                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4223


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HARVEY LEE BURNETTE, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Winston-Salem.     William L.
Osteen, Jr., District Judge. (1:09-cr-00193-WO-1)


Submitted:   March 24, 2011                 Decided:   April 13, 2011


Before AGEE, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


A. Wayne Harrison, Sr., LAW OFFICES OF A. WAYNE HARRISON,
Greensboro, North Carolina, for Appellant. John W. Stone, Jr.,
Acting United States Attorney, Randall S. Galyon, Assistant
United   States  Attorney,  Greensboro,  North  Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               A federal jury convicted Harvey Lee Burnette, Jr., of

conspiracy      to     distribute         cocaine,      in    violation       of    21    U.S.C.

§ 846    (2006).         The      district      court    sentenced         Burnette      to   240

months of imprisonment and he now appeals.                           Finding no error, we

affirm.

               Burnette first argues that the district court erred in

admitting audiotapes of recorded phone calls between Burnette

and a co-conspirator regarding a controlled purchase of cocaine

that occurred after the conspiracy ended.                              However, Burnette

failed    to    object       to    the    admission      of     the    tapes       before     the

district court.           “When an item of evidence is entered without

objection, the standard of review is very deferential.                                   We will

reverse only if the district court plainly erred by failing to

disallow    the       evidence      sua     sponte,     and     if    failing      to    reverse

would cause a miscarriage of justice.”                        United States v. Lamarr,

75   F.3d      964,    969     (4th      Cir.    1996)       (citation       omitted).         To

establish       that      the       court       plainly        erred,        Burnette         must

demonstrate       that    there       was    error,      that    was       plain,    and      that

affected his substantial rights.                      United States v. Olano, 507

U.S.     725,     731-32          (1993).           Moreover,         even     if       Burnette

demonstrates plain error occurred, this court will not exercise

discretion      to     correct      the     error     “unless        the   error    seriously

affect[s]       the    fairness,          integrity      or     public       reputation        of

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judicial     proceedings.”              Id.       (internal         quotation         marks     and

citation omitted).

             Rule 404(b) prohibits the admission of “[e]vidence of

other crimes, wrongs, or acts . . . to prove the character of a

person in order to show action in conformity therewith.”                                       Fed.

R.   Evid.    404(b).          Such     evidence             is    “admissible        for     other

purposes,     such       as     proof        of       motive,       opportunity,            intent,

preparation,        plan,       knowledge,              identity,         or     absence         of

mistake. . .       .”     Id.      Rule       404(b)          is   an   inclusionary          rule,

allowing evidence of other crimes or acts to be admitted, except

that which tends to prove only criminal disposition.                                  See United

States v. Queen, 132 F.3d 991, 994-95 (4th Cir. 1997).

             For    such       evidence       to        be    admissible,        it    must      be

“(1) relevant to an issue other than the general character of

the defendant; (2) necessary to prove an element of the charged

offense; and (3) reliable.”                   United States v. Hodge, 354 F.3d

305,   312   (4th       Cir.    2004)    (citing             Queen,     132    F.3d    at     997).

Additionally, the probative value of the evidence must not be

substantially       outweighed          by        its    prejudicial           effect.         Id.

(citing Fed. R. Evid. 403).                  Moreover, evidence may be admitted

pursuant to Rule 404(b) even if it encompasses events that took

place after the alleged offense.                      See United States v. Mohr, 318

F.3d 613, 618 (4th Cir. 2003) (Rule 404(b) “covers evidence of

both prior and subsequent acts.”).                       We have thoroughly reviewed

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the record and conclude that the court did not err in admitting

the challenged evidence.

            Burnette    next      argues       that    the   court      erred    in     its

charge to the jury regarding the use of the tapes as evidence of

the   charged    conspiracy.             However,      Burnette        has    forfeited

appellate     review    of   this       claim    by    failing     to    develop        his

argument in his opening brief.             See Eriline Co. S.A. v. Johnson,

440 F.3d 648, 653 n.7 (4th Cir. 2006) (finding conclusory single

sentence in brief “insufficient to raise on appeal any merits-

based challenge to the district court’s ruling”).

            Moreover,      this    argument       is    without      merit.         “‘The

decision to give or not to give a jury instruction is reviewed

for an abuse of discretion.’”                  United States v. Hurwitz, 459

F.3d 463, 474 (4th Cir. 2006) (quoting United States v. Moye,

454 F.3d 390, 398 (4th Cir. 2006) (en banc)).                           “‘We review a

jury instruction to determine whether, taken as a whole, the

instruction fairly states the controlling law.’”                         Id. (quoting

Moye, 454 F.3d at 398).              If this court determines that the

district    court   erred    in    refusing       an    instruction,         such   error

“warrant[s]     reversal     of   the    conviction      only     if    the     error    is

prejudicial based on a review of the record as a whole.”                            Moye,

454 F.3d at 399 (internal quotation marks and citation omitted).

Having reviewed the record and the relevant legal authorities,



                                           4
we conclude that the district court’s instructions to the jury

did not misstate the controlling law.

            Accordingly, we affirm the judgment of the district

court.     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




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