                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4982



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JEFFREY ALEXANDER SANDERS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (CR-04-338-BO)


Submitted:   June 16, 2006                 Decided:   July 10, 2006


Before WILKINSON, WILLIAMS, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina, for Appellant. Frank D. Whitney, United
States Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Jeffrey Alexander Sanders appeals from his convictions

for   conspiracy   to    distribute   and    to    possess   with    intent   to

distribute crack cocaine and for three counts of distribution of

crack cocaine.     He also appeals his life sentence.           We affirm.



                                      I.

           Sanders      first   challenges   the    admission   of    a   police

officer’s testimony that a paid informant had successfully served

as an informant and testifying witness on prior occasions. Sanders

alleges that such testimony was improper extrinsic evidence offered

to bolster the informant’s credibility in violation of Fed. R.

Evid. 608(b).      Because Sanders did not object, this issue is

reviewed for plain error. To demonstrate plain error, an appellant

must establish that an error occurred, that it was plain, and that

it affected substantial rights.        United States v. Olano, 507 U.S.

725, 732 (1993).     If an appellant meets these requirements, this

court’s “discretion is appropriately exercised only when failure to

do so would result in a miscarriage of justice, such as when the

defendant is actually innocent or the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.”

United States v. Hughes, 401 F.3d 540, 555 (4th Cir. 2005).

           The Government appears to agree that admission of the

evidence was improper. However, the Government contends that there


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was no plain error because (1) the evidence would have been

admissible as rebuttal evidence and (2) the evidence against

Sanders was overwhelming.          We agree.

            Rule 608(b) bars the admission of extrinsic evidence to

prove “[s]pecific instances of the conduct of a witness, for the

purpose     of   .    .   .   supporting       the    witness’      character     for

truthfulness.”       However, Rule 608(b) does not apply when evidence

is offered for the purpose of establishing or rebutting a witness’s

bias.     United States v. Sumlin, 271 F.3d 274, 282-83 (D.C. Cir.

2001); see also Fed. R. Evid. 608, Advisory Committee Notes, 2003

Amendments (providing that extrinsic evidence may be offered for

impeachment purposes). Here, Sanders cross-examined the informant,

eliciting evidence regarding his monetary interest in conducting

controlled buys, his hatred of drug dealers, and the fact that he

targeted his girlfriend’s ex-boyfriend.               Thus, the evidence of the

informant’s prior cooperation would likely have been admissible to

rebut the theory that the informant fabricated evidence against

Sanders in order to make money and protect his girlfriend.                      Thus,

Sanders’ substantial rights were not affected.

            In any event, even if the evidence was inadmissible in

rebuttal,    there     was    no   miscarriage       of   justice   requiring     the

exercise of our discretion.             The evidence against Sanders was

overwhelming.        Even disregarding the informant’s testimony, there

was sufficient evidence for the jury to find Sanders guilty on each


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count.   Contrary to Sanders’ suggestion that there would have been

insufficient evidence to convict him of two substantive counts,

numerous witnesses testified about one or both of those buys.              In

addition, Frank Sessions’ testimony regarding Sanders’ admissions

further corroborated the other evidence at trial.             Thus, even if

there was plain error in this case, we decline to exercise our

discretion to notice it.



                                      II.

             Sanders next asserts that the district court erred in

admitting audiotapes and permitting review of the transcripts when

the tape recordings were inaudible. Because Sanders did not object

below, this claim is also reviewed for plain error.           Again, we find

that there was no miscarriage of justice in this case justifying

the exercise of our discretion.

           First,   it   is    not    clear   that   the    recordings   were

inaudible.     Although the district court stated it could not hear

the first one, at least some members of the jury could.           The record

shows that the second tape was clearer. Second, Sanders stipulated

to the accuracy of the transcripts, so even misplaced reliance on

the   transcripts   by   the   jury   would   not    have   prejudiced   him.

Finally, there was ample corroborating evidence regarding the July

2003 controlled buys, which the tape recordings documented.              Thus,

it is not likely that suppression of the tape recordings would have


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altered the outcome of the trial.        Accordingly, any error did not

affect   Sanders’   substantial   rights    and   did   not   result   in    a

miscarriage of justice.



                                  III.

           Sanders next contends that the district court erred in

adopting the findings in the presentence report (“PSR”) regarding

drug   quantity.    However,   the   defendant    bears   the   burden      of

establishing that the information relied on by the district court

from the PSR is incorrect.     United States v. Love, 134 F.3d 595,

606 (4th Cir. 1998).   Because Sanders did not object, the district

court was not required to hold a hearing or to make specific

findings of fact before adopting the recommendations in the PSR.

Id.    In any event, the testimony at trial fully supported the

amounts adopted.    Accordingly, this claim is without merit.



                                   IV.

           Sanders argues that the district court’s finding of drug

quantity violated United States v. Booker, 543 U.S. 220 (2005),

because it was made by the judge based on a preponderance of the

evidence, rather than upon facts admitted by Sanders or found by a

jury beyond a reasonable doubt. Sanders was sentenced after Booker

and under the advisory guidelines system.         The district court did

not err in making the relevant factual findings by a preponderance


                                  - 5 -
of the evidence.      See United States v. Morris, 429 F.3d 65, 71-72

(4th Cir. 2005).         The court was not obligated post-Booker to

determine enhancements by a higher standard.           See Hughes, 401 F.3d

at 546 (consistent with Booker, “a district court shall first

calculate (after making the appropriate findings of fact) the range

prescribed by the guidelines”); see also United States v. Revels,

__ F.3d __, 2006 WL 1134148, *2 n.2 (4th Cir. May 1, 2006) (noting

that, when defendant fails to object to PSR, the Government has met

its burden of proving the undisputed facts by a preponderance of

the evidence, even after Booker).          Thus, there was no error.



                                      V.

            Sanders asserts that his attorney was ineffective for

failing    to   object   to   the   bolstering,    the   admission   of   the

audiotape,      the   Government’s     motion     in   limine   to   prevent

cross-examination on stale convictions, and the drug quantity in

the PSR.    An ineffective assistance of counsel claim is generally

not cognizable on direct appeal, but should instead be asserted in

a post-conviction petition under 28 U.S.C. § 2255 (2000).                 See

United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).

However, we have recognized an exception to the general rule when

“it ‘conclusively appears’ from the record that defense counsel did

not provide effective representation.”          Id.




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           Sanders asserts that there was no tactical basis for

failing to interpose these objections.       However, such a conclusory

statement fails to rebut the strong presumption that the actions

taken by counsel were sound trial strategy.              See Strickland v.

Washington, 466 U.S. 668, 690 (1984).        Sanders’ counsel may have

declined to object so as to not call attention to the issue or

because the objection would have been fruitless.          Thus, the record

does not conclusively establish that Sanders’ counsel’s conduct was

unreasonable.

           Moreover, as discussed previously, there was a plethora

of evidence against Sanders.       He was witnessed and tape-recorded

conducting two drug deals; he was arrested in the midst of another

drug deal; he admitted in prison to selling drugs; and the Sessions

brothers (whose testimony Sanders does not challenge) testified

that, for over a year and a half, Sanders bought substantial

quantities of crack cocaine on a very regular basis.              Therefore,

even if counsel erred by failing to object in district court, the

record does not conclusively show prejudice. Thus, Sanders’ claims

are not cognizable on direct appeal.



                                   VI.

           Accordingly, we affirm Sanders’ convictions and sentence.

We   dispense   with   oral   argument   because   the    facts   and   legal




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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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