                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                  v.                             No. 99-4449
JOSEPH DANIELS, a/k/a Lil Hawk,
               Defendant-Appellant.
                                       
            Appeal from the United States District Court
      for the Eastern District of North Carolina, at Greenville.
                Malcolm J. Howard, District Judge.
                            (CR-98-23-H)

                       Argued: April 3, 2002

                       Decided: June 21, 2002

   Before WILKINSON, Chief Judge, WIDENER, Circuit Judge,
     and Walter K. STAPLETON, Senior Circuit Judge of the
       United States Court of Appeals for the Third Circuit,
                      sitting by designation.



Affirmed by unpublished opinion. Judge Stapleton wrote the opinion,
in which Chief Judge Wilkinson and Judge Widener joined.


                             COUNSEL

ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, MAHER,
WIDENHOUSE & FIALKO, Chapel Hill, North Carolina, for Appel-
lant. Jane J. Jackson, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole, United
2                     UNITED STATES v. DANIELS
States Attorney, Anne M. Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit.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


                             OPINION

STAPLETON, Senior Circuit Judge:

   Appellant, Joseph Daniels, was convicted of conspiring to possess
with the intent to distribute, and with distributing, cocaine and crack
cocaine. See 21 U.S.C. § 841(a)(1); 21 U.S.C. § 846. He was sen-
tenced to 292 months in prison and five years of supervised release.
Three issues are raised on appeal.

   Daniels first challenges the admission at trial of evidence about an
episode that led to his arrest in Atlanta, Georgia in 1993. This evi-
dence tended to show that Daniels and three other individuals had
arranged to purchase a kilogram of crack cocaine from an undercover
agent.

   Daniels argues that this evidence was inadmissible under Federal
Rule of Evidence 404(b). The Government counters that it was not
evidence within the scope of Rule 404(b). Rather it was evidence of
the charged conspiracy tending to show the commission of an overt
act in furtherance of that conspiracy. We agree.

   Evidence of wrongful acts that is probative of the crime charged
does not fall within the limitations of Rule 404(b) and is admissible
subject to other evidentiary constraints such as relevancy. United
States v. Colkley, 899 F.2d 297, 303 (4th Cir. 1990). If a prior act is
relevant to prove involvement in a charged conspiracy and is not
offered to prove character, Rule 404(b) is not applicable and the prior
act is admissible. United States v. Dozie, 27 F.3d 95, 97 (4th Cir.
1994).
                      UNITED STATES v. DANIELS                        3
   Under Federal Rule of Evidence 401, evidence is relevant if it has
"any tendency to make the existence of any fact that is of conse-
quence more or less probable than it would be without the evidence."
The evidence Daniels here challenges tended to make it more proba-
ble that Daniels went to Atlanta to secure crack cocaine for distribu-
tion by the charged conspiracy in North Carolina.

   The arrest occurred on February 12, 1993, which is within the dates
of the charged conspiracy, January 1, 1992 to July 28, 1998. Lonnie
Earl Crandall, Daniels’s alleged co-conspirator, testified that Daniels
suggested that they go together to Atlanta to secure drugs. Because
Crandall was unable to go, Daniels went with the three individuals
with whom he was arrested. When Daniels returned to North Caro-
lina, he told Crandall that he had been arrested before he was able to
buy the crack cocaine. The undercover agent involved in the transac-
tion testified that Daniels was present when it took place and that one
of the four individuals arrested told him that Daniels was a knowing
participant in the attempted purchase. Daniels also told Curtis Guil-
ford, another co-conspirator, that he was going to Atlanta to get drugs.
There was also evidence that Daniels, around the time of his arrest in
Atlanta, began looking for drug sources for the conspiracy outside of
North Carolina. After the Atlanta arrests, Daniels began sending peo-
ple to New York to purchase drugs.

