                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                  FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,                
                 Plaintiff-Appellee,
                   v.                             No. 99-4584
JOE SIMPSON,
                  Defendant-Appellant.
                                         
UNITED STATES OF AMERICA,                
                 Plaintiff-Appellee,
                   v.                             No. 00-4207
PHILLIP FISHER,
                  Defendant-Appellant.
                                         
            Appeals from the United States District Court
      for the Western District of North Carolina, at Asheville.
                Lacy H. Thornburg, District Judge.
                          (CR-98-219-T)

                        Submitted: June 19, 2002
                         Decided: July 19, 2002

       Before WILKINS, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


                              COUNSEL

John S. Parton, Whittier, North Carolina; David G. Belser, BELSER
& PARKE, P.A., Asheville, North Carolina, for Appellants. Robert J.
2                      UNITED STATES v. SIMPSON
Conrad, Jr., United States Attorney, Brian Lee Whisler, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit.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


                              OPINION

PER CURIAM:

   A jury convicted Joe Simpson and Phillip Fisher of conspiracy to
distribute and possess with intent to distribute cocaine and crack
cocaine, in violation of 21 U.S.C.A. § 846 (West 1999). Simpson was
sentenced to a 188-month prison term, and Fisher received a 235-
month sentence. Simpson and Fisher appeal their convictions and sen-
tences on the ground that they are invalid in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). Simpson also contends that the district
court erred in denying his motion for judgment of acquittal under Fed.
R. Crim. P. 29. Fisher asserts that the district court erred in admitting
evidence of a prior conviction and that the prosecutor engaged in pro-
secutorial misconduct. Finding no reversible error, we affirm the con-
victions and sentences.

  Simpson and Fisher first assert that, in light of Apprendi, their due
process rights were violated because drug quantity was neither
charged in the indictment nor proved to a jury beyond a reasonable
doubt. We find, however, that Apprendi is not implicated because
Simpson’s and Fisher’s sentences are below the 240-month statutory
maximum sentence set forth in 21 U.S.C.A. § 841(b)(1)(C) (West
1999 & Supp. 2002), for drug offenses involving an unspecified
amount of cocaine and crack cocaine. See United States v. Promise,
255 F.3d 150, 156-57 (4th Cir. 2001) (en banc), cert. denied, ___ U.S.
___, 2002 WL 1050009 (May 28, 2002) (No. 01-6398). Thus, their
Apprendi claims fail.

   Simpson also challenges his conviction on the ground that the dis-
trict court erred by denying his Rule 29 motion. Our review of the
                       UNITED STATES v. SIMPSON                        3
record leads us to conclude that the evidence was sufficient to estab-
lish that Simpson voluntarily joined the single conspiracy charged in
the indictment. United States v. Gallimore, 247 F.3d 134, 136 (4th
Cir. 2001) (stating standard of review for Rule 29 motion); United
States v. Burgos, 94 F.3d 849, 857-58, 862-63 (4th Cir. 1996) (en
banc) (providing standard for sufficiency of evidence and elements of
offense); United States v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994)
(providing standard for evaluating whether material variance existed
between indictment and evidence adduced at trial).

   Fisher contends that the district court erred in admitting evidence,
in violation of Fed. R. Evid. 404(b), that he was convicted during the
course of the conspiracy of possession of a Schedule II controlled
substance; that the district court’s limiting instruction was insuffi-
cient; and that the Government violated the discovery order by failing
to give pretrial notice of its intention to use Fisher’s prior conviction
at trial. Assuming, as Fisher suggests, that the district court improp-
erly admitted evidence of his prior conviction, we find that any error
was harmless. See United States v. Ince, 21 F.3d 576, 583 (4th Cir.
1994) (providing standard).

   Finally, Fisher contends that during closing argument, the Govern-
ment improperly referred to his failure to testify during closing argu-
ment. We reject his claim. See United States v. Golding, 168 F.3d
700, 702 (4th Cir. 1999) (providing standard). Even assuming that the
prosecutor’s comment was improper, we find that Fisher’s substantial
rights were not prejudiced. See United States v. Adam, 70 F.3d 776,
780 (4th Cir. 1995) (discussing factors to consider in determining
prejudice).

   Accordingly, we affirm Fisher’s and Simpson’s convictions and
sentences. 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
