                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4029



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


BETH ANN WOODS,

                                            Defendant - Appellant.


                            No. 04-4097



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


SCOTT SHIFFLETT,

                                            Defendant - Appellant.


                            No. 04-4098



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus
STACY SHIFFLETT,

                                           Defendant - Appellant.


Appeals from the United States District Court for the Western
District of Virginia, at Harrisonburg.  James C. Turk, Senior
District Judge. (CR-02-19)


Submitted:   April 18, 2005                Decided:    May 12, 2005


Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.


David H.N. Bean, Strasburg, Virginia; Eric B. Snyder, BAILEY &
GLASSER, L.L.P., Charleston, West Virginia; David L. Heilberg,
Kimberly T. Randall, MARTIN & RAYNOR, P.C., Charlottesville,
Virginia, for Appellants.      John L. Brownlee, United States
Attorney, Craig J. Jacobsen, Assistant United States Attorney,
Roanoke, Virginia; Thomas E. Booth, DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.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




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PER CURIAM:

            In these consolidated appeals, Beth Ann Woods, Stacy

Shifflett     and   Scott   Shifflett      appeal   their    convictions     and

sentences.      After   a   trial,   the    Appellants    were   convicted    of

conspiracy to distribute and possess with intent to distribute more

than 500 grams of methamphetamine and more than 100 kilograms of

marijuana.     On appeal, the Shiffletts, who are married to each

other, contend the district court erred by not permitting the jury

during deliberations to have access to tape recorded telephone

calls not played during the trial.             All three Appellants claim

their sentences violate the rule announced in United States v.

Booker, 125 S. Ct. 738 (2005).             We affirm the convictions and

vacate the sentences and remand for resentencing.

            During the course of investigating the drug conspiracy,

law   enforcement    authorities     intercepted    and     secretly   recorded

numerous telephone calls involving members of the conspiracy. Many

of the tape recorded telephone calls were admitted as evidence

during the trial.       Some, not all, of the telephone calls were

played for the jury, and transcripts of the calls were provided.

In addition, a member of the conspiracy and one of the participants

in the telephone calls testified as to details in each of the

calls.   During deliberations, a juror asked if the unplayed tapes

could be provided to the jury.       While the district court noted that

it would provide the tapes if the jury wanted them, it also noted


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that the remaining tapes did not have transcripts and it would be

difficult for the jury to identify the speakers.               In addition,

there was no log for the remaining telephone calls.              The court

further noted that listening to the remaining tapes would be time

consuming.   The juror who made the initial request was persuaded

that the remaining tapes would not be helpful, and the tapes were

not given to the jury.

          The Shiffletts contend that the district court erred by

refusing to provide the remaining tape recorded telephone calls to

the jury. In addition, the Shiffletts contend the court improperly

commented on the evidence by stating the jury would “be here

forever” listening to tapes.        (J.A. at 1288).          The Shiffletts

further contend the court implied the jury need not consider the

unplayed tape recordings in order to reach a verdict.

          Because the Shiffletts did not object to the district

court’s   actions,   we   review    their     claims   for    plain   error.

See United States v. Robinson, 275 F.3d 371, 383 n.4 (4th Cir.

2001); see also United States v. Gantt, 140 F.3d 249, 258 (D.C.

Cir. 1998) (court’s refusal to let jury see all the video tape

recordings was not plain error).           In order to demonstrate plain

error, the Shiffletts must show that an error occurred, the error

was plain, and the error affected their substantial rights. United

States v. Olano, 507 U.S. 725, 732 (1993).        Correction of the error

remains within our discretion, which we “should not exercise . . .


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unless the error ‘seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.’”                   Id. at 732 (second

alteration in original) (quoting United States v. Young, 470 U.S.

1, 15 (1985)).

              We note that the trial transcript does not support the

Shiffletts’ claim that the district court refused to provide the

remaining tapes to the jury.            The court on at least two occasions

stated that the jury could have the tapes.               Nor does the transcript

support the claim that the district court improperly implied that

the   additional      tapes   would     not   be     helpful   in    reaching      their

verdicts. Furthermore, there is no evidence in the record that the

jury’s failure to review the remaining tape recorded telephone

calls affected the outcome of the proceedings.                  The Shiffletts do

not   claim    that   the     additional      tape    recordings      contained     any

exculpatory conversations.            Accordingly, we find no reversible

plain error in the district court’s actions.

              At sentencing, the Shiffletts and Woods had their offense

levels enhanced based on a quantity of drugs not found by the jury

beyond a reasonable doubt.         In addition, Woods’s offense level was

increased for possession of a weapon.                 The Appellants claim that

their   sentences      violate    the    rule      announced    in    Booker.        The

Shiffletts preserved this error by arguing that the enhancements to

their offense levels violated the rule announced in Apprendi v. New

Jersey,   530     U.S.   466     (2000).        Accordingly,         we   review    the


                                        - 5 -
Shiffletts’ claim de novo. United States v. Daughtrey, 874 F.2d

213, 217 (4th Cir. 1989).

             In Booker, the Supreme Court held that the mandatory

manner in which the federal sentencing guidelines required courts

to impose sentencing enhancements based on facts found by the court

by a preponderance of the evidence violated the Sixth Amendment.

Booker, 125 S. Ct. at 746, 750.          In this case, the district court

sentenced the Shiffletts under the mandatory federal sentencing

guidelines and applied enhancements for an amount of drugs not

found   by   the   jury   beyond   a    reasonable   doubt.     Because   the

Shiffletts     were   incorrectly       sentenced    under    the   mandatory

guidelines scheme, we vacate the Shiffletts’ sentences and remand

to the district court for a new sentencing hearing consistent with

the rule announced in Booker.

             Woods did not object at sentencing to the use of the

guidelines in determining her sentence. Accordingly, we review her

claim for plain error. Like the Shiffletts, Woods was sentenced as

if the guidelines were mandatory.              In addition, the court made

factual findings with respect to drug weight and possession of a

handgun.

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

we held that a district court plainly errs by imposing a sentence

under the mandatory federal sentencing guidelines exceeding the

maximum sentence authorized by the facts found by the jury alone.


                                       - 6 -
Id. at 547. Accordingly, we hold that Woods’s sentence was plainly

erroneous.     We vacate Woods’s sentence and remand to the district

court for resentencing.

           Accordingly, we affirm the Shiffletts’ convictions and

vacate   the   Appellants’   sentences     and    remand   for   resentencing

consistent with the rule announced in Booker.              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 IN PART; VACATED
                                                       AND REMANDED IN PART




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