Filed: December 15, 2006

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4499(L) (CR-04-127)

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

NATHAN J. HUGHES,

Defendant - Appellant.

O R D E R

The court amends its opinion filed July 20, 2006, as follows:

On page 3, first paragraph, line 11 -- “forty months’” is

corrected to read “forty-one months’.”

For the Court - By Direction

/s/ Patricia S. Connor Clerk UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-4499

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

NATHAN J. HUGHES,

Defendant - Appellant.

No. 05-4501

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LOIS KING,

Defendant - Appellant.

Appeals from the United States District Court for the Southern District of West Virginia, at Parkersburg. Joseph Robert Goodwin, District Judge. (CR-04-127)

Submitted: May 31, 2006 Decided: July 20, 2006

Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion.

Jacqueline A. Hallinan, HALLINAN LAW OFFICES, P.L.L.C., Charleston, West Virginia; Herbert L. Hively, II, Hurricane, West Virginia, for Appellants. Charles T. Miller, Acting United States Attorney, R. Gregory McVey, Assistant United States Attorney, Huntington, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

- 2 - PER CURIAM:

Nathan Joseph Hughes appeals his conviction by a jury and

sentence on charges of conspiracy to distribute 500 grams or more

of cocaine, in violation of

(Count One), and

distribution of 1.1 grams of cocaine, in violation of

(a)(1) (Count Seven) (Appeal No. 05-4499). Lois King appeals

her jury conviction and sentence on a charge of money laundering,

in violation of

(Count Sixteen) (Appeal No. 05-

4501). The district court sentenced Hughes to 140 months’

imprisonment, a three-year supervised release term, and ordered

forfeiture of $200, as well as payment of a $200 statutory

assessment. The district court sentenced King to forty-one months’

imprisonment, three years of supervised release, and ordered

forfeiture of $50,000 (jointly and severally with Kirt R. King,

Appellant King’s son and co-Defendant), and payment of a $100

statutory assessment.

The charges arose in 2001 when the Drug Enforcement

Administration and the Parkersburg Narcotics Violent Crimes Task

Force (“Task Force”) began an undercover investigation into cocaine

trafficking in Wood County, West Virginia, targeting various

individuals in the Parkersburg area including Appellant Hughes, as

well as Kirt King and others.* The evidence at trial revealed that

* The Government introduced evidence at trial that Kirt King and Mario Mason joined forces to purchase cocaine from Columbus, Ohio, process it, and then resell it in the Parkersburg, West

- 3 - the Task Force used Michelle Bailey, an exotic dancer, to make a

controlled purchase of cocaine from Hughes. The Government

presented evidence that Bailey entered a vehicle where Hughes was

sitting and, after engaging in sexual banter, Hughes sold her 1.1

grams of cocaine for $200. The conversation was recorded, and,

over the objections of, and following the denial of a suppression

motion by, Hughes, the district court admitted the entire tape of

the controlled buy, which included repeated discussion between

Bailey and Hughes of sexual matters. Hughes renewed his objection

to the playing of the unredacted tape for the jury, again arguing

that its prejudicial effect outweighed its probative value.

Bailey testified at trial that she was working as a

confidential informant for the Task Force on March 10, 2004, when

she made a controlled purchase of cocaine from Hughes. She

attested that the purchase occurred at night in a car at a gas

station parking lot in Parkersburg. She testified that during the

transaction, Hughes tried to “talk her into doing something,”

specifically perform oral sex on him, before selling her the

cocaine. The audiotape played for the jury was replete with

demands by Hughes that Bailey perform oral sex on him and show him

her breasts. Hughes told Bailey that unless she performed oral sex

on him, he would not “hook her up.”

Virginia area. Testimony as to the amounts of cocaine purchased, processed, and redistributed by the conspiracy members was introduced by a number of witnesses.

- 4 - Task Force Agent Doug Sturm corroborated Bailey’s

testimony as to the controlled buy from Hughes. Laboratory

evidence confirmed that the purchase involved 1.1 grams of cocaine.

Sherman King testified that on several occasions he saw

Hughes at Kirt King’s residence, and saw Hughes give Kirt King

money and later leave with a bag. Mario Mason testified that

Hughes spent time at Kirt King’s house and that he personally had

seen Hughes sell cocaine. Curtis Richard testified that he also

saw Hughes at Kirt King’s house on several occasions, and that

Hughes and King would go off together into a different room.

