UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 00-4402

LAMONT PETTUS,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Joseph Robert Goodwin, District Judge.
(CR-99-227)

Submitted: February 28, 2001

Decided: April 19, 2001

Before MICHAEL and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Jeffrey Alan Holmstrand, MCDERMOTT & BONENBERGER,
P.L.L.C., Wheeling, West Virginia, for Appellant. Rebecca A. Betts,
United States Attorney, John C. Parr, Assistant United States Attor-
ney, Huntington, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Following a jury trial, Lamont Pettus was convicted on one count
of conspiracy to distribute cocaine base ("crack"), in violation of 21
U.S.C.A. § 846 (West 1999), and one count of aiding and abetting the
possession with intent to distribute crack, in violation of 21 U.S.C.A.
§ 841(a)(1) (West 1999), 18 U.S.C. § 2 (1994). The court sentenced
him to sixty-seven months in prison. Pettus appeals, raising five
grounds of error in his convictions and sentence. We find no merit to
his claims; consequently, we affirm.

I.

Pettus first argues that the evidence was insufficient to support his
convictions. A jury's verdict must be upheld if there is substantial evi-
dence in the record to support it. Glasser v. United States, 315 U.S.
60, 80 (1942). Pettus' claims essentially concern witness credibility.
However, in determining sufficiency of the evidence, this Court does
not review the credibility of the witnesses. United States v. Romer,
148 F.3d 359, 364 (4th Cir. 1998), cert. denied , 525 U.S. 359 (1999).
We find that the evidence presented at trial was sufficient to support
Pettus' convictions.

II.

Next, Pettus argues that his counsel provided ineffective assistance
at trial for failing to call a Federal Bureau of Investigation special
agent to testify. Ineffective assistance of counsel claims generally
should be raised by motion under 28 U.S.C.A. § 2255 (West Supp.
2000), rather than on direct appeal. To succeed on such a claim on
direct appeal, it must appear conclusively from the face of the record
that counsel provided ineffective representation. United States v.

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Richardson, 195 F.3d 192, 198 (4th Cir. 1999), cert. denied, 528 U.S.
1096 (2000).

Pettus was charged with and convicted of selling crack on Novem-
ber 2, 1999. The agent testified at the preliminary hearing that the
confidential informant did not purchase crack directly from Pettus on
November 2, 1999. At trial, two witnesses, including the confidential
informant, testified that Pettus sold crack to the informant on Novem-
ber 2. Neither the government nor Pettus' attorney called the special
agent to testify. Pettus contends that the agent's testimony would have
contradicted that of the other witnesses and would have created rea-
sonable doubt concerning Pettus' participation in the November 2
drug sale. At the sentencing hearing, Pettus' counsel explained that
much of the special agent's testimony would have been inadmissible
hearsay. The relevant testimony was that of the actual eyewitnesses
to the drug transactions and these individuals testified at trial. These
witnesses were presented by the government and were cross-
examined by defense counsel who succeeded in obtaining an acquittal
for his client on another count in the indictment charging him with
aiding and abetting the distribution of crack on November 4, 1999.
We find that Pettus cannot show conclusively from the face of the
record that counsel was ineffective.

III.

Pettus asserts that the district court erred by allowing the govern-
ment to provide the jury with a transcript of the audiotaped November
2 drug transaction. The tape was admitted without objection. One of
the participants in the recorded conversation, confidential informant
Juanita Willis, identified Pettus as one of the speakers. Pettus argues
that the district court erred by allowing the jury to view the transcript,
which identified him as a speaker, and by failing to give a cautionary
instruction to the jury at the close of evidence. However, the court
instructed the jury, both before and after playing the tape, that the tape
itself was the evidence and that it was up to the jury to decide whether
the transcript was accurate and whose voices were on the tape. We
find no abuse of discretion. United States v. Collazo, 732 F.2d 1200,
1203-04 (4th Cir. 1984).

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IV.

The district court held Pettus accountable for 5.95 grams of crack:
the .45 gram quantity he sold to a confidential informant on Novem-
ber 2, 1999 and a "G-bomb," which the court determined weighed 5.5
grams, that was delivered on November 3, 1999, to the apartment
from which Pettus and his co-conspirators sold drugs.

Pettus argues that there was no evidence linking him to the G-
bomb. However, the government presented undisputed evidence that
Pettus arrived at the apartment on November 1, 1999, began training
that day to sell drugs from the apartment, and was involved in the sale
of .45 gram of crack from that location on November 2. The G-bomb
was delivered on November 3. Pettus was in the apartment on
November 4 during a controlled drug buy and was arrested in the
apartment immediately following the controlled buy. A co-conspirator
testified that when the police arrived, Pettus disposed of any remain-
ing crack by flushing it down the toilet. We find that the district court
did not clearly err by concluding that the quantity of drugs in the G-
bomb was attributable to Pettus. United States v. Randall, 171 F.3d
195, 210 (4th Cir. 1999).

Pettus also argues that the district court improperly calculated the
amount of drugs attributable to him beyond the .45 gram from the
November 2 controlled buy. As stated above, the other quantity of
drugs attributed to Pettus came from the G-bomb delivered on
November 3. One of Pettus' co-conspirators testified that a G-bomb
contains about fifty rocks of crack. The government calculated that
the G-bomb contained 5.5 grams of crack, estimating that each rock
weighed .11 gram based on the smallest quantity sold from the apart-
ment. We find that the district court did not clearly err by adopting
this calculation and attributing 5.95 grams of crack to Pettus--the .45
gram amount sold on November 2 and the 5.5 gram G-bomb deliv-
ered to the apartment on November 3.

V.

A month after Pettus was sentenced, the Supreme Court of the
United States issued its decision in Apprendi v. New Jersey, 530 U.S.
466 (2000). Under Apprendi, any fact, other than a prior conviction,

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that increases the maximum penalty for a crime is an element of the
offense, and as such, must be charged in the indictment, submitted to
a jury, and proven beyond a reasonable doubt. Pettus argues that his
sentence violates Apprendi because he was sentenced based upon
drug quantities not charged in the indictment. Every circuit to con-
sider Apprendi in the context of 21 U.S.C.A.§ 841(b) has concluded
that the statutory maximum when drug quantity is not treated as an
element of the offense is twenty years. United States v. White, 238
F.3d 537, 542 (4th Cir. 2001) (collecting cases). Pettus' sentence of
sixty-seven months falls well below the 240-month maximum in 21
U.S.C.A. § 841(b)(1)(C), and thus, under the authorities cited in
White, does not implicate Apprendi.

VI.

For these reasons, we affirm Pettus' convictions and sentence.* We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED
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*We grant Pettus' motion to file a reply brief out of time and reject
his claims asserted therein, including his claim that, based on Apprendi,
drug quantity must be charged in the indictment if it affects the manda-
tory minimum sentence. See United States v. Harris, ___ F.3d ___, 2001
WL 273146 (4th Cir. Mar. 20, 2001).

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