                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4958


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

CASEY COLEY,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, Chief District
Judge. (8:09-cr-00405-DKC-1)


Submitted:   September 21, 2011          Decided:   September 29, 2011


Before WILKINSON, GREGORY, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Gregory Stuart Smith, LAW OFFICES OF GREGORY S. SMITH,
Washington, D.C., for Appellant. Rod J. Rosenstein, United
States Attorney, Adam K. Ake, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A federal jury convicted Casey Coley of distribution

of benzylpiperazine (“BZP”), in violation of 21 U.S.C. § 841(a)

(2006); distribution of marijuana, in violation of 21 U.S.C.

§ 841(a); and possession with intent to distribute marijuana, in

violation of 21 U.S.C. § 841(a).                  The district court sentenced

Coley to fifty-one months of imprisonment and he now appeals.

For the reasons that follow, we affirm.

            Coley       first     argues        that    the           Government   withheld

exculpatory      evidence       in   violation         of    its        obligations    under

Brady v. Maryland, 373 U.S. 83 (1963).                           We review an alleged

Brady violation de novo.               United States v. Caro, 597 F.3d 608,

616 (4th Cir. 2010).

            “In Brady, the Supreme Court announced that the Due

Process   Clause     requires        the   government            to    disclose    ‘evidence

favorable to an accused upon request . . . where the evidence is

material either to guilt or to punishment.’”                            Id. at 619 (citing

Brady,    373    U.S.    at     87).       In    order       to        establish   a   Brady

violation, Coley must demonstrate that the evidence at issue is

favorable       to   him,       either     because          it        is   exculpatory    or

impeaching; the evidence was suppressed by the Government; and

he was prejudiced by that suppression.                      Strickler v. Greene, 527

U.S. 263, 281-82 (1999).             Favorable evidence is material if the

defendant can demonstrate that there is a reasonable probability

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that,   had    the     evidence     been    disclosed,           the     outcome    of    the

proceeding would have been different.                       Caro, 597 F.3d at 619.

We have thoroughly reviewed the record and conclude that Coley

has failed to “satisfy Brady’s requirement of showing that the

requested evidence would be favorable to him.”                               Id. (internal

quotation marks, alteration, and citations omitted).

              Coley next argues that the district court abused its

discretion     in    refusing       to   give    some       of     his       proposed    jury

instructions on the defense of entrapment.                          “‘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).

              Moreover, “[a] district court commits reversible error

in refusing to provide a proffered jury instruction only when

the   instruction       (1)   was    correct;         (2)   was     not       substantially

covered by the court’s charge to the jury; and (3) dealt with

some point in the trial so important, that failure to give the

requested instruction seriously impaired the defendant’s ability

to conduct his defense.”            United States v. Lighty, 616 F.3d 321,

366   (4th    Cir.),    cert.     denied,       131    S.    Ct.       846    (2010).     We

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conclude that Coley has failed to demonstrate that the district

court’s charge to the jury on entrapment did not fairly cover

his requested instructions.           Accordingly, the district court did

not abuse its discretion in refusing the requested instructions.

              Coley also argues that the district court erred in

refusing his instruction defining reasonable doubt and that this

issue should be reviewed de novo.                 Coley’s arguments, however,

are foreclosed by our binding precedent.                  See Lighty, 616 F.3d

at 380.       As one panel of this court may not overrule another

panel, see Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271

n.2 (4th Cir. 2002), Coley’s arguments must fail.

              Coley next argues that the district court’s admission

of recordings of transactions between Coley and a confidential

informant       violated    his   Sixth    Amendment      rights.       “The   Sixth

Amendment to the United States Constitution . . . provides that

[i]n    all   criminal     prosecutions,        the   accused   shall      enjoy   the

right . . . to be confronted with the witnesses against him.”

Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531 (2009)

(internal       quotation     marks       and    citation       omitted).          The

Confrontation Clause “guarantees a defendant’s right to confront

those    ‘who    bear    testimony’   against         him,”   and,   therefore,     a

witness’ testimony is “inadmissible unless the witness appears

at trial or, if the witness is unavailable, the defendant had a

prior     opportunity       for    cross-examination.”               Id.    (quoting

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Crawford v. Washington, 541 U.S. 36, 51, 54 (2004)) (internal

quotation marks omitted).

           However, “[t]he [Confrontation] Clause . . . does not

bar the use of testimonial statements for purposes other than

establishing the truth of the matter asserted.”              Crawford, 541

U.S. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414

(1985)).   Here, the district court correctly concluded that the

informant’s statements on the recordings were not admitted to

prove the truth of the matters asserted.          Rather, the statements

“were admissible to put [Coley’s] admissions on the tapes into

context,   making    the   admissions   intelligible    for    the    jury.”

United States v. Tolliver, 454 F.3d 660, 666 (4th Cir. 2006)

(finding   defendant’s     statements   in   recorded   transaction     with

informant admissible as admissions, and informant’s statements

admissible as not offered for their truth).

           Coley’s   penultimate    argument     is   that    the    district

court erred in denying his motion to dismiss the charges in the

indictment related to BZP.       We review a district court’s denial

of a motion to dismiss an indictment de novo where the denial

depends only on a question of law.            United States v. Hatcher,

560 F.3d 222, 224 (4th Cir. 2009).           We have thoroughly reviewed

the record and the relevant legal authorities and conclude that

the district court did not err in denying Coley’s motion to

dismiss.

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            Coley finally posits that the district court erred in

including      acquitted     conduct    in    calculating        the    advisory

Guidelines range.      However, as Coley’s argument is foreclosed by

United States v. Perry, 560 F.3d 246 (4th Cir.), cert. denied,

130 S. Ct. 177 (2009), it also must fail.                See Scotts, 315 F.3d

at 271 n.2.

            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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