-
dence would probably result in acquittal at a new trial. United States
v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995). This court reviews
denial of such a motion for abuse of discretion. Id.

   Our review of this witness’ testimony, which appears both incon-
sistent and equivocal, leads us to agree with the district court’s deter-
mination that any materiality was "substantially outweighed by the
incredible story . . . recited," and that the testimony was therefore
unlikely to change the outcome of Coleman’s trial. Accordingly, we
find that the district court did not abuse its discretion in this regard.
See id. (providing standard); United States v. Arrington, 757 F.2d
1484 (4th Cir. 1985) (stating that district courts may make credibility
determinations in new trial motions).

   In a supplemental brief filed with leave of the court, Coleman
argues that the Supreme Court’s decision in Apprendi v. New Jersey,
530 U.S. 466 (2000), renders § 841 and § 846 unconstitutional both
on their faces and as applied to him. We find no merit to these conten-
tions. See United States v. Cernobyl, 255 F.3d 1215, 1218-19 (10th
Cir. 2001) (citing cases from the Fifth, Seventh, and Eleventh Cir-
cuits).

  Next, Coleman argues that, because his jury was not instructed to
determine drug quantity, his sentence should be vacated and that he
should be resentenced to a term of twenty years or less under
Apprendi. In Promise, 255 F.3d at 156-57, we interpreted Apprendi
and held that

    in order to authorize the imposition of a sentence exceeding
    the maximum allowable without a jury finding of a specific
    threshold drug quantity, the specific threshold quantity must
    be treated as an element of an aggravated drug trafficking
4                      UNITED STATES v. COLEMAN
     offense, i.e., charged in the indictment and proved to a jury
     beyond a reasonable doubt.

Here, Coleman was sentenced to 292-months imprisonment, which
exceeds the twenty-year maximum allowable sentence without a jury
finding on drug quantity. While an amount supporting the final sen-
tence was charged in the indictment, if the drug quantity issue was not
submitted to the jury, then Coleman’s sentence was in error.

   However, even assuming that the jury instructions were erroneous,
review for plain error is appropriate in this appeal, because Coleman
did not argue at trial that the drug quantity must be considered an ele-
ment of the offense and submitted to the jury. Under the plain error
standard, in order to vacate the sentence, Coleman must show that (1)
there was error; (2) the error was plain; and (3) the error affected sub-
stantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). In
order to satisfy the third element, Coleman must demonstrate that the
jury would not have found, beyond a reasonable doubt, the missing
element from the jury instructions. United States v. Strickland, 245
F.3d 368, 379 (4th Cir. 2001), petition for cert. filed (July 30, 2001)
(No. 01-5624). If the missing element is supported by overwhelming
evidence and uncontested, then the error did not affect substantial
rights. Id. at 380-81. Even if the three elements are met, the court may
exercise its discretion to notice the error only if the error seriously
affects the fairness, integrity, or public reputation of judicial proceed-
ings. Olano, 507 U.S. at 732.

   A failure to submit drug quantity to the jury would be plain error.
Promise, 255 F.3d at 159-60. Nonetheless, the Government contends
that Coleman’s substantial rights were not violated because Cole-
man’s sentence was below the forty-year maximum sentence autho-
rized by § 841(b)(1)(B) for crimes involving five grams or more of
crack cocaine. The question then is whether there was uncontested
and overwhelming evidence establishing that Coleman conspired to
possess with intent to distribute more than five grams of crack
cocaine. United States v. Stewart, 256 F.3d 231 (4th Cir. 2001).

   There was overwhelming evidence at trial that Coleman trafficked
in large quantities of crack cocaine. For example, one Government
witness, Timothy Mack, testified that Coleman delivered crack to him
                      UNITED STATES v. COLEMAN                         5
on many occasions. These deliveries ranged in size from a "couple of
ounces" to a half an ounce. Even assuming only one delivery and tak-
ing the smallest of these amounts, Coleman is responsible for half an
ounce of crack cocaine—14.175 grams—almost three times the
amount required to support a maximum sentence of forty years under
§ 841(b)(1)(B). Another witness, Wayne Clark, testified that he
observed Coleman distribute "two, three, four ounces of crack
cocaine." Again, even taking the lowest of these figures, two ounces,
this amounts to 56.7 grams of crack, over ten times the amount neces-
sary to justify a maximum sentence of forty years under § 841(b)
(1)(B) and 6.7 grams over the amount required to justify a maximum
sentence of life imprisonment under § 841(b)(1)(A).

   In addition, Coleman did not make drug quantity an issue at trial.
He presented no evidence tending to establish the quantity of crack
cocaine involved in the conspiracy. Instead, he argued that the Gov-
ernment witnesses were not credible and that, therefore, reasonable
doubt existed as to his participation in the conspiracy. Even at sen-
tencing, where Coleman challenged the drug quantity, he conceded
that he should at least be held responsible for four ounces—over 100
grams—of crack cocaine, well in excess of the five grams required to
support his sentence.

   Based on our close review of the record, we are convinced that the
Government proved, beyond a reasonable doubt, that Coleman dealt
with far more than the five grams of cocaine necessary to support a
maximum sentence of forty years. Thus, any error in failing to present
the drug quantity to the jury was harmless, as it is clear, beyond a rea-
sonable doubt, that the jury would have returned the same verdict had
there been no error.

   Finally, Coleman’s attorney raises a handful of issues at Coleman’s
request with a statement that counsel has examined these issues and
found them to be without merit. Specifically, Coleman asserts that:
(1) the Government violated 18 U.S.C.A. § 201 (West 2000), by pre-
senting the testimony of witnesses who were presumably testifying in
the hopes of obtaining a sentence reduction; (2) the district court erred
at sentencing in converting the value of a half of a kilogram of
cocaine powder into crack; and (3) his attorney provided ineffective
assistance. Our review of these issues leads us to agree with counsel’s
6                      UNITED STATES v. COLEMAN
determination on issues (1) and (2). As to issue (3), a direct appeal
is not the proper forum in this instance, because ineffective assistance
is not clear on the face of the record. United States v. Hoyle, 33 F.3d
415, 418 (4th Cir. 1994) (holding that defendant may raise claim of
ineffective assistance of counsel on direct appeal only if ineffective
assistance is conclusive from the record).

   In light of the above determinations, we affirm Coleman’s convic-
tion 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*

  *Alternately, we hold that the conviction is affirmed under United
States v. Richardson, 233 F.3d 223 (4th Cir. 2000). Coleman’s indict-
ment specifically charged him with a quantity in excess of fifty grams of
crack cocaine and the district court instructed the jury that they were
required to find a conspiracy "as charged in the Indictment." Even if the
drug quantity question may not have been presented to Coleman’s jury
as fully as it was in Richardson, where the indictment was read in its
entirety to the jury, here, drug quantity was nonetheless both charged and
presented to the jury through the indictment.
