UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4879

JOHN FRANKLIN BANKS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-97-86)

Submitted: September 28, 1999

Decided: October 12, 1999

Before MURNAGHAN, NIEMEYER, and LUTTIG, Circuit Judges.

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Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.

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COUNSEL

Thomas H. Johnson, Jr., GRAY, NEWELL & JOHNSON, Greens-
boro, North Carolina, for Appellant. Robert P. Crouch, Jr., United
States Attorney, Anthony P. Giorno, Assistant United States Attorney,
Roanoke, 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Unpublished opinions are not binding precedent in this circuit.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:

John F. Banks appeals his convictions for conspiracy to distribute
cocaine and cocaine base and for conducting a continuing criminal
enterprise in violation of 21 U.S.C.A. §§ 846, 848 (West Supp. 1999).

In his appeal, Banks proffers several unsubstantiated challenges to
the sufficiency of the evidence supporting his convictions as well as
the findings of the district court made at sentencing. Our review of the
record discloses that seven witnesses testified against Banks at trial,
producing substantial evidence of Banks' involvement in a criminal
enterprise to distribute illegal narcotics. This evidence, when viewed
in the light most favorable to the Government, was sufficient for a
rational jury to find the elements of the crimes charged beyond a rea-
sonable doubt. See Glasser v. United States, 315 U.S. 66, 80 (1942);
United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993). We also
find no error in the district court's findings enhancing Banks' sen-
tence for possession of a firearm or for his role as a leader in the
offense. See U.S. Sentencing Guidelines Manual §§ 2D1.1(b)(1),
3B1.1 (1998).

Banks next complains that the district court restricted his right to
confront and cross-examine witnesses at trial. However, Banks fails
to identify a single episode where his right of cross examination was
impermissibly abridged. Furthermore, our thorough review of the trial
transcripts discloses none. Accordingly, this claim is meritless.

Banks' final claim is that the district court abused its discretion
when it dismissed Banks' first attorney three months prior to trial on
the basis of a conflict of interest. Again, we disagree. Banks' original
counsel was under investigation by the same office of the United
States Attorney that was prosecuting Banks. This conflict of interest,
whether actual or apparent, was sufficient in magnitude to permit the

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disqualification. Hence, the district court did not abuse its discretion
when it refused to allow Banks to waive the conflict of interest. See
Wheat v. United States, 486 U.S. 153, 163 (1988).

Although we find the claims raised by Banks lacking in merit, we
note that Banks' simultaneous convictions for conspiracy and con-
ducting a continuing criminal enterprise ("CCE") implicate the Dou-
ble Jeopardy Clause of the Fifth Amendment. Because this matter was
not raised below, we review only for plain error. See Fed. R. Crim.
P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). The
United States Supreme Court has determined that conspiracy is a
lesser included offense of CCE. See Rutledge v. United States, 517
U.S. 292, 300 (1996). Banks' convictions under both conspiracy and
CCE thus violated his right against double jeopardy. See United
States v. Devine, 934 F.2d 1325, 1342-43 (5th Cir. 1991). Accord-
ingly, we vacate Banks' conviction for conspiracy and remand to the
district court for resentencing.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED IN PART, VACATED AND
REMANDED IN PART

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