   Daniels argues that the Atlanta transaction did not have anything
to do with the conspiracy charge between Daniels and Crandall and
places great weight on his own trial testimony and that of another par-
ticipant in the transaction that, while present, Daniels had no knowl-
edge that a drug transaction was about to occur. This was, of course,
an appropriate argument for Daniels to make to the jury, but the jury
was not compelled to accept it. The arrest remained relevant despite
the evidence Daniels stressed and the jury was entitled to conclude,
based on that evidence, that the Atlanta transaction was a part of the
charged conspiracy.

   Daniels next argues that the jury’s verdict was ambiguous as to
which drug, crack cocaine or powder cocaine, was the object of the
conspiracy. As a result of this alleged ambiguity, Daniels contends
that he must be sentenced based on the drug carrying the lower statu-
tory penalty, which is powder cocaine. He bases his argument on the
4                      UNITED STATES v. DANIELS
Fourth Circuit’s holdings in United States v. Rhynes, 196 F.3d 207
(4th Cir. 1999), vacated in part on other grounds, 218 F.3d 310 (4th
Cir. 2000), United States v. Quicksey, 525 F.2d 337 (4th Cir. 1975),
and United States v. Lewis, 2000 WL 1390065 (4th Cir. 2000).

   This claim is reviewed for plain error because Daniels did not
assert it in the District Court. United States v. Bowens, 224 F.3d 302,
314-15 (4th Cir. 2000). Under this standard, Daniels must show (1)
"an ‘error,’ (2) that is ‘plain’ and, (3) that ‘affects[s] substantial
rights.’" Johnson v. United States, 520 U.S. 461, 466-67 (1997) (quot-
ing United States v. Olano, 507 U.S. 725, 732 (1993)). "Moreover,
Rule 52(b) leaves the decision to correct the forfeited error within the
sound discretion of the Court of Appeals, and the court should not
exercise that discretion unless the error seriously affect[s] the fairness,
integrity or public reputation of the judicial proceedings." Id. at 467.

   The indictment charged Daniels with conspiracy to possess with
the intent to distribute, and with distributing, cocaine and crack
cocaine. Accordingly, the District Court instructed the jury that Dan-
iels was charged in the indictment with conspiring to possess with
intent to distribute, and with distributing, both cocaine and crack
cocaine. It further charged the jury that in order to find Daniels guilty
it must find beyond a reasonable doubt "that two or more persons in
some way or manner came to a mutual understanding to try to accom-
plish a common and unlawful plan as charged in the indictment . . . ."
JA 1153.

   The jury’s verdict was not ambiguous with regard to which drug
was the object of the conspiracy. As in United States v. Cotton, 261
F.3d 397 (4th Cir. 2001), rev’d on other grounds, 122 S.Ct. 1781
(2002), it was clear from the indictment and the jury instructions that
the charged conspiracy involved plans to possess and distribute both
forms of cocaine. The Court instructed the jury in unambiguous terms
that a conspiracy conviction could be based only upon a finding that
there was a conspiracy to distribute both powder cocaine and crack
cocaine, see Cotton, 261 F.3d at 402-03, and the evidence was suffi-
cient to support a finding that Daniels conspired to distribute both.
There is no reason to believe that the jury failed to follow the instruc-
tions it was given. The jury’s verdict of guilty thus clearly evidences
                       UNITED STATES v. DANIELS                         5
a conclusion beyond a reasonable doubt that both powder cocaine and
crack cocaine were objects of the conspiracy.

   This case is distinguishable from Rhynes. In Rhynes, the jury was
instructed that it could find the defendant guilty if it found that the
defendant had conspired "to distribute or possess with intent to dis-
tribute heroin, or cocaine, or cocaine base or marijuana." 196 F.3d at
237. Because the different drugs were connected in the disjunctive, it
was impossible for the court to determine on which statutory object
or objects the jury’s verdict was based.

