UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4049

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

VERNON BROOKS,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Abingdon. James P. Jones, District Judge.

(CR-03-20)

Submitted: September 27, 2004 Decided: October 28, 2004

Before WILKINSON, WILLIAMS, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

William J. Dinkin, DINKIN, PURNELL & JOHNSON, PLLC, Richmond,

Virginia, for Appellant. John L. Brownlee, United States Attorney,

Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

Vacated by Supreme Court, March 7, 2005
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PER CURIAM:

Vernon Brooks appeals from his convictions and 210-month

sentence for conspiracy to distribute oxycodone and possession of

oxycodone with intent to distribute within 1000 feet of a protected

area, in violation of 21 U.S.C. §§ 841(a)(1), 846, 849 (2000).

Finding no reversible error, we affirm. 

Brooks first claims that the district court denied him

his Sixth Amendment right to trial by jury by applying sentencing

enhancements under the federal sentencing guidelines. Because

Brooks did not raise this claim in the district court, our review

is for plain error. See United States v. Osborne, 345 F.3d 281,

284 (4th Cir. 2003) (stating standard of review). We have recently

considered this argument and rejected it. See United States v.

Hammoud, ___ F.3d ___, 2004 WL 2005622, at *28 (4th Cir. Sept. 10,

2004) (No. 03-4253) (en banc); United States v. Hammoud, 378 F.3d

426 (4th Cir. 2004) (order), petition for cert. filed, ___ U.S.L.W.

___ (U.S. Aug. 6, 2004) (No. 04-193). Because Brooks’ sentence did

not exceed the statutory maximum sentence authorized by law, see

Apprendi v. New Jersey, 530 U.S. 466 (2000), we find no error. 

Brooks next claims that the district court abused its

discretion by allowing the jury to consider a tape-recorded

conversation between two of Brooks’ co-conspirators. Brooks claims

that because one of the parties to the recorded conversation was no

longer a participating member of the conspiracy, the district court
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erred in admitting the tape under Fed. R. Evid. 801(d)(2)(E). Even

if the audiotape amounts to hearsay, we conclude that error, if

any, is harmless. See United States v. Weaver, 282 F.3d 302,

313-14 (4th Cir.) (providing standard), cert. denied, 537 U.S. 847

(2002). Numerous witnesses and co-conspirators testified at trial

to Brooks’ role in transporting large quantities of oxycodone

tablets to Virginia and distributing them. Although Brooks attacks

this testimony as self-serving, it is the jury, not this court,

that is charged with weighing the credibility of these witnesses.

See United States v. D’Anjou, 16 F.3d 604, 614 (4th Cir. 1994).

Accordingly, we reject this claim. 

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