                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellee,
                  v.                                No. 00-4403
LUCIUS ROGERS,
                 Defendant-Appellant.
                                        
            Appeal from the United States District Court
     for the Southern District of West Virginia, at Charleston.
              John T. Copenhaver, Jr., District Judge.
                             (CR-00-5)

                       Submitted: January 31, 2001

                       Decided: February 20, 2001

  Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                              COUNSEL

Matthew A. Victor, Charleston, West Virginia, for Appellant.
Rebecca A. Betts, United States Attorney, Samuel D. Marsh, Assis-
tant United States Attorney, Charleston, West Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

   Lucius Merritt Rogers appeals his criminal sentence imposed for
aiding and abetting in the attempted possession of cocaine with the
intent to distribute. We affirm.

   Rogers first contends that his sentence runs afoul of the Supreme
Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348 (2000), because drug quantity was neither charged in the indict-
ment nor submitted to the jury, but was rather determined by the court
at sentencing as a sentencing factor. Under Apprendi, any fact, other
than prior conviction, 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. Apprendi, 530 U.S. at ___, 120 S. Ct. at 2362-63. This court,
however, has held that Apprendi does not apply to a judge’s exercise
of sentencing discretion within a statutory range so long as a defen-
dant’s sentence is not set beyond the maximum term specified in the
substantive statute. United States v. Kinter, 235 F.3d 192, 199-200
(4th Cir. 2000); United States v. Lewis, 235 F.3d 215, 219 (4th Cir.
2000) (applying a plain error standard of review). Because Rogers’
sentence of 121 months is below the lowest possible statutory maxi-
mum of twenty years, the sentence is permissible under Lewis and
Kinter. We therefore find no reversible error as to this claim.

   Rogers next argues that, assuming that Apprendi is inapplicable,
the district court erred in determining drug quantity because its rele-
vant conduct determination relied upon the testimony of two wit-
nesses, both of whom were unreliable. We review the district court’s
determination in this regard for clear error, United States v. Fletcher,
74 F.3d 49, 55 (4th Cir. 1996), and note that the Government has the
burden of establishing the amount by a preponderance of the evi-
dence. United States v. D’Anjou, 16 F.3d 604, 614 (4th Cir. 1994). In
conducting this review, the district court’s application of the Sentenc-
ing Guidelines are given "due regard to the opportunity of the district
court to judge the credibility of witnesses." 18 U.S.C. § 3742(e)
(1994).
                      UNITED STATES v. ROGERS                        3
   Rogers argues that the testimony offered by Johnson and Reed was
so contradictory and unworthy of credence that the district court
clearly erred in relying upon their statements. A review of the record
reveals that, although their statements are at times contradictory and
occasionally border on the incredible, the district court was thor-
oughly aware of these contradictions and credibility issues and took
these concerns into account, using only those portions of the testi-
mony that the district court determined to be credible and only the
lowest estimates of amounts within those portions. Given this
approach, we conclude that the district court’s credibility determina-
tion and its ultimate determination of quantity should not be disturbed
on appeal.

   Accordingly, we affirm Rogers’ sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

                                                          AFFIRMED
