UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 00-4402

LAMONT PETTUS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Huntington.

Joseph Robert Goodwin, District Judge.

(CR-99-227)

Submitted: February 28, 2001

Decided: April 19, 2001

Before MICHAEL and GREGORY, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Jeffrey Alan Holmstrand, MCDERMOTT & BONENBERGER,

P.L.L.C., Wheeling, West Virginia, for Appellant. Rebecca A. Betts,

United States Attorney, John C. Parr, Assistant United States Attorney, Huntington, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Following a jury trial, Lamont Pettus was convicted on one count

of conspiracy to distribute cocaine base ("crack"), in violation of 21

U.S.C.A. § 846 (West 1999), and one count of aiding and abetting the

possession with intent to distribute crack, in violation of 21 U.S.C.A.

§ 841(a)(1) (West 1999), 18 U.S.C. § 2 (1994). The court sentenced

him to sixty-seven months in prison. Pettus appeals, raising five

grounds of error in his convictions and sentence. We find no merit to

his claims; consequently, we affirm.

I.

Pettus first argues that the evidence was insufficient to support his

convictions. A jury's verdict must be upheld if there is substantial evidence in the record to support it. Glasser v. United States, 315 U.S.

60, 80 (1942). Pettus' claims essentially concern witness credibility.

However, in determining sufficiency of the evidence, this Court does

not review the credibility of the witnesses. United States v. Romer,

148 F.3d 359, 364 (4th Cir. 1998), cert. denied , 525 U.S. 359 (1999).

We find that the evidence presented at trial was sufficient to support

Pettus' convictions.

II.

Next, Pettus argues that his counsel provided ineffective assistance

at trial for failing to call a Federal Bureau of Investigation special

agent to testify. Ineffective assistance of counsel claims generally

should be raised by motion under 28 U.S.C.A. § 2255 (West Supp.

2000), rather than on direct appeal. To succeed on such a claim on

direct appeal, it must appear conclusively from the face of the record

that counsel provided ineffective representation. United States v.

 2
Richardson, 195 F.3d 192, 198 (4th Cir. 1999), cert. denied, 528 U.S.

1096 (2000).

Pettus was charged with and convicted of selling crack on November 2, 1999. The agent testified at the preliminary hearing that the

confidential informant did not purchase crack directly from Pettus on

November 2, 1999. At trial, two witnesses, including the confidential

informant, testified that Pettus sold crack to the informant on November 2. Neither the government nor Pettus' attorney called the special

agent to testify. Pettus contends that the agent's testimony would have

contradicted that of the other witnesses and would have created reasonable doubt concerning Pettus' participation in the November 2

drug sale. At the sentencing hearing, Pettus' counsel explained that

much of the special agent's testimony would have been inadmissible

hearsay. The relevant testimony was that of the actual eyewitnesses

to the drug transactions and these individuals testified at trial. These

witnesses were presented by the government and were crossexamined by defense counsel who succeeded in obtaining an acquittal

for his client on another count in the indictment charging him with

aiding and abetting the distribution of crack on November 4, 1999.

We find that Pettus cannot show conclusively from the face of the

record that counsel was ineffective.

III.

Pettus asserts that the district court erred by allowing the government to provide the jury with a transcript of the audiotaped November

2 drug transaction. The tape was admitted without objection. One of

the participants in the recorded conversation, confidential informant

Juanita Willis, identified Pettus as one of the speakers. Pettus argues

that the district court erred by allowing the jury to view the transcript,

which identified him as a speaker, and by failing to give a cautionary

instruction to the jury at the close of evidence. However, the court

instructed the jury, both before and after playing the tape, that the tape

itself was the evidence and that it was up to the jury to decide whether

the transcript was accurate and whose voices were on the tape. We

find no abuse of discretion. United States v. Collazo, 732 F.2d 1200,

1203-04 (4th Cir. 1984).

 3
IV.

The district court held Pettus accountable for 5.95 grams of crack:

the .45 gram quantity he sold to a confidential informant on November 2, 1999 and a "G-bomb," which the court determined weighed 5.5

grams, that was delivered on November 3, 1999, to the apartment

from which Pettus and his co-conspirators sold drugs.

Pettus argues that there was no evidence linking him to the Gbomb. However, the government presented undisputed evidence that

Pettus arrived at the apartment on November 1, 1999, began training

that day to sell drugs from the apartment, and was involved in the sale

of .45 gram of crack from that location on November 2. The G-bomb

was delivered on November 3. Pettus was in the apartment on

November 4 during a controlled drug buy and was arrested in the

apartment immediately following the controlled buy. A co-conspirator

testified that when the police arrived, Pettus disposed of any remaining crack by flushing it down the toilet. We find that the district court

did not clearly err by concluding that the quantity of drugs in the Gbomb was attributable to Pettus. United States v. Randall, 171 F.3d

195, 210 (4th Cir. 1999).

Pettus also argues that the district court improperly calculated the

amount of drugs attributable to him beyond the .45 gram from the

November 2 controlled buy. As stated above, the other quantity of

drugs attributed to Pettus came from the G-bomb delivered on

November 3. One of Pettus' co-conspirators testified that a G-bomb

contains about fifty rocks of crack. The government calculated that

the G-bomb contained 5.5 grams of crack, estimating that each rock

weighed .11 gram based on the smallest quantity sold from the apartment. We find that the district court did not clearly err by adopting

this calculation and attributing 5.95 grams of crack to Pettus--the .45

gram amount sold on November 2 and the 5.5 gram G-bomb delivered to the apartment on November 3.

V.

A month after Pettus was sentenced, the Supreme Court of the

United States issued its decision in Apprendi v. New Jersey, 530 U.S.

466 (2000). Under Apprendi, any fact, other than a prior conviction,

 4
that increases the maximum penalty for a crime is an element of the

offense, and as such, must be charged in the indictment, submitted to

a jury, and proven beyond a reasonable doubt. Pettus argues that his

sentence violates Apprendi because he was sentenced based upon

drug quantities not charged in the indictment. Every circuit to consider Apprendi in the context of 21 U.S.C.A.§ 841(b) has concluded

that the statutory maximum when drug quantity is not treated as an

element of the offense is twenty years. United States v. White, 238

F.3d 537, 542 (4th Cir. 2001) (collecting cases). Pettus' sentence of

sixty-seven months falls well below the 240-month maximum in 21

U.S.C.A. § 841(b)(1)(C), and thus, under the authorities cited in

White, does not implicate Apprendi.

VI.

For these reasons, we affirm Pettus' convictions and sentence.* 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

_________________________________________________________________

*We grant Pettus' motion to file a reply brief out of time and reject

his claims asserted therein, including his claim that, based on Apprendi,

drug quantity must be charged in the indictment if it affects the mandatory minimum sentence. See United States v. Harris, ___ F.3d ___, 2001

WL 273146 (4th Cir. Mar. 20, 2001).

 5