UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 00-4820

CHARLES KEITH,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, Chief District Judge.
(CR-97-4)

Submitted: April 20, 2001

Decided: May 29, 2001

Before WIDENER and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Kevin D. Mills, LAW OFFICES OF KEVIN D. MILLS, Martinsburg,
West Virginia, for Appellant. Melvin W. Kahle, Jr., United States
Attorney, Paul T. Camilletti, Assistant United States Attorney, Whee-
ling, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM

Charles Keith appeals his conviction and sentence to 260 months
imprisonment. On December 5, 1997, Keith was convicted on eigh-
teen of twenty-seven counts against him, including conspiracy to dis-
tribute cocaine. For the following reasons, we affirm.

Keith raises several bases for challenging his sentence, three of
which are premised on the Supreme Court's decision in Apprendi v.
New Jersey, 520 U.S. 466, 120 S. Ct. 2348 (2000). First, Keith argues
that because the maximum statutory sentence for any count of which
he was convicted was 240 months, his 260 month sentence violates
Apprendi. However, the total offense level for all the counts of which
Keith was convicted yields a sentencing range of 235 months to 293
months. Where the total term of imprisonment based on a defendant's
aggregate criminal conduct exceeds the maximum statutory penalty
for any one offense of which he was convicted, a sentencing court
must impose a partially consecutive sentence in order to reflect the
total punishment. United States Sentencing Guidelines Manual
§ 5G1.2(d). We have previously decided that sentencing in this man-
ner does not violate Apprendi. United States v. White, 238 F.3d 537,
543 (4th Cir. 2001).

Next, Keith argues that because the jury was not charged with drug
quality or purity, his sentence violates Apprendi. Drug type is indeed
a fact that, under Apprendi, must be submitted to a jury and proved
beyond a reasonable doubt, before the penalty for a crime may be
increased beyond the prescribed statutory maximum. See United
States v. Nance, 236 F.3d 820, 824 (7th Cir. 2000). However, because
Keith's sentence did not exceed the statutory maximum for any count
of which he was convicted, it was not necessary for the jury to deter-
mine drug quantity or quality in his case. See id. Furthermore, in
order to determine whether a mixed substance qualifies as a particular

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type of drug, only trace amounts of the controlled substance need be
present in that mixture. See 21 U.S.C.A.§ 812(c), sched. II (a)(4)
(West 1981 & Supp. 1999). In light of Schedule II's definition of
cocaine, the jury was presented with ample evidence linking Keith to
substances containing various proportions of cocaine, which Keith
does not challenge.

Nor is Keith's third claim based on Apprendi, that the sentencing
court erred in applying enhancements to his base offense level in
determining what sentence range to apply, sufficient to overturn his
conviction. This court has previously held that"Apprendi does not
apply to a judge's exercise of sentencing discretion within a statutory
range," including the imposition of enhancements. United States v.
Kinter, 235 F.3d 192, 200-01 (4th Cir. 2000). Accordingly, because
Keith was sentenced within the statutory range for each count of
which he was convicted, this claim is without merit as well.

Keith next points to a series of alleged errors at trial, which he
claims in the aggregate prejudiced his defense. Specifically, Keith
contends that a) the jury was impermissibly allowed to collect and
give money to a specific juror to defray the cost of her babysitter, b)
he was denied an opportunity to participate in the jury selection pro-
cess, c) a juror talked about the case while at home, d) a particular
juror did not hear evidence presented in an audio tape, e) the jury
received exhibits not admitted into evidence, f) two witnesses con-
spired to manufacture testimony against him, g) the Government was
allowed to make unnecessary and prejudicial reference to a crime out-
side the activities charged in the indictment, h) witnesses testified
they purchased drugs from him while he was incarcerated, i) there
was insufficient evidence linking him to a co-conspirator, and j) the
Government's tape recording of a witness' participation in a tele-
phone conversation constitutes an illegal wiretap. However, we have
reviewed the briefs and trial transcripts, and find these claims to be
meritless both individually and collectively.

Finally, Keith argues his trial counsel was ineffective. However, a
claim on direct appeal based upon ineffective assistance of counsel
may only be heard when it appears conclusively on the trial record
that the defendant was not provided effective representation. See
United States v. Hoyle, 33 F.3d 415, 418-19 (4th Cir. 1994) (explain-

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ing that claims of ineffective assistance should generally be raised in
motions pursuant to § 2255 because the record on direct appeal is usu-
ally inadequately developed). We have reviewed the trial transcript
and find no such indication.

Accordingly, we grant Keith's motion to file an addendum to his
reply brief, and affirm Keith's conviction and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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