   Daniels’s final argument concerns his sentence of 292 months. The
maximum sentence for the distribution of an unspecified quantity of
cocaine or cocaine base is 240 months. 21 U.S.C. § 841(b)(1)(C). The
jury was not asked to make a finding as to the amount of powder or
crack cocaine involved in the conspiracy. Daniels was sentenced,
however, for an aggravated drug trafficking offense based upon the
trial judge’s finding that at least 1.5 kilograms of crack were distrib-
uted in the course of the conspiracy. As a result, Daniels insists that
his sentence is invalid under Apprendi v. New Jersey, 530 U.S. 466
(2000). This argument was not raised in the District Court, and there-
fore, must meet the plain error standard we have previously discussed.

   The Government concedes that under Apprendi the District Court
erred by sentencing Daniels to more than 240 months in the absence
of a jury determination that his offense involved the threshold amount
necessary to support such a sentence. It further concedes that this
error is "plain" in light of Apprendi. Relying on the Supreme Court’s
recent decision in United States v. Cotton, 122 S.Ct. 1781 (2002),
however, the government maintains that no relief is appropriate
because the error did not seriously affect the fairness, integrity or pub-
lic reputation of the proceedings.

   In Cotton, the Court was also faced with a situation in which the
trial court, without a contemporaneous objection, had imposed drug
conspiracy sentences of over 240 months without a jury finding con-
cerning the quantity of the drugs involved. When applying the plain
error standard, the Court declined to address whether such an error
affected the substantial rights of the defendants. Rather, the Court
held that even if the defendant’s substantial rights are affected, such
6                      UNITED STATES v. DANIELS
an error does not seriously affect the fairness, integrity or public repu-
tation of judicial proceedings so long as the evidence of the requisite
drug quantity is "overwhelming" and "essentially uncontroverted." In
such a situation, "[t]he real threat . . . to the ‘fairness, integrity, and
public reputation of judicial proceedings’ would be if [defendants],
despite the overwhelming and uncontroverted evidence that they were
involved in a vast drug conspiracy, were to receive a sentence pre-
scribed for those committing less substantial offenses because of an
error that was never objected to at trial." Id. at 1787.

   The evidence regarding the quantity of drugs involved in this six
and one-half year conspiracy, like that in Cotton, was overwhelming
and essentially uncontroverted and supports Daniels’s sentence. Lon-
nie Earl Crandall testified that Fruit (or Tutti) made numerous trips
to New York to buy crack cocaine for himself and Daniels. On each
of these trips, Fruit would buy half a kilogram or a full kilogram of
crack cocaine. Crandall and Milton Jones brought back from New
York two kilograms of crack cocaine on one trip alone. Jones was
arrested on another occasion with two kilograms of cocaine and crack
cocaine that he was transporting for Daniels. Terrell Sneed also testi-
fied that he made two trips to New York for Daniels. On each of these
trips he transported 250 grams of cocaine and 250 grams of crack.

   Based on this uncontroverted evidence, the presentence investiga-
tion report recommended a base level of 38, observing that the "infor-
mation presented by the government at trial, and affirmed by the
jury’s verdict of guilty, establishes that the defendant should be held
accountable for the distribution of well in excess of 1.5 kilograms of
crack cocaine." App. 1199. Significantly, while Daniels’s Objections
to Presentence Investigation Report objected to being held account-
able for "in excess of 1.5 kilograms of crack cocaine," he did not
object to being held accountable for 1.5 kilograms of crack cocaine,
the amount necessary to support his sentence. As we have noted, the
trial judge, at the sentencing hearing, found that the conspiracy had
involved at least 1.5 kilograms of crack. He went on to note, however,
that the evidence would support a finding of far in excess of that
amount.

   The absence of a jury finding that Daniels’s conspiracy involved
at least 1.5 kilograms of crack cocaine does not impair the fairness,
                       UNITED STATES v. DANIELS                         7
integrity or public reputation of the proceeding that we here review.
To the contrary, as in Cotton, the record here is such that vacating his
sentence because of the absence of such a finding would pose a "real
threat . . . to the ‘fairness, integrity, and public reputation of’" those
proceedings.

  Daniels’s conviction and sentence will be affirmed.

                                                             AFFIRMED
