UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4345
LEONARD A. BANKS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-00-42)
Submitted: September 23, 2002
Decided: February 7, 2003
Before WIDENER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Cristin K. Bauby, MCGUIREWOODS, L.L.P., Richmond, Virginia,
for Appellant. Paul J. McNulty, United States Attorney, Robert E.
Trono, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BANKS
OPINION
PER CURIAM:
Leonard A. Banks was initially convicted to eighty-seven months
incarceration for possession with intent to distribute eighty-four
grams of cocaine base, in violation of 21 U.S.C. § 841(b)(1)(B)(iii)
(2000). Banks appealed, and the Government cross-appealed. On
Banks’ prior appeal, we affirmed his conviction but vacated his sen-
tence and remanded for resentencing. Banks was resentenced to 135
months incarceration, 5 years supervised release, and a $100 special
assessment.
Banks appeals, raising three issues. First, Banks argues his 135
month sentence is erroneous under Apprendi v. New Jersey, 530 U.S.
466, 490 (2000). We review this claim for harmless error. United
State v. Stokes, 261 F.3d 496, 499 (4th Cir. 2001). This claim is merit-
less. Banks cannot establish his 135 month sentence violates
Apprendi. 21 U.S.C. § 841(b)(1)(B)-(C) (2000); United States v.
Promise, 255 F.3d 150, 152 (4th Cir. 2001) (en banc), cert. denied,
__ U.S. __, 122 S. Ct. 2296 (2002); United States v. Angle, 254 F.3d
514, 518 (4th Cir. 2001) (en banc); United States v. Kinter, 235 F.3d
192, 201 (4th Cir. 2000), cert. denied, 532 U.S. 937 (2001).
Second, Banks argues the evidence was insufficient to establish his
liability for eighty-four grams of cocaine base by challenging the
credibility of a Government witness. We review this claim for clear
error. United States v. Anjou, 16 F.3d 604, 614 (4th Cir. 1994). This
claim is meritless. Witness credibility is not subject to appellate
review. United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
Third, Banks argues the district court erred in allegedly denying his
motion for new counsel. Because Banks failed to renew his objection
when given an opportunity to do so at his resentencing hearing, we
review his claim for plain error. United States v. Bollin, 264 F.3d 391,
419-20 & n.20 (2001). Banks has not demonstrated that the retention
of his counsel affected the outcome of the proceedings in any way;
the claim is therefore meritless. United States v. Olano, 507 U.S. 725,
734 (1993).
UNITED STATES v. BANKS 3
Accordingly, we affirm Banks’ 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 significantly aid the decisional process.
AFFIRMED