United States v. Biddix , 54 F. App'x 394 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4162
TIMOTHY GERALD BIDDIX,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-99-52)
Submitted: December 18, 2002
Decided: January 14, 2003
Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Sandra B. Jelovsek, Johnson City, Tennessee, for Appellant. Robert
J. Conrad, Jr., United States Attorney, Thomas R. Ascik, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BIDDIX
OPINION
PER CURIAM:
Timothy Biddix appeals his jury conviction and resulting sentence
for conspiracy to possess with intent to distribute methamphetamine,
in violation of 21 U.S.C. §§ 841, 846 (2000). Finding no error, we
affirm.
On appeal, Biddix contends the district court gave the jury a coer-
cive Allen v. United States, 164 U.S. 492 (1896), charge. Because
Biddix failed to object at trial, we review for plain error. See United
States v. Olano, 507 U.S. 725 (1993). Because we conclude from the
materials before us that the Allen charge was not coercive, we find no
plain error.
Biddix also challenges the sufficiency of the evidence to support
his conviction. Construing the evidence in the light most favorable to
the Government, we find a reasonable trier of fact could have found
Biddix guilty beyond a reasonable doubt. See Glasser v. United
States, 315 U.S. 60, 80 (1942). Uncorroborated testimony of accom-
plices may be sufficient to sustain a conviction, United States v. Wil-
son, 115 F.3d 1185, 1190 (4th Cir. 1997), and we do not assess the
credibility of witnesses on appeal. See Glasser, 315 U.S. at 80.
Finally, Biddix contends his 126-month sentence is unconstitu-
tional under Apprendi v. New Jersey, 530 U.S. 466 (2000). Biddix
contends all drug quantities or other sentencing enhancement factors
must be charged in the indictment. Because Biddix’s sentence is
below the 240-month statutory maximum, this argument is foreclosed
by United States v. Kinter, 235 F.3d 192, 201 (4th Cir. 2000), cert.
denied, 532 U.S. 937 (2001).
Accordingly, we affirm Biddix’s conviction and sentence. We dis-
pense 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