Stephen Gandee, a co-conspirator, testified that he saw Hughes at

Kirt King’s residence, that he had distributed cocaine with Hughes

at a bar in Parkersburg, and that he had overheard a conversation

at the Carter County Correctional Center between Hughes and Kirt

King about Hughes still owing King $1400.

With respect to Lois King, the Government alleged that

they found 116.5 grams of cocaine in Kirt King’s residence, worth

$26,000, and that Lois King, Kirt King’s mother, owned the

residence. Mario Mason testified that Kirt King would give large

amounts of cash to Appellant King, and that he and Kirt King used

the residence to store and prepare for resale cocaine they had

purchased from sources in Columbus, Ohio. He further testified

that Appellant King was in the residence during the time he and

Kirt King used it to process cocaine. Mason attested that

- 5 - Appellant King was involved in taking the drug money she received

from her son and putting it in assets, such as houses and cars.

The Government presented additional evidence that Appellant King

acquired and paid the land contract on one residence with a lump

sum payment of $14,580 in cash, and that another property was

purchased for $21,000, deeded, and being paid for by Appellant

King, despite her lack of financial resources (as reported in her

income tax records).

On appeal, Hughes claims that the district court erred in

denying his Fed. R. Crim. P. 29 motion for acquittal of Count One

of the superseding indictment on the ground that the evidence was

insufficient to support the charge or the jury’s verdict. The

basis for his challenge is that the witnesses’ credibility was

suspect. Because we do not review witness credibility in

determining the sufficiency of the evidence, see e.g., United

States v. Wilson,

(4th Cir. 1997), we find

Hughes’ assertion to be unavailing.

Hughes’ final challenge on appeal is that the district

court erred in allowing, over his objection, the introduction of

the tape recording of the controlled buy that implicated Hughes

engaging in sexual banter with the Government’s confidential

informant. Hughes alleges that the recording’s prejudicial effect

outweighed its probative value. We find this argument to be

meritless. See generally United States v. Love,

, 603

- 6 - (4th Cir. 1998) (noting that under our “broadly deferential

standard” of review, we will not upset a district court’s Rule 403

decision “except under the most extraordinary of circumstances”)

(citation and internal punctuation omitted).

King’s first claim on appeal is that her sentence is

unreasonable. After the Supreme Court’s decision in United

States v. Booker,

(2005), a sentencing court is no

longer bound by the range prescribed by the sentencing guidelines.

See United States v. Hughes,

(4th Cir. 2005).

However, in determining a sentence post-Booker, sentencing courts

are still required to calculate and consider the guideline range

prescribed thereby as well as the factors set forth in

(a) (West 2000 & Supp. 2005).

We will affirm a post-

Booker sentence if it is both reasonable and within the statutorily

prescribed range. Hughes,

.

As King’s forty-one month prison sentence was within the

properly calculated sentencing guideline range of 41 to 51 months’

imprisonment, it is presumptively reasonable. United States v.

Green,

(4th Cir.), cert. denied,

(2006). King has not rebutted that presumption as the district

court appropriately treated the guidelines as advisory, calculated

and considered the guideline range, and weighed the relevant §

3553(a) factors.

- 7 - King’s final challenge on appeal is that her retained

trial counsel rendered ineffective assistance. She asserts that

her attorney’s continuing disregard for the judge’s instructions

not to thank him regarding his trial rulings, his disregard for the

judge’s instruction not to inquire into details of pending charges

relative to a Government witness, and his use of a pejorative

relative to an Assistant United States Attorney in the presence of

a juror prejudiced her case. She further claims that her attorney

was admonished by the district court five times for statements he

made during his opening statement, that he failed to present a

defense on her behalf, that his questions on direct examination

were met with repeated objections by other attorneys, and that his

cross-examination of Government witnesses lacked all “rhythm or

craft.”

King’s claim of ineffective assistance of counsel must be

brought in a collateral proceeding under

(2000),

unless it conclusively appears from the face of the record that her

counsel was ineffective. United States v. DeFusco,

(4th Cir. 1991). Because the record does not conclusively

establish ineffective assistance of counsel, we decline to consider

this claim on direct appeal.

Accordingly, we affirm the convictions and sentences of

Hughes and King. We dispense with oral argument because the facts

- 8 - and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.

AFFIRMED

- 9 -